Family Appeal

2007 S C M R 1935
[Supreme Court of Pakistan]
Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ
NASIR ALI alias KHIZAR HAYAT----Petitioner
Versus
Mst. TAJ BEGUM and others----Respondents
Civil Petition No.2565-L of 2005, decided on 12th October, 2005.
(On appeal from judgment, dated 10-9-2003 passed by the Lahore High Court,
Bahawalpur Bench, Bahawalpur in Writ Petition No. 1760 of 2003/BWP).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.185(3)---Suit for

dissolution of marriage was decreed by the ,Family Court on basis of Khula with
direction to respondent to refrain from claiming all dowry articles, ornaments and
maintenance allowance---Appeal filed by petitioner against judgment and decree passed
by the Family Court was partly accepted by Appellate Court directing respondent lady to
return ten acres of land to the petitioner which had been given to her by late father of
petitioner and decree for dissolution of marriage was maintained---Constitutional petition
filed by respondent against judgment of Appellate Court below was allowed by the high
Court, observing that petitioner and other legal heirs of deceased were at liberty to
establish their claim regarding transfer of 10 acres of land allegedly given by late father
of petitioner to respondent, through appropriate proceedings---Evidence on record did not
make it clear as to whether alienation of said 10 acres of land by late father of petitioner
was as a consideration of marriage of the petitioner with the respondent or otherwise---
High Court, in circumstances was justified in adopting a safe course to leave the dispute
regarding transfer of 10 acres of land for determination by a Court of competent
jurisdiction---Impugned judgment of the High Court did pot suffer from any legal
infirmity so as to warrant interference by the Supreme Court.
Zahid Hussain Khan, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 12th October, 2005.
JUDGMENT
FAQIR MUHAMMAD KHOKHAR, J.--- The petitioner seeks grant of leave to appeal
from judgment, dated 10-9-2003, passed by a learned Single Judge of the Lahore High
Court, Bahawalpur Bench in Writ Petition No.1760 of 2003/BWP.
2. The respondent Mst. Taj Begum instituted; against the petitioner Nasir Ali alias Khizar
Hayat, a suit for dissolution of marriage, which was decreed by the Judge, Family Court,
Minchinabad, District Bahawalnagar, by judgment and decree, dated 14-2-2003 on the
basis of Khula: The said respondent was directed to refrain from .claiming all dowery
articles, ornaments and maintenance allowance. The petitioner filed an appeal
thereagainst, which was partly accepted by judgment and decree, dated 14-2-2003 by the
Additional District judge, Bahawalnagar and the respondent lady was directed to return
.ten acres of land to the petitioner which had been given to her by the father of the
petitioner. The decree for dissolution of marriage was maintained. The respondent moved
Writ Petition No.1760 of 2003, which was allowed. by the Lahore High Court,
Bahawalpur Bench ; by the impugned judgment, dated 10-9-2003. It was, however,
observed that the petitioner and other legal heirs late Muhammad Amin, were at liberty to
establish their claim regarding transfer of 10 acres of land through appropriate
proceedings.
Page No. 1 of 2
2. The learned counsel for the petitioner argued that the High Court did not take correct
view in holding that the judgment and decree, dated 14-2-2003 for dissolution of
marriage was not appealable before the District Judge/Additional District Judge by the
virtue of section 14(2) of the Punjab Family Courts Act, 1.964. It was next contended that
the evidence on record clearly proved that the alienation of land measuring 10 acres by
the deceased father of the petitioner in favour of the respondent lady was for no other
consideration than that of being the duly wedded wife of the petitioner. Therefore, the
Additional District Judge, Bahawalnagar was justified in accepting the appeal of the
petitioner with the direction to the respondent to relinquish 10 acres of land coupled with
other conditions as laid down by the Family Court. The impugned judgment of the High
Court reversing the judgment and decree of the First Appellate Court was not sustainable
at law.
3. We have heard the learned counsel for the petitioner at some length and have also
perused the judgments of all the Courts along with the available record with his
assistance. From the evidence. produced by the parties, it is not clear whether the
alienation of 10 acres of land by father of the petitioner was as a consideration of
marriage of the petitioner with the respondent or otherwise, Therefore, in the facts and
circumstances of the case the High Court was justified in adopting a safe course to leave
the dispute regarding transfer of 10 acres of land for A determination by a Court of
competent jurisdiction. The impugned judgment does not suffer from any legal infirmity
so as to warrant interference by this Court.
4. For the reasons stated above, we do not find any merit m this petition which is
dismissed and leave to appeal is refused accordingly.
H.B.T./N-2/SC Petition dismissed.
Page No. 2 of 2
2006 S C M R 100
[Supreme Court of Pakistan]
Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ
ABID HUSSAIN---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, ALIPUR, DISTRICT MUZAFFARGARH and

another---Respondents
Civil Petition No.3444-L of 2004, decided on 18th October, 2005.
(On appeal from the judgment, dated 1-11-2004 passed by the Lahore High Court,
Multan Bench, in Writ Petition No.5915 of 2004).
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 14---Right of appeal, exercise of---Principles---Dissolution of marriage---Object

behind non-provision of appeal in case of dissolution of marriage was to protect women,
an under privileged and generally oppressed section of the society, from prolonged and
costly litigation, as such it aimed to put a clog on the right of husband---Improper to
construe S.14 (2)(a) of West Pakistan Family Courts Act, 1964, in a way so as to deprive
a wife from appealing from the decree refusing her relief on the grounds which according
to Family Court had not been proved but granting decree of dissolution on some other
ground---Such interpretation would be in violation of wholesome provision of appeal
contained in S.14 (1) of West Pakistan Family Courts Act, 1964, and to defeat the very
object of introducing the Family Courts Act, 1964.
(b) Interpretation of statutes---
----Proviso to a provision of law---Construction---Scope---Provision of proviso is to be

restrictively construed.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
---Ss. 5 & 14---Constitution of Pakistan (1973), Art.185(3)--Dissolution of marriage---

Grounds other than Khula---Wife filed suit for dissolution of marriage on the ground of
Khula and other grounds of habitual cruelty and non-payment of maintenance---Family
Court decreed the suit on the basis of Khula and directed the wife to return the house
which was given to her as dower at the time of her marriage---Appellate Court allowed
appeal of wife and converted dissolution of marriage on the basis of cruelty, whereby she
was not obliged to return the house---Constitutional petition filed by husband before the
High Court, against the judgment and decree passed by Appellate Court, was dismissed---
Plea raised by husband was that the appeal filed by wife before Appellate Court was not
competent as marriage was dissolved on the ground of Khula---Validity---As Family
Court dismissed the suit of wife or did not decree the suit on the grounds of cruelty and
non-maintenance, such wife could file appeal under S.14 (1) of West Pakistan Family
Courts Act, 1964---Appeal under 5.14(1) of West Pakistan Family Courts Act, 1964,
could be filed not only from the decree passed by Family Court but also from the
`decision given'---Appeal of wife was maintainable against the decision given by Family
Court that wife was not entitled to dissolution of marriage on the grounds of cruelty and /
or non-maintenance---Both the Appellate Court as well as High Court had rightly
evaluated the evidence to conclude that wife was entitled to dissolution of marriage on
the ground of cruelty, which ground had been established---Supreme Court declined to
interfere in the judgment and decree passed by the Courts below---Leave to appeal was
refused.
Syed Shamim Abbas Bokhari, Advocate Supreme Court and Haji Muhammad Rafi
Siddique, Advocate-on-Record for Petitioner.
Page No. 1 of 3
JUDGMENT
KARAMAT NAZIR BHANDARI, J.--- Respondent No.2-wife filed a suit for

dissolution of marriage. In the plaint she asserted habitual cruelty, non-payment of
maintenance for more than 3 years and Khula as the grounds. Out of the pleading the
learned Judge, Family Court framed the following issue, inter alia;
Whether the plaintiff is entitled to get decree of dissolution of marriage as prayed

for? OPP
2. After recording evidence, Family Court passed the decree for dissolution on the basis
of Khula and directed the wife-respondent to return the house constructed over 5 Marlas
of land which was given to her as dower at the time of marriage. The wife-respondent
filed appeal. The learned Additional Judge maintained the decree of dissolution but on the
ground of cruelty. This meant that the wife-respondent was not obliged to return the
house. The appellate decree was challenged by the petitioner in the Lahore High Court,
Multan Bench by way of Writ Petition No.5915 of 2004. The learned Single Bench
dismissed the petition in limine on 1-11-2004, against which the petitioner seeks leave to
appeal.
3. It has been vehemently urged by Mr. Shamim Abbas Bokhari, learned Advocate
Supreme Court that against the decree of the Family Court, appeal of the respondent was
not competent. In this connection he has relied on section 14 of the Family Courts Act,
1964. He has also urged that decree for dissolution could not have been passed on the
ground of habitual cruelty, as there is no evidence on record to sustain the finding.
4. The question of competency of appeal does not seem to have been urged before the
learned Additional District Judge. Certainly it has not been raised in the grounds of writ
petition nor it seems to have been argued at the time of hearing as it does not find
mention in the impugned judgment. The petitioner cannot be permitted to raise this
question in this Court for the first time. Nonetheless we have examined this point as it has
been argued by the learned counsel with considerable vehemence.
5. Section 14 of the Family Courts Act, 1964 reads:--
"14. Appeal.---(1) Notwithstanding anything provided in any other law for the
time being in force, a decision given or decree passed by a Family Court shall be
appealable:--
(a) to the High Court, where the Family Court is presided over by a District
Judge, an Additional District Judge or any person notified by Government to be of
the rank and status as of a District Judge or an Additional District Judge; and
(b) to the District Court, in any other case.
(2) No appeal shall lie from a decree by a Family Court:-
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in
clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;
(b) for dower or dowry not exceeding Rupees thirty thousand;
(c) for maintenance of Rupees one thousand or less per month.
(3) No appeal or revision shall lie against an interim order passed by a Family Court.
(4) The Appellate Court referred to in subsection (1) shall dispose of the appeal within a
period of four months."
Page No. 2 of 3
6. The reliance of the learned counsel is on subsection (2) clause (a) of this section which
debars an appeal from a decree of Family Court for dissolution of marriage except in the
case when the marriage is dissolved on the ground mentioned in clause (d) of item (viii)
of section 2 of the Dissolution of Muslim Marriages Act, 1939. Item (viii) describes the
various forms of cruelty and clause (d) states that if the husband disposes of the property
of the wife or prevents her from exercising her rights over it, it is a form of cruelty.
According to Mr. Shamim Abbas Bokhari, since the decree in this case is passed on the
ground of Khula, as such respondent's appeal was barred under subsection (2) of section
14.
7. The argument ignores the provision contained in subsection (1) which opens with the
non obstante clause and states "the decision given or decree passed by the Family Court
shall be appealable". Subsection (2) is in the nature of a proviso to subsection (1) and
prohibits filing of appeal in case of dissolution of marriage on any ground except the one
mentioned therein. The object behind non-provision of appeal in case of dissolution of
marriage is to protect women, an under privileged and generally oppressed section of our
society from prolonged and costly litigation. It aims to put a clog on the right of husband.
It is well-established that the provision of proviso is to A be restrictively construed. It
would be improper to construe subsection (2)(a) in a way so as to deprive a wife from
appealing from the decree refusing her relief on the grounds, which according to the
Family Court have not been proved but nevertheless granting the decree of dissolution on
some other ground. Such an interpretation would be in violation of the wholesome
provision of appeal contained in subsection 14(1) and the very object of introducing the
Family Courts Act.
8. In the case in hand the wife-respondent claimed dissolution on the grounds other than
that of Khula also. The issue did not contain any reason on proof of which the wife was to
be granted the decree of dissolution. The ground of habitual cruelty and beating had been
specifically taken in paragraphs 3 and 4 of the plaint. The Family Court granted the
decree of dissolution on the ground of Khula and for this purpose it directed the return of
the house since in its judgment the wife had enjoyed this benefit from the marriage with
the petitioner. In other words the Family Court dismissed her suit or did not decree the
suit on the grounds of cruelty and non-maintenance. I fail to understand as to why such
an aggrieved wife cannot file an appeal under section 14(1) of the Family Courts Act,
1964. I am fortified in this conclusion by the language used in subsection (1). Under this
provision appeal lies not only from the decree passed by the Family Court but also the
"decision given" and in this case the decision given was that wife-respondent is not
entitled to dissolution of marriage on the grounds of cruelty and/or non-maintenance. It is
held and declared that her appeal was very much competent. The objection to its
maintainability is rejected.
9. Both the appellate Court as well as the High Court have evaluated the evidence to
conclude that wife-respondent was entitled to dissolution on the ground of cruelty.
Normally this Court does not appraise the evidence to come to its own conclusion.
Nonetheless after going through the evidence we are satisfied that the ground of habitual
cruelty has been established.
10. No case for grant of leave is made out. Leave is refused and this petition is dismissed.
M.H./A-181/S Petition dismissed.
Page No. 3 of 3
P L D 2001 Supreme Court 128
Present: Iftikhar Muhammad Chaudhry and Deedar Hussain Shah, JJ
SYED MUHAMMAD ---Petitioner
versus
Mst. ZEENAT and others---Respondents
Civil Petition No. 134-Q of 1998, decided on 1st November, 2000.
(On appeal from the judgment dated 23-6-1998 of the High Court of Balochistan, Quetta,
passed in Constitutional Petition No.284 of 1999).
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 17---Civil Procedure Code (V of 1908), S.48---Execution of decree passed by

Family Court---Provisions of S.48, C.P.C.---Applicability--Except Ss. 10 & 11, C.P.C. no
other provision of the Code was applicable to the proceedings before Family Court as
provided under S.17, West Pakistan Family Courts Act, 1964---Provisions of S.48,
C.P.C., therefore, could not be pressed into service in the proceedings under the West
Pakistan Family Courts Act, 1964.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 14---Limitation Act (IX of 1908), Arts. 181 & 182---Execution of decree passed by
Family Court---Limitation---Scope---Family Court is not a Civil Court stricto senso,
therefore, provisions of Art. 182, Limitation Act, 1908 cannot be pressed into
service---Reliance has to be placed on the residuary Article i.e. Art.181 of Limitation Act,
1908 for execution of decree passed by Family Court---Limitation for execution of such
decree is thus three years when the right to apply accrues.
(c) Islamic Law---
---- Dower---Recovery of---Limitation---Prompt dower is to be recovered during

subsistence of marriage---Husband acknowledges the right of his wife during subsistence
of marriage and he is deemed to remain under a legal obligation to pay prompt
dower---No specific period of limitation for implementation of decree for prompt dower
can be fixed as whenever wife moves the legal forum for satisfaction of her right,
husband is under legal obligation to satisfy such decree.
(d) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 14---Limitation Act (IX of 1908), Art. 181---Constitution of Pakistan (1973), Art.
185(3)---Execution of decree for prompt dower ---Limitation--Marriage existed between
the parties---Suit for recovery of dower was decreed in favour of wife on 24-10-1979 and
execution of the decree was filed on 10-11-1996---Husband raised objection to the
execution of decree being time-barred---Family Court overruled the objection but the
Lower Appellate Court allowed the appeal and accepted the objection---High Court in
exercise of Constitutional jurisdiction set aside the order passed by the Lower Appellate
Court---Validity---Postponement of recovery of dower for any consideration during
subsistence of marriage would not deprive the wife from execution of the decree being
barred by time---No sooner proceedings of execution were launched that date would be
treated as denial by husband to satisfy the liability of prompt dower and under the
provisions of Art. 181, Limitation Act execution proceedings would be considered within
time--Supreme Court declined interference with the judgment passed by High Court
whereby objection to the maintainability of execution proceedings was rejected---Leave
2o appeal was refused.
Basharatullah, Senior Advocate Supreme Court and Mehta W.N. Kohli,

Advocate-on-Record for Petitioner.
Page No. 1 of 3
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioner seeks leave to appeal against

judgment dated 23rd June, 1998 passed by High Court, Balochistan whereby
Constitutional Petition No.284 of 1997 filed by respondent No.l was allowed and as a
consequence whereof the order of executing Court/Family Judge dated 22nd February,
1997 was restored.
2. Succinctly stating facts of the case are that petitioner and private respondent are related
to each other as husband and wife. The tie of marriage also exists between them. The
respondent No.1 obtained a decree for recovery of prompt dower against the petitioner
from the Court of Family Judge, Turbat as back as on 24th October, 1979. However,
proceedings for execution of decree were filed by her on 10th November, 1996. Petitioner
raised objection on execution of the decree being barred by time. Learned executing
Court vide order dated 27-2-1997 overruled the objection and directed the petitioner to
satisfy the decree. Feeling aggrieved from said order petitioner preferred appeal which
came up for hearing before Additional District Judge, Turbat who vide order dated 10th
June, 1997 accepted the same, as a consequence whereof execution application of private
respondent was dismissed. Under the circumstances a Constitutional Petition was filed by
respondent which has been allowed vide impugned judgment by a Division Bench in
Chambers of High Court of Balochistan.
3. Learned counsel contended that execution application filed by respondent on 10th

November, 1996 for execution of decree dated 24th October, 1979 was hopelessly barred
by time, therefore, Additional District Judge/Appellate Court has rightly set aside order of
executing Court dated 27-2-1997 but learned Division Bench in Chambers of High Court
of Balochistan without taking into consideration that under section 48, C.P.C. a maximum
period of 6 years for execution of decree has been prescribed and any such application
submitted beyond the prescribed period shall not be entertained because due to lapse of
time the decree became inexecutable.
4. We have heard learned counsel for petitioner at length and have also examined the
impugned order carefully. At the outset it may be noted that respondent while instituting
Constitutional petition, challenged order dated 10-6-1997 mainly on two scores, firstly
the appeal filed by petitioner against order of executing Court dated 27-2-1997 was not
maintainable under section 14 of the Family Courts Act, 1964, and secondly no period
has been prescribed for recovery of dower under the Limitation Act because during
subsistence of marriage recurring cause of action accrues to decree-holder to recover the
dower. Learned High Court decided former question against the respondent holding that
appeal was competent against order of the executing Court in terms of section 14 of the
Family Courts Act, 1964, therefore, this aspect of the case needs no further consideration
because in instant petition competency of appeal against an order passed by executing
Court is not open to challenge as far as petitioner is concerned.
5. In respect of latter question, however, it was held that decree of dower cannot be
refused to be executed being barred by limitation. Therefore, we would confine ourselves
only to this aspect of the case. According to Article 103 of Limitation Act all suits for the
decree of prompt dower can be instituted within three years from its demand whereas
time prescribed for the suit of deferred dower is three years under Article 104 of the
Limitation Act. In the instant case as tie of marriage exists between the parties, therefore,
decree dated 24th October, 1979 for recovery of dower would be deemed to be in respect
of her prompt dower which consists of both the money as well as the property. Now the
question for consideration is that what should be the period of limitation for filing of
execution application for satisfaction of prompt dower. As far as section 48, C.P.C. is
concerned its provisions cannot be pressed into service because under section 17 of the
Family Courts Act, 1964 Code of Civil Procedure, 1908 except its sections 10 and 11 is
not applicable to proceedings before any Family Court. As far as Limitation Act is
concerned under its Article 182113 period for execution of a decree of any Civil Court
has been prescribed to be three years but in our opinion as the Family Court is not a Civil
Court stricto senso, therefore, the provisions of this Article can also not be pressed into
service. Thus reliance has to be placed on the residuary Article i.e. Article 181 of the
Page No. 2 of 3
Limitation Act, which provides the period of three years when the right to apply accrues.
As it has been noted hereinabove that nature of the liability is of prompt dower,
recognition of which has been made judicially by a Family Court in favour of respondent
because the prompt dower is to be recovered during subsistence of marriage, therefore,
no specific period of limitation for implementation of decree of such nature can be fixed
because due to subsistence of marriage the judgment-debtor i.e. the husband
acknowledges the right of his wife and he is deemed to remain under a legal obligation to
satisfy the decree whenever the decree-holder/wife has moved the legal forum for
satisfaction of her right. This proposition can be considered .from another angle i.e. that
as tie of marriage exists between parties, therefore, the wife/decree-holder out 'of number
of considerations may have postponed the implementation of the decree including the
consideration that let relations between the spouses remain cordial or the husband is
looking after her as well as other family members or the husband on account of his poor
financial position is not in a position to implement the decree but such postponement for
any consideration during subsistence of marriage would not deprive the decree-holder
(wife) from execution of the decree being barred by time and no sooner proceedings of
execution are launched that date would be treated as a denial by the judgment-debtor to
satisfy the liability of prompt dower and Execution proceedings shall be considered
within time as per requirement of Article 181 of Limitation Act. Thus for the above
reasons no interference is called for in the impugned judgment passed by learned High
Court of Balochistan.
The petition is dismissed and leave to appeal is refused.
Q.M.H./M.A.K./S-84/S Petition dismissed
Page No. 3 of 3
1987 S C M R 1161
Present: Nasim Hasan Shah and Saad Saood Jan, JJ
Mirza DAUD BAIG--Petitioner
Versus
ADDITIONAL DISTRICT JUDGE,

GUJRANWALA and others--Respondents
Civil Petition No. 1031 of 1986, decided on 27th April, 1987.
(On appeal from the judgment, dated 1-10-1986 of the Lahore High Court, Lahore in Writ
Petition No.2181 of 1986).
West Pakistan Family Courts Act (XXXV of 1964)--
---Ss. 14, 7 & 19--Court Fees Act (VII of 1870), Sched. I, Art.1 and Ss. 6, 7 &
19--AISpeal--Memorandum of appeal to be filed before District Court falls under
Sched.1, Art.1, Court Fees Act, 1870 and court-fee is payable ad valorem on the
subject-matter of dispute.
Ordinarily a plaint in a suit for maintenance falls under section 7(i) and (ii) of the Court
Fees Act and attracts ad valorem court-fee on the amount claimed to be computed in
accordance with Article 1 of Schedule I of the Court Fees Act. But section 19 of the West
Pakistan Family Courts Act, 1964, alters the law contained in the Court Fees Act, 1870 to
the extent that the court-fee to be paid on any plaint filed before a Family Court shall be
Rs.15 (in the Punjab). The concession with regard to the reduction in the court-fee is
restricted only to the "plaint", and not to a "memorandum of appeal". The omission of
"memorandum of appeal" in this section is significant because both a "plaint" and a
"memorandum of appeal" are included in Article 1 of Schedule I of the Court Fees Act as
attracting ad valorem court-fees. The express mention of one implies the exclusion of the
other (expressio unius, est exclusio alterius). The Legislature intended to exclude from
the purview of section 19 of the Family Courts Act the "memorandum of appeal" and
confined the concession with regard to payment of court-fees only on a "plaint".
A Family Court is a "Court of Justice", to which the Court Fees Act would apply in terms
of section 6 thereof.
The Family Court is a Civil Court and despite the exclusion of the Civil Procedure Code
and the Evidence Act in their application to proceedings before the Family Court it is a
judicial Court in every sense. The appeal was filed before the Additional District Judge,
under section 14 of the West Pakistan Family Courts Act, and the said Court is a Civil
Court. Thus, a "memorandum of appeal" to be filed before the District Court falls under
Article 1 of Schedule I of the Court Act and the court-fee in such cases is payable ad
valorem on the subject-matter of the dispute.
Mst. Gaman v. Taj Din P L D 1968 Lah. 987; Muhammad Anwar Khan v. Additional
District Judge etc. P L D 1978 Lah. 716 and Hamida Begum v. First Additional District
Judge, Karachi Constitution Petition No. 1319 of 1975 ref.
Mahmood A. Qureshi Advocate-on-Record for the Petitioner.

Zakiuddin Paul, Senior Advocate Supreme Court as Amicus Curiae.
Azeem Butt, Advocate Supreme Court for Respondents.
Date of hearing: 27th April, 1987.
ORDER
NASIM HASAN SHAH, J.-- The question which falls for determination in this case is
whether the same court-fee which is prescribed for filing a suit filed under the West
Page No. 1 of 3
Pakistan Family Courts Act (XXXV of 1964) is also leviable on a "memorandum of
appeal" or whether the court-fee on a memorandum of appeal is to be paid ad valorem?
In this case the suit filed was for maintenance by the wife and the petitioner herein, who
was her husband, was directed to pay future maintenance at the rate of Rs,500 per month
as also Rs.6,500 towards arrears of maintenance by the Family Court Judge. The
petitioner challenged this order by an appeal but on the "memorandum of appeal" he paid
the same court-fee as was affixed on the plaint which was filed by his wife, namely,
Rs.15. The Appellate Court, namely, the Additional District Judge was of the view that
the court-fee of Rs.15 paid was insufficient. In his opinion as this case related to a claim
for future maintenance it was governed by section 7(ii) of the Court Fees Act and the
court-fee was payable according to the value of the subject-matter of the suit, namely, ten
times of the amount claimed payable for one year which came to Rs.66,500. On that view
of the matter the petitioner was called upon to make up the deficiency in court-fee
amounting to Rs.4,972. However, the petitioner failed to make up the deficiency within
the time prescribed whereupon the appeal was dismissed by the learned Additional
District Judge. The petitioner challenged the above order by a writ petition in the High
Court. This too was dismissed. Hence this petition for leave to appeal.
In the West Pakistan Family Courts Act, 1964 the matter of institution of suits is dealt
with in section 7 of the Act which lays down inter alia:-
"Section 7. Institution of suit.-- (1) Every suit before a Family Court shall be
instituted by the presentation of a plaint or in such other manner and in such Court
as may be prescribed.
(2)…………………”
The court-fees payable on the plaint is specified in section 19 of the Act, as follows:
"Section 19. Court-fee.-- Notwithstanding anything to the contrary contained in

the Court Fees Act, 1870, the Court-fees to be paid on any plaint filed before a
Family Court shall be rupee one for any kind of suit.
[Punjab Amendment
[Substitute "rupees fifteen for rupee one" (Punjab Act 14 of 1973, section 9) ] .
An appeal against a decree passed by a Family Court, not presided over by the
District Judge, lies to the District Court. In this context the question arose whether the
appeal filed by the petitioner in the District Court after paying Rs.15 court-fee, which was
the amount of the court-fee payable on the plaint, was the proper court-fee or whether the
court-fee on the memorandum of appeal was to be paid ad valorem namely Rs.4,987. As
mentioned already both the learned Additional District Judge and the High Court were of
the view that the court-fee in this case was payable ad valorem. In this connection,
reliance was placed on the provisions of clause (ii) of section 7 of the Court Fees Act.
The relevant part of section 7 is reproduced below for facility of reference: --
"7. The amount of fee payable under this Act in the suits next hereinafter
mentioned shall be computed as follows:-
(i) In suits for money (including suits for damages or compensation, or arrears of
maintenance of annuities, or of other sums payable periodically according to the
amount claimed:
(ii) In suits for maintenance and annuities or other sums payable periodically--
according to the value of the subject-matter of the suit, and such value shall be
deemed to be ten times the amount claimed to be payable for one year."
It requires no gainsaying that ordinarily a plaint in a 'suit for maintenance falls under
section 7 (i) and (11) of the Court Fees Act and attracts ad valorem court-fee on the
amount claimed to be computed in accordance with Article 1 of Schedule I of the Court
Page No. 2 of 3
Fees Act. Bui section 19 of the West Pakistan Family Courts Act, 1964, alters the law
contained in the Court Fees Act, 1870 to the extent that the court-fee to be paid on any
plaint filed before a Family Court shall be Rs.15 (in the Punjab). It is noteworthy,
however, that the concession with regard to the reduction in the court-fee is restricted
only to the "Plaint", and not to a "memorandum of appeal". The omission of
"memorandum of appeal" in this section is significant because both a "plaint" and a
"memorandum of appeal" are included in Article 1 of Schedule 1 of the Court Fees Act as
attracting ad valorem Court-fees. It is an accepted Principle of interpretation that the
express mention of one implies the exclusion of the other (expressio unisus, est exclusio
alterius). It is manifest, therefore, that the Legislature intended to exclude from the
purview of section 19 of the Family Court Act the "memorandum of appeal" and confined
the concession with regard to payment of court-fee's, only on a "plaint".
There can hardly be any doubt that a Family Court is a "Court of Justice", to which the
Court Fees Act would apply in terms of section 6 thereof. It was held in Mst. Gaman v.
Taj Din P L D 1968 Lah. 987 by our late lamented brother K.E. Chauhan, J. (while sitting
in the High Court) that a Family Court was a Court for all purposes. This view was
endorsed by a Division Bench of the Lahore High Court (consisting of Sardar
Muhammad Iqbal and Ghulam Mujaddid Mirza,JJ. ) in Muhammad Anwar Khan v.
Additional District Judge etc. P L D 1978 Lah. 716 and reiterated by a Bench of the Sind
High Court (consisting of Abdul Kadir Shaikh, C. J. and Mahmood, J) in the case of
Hamida Begum v. First Additional District Judge, Karachi (Constitutional Petition
No.1319 of 1975 decided on 24-2-1976).
We too are of the same opinion. The Family Court is a Civil Court and despite the
exclusion of the Civil Procedure Code and the Evidence Act in their application to
proceedings before the Family Court it is a judicial Court in every sense. Moreover, the
appeal in this case was filed before the Additional District Judge, under section 14 of the
West Pakistan Family Courts Act, and the said Court undoubtedly is a Civil Court. The
result, therefore, is that a "memorandum of appeal" to be filed before the District Court
falls under Article 1 of Schedule 1 of the Court Fees Act and the court-fee in such cases is
payable ad, valorem on the subject-matter of the dispute.
The upshot is that there is no force in this petition which is, accordingly, dismissed
hereby.
M . B . A . / D-2 / S Petition dismissed
Page No. 3 of 3
1987 S C M R 684
Present: Muhammad Afzal Zullah and Javid Iqbal, JJ
Mst. KANIZ MAI--Petitioner
Versus
MUHAMMAD NAWAZ and another--Respondents
Civil Petition for Special Leave to Appeal No.944 of 1986, decided on 24th January,
1987.
(From the judgment/order of the Lahore High Court, Multan Bench, dated 28-4-1986
passed in Writ Petition No.366 of 1986).
Constitution of Pakistan (1973)- -
---Art. 185(3)--West Pakistan Family Courts Act (XXXV of 1964), Ss.5 & 1-4--West
Pakistan Family Courts Rules, 1965, Rr.3 & 13--Jurisdiction-Leave to appeal granted to
examine inter alia the question of jurisdiction of civil Court as to whether it could set
aside an ex parte decree for dissolution of marriage passed by a Family Court and in such
behalf, effect of judgments of Supreme Court in 1983 S C M R 569 and P L D 1984 SC
95 could also be examined.
Mst. Kaneez Fatima v. Mumtaz Khan and others 1983 S C M R 569 and Muhammad
Azam v. Muhammad Iqbal and others P L D 1984 SC 95 ref.
Mobashir Latif Ahmad, Advocate Supreme Court with Hamid Aslam Qureshi
Advocate-on-Record for Petitioners.
Ch. M. Ashraf, Advocate Supreme Court with M.A. Kadri, Advocate-on-Record for
Respondent No.1.
Date of -searing: 24th January, 1987.
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment
dated 28-4-1986 of the Lahore High Court; whereby petitioner's Constitutional Petition
arising out of a matrimonial matter, was dismissed.
2. An ex parte decree for dissolution of marriage was passed in favour of the petitioner
against respondent No.1 by a Family Court on 15-1-1979. The said respondent instead of
seeking the reversal of ex parte decree from the Family Court itself by making an
application under the rules in that behalf, filed a suit for declaration in a civil Court that
the ex parte decree was obtained by fraud and that the petitioner continued to be his
legally-wedded wife. This suit was contested by the petitioner, inter alia, on the ground
that the civil Court had no jurisdiction in the matter. The suit was decreed, against her, on
22-9-1981. Her appeal failed. She also filed a Revision but it was withdrawn on
17-5-1983. The petitioner again filed a suit for dissolution of marriage in the Family
Court on 31-5-1983 but the same was also withdrawn. She filed a suit for jactitation of
marriage before the Family Court out of which the present proceedings have arisen
alleging that an out of Court settlement having reached, a Talaqnama was executed on
6-5-1980 and that thereafter she married Yousaf. There were some criminal proceedings
on account thereof, and because the respondent had again started claiming her to be his
wife, she filed a suit for jactitation of marriage. This suit was decreed by a learned Family
Judge with a finding that the civil Court had no jurisdiction to set aside the ex parte
decree for dissolution of marriage earlier passed by the Family Court. It was, therefore,
held that notwithstanding the civil Court's decree the ex parte for dissolution of marriage
passed on 15-1-1979 held the field. On the question of Talaqnama also the finding was
rendered against the respondent who filed an appeal which was allowed by a learned
Additional District Judge and the petitioner's suit for jactitation of marriage, was
Page No. 1 of 2
dismissed on 3-3-1986, both on the question of Talaqnama as also on the jurisdiction of
the civil Court. The matter having then been brought before the High Court by the
petitioner in a writ petition, the same has been dismissed on 28-4-1986. Leave to appeal
has now been sought by the petitioner.
3. After hearing the learned counsel we consider it a fit case for examining, inter alia, the
question of the jurisdiction of the civil Court as to whether it could set aside an ex parte
decree for dissolution of marriage passed by a Family Court. In this behalf, the effect of
the judgments of this Court in Mst. Kaneez Fatima v. Mumtaz Khan and others 1983 S C
M R 569 and Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95 could
also be examined.
4.Leave to appeal accordingly, is granted. Security Rs.2,500. Stay order passed on

23-12-1986 shall remain in operation.
S.Q./K-6/S Leave granted.
Page No. 2 of 2
1987 S C M R 2029
Present: Aslam Riaz Hussain, S. A. Nusrat and Saad Saood Jan, JJ
MUHAMMAD ANWAR KHAN--Petitioner
versus
Mst. YASMIN ZAFAR--Respondent
Civil Petition No. 85 of 1957, decided on 24th February, 1987.
(On appeal from the judgment and order of the Lahore High Court at Lahore, dated
17-12-1986 passed in Writ Petition No. 1748 of 1986).
Guardians and Wards Act (VIII of 1890)--
---S.12--West Pakistan Family Courts Act (XXXV of 1964), S.14-Constitution of

Pakistan (1973), Art. 185(3)--Leave to appeal granted to examine whether an order
passed by a Family Court/Guardian Judge under S.12 of Guardians and Wards Act, 1890
amounts to a decision within the meaning of S.14 of Family Courts Act, 1964 and an
appeal there from would be competent.
A.W. Butt, Advocate Supreme Court instructed by Mian Attaur Rahman,

Advocate-on-Record for Petitioner.
Iqbal Ahmad Qureshi, Advocate-on-Record for Respondent.
Date of hearing: 24th February, 1987.
ORDER
S.A. NUSRAT, J.--The dispute in this petition relates to the custody of two minor
daughters, namely, Adila and Rubins, then aged about 8 and 7 years respectively, born out
of the wedlock o1 the contesting parties.
2. The respondent instituted proceedings under the Guardian and Wards Act for the
custody of her said .two daughters and applied for their temporary custody by moving an
application under section 12 of the Act. The application was dismissed by the learned
Guardian Judge. The respondent preferred an appeal under section 14 of the Family
Courts Act challenging the said order. The appeal was dismissed by the learned District
Judge on the ground that the appeal from the order of the Guardian Judge, passed under
section 12 of the Act, was not competent under section 14 of the Family Courts Act. The
respondent thereupon filed a Constitutional Petition in the Lahore High Court challenging
the order of the learned District Judge. The Constitutional Petition was allowed as per
impugned judgment by the learned High Court and the order of the District Judge was set
aside with the direction that respondent's appeal be disposed of on merits.
3. The respondent, to whom notice was issued, is represented by her learned counsel and
has produced copy of a judgment, dated 16-2-1987 passed by the District Judge showing
that in terms of the remand order the respondent's appeal was duly heard and the order of
the Guardian Judge, dated 27-7-1985 was set aside directing that the custody of the
minors shall be handed over to the respondent after they had taken the academic year
examination in the Sahiwal school. The learned counsel for the petitioner, however,
insisted that the question raised in this petition is one of law and an authoritative
pronouncement by this Court was necessary to resolve the controversy.
4. In the circumstances, we would grant leave to appeal to examine the question whether
an order passed by a Family Court/Guardian Judge under section 12 of the Guardian and
Wards Act amounts to a decision within the meaning of section 14 of the Family Courts
Act 1964 and an appeal there from will be competent.
Page No. 1 of 2
Security Rs.2,000. The appeal will be made ready on the present record with liberty to the
parties to file any further documents, if so required.
S.Q./M-213/S Leave granted.
Page No. 2 of 2
Present : Muhammad Haleem, C. J., Muhammad Afzal Zullah and Nasim Hasan
Shah, JJ
IH SAN-UR-REHMAN-Appellant
Versus
Mst. NAJMA PARVEEN-Respondent
Civil Appeal No. 744 of 1984, decided on 6th March, 1985.
(On appeal from the judgment of the Lahore High Court, dated 10-10-1983 in Civil
Revision No. 619 of 1983).
(a) Constitution of Pakistan (1973)-----
-------Art. 185 (3)-Guardians and Wards Act (VIII of 1890), Ss. 4, 4-A, 47 & 48-Civil
Procedure Code (V of 1908), Ss. 2, 4, 115 & 141West Pakistan Family Courts Act
(XXXV of 1964), Ss. 2, 3, 4, 5, 14, 17 & 25-Custody of minor-Revision in guardianship
matters before High Court-Leave to appeal granted inter alia to examine contention that
judgment of High Court, on which High Court, relied for holding that revision was
competent viz Parveen v. Muhammad Azhar P L D 1975 Lab. 334 had been disapproved
in Supreme Court Judgment Sakhawat Ali and another v. Mst. Shui Khelay P L D 1981 S
C 454.
Mrs. Parveen v. Kh. Muhammad Asghar P L D 1975 Lab. 334 and Manzoor Hussain's
case P L D 1977 Lah. 911 not approved.
Sakhawat Ali and another v. Mst. Shui Khelay P L D 1981 S C 454 mentioned.
Mst. Zaibun Nisa v. Muhammad Mozammil P L D 1972 Kar. 410; Muhammad Ismail v.
Mst. Zubeida Khatoon P L D 1973 Kar. 503 and Mst. Farida Parveen P L D 1971 Kar.
118 approved.
Ghulam Hussain v. Mst. Farzana (minor) 1981 S C M R 953 ref.
Muhammad Deen Malik 1982 S C M R 1223 disting.
(b) Guardians and Wards Act (VIII of 1890)-----
----S. 47, proviso [as amended by Guardians and Wards (Amendment) Ordinance (XI of
1980), S. 2]-Historical perspective of amendment in S. 47-Amendment made by
legislature in . S. 47, held, was under some misapprehension.
(e) Precedent---
--Two different views expressed by separate High Courts-Such views although have
pursuasive value for each other but were not as such binding on each other.
(d) Interpretation of statute----
--Presumption-Redundancy-Although presumption is that redundancy is not to be

imputed to an enactment nor ignorance of law is to be imputed to law-making Agencies,
but such presumption can differ from case to case-Superior Courts, in proper situations
can make corrections where legislature is demonstrably shown to have made a visible
error.
(e) Interpretation of statute—--
Page No. 1 of 13
------Amendment in law-Amendment in statute made earlier to decision of Supreme
Court-.Such amendment, held, would not be deemed to have diluted, in any way, effect of
law declared by Supreme Court-[Precedent].
Sakhawat Ali and another v. Mst. Shui Khelay P L D 1981 S C 454 mentioned.
(f) Constitution of Pakistan (1973)----
--Art. 189-Guardians and Wards Act (VIII of 1890), S. 47 [as amended by Guardians and
Wards (Amendment) Ordinance (XI of 1980), S. 2]-Amendment made in Act earlier to
decision of Supreme Court -Declaration of law by Supreme Court, in pursuance of
mandate of Constitution, held, would override amendment made in Act and nullify its
effect by virtue of Art. 189 of Constitution of Pakistan (1973), Art. 189.
(g) West Pakistan Family Courts Act (XXXV of 1964)------
-----Ss. 25, 17 & 14-Guardians and Wards Act (VIII of 1890), Ss. 47, proviso and 48
--Civil Procedure Code (V of 1908), Ss. 141, 115 & 2-Guardianship - Application of S.
25, West Pakistan Family Courts Act, 1964-Family Court -"Procedure" to be adopted in
trial -Revisional and appellate jurisdiction of High Court-Extent Section 25 of Family
Courts Act, 1964 excludes application of Guardians and Wards Act, 1890 at stage when
original trial ends (except when original trial Court implements its own orders or
regulates conduct or proceedings of guardian or similar other matters)-Words "matter" in
S 25, West Pakistan Family Courts Ac , 1964-Significance-Section 25, West Pakistan
Family Courts Act, 1964 cannot be interpreted so as to extend it to appeals or revisions
but S. 25 applies to a Family Court which was firstly to be deemed to be a District Court
and then shall follow "procedure" when conducting a trial, as prescribed in Guardians and
Wards Act, 1890 and not in West Pakistan Family Courts Act, 19645. 25, West Pakistan
Family Courts Act, 1964 does not apply to higher forums particularly High Court when
dealing with an appeal or revision -Revisional forum under S. 41, Guardians and Wards
Act, 1890 was thus excluded from ambit of S. 25, West Pakistan Family Courts Act,
1964-High Court, therefore, has no revisional jurisdiction whether in cases dealt under
West Pakistan Family Courts Act, 1964 or those dealt under Guardians and Wards Act,
1890 by virtue of S. 25, West Pakistan Family Courts Act, 1964 Appeals provided under
S. 14, West Pakistan Family Courts Act, 1964 continues and will continue to cover field
of remedy, of course, apart from constitutional jurisdiction.
Section 25, West Pakistan Family Courts Act, 1964 permitted the Family Court when
deemed to be District Court under the Guardians and Wards Act to adopt the "procedure"
prescribed in the Guardians and Wards Act as a mode of trial during the trial and
thereafter in so far as the said Act is concerned, the Family Court becomes functus
officio. It does not need any further repetition or support of reason. Section 25 is very
clear on this question. It clearly excludes the application of the Guardians and Wards Act
to the stage when the original trial ends except when the original trial Court, according to
the various provisions of the Guardians and Wards Act, implements its own orders or
regulates the conduct or proceedings of the guardian and similar other matters. The use of
the word "matter" in section 25 of the Family Courts Act is in this context (in addition to
the trial) and not in the context of appeals and revisions. This also explains the omission
of the expression, "mode of trial" or for that matter "trial" from section 25 of the Family
Courts Act: For another reason also section 25 of the Family Courts Act cannot be
interpreted so as to extend it, to appeals or revisions because it obviously applied to a
Family Court which according to this provision shall firstly be deemed to be a District
Court and then shall follow the procedure when conducting a trial, as prescribed in the
Guardians and Wards Act and not in the Family Courts Act. The section obviously does
not apply to the higher forums particularly the High Court when dealing with an appeal
or revision because it is only for a Family Court that a deviation has been made to a
limited procedural extent from what is provided in the Family Courts Act and nothing is
said in section 25 about any other Court including the High Court. A revisional forum
under section 47 is thus excluded from the ambit of section 25. Yet another argument
namely, that section 141, C.P.C. would operate independently so as to make scope for the
High Courts exercising revisional powers in cases decided by a Family Court even under
the Family Courts Act notwithstanding section 17 of that Act which generally bars its
application, has no force. Whether in the present context a revisional forum will be one
Page No. 2 of 13
relatable to procedure or not is not very important because for anther very strong reason
the argument has no force. Section 141, C. P. C. is attracted only when all its conditions
are satisfied and no provision is made to the contrary in the legislation which otherwise
covers the case. Family Court will have to be treated as out of the scope of the C. P. C.
not only because of section 17 which excludes the application of C. P. C. but also because
the entire provisions of the Family Courts Act make a departure from the major stages of
procedure prescribed in the Civil Procedure Code. The intention was to provide speedy
disposal of matters mentioned in the Schedule to the Family Courts Act. Therefore, the
application of C.P.C. was excluded except in so far as it has been specifically made
applicable. That intention being clear, revisional power cannot be assumed by the High
Court on the basis of the general provision namely, section 141 of the C.P.C.
To attract revisional jurisdiction of the High Court by virtue of section 115 read with
section 141, C. P. C., it would be essential that the conditions laid down in section 115 of
the C. P. C. are also satisfied. As soon as this exercise is commenced to see whether the
various conditions (like those of "case decided" "subordinate Court" etc. prescribed in
section 115) are satisfied or not, reference and reliance would have to be made to C.P.C.
For example, for discovering the definition of "subordinate Court", section 2, C.P.C. will
have to be referred to. But section 17 of the Family Courts Act clearly bars any reference
to the C. P. C. when dealing with the proceedings before or the legal position of a Family
Court.
Held: The High Court has no revisional jurisdiction whether in cases dealt under the
Family Courts Act or those dealt under the Guardians and Wards Act by virtue of section
25 of the Family Courts Act. Section 14 providing for the appeals continues and will
continue to cover the field of remedy, of course, apart from the Constitutional remedy.
Sakhawat Ali and another v. Mst. Shui Khelay P L D 1981 S C 454 affirmed.
Mrs. Parveen v. Kh. Mrrhammad Ashar P L D 197§ Lab. 334 and Manzoor Hussain P L
D 1977 Lah. 911 not affirmed.
Mst. Zaibun Nisa v. Muhammad Muzammil P L D 1972 Kar. 410 Muhammad Ismail v.
Mst. Zubeida Khatoon P 1, D 1973 Kar. 503 and the case of Mst. Farida Parween P L D
1971 Kar. 118 approved.
Muhammad Deen Malik 1982 S C M R 1223 disting.
Mrs. Parveen v. Kh. Muhammad Ashar P L D 1975 Lab. 334 ; Sakhawat Ali and another
v. Mst. Shui Khelay P L D 1981 S C 454 ; Ghulam Hussain v. Mst. Farzana (minor) 1981
S C M R 953; Abdul Ghafoor Gill v. Mst. Nussarat Khan P L D 1984 Lab. 332; Fazal
Muhammad v. Ali Ahmad Awan 1982 C L C Lab. 2354 ; Mst. Mussarat Jehan v. Mustafa
Ali Beg 1982 C L C Kar. 205 ; Syed Shamim Ahmad v. Mst. Riaz Fatima P L D 1975
Kar. 448 ; Muhammad Ismail v. Mst. 7. ubeida Khatoon P L D 1973 Kar. 503 ; Mst.
Zaibun Nisa v. Muhummad Muzammil P L D 1972 Kar. 410 ; Mst. Farida Parwin v.
Qadeeruddin Ahmad Siddiqi P L D 1971 Kar. 118; Mst. Tehseen Akhtar v. Mahmood-
ul-Hassan P L D 1971 Lab. 875 : Wajahat All Hasnie v. Mst. Ghazala P L D 1970 Lab.
641 ; Mst. Maqsoodan Bibi v. Mst. Bhano P L D 1.965 Lab. 183 ; Muhammad Deen
Malik v. 14dditional District Judge 1982 S C M R 1223 ; Adnan Afzal v. Capt. Sher Afzal
P L D 1969 S C 187; Alif Din v. Mst. Parveen Akhtar P L D 1970 S C 75 ; Khizar Hayar
Khan Tiwana v. Mst. Zainab Begum P L D 1967 S C 402 ; Manzoor Hussain v. District
Judge P L D 1977 Lab. 911; Muhammad Daud v. Abbas Ali P L D 1969 Lab. 699 ;
Muhammad Is.mail v. Fazal Ahmad P L D 1969 Lab. 834; Juma Khan v. Mst. Gul
Ferosha P L D 1972 Pesh. 1 ref.
(h) West Pakistan Family Courts Act (XXXV of 1964)-------
--Ss. 17 & 25-Guardians and Wards Act (VIII of 1890), S. 25Civil Procedure Code (V of
1908), S. 141 & O. IX, r. 9-Guardiansbip/custody of minor/wards-Powers of
Family/Guardian Courts Family Court while acting as a Guardian Judge exercises
parental jurisdiction and technicalities should not be allowed to frustrate substantial
justice-Second application wherever permissible and is in accordance with conditions for
filing such an application before Family Court (if there is substantial change of
Page No. 3 of 13
circumstances and situation) is not barred-Family Court when acting as -Guardian Judge
is empowered also (when it is necessary) to regulate conduct or proceedings of any
guardian appointed or declared by it-Same principles would be applicable to regulation of
custody of minors/ wards-Relief regarding visits or question of meetings between minors
and parent can also be regulated through application to Family Court.
Khizar Hayat Khan Tiwana v. Mst. Zainab Begum P L D 1967 S C 402 affirmed.
A. W. Butt, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record

(absent) for Appellant.
Mushtaq Ahmad, Advocate Supreme Court and S. Wajid Hussain Advocate-on-Record

(absent) for Respondent.
Date of hearing : 6th March, 1985
JUDGMENT
MUHAMMAD AFZAL ZULLAH, J.-------This appeal through leave of the Court is

directed against judgment, dated 10-10-1983 of the Lahore High Court whereby in a
guardianship/custody matter judgment,, of a Family Court earlier upheld by the Appellate
District Court was modified on a civil revision filed by the respondent.
The appellant's (father's) application for custody of the minor children of the parties
herein wa3 allowed by a learned Civil Judge functioning as Guardian (Family) Judge on
various findings of fact with regard to welfare of Vie minors rendered against the
respondent (mother). Her appeal before the District Court which was heard by a learned
Additional District Judge was dismissed on affirmation of the said findings of fact. The
respondent then tiled an application for revision under section 48 of the Guardians and
Wards Act (No. VIII) of 1890 read with section 115 of the Civil Procedure Code before
the High Court. Notwithstanding the preliminary objection with regard to its competency
the same was partly allowed on 10-10-1983 by a learned Single Judge. The preliminary
objection was overruled by making reference to another Single Bench judgment of the
same High Court in Mrs. Purveen v. Kh. Muhammad Ashar (P L D 1975 Lah. 334).
Although the findings of fact rendered against the respondent were considerably
modified, the learned Judge declined to handover the custody to her on the main ground
that the minors had expressed the desire to live with the appellant. She was, however,
permitted temporary custody of the children during the vacation period when they would
be free from the studies. It is against this last mentioned order/direction that the appellant
sought leave to appeal. It was granted to examine, inter alia, the contention "that the
judgment of the High Court, on which the learned Judge relied for holding that the
revision was competent viz. Parveen v. Muhammad Ashar (P L D 1975 Lah. 334) had
been disapproved by this Court in Sakhawat All and another v. Mst. Shui Khelay (P L D
1981 S C 454).
Learned counsel for the appellant has relied on the afore-noted judgment of this Court in
Sakhawat Ali's case and has also cited some more cases to support the contention that no
appeal or revision in guardianship matters, was competent before the High Court under
the Guardians and Wards Act, 1890, after the enactment of the West Pakistan Family
Courts Act (No. XXXV) of 1964. The cases cited are:
Ghulam Hussain v. Mst. Farzana (minor) 1981 S C M R 953 ; Sakhari-at Ali v.

Mst. Shui Khelay P L D 1981 S C 454 ; Abdul Ghafoor Gill v. Mst. Mussarat
Khan P L D 1984 Lah. 332; Fazal Muhammad v. Ali Ahmad Awan 1982 C L C
Lah. 2354 ; Mst. Mussarat Jehan v. Mustafa Ali Beg 1982 C L C (Kar.) 205 ; eyed
Shamim Ahmad v. Mst. Riaz Fatima P L D 1975 Kar. 448 ; Muhammad Ismail v.
Mst. Zubeida Khatoon P L D 1973 Kar. 503 ; Mst. Zaibwr Nis, v. Muhammad
Muzammil P L D 1972 Kar. 410 ; Mst. Farida Parwin v. Qadeeruddin Ahmad
Siddiyi P L D 1971 Kar. 118 ; Mst. Tahseen Akhtar v. Mahmood-ul-Hassan P L D
1971 Lah. 875 ; Wajahat Ali Hasnie v. Mst Ghazala P L D 1970 Lah. 641 and Mst.
Maqsoodan Bibi v. Mst. Bhano P L D 1965 Lah. 183.
In reply learned counsel for the respondent has relied on

Page No. 4 of 13
Muhammad Deen Malik v. Addl. District Judge 1982 S C M R 1223 ; Adnan Afzal v.
Capt. Sher Afzal P L D 1969 S C 187; Alif Din v. Mst. Parveen Akhtar P L D 1970 S C 75
; Khizar Hayat Khan Tiwana v. Mst. Zainab Begum P L D 1967 S C 402 ; Manzoor
Hussain v. District Judge P L D 1977 Lah. 911 ; Mrs. Parveen v. Kh. Muhammad Ashar P
L D 1975 Lah. 334 ; Muhammad Daud v. Abbas Ali P L D 1969 Lab. 699 ; Muhammad
Ismail v. Fazal Ahmad P L D 1969 Lah. 834 ; Alif Din v. Shaukat Ali P L D 1969 Pesh.
62 and Juma Khan v. Mst. Gul Ferosha P L D 1972 Pesh. 1 ;
as also on a leave granting order, dated 13th December, 1981 reported as Muhammad
Deen Malik v. Additional District Judge, Karachi 1982 S C M R 1223 wherein it was
observed that on account of an amendment made in section 47 of Guardians and Wards
Act of 1890 it might be necessary for this Court to re-consider the view taken in
Sakhawat Ali's case. It may be mentioned that according to the office report the appeal
arising out of the said case was not decided on merits as the same was withdrawn.
The relevant provisions of law for consideration in this appeal (of the West Pakistan
Family Courts Act (No. XXXV) of 1.964 ; the Guardians and Wards Act (No. VIII) of
1890 ; and the Code of Civil Procedure are reproduced below
Family Courts Act
2. Definitions.-(1). . . . . . . . . .
(a). . . . . . . . . . . .
(b) "Family Court" means a Court constituted under this Act ;
The powers of 1st Class Magistrate have been conferred on every Judge of the Family
Court so that he may act under section 488, Cr. P. C. and may make orders for
maintenance under that section.
(2) Words and expressions used in this Act but not defined, shall have the meanings
respectively assigned to them in the Code of Civil Procedure, 1908.
3. Establishment of Family Courts.-Government shall establish one or more Family

Courts in each District or at such other places as it may deem necessary and appoint a
Judge for each of such Courts.
4. Qualification of Judges.-No person shall be appointed as a Judge of a Family Court

unless he is or has been a District Judge, an Additional District Judge, a Civil Judge or a
Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat.
5. Jurisdiction.-Subject to the provisions of the Muslim Family Laws Ordinance, 1961,

and the Conciliation Courts Ordinance. 1.961, the Family Courts shall have exclusive
jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule.
14. Appeal.---(1) Notwithstanding anything provided in any other law for the time being
in force, a decision given or a decree passed by a Family Court shall be appeal-able-
(a) to the High Court, where the Family Court is presided over by a District Judge, an
Additional District Judge, or a person notified by Government to be of the rank and status
of a District Judge or an Additional District Judge, and
(b) to the District Court in other case.
(2) No appeal shall lie from a decree passed by a Family Court-
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in
clause (d) of item (viii) of section 2 of the Dissolution of Marriages Act, 1939.
(b) for dower not exceeding rupees one thousand ;
(c) for maintenance of rupees twenty-five or less per month.

Page No. 5 of 13
17. Provisions of evidence and Code of Civil Procedure not to apply.----(1) Save as
otherwise expressly provided by or under this Act, the provisions of the Evidence Act,
1872, and the Code of Civil Procedure, 1908 except sections 10 and 11 shall not apply to
proceedings before any Family Court.
(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the
Family Courts.
25. Family Court deemed to be a District Court for purposes of Guardians and
Wards Act, 1890.-------A Family Court shall be deemed to be a District Court for the
purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained
in this Act, shall in dealing with matters specified in that Act, follow the procedure
prescribed in that Act.
*Schedule-(See section 5)
(1) Dissolution of Marriage, (2) Dower. (3) Maintenance. (4) Restitution of conjugal
rights, (5) Custody of children. (6) Guardianship. (7) Jactitation of marriage.
The Guardians and Wards Act, 1890.
4. Definitions.-(1) . . . . . . . . .
(2) . . . . . . . . . . .
(3) . . . . . . . . . . .
(4) "District Court" has the meaning assigned to that expression in the Code of Civil
Procedure, and includes a High Court in the exercise of its ordinary original civil
jurisdiction ;
(5) "the Court" means-
(a) the District Court having jurisdiction to entertain an application under this Act for an
order appointing or declaring a person to be a guardian ; or
(b) where a guardian has been appointed or declared in pursuance of any such application
(i) the Court which, or the Court of the officer who appointed or declared the guardian or
is under this Act deemed to have appointed or declared the guardian ; or
(ii) in any matter relating to the person of the Ward the District Court having jurisdiction
in the place where the ward for the time being ordinarily resides ; or
(c) in respect of any proceeding transferred under section 4-A, the Court of the officer to
whom such proceedings has been transferred.
4-A. Power to confer jurisdiction on subordinate judicial officers and to transfer

proceedings to such officers.-(I) The High Court may, by general or special order,
empower any officer exercising original civil jurisdiction subordinate to a District Court,
or authorise the Judge or any District Court, to empower any such officer subordinate to
him, to dispose of any proceedings under this Act transferred to such officer under the
provisions of this section.
(2) The Judge of a District Court may, by order in writing, transfer, at any stage any
proceeding under this Act pending in his Court for disposal to any officer subordinate to
him empowered under subsection (1).
(3) The Judge of a District Court may at any stage transfer to his own Court or to any
officer subordinate to him empowered under sub. section (1) any proceeding under this
Act pending in the Court of any other such officer.
Page No. 6 of 13
(4) When any proceedings are transferred under this section in any case in which a
guardian has been appointed or declared, the Judge of the District may, by order in
writing, declare that the Court of the Judge or office, to whom they are transferred shall,
for all or any of the purposes of this Act, be deemed to be the Court which appointed or
declared the guardian.
47. Orders appealable.----An appeal shall lie to the High Court from an order made by a
Court,-
(a) under section 7, appointing or refusing to appoint or declare a guardian ; or
(b) under section 9, subsection (3), returning an application ; or
(c) under section 25, making or refusing to make an order for the return of an award to
the custody of his guardian ; or
(d) under section 26, refusing leave for the removal of a ward from the limits of the
jurisdiction of the Court, or imposing conditions with respect thereto ; or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred
to in the section ; or
(f) under section 32, defining, restricting or extending the powers of a guardian ; or
(g) under section 39; removing a guardian ; or
(h) under section 40, refusing to discharge a guardian ; or
(i) under section 43, regulating the conduct or proceedings of a guardian or settling a
matter in difference between joint guardians, or enforcing the order ; or
(j) under section 44 or section 45, imposing a penalty
*Provided that, where the order from which an appeal is preferred is passed by an officer
subordinate to a District Court, the appeal shah lie to the District Court."
*Proviso added by Ordinance XI of 1980 on 26-3-1980.
48. Finality of other orders.------Save as provided by the last foregoing section and by
section 622 of the Code of Civil Procedure, an order, made under this Act shall be final,
and shall not be liable to be contested by suit or otherwise.
Civil Procedure Code:
2. Definitions.- (1) . . . . . . . . .
(2) . . . . . . . . . . .
(3) . . . . . . . . . . .
(4) "district" means the local limits of the jurisdiction of a principal civil Court of original
jurisdiction (hereinafter called a "District Court", and includes the local limits of the
ordinary original civil jurisdiction of a High Court
4. Savings.----(1) In the absence of any specific provision to the contrary, nothing in this
Code shall be deemed to limit or otherwise affect any special or local law now in force or
any special jurisdiction or power conferred, or any special form of procedure prescribed,
by or under any other law for the time being in force.
(2) . . . . . . . . . . . .
Page No. 7 of 13
115. Revision.-(1) The High Court may call for the record of any case which has been
decided by any Court subordinate to such High Court and in which no appeal lies thereto,
and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
the High Court may make such order in the case as it thinks fit:
Provided that, where a person makes an application under this sub-section, he shall, in
support of such application, furnish copies of the pleadings, documents and order of the
subordinate Court and the High Court shall, except for reasons to be recorded, dispose of
such application without calling for the record of the subordinate Court.
(2) The District Court may exercise the powers conferred on the High Court by
subsection (1) in respect of any case decided by a Court subordinate to such District
Court in which no appeal lies and the amount or value of the subject-matter whereof dons
not exceed the limits of the appellate jurisdiction of the District Court.
(3) If any application under subsection (1) in respect of a case within the competence of
the District Court has been made either to the High Court or the District Court, no further
such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order
made under subsection (2) by the District Court.
141. Miscellaneous proceedings.----The procedure provided in this Code in regard to

suits shall be followed, as far as it can be made applicable, in all proceedings in any
Court of civil jurisdiction."
The afore-quoted provisions have been commented upon in one or the other context in
the cited case law. However two main questions for consideration in this appeal are:
One : Whether it is covered by the pronouncements made by the Supreme Court in the
case of Sakhawat Ali. And if so.
Two : Whether the said decision needs to be re-considered.
In Sakhawat Ali's case no doubt the question on merits directly involved was whether an
appeal from the judgment of a Guardian Judge under section 47 (unamended) of the
Guardians and Wards Act, before the High Court was competent. The answer rendered
was in the negative. The reasoning which then prevailed with the Court is based mainly
upon the consideration of the two highly relevant provisions of the Family Courts Act
namely sections 14 and 25. It can be divided into two parts : One, which would apply to
the appeals as also revisions under the Guardians and Wards Acc and thus would have to
be treated as the law declared relating to both the appeals and revisions. While another,
part of the reasoning relates only to the appeals. The context in which the general reasons
covering both the appeals and the revisions, were recorded was with clear implication of
the same being declared as law and applicable accordingly and not as mere obiter. It will
be of advantage to reproduce some of these reasons from page 457 of the report.
(a) `The section (25) does not, in terms, repeal section 14 nor does it refer to the litigants'
right of appeal.'
(b) `The (contrary) contention assumes that section 25 amounts to an implied repeal of
section 14 in all guardianship matters. If that had been the intention of the Legislature, it
would have enacted accordingly, because repeals are not to be lightly implied.'
(c) Èven on the footing that a statute has to be read as a whole, what does section 25
enact. It only prescribes that the procedure of the Guardians and Wards Act shall be
Page No. 8 of 13
followed by the Guardian Judge and not the procedure contained in the said Act (Family
Courts Act). Therefore, we would explain here that the mode of trial prescribed in the
said Act contains sweeping departures from the mode of trials in the suits under the Civil
Procedure Code …………. And the mode of trial laid down in the said Act is expressly
excluded by section 25.
(d) Às according to this section (25), the Guardian Judge has to "follow the procedure
prescribed" in the Guardians and Wards Act, it would be sufficient to observe that whilst
this Act (the Guardians and Wards Act) does not contain elaborate provisions for the
conduct of a trial in guardianship cases, it contains some provisions for regulating such
trials, and the effect of the words quoted is that these provisions have to be followed by
Family Courts, whenever they hear guardianship cases. But the procedure prescribed for
hearing a case under the Guardians and Wards Act has nothing to do with the question of
the forum in which an order under this Act can be challenged by the aggrieved party.
(e) Ànd, this section (25) neither states nor implies that it is intended to govern the rights
of parties after the Family Court has become functus officio by deciding the case before
it.'
After the afore-quoted elaborate reasons the judgment proceeds at pp. 458 to 460 of the
report to deal mainly with the question of appeal ; but before that we find a very weighty
reason which is in seriatim reproduced below .-
(f) 'The obligation imposed by section 25 to follow the procedure prescribed in

the Guardians and Wards Act is an obligation imposed on the Court, and there is
nothing in the section to support the view that it was intended to regulate the
rights of the parties after the Family Courts had become functus officio.'
Not only the aforementioned reasons but also the fact that the Lahore High Court's
judgment in the case of Mrs. Parvern was not approved as declaring correct law, would
further show that the decision by this Court rendered in the case of Sakhawat Ali was
intended to cover both the appeals and revisions arising out of guardianship matters ;
because the said case of Mrs. Parveen arose out of revision filed in the High Court and
dealt with the question of its competency which was held by the High Court to be
competent. It is also interesting to note that the Division Bench case of Manzoor Hussain
decided two years later (P L D 1977 Lah. 911) which had affirmed the view taken in the
case of Mrs. Parveen was also not approved by this Court as having laid down correct
law. On the contrary, two judgments of the erstwhile Sind and Baluchistan High Court in
the cases of Mst. Zaibun Nisa v. Muhammad Mozammil (PLD 1972 Kar. 401) and
Muhammad Ismail v. Mst. Zubeida Khatoon (P L D 1973 Kar. 503) were approved as
having laid down the correct law. In one of those judgments (Mst. Zaibun Nisa), it was
clearly held that section 17 of the family Courts Act having excluded the provisions of
the Civil Procedure Code (except sections 10 and 11) in so far as the Family Courts were
concerned, the litigants could not invoke section 115 of the Civil Procedure Code and
thus a revision under the said section was not maintainable. The case of Mst. Farida
Parwin (P L D 1971 Kar. 118) decided by one of us (Muhammad Haleem, H.C.J. while as
a Judge of the Sind and Baluchistan Hign Court) with the finding that on account of the
bar contained in section 17 of the Family Courts Act, one of the main requirements of
section 115, C. P. C. that the matter brought under revision must be a "case decided" by a
subordinate Court was not satisfied, was also approved in the Karachi Full Bench case of
Mst. Zaibun Nisa. It may be mentioned here that another judgment by one of us (Nasim
Hasan Shah, J. while as a Judge of the Lahore High Court) is to the same effect but on a
different reasoning namely, that the object of the Family Courts Act was to provide a
speedy remedy to settle family disputes and for that reason the combined reading of
sections 14, 17 and 25 of the Family Courts Act had excluded the application of section
115, C. P. C. therefore a revision in the High Court in the guardianship matters decided
by a Family Court was not competent. In yet another case Ghulam Hussain v. Mst.
Farzana (minor) (1981 S C M R 953 ) this Court refused to set aside the High Court's
view that a revision in a guardianship matter was not competent and indirectly held the
same view but the controversy was not examined in its details.
The foregoing analysis of the law declared in the case of Sakhawat Ali, namely, it is also
applicable to the revisions and that being so the impugned judgment merited to be set
Page No. 9 of 13
aside would not end the controversy in this case, because, the learned counsel relying on
a leave granting order of this Court in Muhammad Deen Malik (1982 S C M R 1223)
argued that the point noted therein for reconsideration of the view in Sakhawat All's ,case,
be examined. The contention noted therein was as follows:
"It is contended on behalf of the petitioner that this amendment in law (the
addition of the proviso after clause (j) of section 47 of the Guardians and Wards
Act, 1980) was nut brought to the notice of this Court at the time of decision of
Sakhawat All's case and, therefore, its effect has not been considered. The
argument is that according to well-established rule of interpretation of statutes
redundancy, is not to be imputed to any enactment. If, therefore, the view that
section 47 of the Guardians and Wards Act, has been made dormant, in view of
the combined effect of sections 5, 14 and 25 of the West Pakistan Family Courts
Act, as held in Sakhawat Ali's case and the right of appeal is regulated by section
14 of the said Act, the amending Ordinance of 1980 would be rendered totally
redundant. It is further argued that if effect is to be given to the amending
Ordinance, it will have to be held that the right of appeal would be regulated by
section-47 and the consequence will be that, no appeal would lie from an order
passed by a Family Court under section 12 of the Guardians and Wards Act. The
submission of the learned counsel raise a serious question of law, requiring the re-
examination of the view adopted by this Court in Sakhawat Ali's case."
The context in which leave to appeal was granted in the case of Muhammad Deen Malik
is slightly different: whether an appeal from an order of temporary custody under section
12 of the Guardians and Wards Act would at all be competent - if section 47 is applied it
would not be ; but if the matter is dealt with under section 14 of the Family Courts Act, it
might be competent as an appeal against a decision of a Family Court. The main question
nevertheless was the same as was considered in Sekhawat Ali's case whether section 47
of the Guardians and Wards Act would be applicable to the guardianship matters dealt
with by a Family Court constituted under the Family Courts Act.
Section 47 in its purview enacted that all appeals from orders referred therein passed
under the Guardians and Wards Act by 'the court' (as defined in the Guardians and Wards
Act) would lie to the High Court (before the amendment). The decision of 'the Court
(defined in section 4(5)(a) of the Guardians and Wards Act as the "District Court") even if
it was presided over by a Civil Judge subordinate to a District Court, by virtue of
enabling provision contained in section 4-A of the Guardians and Wards Act, was
appealable under section 47 only to the. High Court. The amendment made in 1980
provided that when 'the Court' was presided over by a Civil Judge subordinate to the
District Court the appeal shall then lie to the District Court and not to the High Court.
The argument advanced in the case of Muhammad Deen Malik was that if an appeal
under section 47 was not competent in a case decided by a Family Judge, then there was
no need for the legislature to have made the amendment at all. Prima facie the argument
is attractive, that is why leave to appeal was granted. But on deeper scrutiny it seems that
the amendment B was made by the legislature under some misapprehension. It seems that
the law declared by the Lahore High Court in the case of Parveen and Manzoor Hussain
(decided in 1,975 and 1977) was treated to have concluded the controversy and the
contrary view taken in the earlier cases decided in 1971 ; 1972 and 1973 (Karachi), it was
assumed to have been superseded by the Lahore vases. If so, it was wrong assumption
because the two different views were expressed by separate High Courts and although the
view of one had persuasive value for the other, they were not as such binding on each
other. Be that as it may, the overruled view expressed in the Lahore cases was, it has been
noted earlier, made the basis for bringing, by amendment the proviso in section 47 ; on
the assumption, that the appeal (as held in the Lahore cases) was competent under section
47 of the Guardians and Wards Act and not under section 14 of the Family Courts Act.
This incorrect assumption led to the enactment of the proviso.
Although the presumption is that redundancy is not to be imputed to, an enactment nor
ignorance of law is to be imputed to the law-making Agency ; but this presumption can
differ from case to case. And in proper situations the superior Courts have even made
corrections where the legislature is demonstrably shown to have made a visible error.
Here one visible error is that the Karachi view was deemed to have been subordinated to
the Lahore view which on no jurisprudential basis can be upheld as correct. The two
Page No. 10 of 13
judgments were not rendered by the same Court as it used to be the situation when the
West Pakistan High Court had different Benches at Karachi and Lahore. Secondly for a
more weighty reason the amendment would not be deemed to have diluted, in any way,
the effect of the law declared by this Court in Sakhawat Ali's case, which was decided on
22nd ! of March, 1981 while the amendment was made on 26th of March, 1980. The
declaration of law in the case of Sakhawat Ali by the Supreme Court of Pakistan in
pursuance of the mandate of the Constitution will overrides the amendment made in
section 47 and nullify its effect by virtue of Article 189 of the Constitution.
For yet another reason the proviso added to section 47 would have no effect as even on
the argument advanced from the respondent side it would be rendered inoperative in
cases like the present one. It took note of the fact that section 4-A was added to the
Guardians and Wards Act by way of an amendment in the original Act and provided that
when the Court is presided over by an officer (Civil Judge) subordinate to the District
Court an appeal shall lie to the District Court. The argument advanced from the
respondent side and accepted by the High Court on the basis of the judgment in Parveen's
case, proceeds on the assumption that a Family Judge when dealing with a guardianship
matter is deemed to be a District Court under tae Guardians and Wards Act. It loses its
original position as a Family Court and thus the appeal from such a Court would lie to the
High Court under section 47 of the Guardians and Wards Act and not to the District Court
under section 14 of the Family Courts Act ; because an appeal under section 14 (1) (b) to
the District Court would not be maintainable against the decision of another District
Court. This latter argument relating to section 14 was noted and rejected in the case of
Sakhawut Ali. However, the argument advanced from the respondent side son the basis of
the proviso added to section 47 will be subjected to, similar criticism namely, that if a
Family Court which is presided over by a Civil Judge is for all purposes converted into a
District Court under section 25 of the Family Courts Act when hearing a guardianship
matter the under the newly added proviso to section 47 of the Guardians and Wards Act
the appeal from such so-called and deemed District Court shall "lie to the District Court".
The error and fallacy is obvious and it need not be commented upon any further. For all
these reasons no justification has been made out for re-consideration of the case of
Sakhawat Ali on the basis of the newly added proviso to section 47.
Learned counsel for the respondent tried to raise other arguments for re-consideration of
the decision in Sakhawat Ali's case and has relied, amongst others, on the cases, Adnan
Afial v. Capt. Sher Afial (P L D 1969 S C 187) and Alifdin v. Shaukat Ali (P L D 1969
Pesh. 62), to contend that the provision in law, of a forum of trial, is to be deemed to be
one of procedure. And that being so, the argument that the word "procedure" used in
section 25 of the Family Courts Act would not cover appeals and revisions (accepted in
the case of Sakhawat Ali), should now be rejected because the provision for a forum of
the appeal has also likewise to be treated as one of procedure. This question has
thoroughly been dealt with in Sakhawat Ali's case. Although the two cited cases are not
mentioned in the judgment but that will not make any difference because it was nowhere
held in these two cases that the provision for forum of appeal is necessarily a
subject-matter of procedure. Rather there are observations indicating otherwise.
Similarly, the argument that appeal is in principle a continuation of the trial for the rea-
sons given in Sakhawat Ali's case wherein this contention was also examined does not
require any further comment.
As to the argument that revision when compared to an appeal is not a matter of right and
should be distinguished as one of procedure and thus competent under section 48 of
Guardians and Wards Act and/or under section 141 of the Civil Procedure Code, is also
without any force. There is elaborate discussion to Sakhawat Ali's case regarding
interpretation of the relevant provisions of the Family Courts Act. It was held and rightly
so that section 25 permitted the Family Court when deemed to be District Court under the
Guardians and Wards Act to adopt the "procedure prescribed in the Guardians and Wards
Act as a mode of trial during the trial and thereafter in so far as the said Act is concerned,
the Family Court becomes functus officio. It does not need any further repetition or
support of reason. Section 25 is very clear on this question. It clear excludes the
application of the Guardians and Wards Act to the stag when the original trial ends except
when the original trial Court, according to the various provisions of the Guardians and
Wards Act, implements its own orders or regulates the conduct or proceedings of the
guardian and similar other matters. The use of the word "matter" in section 25 of the
Page No. 11 of 13
Family Courts Act is in this context (in addition to the trial) and not in the context of
appeals and revisions. This also explain H the omission of the expression, "mode of trial"
or for that matter "trial" from section 25 of the Family Courts Act.
For another reason also section 25 of the Family Courts Act cannot b interpreted so as to
extend it to appeals or revisions because it obviously applies to a Family Court which
according to this provision shall firstly be deemed to be a District Court and then shall
follow the procedure when conducting a trial, as prescribed in the Guardians and Wards
Ac and not in the Family Courts Act. The section obviously does not apply to the higher
forums particularly the High Court when dealing with a appeal or revision because it is
only for a Family Court that a deviation has been made to a limited procedural extent
from what is provided in the Family Courts Act and nothing is said in section 25 about
any other Court including the High Court. A revisional forum under section 47 is thus
excluded from the ambit of section 25.
Yet another argument advanced by the learned counsel for the dent, namely, that section
141, C. P. C. would operate independently so to make scope for the High Courts
exercising revisional powers in cases decided by a Family Court even under the Family
Courts Act notwithstanding section 17 of that Act which generally bars its application,
has be force. Whether in the present context a revisional forum will be one relatable to
procedure or not is not very important because for another very strong reason the
argument has no force. Section 141, C. P. C. is attracted only when all its conditions are
satisfied and no provision in made to the contrary in the legislation which otherwise
covers the case, Here in the present case Family Court will have to be treated as out of
the scope of the C. P. C. not only because of section 17 which excludes the application of
C. P. C. but also because the entire provisions of the Family Courts Act make a departure
from the major stages of procedure prescribed in the Civil Procedure Code. The intention
obviously as held in the case of Wajahat Ali Hasnie v. Mst. Ghazala (P L D 1970 Lah.
641) was to provide speedy disposal of matters mentioned in the Schedule to the Family
Courts Act. Therefore the application of C. P. C. was excluded except in so far as it has
been specifically made applicable. That intention being clear revisional power cannot be
assumed by the High Court on the basis of the general provision namely, section 141 of
the C. P. C.
There is yet another weighty reason which prevailed in the case or Farida Parwin. It
cannot be ignored. To attract revisional jurisdiction, of the High Court by virtue of
section 115 read with section 141, C. P. C., it would be essential that the conditions laid
down in section 115 of the C.P.C. are also satisfied. As soon as this exercise is
commenced to see whether the various conditions (like those of "case decided"
"subordinate Court" etc. prescribed in section 115) are satisfied or not, reference and
reliance would have to be made to C.P.C. For example, for discovering the definition of
"subordinate Court", section 2, C. P. C. will have to be referred to. But section 17 of the
Family Courts Act clearly bars any reference to the C. P. C. when dealing with the
proceedings before or the legal position of a Family Court.
For all these reasons it has rightly been held in Sakhawat All's case that the High Court
has no revisional jurisdiction-whether in cases dealt under the Family Courts Act or those
dealt under the Guardians and Wards Ac, by virtue of section 25 of the Family Courts
Act. Section 14 providing for the appeals continues and will continue to cover the field of
remedy, of course, apart from the Constitutional remedy.
In the light of the foregoing discussion this appeal is allowed and the impugned judgment
of the High Court is set aside as without jurisdiction because the revision filed in the
High Court was not competent. There shall be no order as to costs.
Before parting with this judgment it needs to be observed that as held by this Court in the
case of Khizar Hayat Khan Tiwana v. Mst. Zainab Begum(P L D 1967 S C 402) the
Family Court when acting as a Guardian Judge exercises parental jurisdiction and the
technicalities in so far as it is possible should not be allowed to frustrate substantial
justice. A second application wherever ft is permissible and is in accordance with the
conditions for filing such an application before the Family Court (if there is substantial
change of circumstances and situation) is not barred under the relevant law. Ana the
Family Court when acting as a Guardian Judge is empowered also (when it is necessary)
Page No. 12 of 13
to regulate the conduct or proceedings of any Guardian appointed or declared by it. This
principle will apply to the regulation of the custody of the minors/wards in cases like the
present one. The relief sought by the respondent regarding visits to the respondent or
question of meetings between the minors and the parent can be regulated through an
application to the Family Court.
M. B. A. Appeal allowed.
Page No. 13 of 13
1985 S C M R 959
Present: Abdul Kadir Shaikh and Shafiur Rahman, JJ
ALLAH BAKHSH--Petitioner
Versus
Mst. SHAMSHAD ZOHRA and others--Respondents
Civil Petition No.904 of 1984, decided on 9th October, 1984.
(Against the Judgment and Order of the Lahore High Court, Lahore, dated 4th June 1984
in Writ Petition No.3762 of 1981).
West Pakistan Family Courts Act (XXXV of 1964)-
---Ss.14 & 17--Civil Procedure Code (V of 1908), Ss. 9 & 10--Appeal Single appeal filed
against consolidated judgment in two cases—Appeal dismissed on merits and on such
technical ground--Order impugned in Constitutional petition--Case remanded for decision
afresh on ground that Courts below had misdirected themselves in exercising jurisdiction
possessed by them--Order of remand challenged--Provisions of Civil Procedure Code
other than Ss. 10 and 11 being inapplicable to proceedings, technical objection of filing a
single appeal against consolidated judgment, when it was manifestly directed against
decision in both, not to stand in way of adjudication--Trial Court to record its own
finding afresh after adverting to sources indicated in impugned judgment--Leave to
appeal refused.
Sh. Naveed Shehryar, Advocate and M.S. Abid Nawaz, Advocateon-Record for
Petitioner.
ORDER
SHAFIUR RAHMAN, J.-- The petitioner, a husband, seeks leave to appeal against the
judgment of the Lahore High Court, dated 4-6-1984 whereby a Family Court matter was
remanded for decision afresh.
The petitioner sought restitution of conjugal rights. The respondent wife sought
dissolution of marriage. The Family Court dismissed the wife's suit, and decreed that of
the husband. The filed only one appeal questioning the judgment common to both the
causes. The Appellate Authority dismissed the appeal on merits as well as for the reason
that only one appeal was filed and not two.
The High Court in allowing the Constitutional Petition and remanding the case held that
the two Courts dealing with the matter had misdirected themselves, as
enumerated-hereunder, in exercising the jurisdiction possessed by them:-
"(i) Dissolution by Khula was considered not justified as the "wife has got married once
too often". After examining the background of this marriages it was held "Khula cannot
be refused on these grounds.
(ii) There was material on the record which was ignored by both the Courts.
(iii) In coming to the conclusion that the marriage of the respondent No.l was not
irregular the two Courts did not advert to certain sources pointed out by the learned
Judge."
The learned counsel for the petitioner contended, inter alia that the defect in appeal noted
and given effect to by the first appellate Court was not even noted and the remand to the
Page No. 1 of 2
trial Court was ordered on the assumption that the appeal was competently filed. the
learned counsel also wanted to demonstrate that the marriage of respondent No.l with the
petitioner was riot at all irregular.
This being a case of remand to the Family Court, we do not consider it necessary to go
into the merits of the case. For the purposes of allaying the apprehensions of the
petitioner we may observe that even on the question of the marriage being irregular the
trial Court shall be free to record its own finding afresh but only after adverting, among
others, to the sources indicated in the impugned judgment. As provisions of C.P.C. other
than sections 10 and 11 are inapplicable to the proceedings the technical objection of
filing of a single appeal against a consolidated judgment when it was manifestly directed
against the decision in both, would not stand in the way of adjudication in accordance
with law.
We do not consider it a fit case for leave to appeal. The petition is dismissed.
M. I. Petition dismissed
Page No. 2 of 2
1984 S C M R 1477
Present: Muhammad Afzal Zullah and M.S.H. Quraishi, JJ
MUHAMMAD IQBAL--Petitioner
Versus
Mst. SHAKILA KHATOON and another--Respondents
Civil Petition for Special Leave to Appeal No. 618-R of 1983, decided on 191h February,
1984.
(On appeal from the judgment of Peshawar High Court dated 19-7-1983 in Writ Petition
No.37 of 1979) .
Constitution of Pakistan (1973)--
---Art.185(3)--West Pakistan Family Courts Act (XXXV of 1964), S.14-Decree for

dissolution of marriage and for dower amount--District Court in appeal modifying decree
in violation of intention and language of bar in S.t. of Act, 1964--Held, appellate
judgment was rightly set aside by High Court--Leave to appeal refused.
Maulvi Sirajul Haq, Advocate Supreme Court and M. Afzal Siddiqi, Advoiate-on-Record
for Petitioner.
Date of hearing: 19th February, 1984.
ORDER
MUHAMMAD AFZAL ZULLAH, J.-- This petition for leave to appeal is directed
against the judgment dated 19-7-1983 of the Peshawar High Court whereby, on a
constitutional petition filed by the respondent (wife! a two-fold decree for dissolution of
her marriage with the petitioner, and also for dower amount of Rs. 10,000 was restored.
The decree regarding dower was earlier set a side in appeal by the District Court on the
ground that the decree for dissolution should have peen on ground of Khulah in addition
to grounds of non-maintenance and cruelty. That being so the said modified decree,
would oblige her to forgo the dower amount as compensation for Khulah. The High Court
however held that the decree for dissolution of marriage on ground of non-maintenance
and cruelty not being appeal able it could not have been modified by the District Court in
exercise of appellate jurisdiction so as to add the ground of Khulah.
Learned counsel for the petitioner has tried to defend the appellate judgd'e4t by the
argument that the appeal against decree for dower being competent, the District Court,
notwithstanding the bar in section 14 of the Family Courts Act could allow the said
appeal on any ground avail9ble to the petitioner.
We do not agree with him. The bar in section 14 is such that, in the circumstances of the
case the decree for dissolution of marriage could not have been modified (sic) in a
collateral manner. The intention as also the language of the bar in section 14 have been
violated by the appellate judgment. It was rightly set aside. This petition accordingly is
dismissed.
S.Q. Petition dismissed.
Page No. 1 of 1
1983 S C M R 398
Present : Aslam Riaz Hussain, Muhammad Afzal Zullah and M. S. H. Quraishi, JJ
MUHAMMAD JAMEEL-Petitioner
versus
Mst. SARWAR JEHAN AND 2 OTHERS-Respondents
Civil Petition No. K-223 of 1981, decided on 14th January, 1982.
(On appeal from the order dated 27th September 1981 of the High Court of Sind,
Karachi, passed in Writ Petition No. S-24 of 1981).
West Pakistan Family Courts Act (XXXV of 1964)---
-- S. 14-Constitution of Pakistan (1973), Art. 185 (3)-Suit for dissolution of marriage

decreed by appellate Court on basis of non-maintenance for more than two years for no
fault of wife Husband claiming dissolution of marriage on basis of Khula'-Parties not at
issue on question of Khula'-Reluctance of High Court to interfere with decree being not
inconsistent with policy of law which confers a finality on such decree, interference not
justified in circumstances.
Faizanul Haq, Advocate-on-Record for Petitioner.
Date of hearing : 14th January, 1982.
ORDER
M. S. H. QURAISHI, J.-The petitioner seeks leave to appeal from the order of the High
Court dated 17-9-1981, dismissing his writ petition, filed to challenge a decree of
dissolution of marriage which the Appellate Court had passed by reversing the decree of
dismissal of the suit. The suit had been instituted by respondent Mst. Sarwar Jehan
seeking dissolution of her marriage with the petitioner on grounds of cruelty, disposing of
her properties without her consent and his failure to maintain her for more than two years.
The petitioner had contested the suit and denied the allegations. The issues that were
framed, were found against her by the Family Court which dismissed the suit. The
Appellate Court, however, found that the respondent had been living away from the
petitioner for the last six years, during which period he had failed to maintain her or to
adopt any amicable course to achieve a re-conciliation, and taking into consideration the
overall circumstances of the case, came to the view that "the relationship between
husband and wife have become so strained and embittered that it appears the same to
have reached almost a point of no return" and that "this marriage has broken down and
there appears no future prospects that the parties would be able to live harmoniously as
husband and wife within the limits of God". The Appellate Court, therefore, allowed the
respondent's appeal and granted a decree dissolving the marriage. Before the High Court,
it was urged that the decree passed by the Appellate Court, being on the basis of Khula`
such decree could only be conditional upon restoration of the benefits received by the
wife in consideration of the marriage. The plea was repelled upon the view that "the
dissolution of the marriage between the parties has taken place not on the ground of
Khula` but the marriage has been dissolved on the basis of non-maintenance of the
respondent No. 1 (wife) by the Petitioner for more than two years for no fault on her
part".
2. The same point is being raised before us. It is pointed out that the petitioner had, in his
written statement as well as in hi: evidence, given description of the articles of jewellery
and clothing given by him to the respondent at the time of the marriage. The respondent
had, however, stated that she had never seen them. It to be noted that the parties had not
been at issue on the questions Khula` that as observed by the High Court the Appellate
Court has dissolved the marriage on the basis of non-maintenance of the respondent for
over two years and that the question of the return of the benefits had not been a ground in
the writ petition. In the circumstance:
Page No. 1 of 2
there is no proper justification for interfering with the judgment of the High Court.
3. Even otherwise, the reluctance of the High Court in the circumstances to interfere with
the decree is not inconsistent with the policy of the law which confers a finality on such
decree. We, therefore, see no merit in this petition, which we accordingly dismiss.
Leave petition dismissed.
Page No. 2 of 2
1982 S C M R 1223
Present : Zaffar Hussain Mirza and M. S. H. Qureshi, JJ
MUHAMMAD DEEN MALIK AND ANOTHER-Petitioners
Versus
IIND ADDITIONAL DISTRICT JUDGE, KARACHI AND OTHERS-Respondents
Civil Petition for Special Leave to Appeal No. K-235 of 1981, decided on 13th
December, 1981.
(On appeal from the judgment and order of the High Court of Sind, Karachi, dated
28-10-1981, passed in Constitutional Petition No. 19 of 1981).
(a) West Pakistan Family Courts Act (XXXV of 1964)----
---- Ss. 5 & 14-Jurisdiction-Appeal-Family Courts possess exclusive jurisdiction in

matters specified in Schedule to Family Courts Act, 1964 and custody of children and
guardianship included in such Schedule Section 14 of Act providing for appeal against
decision given or decree passed by Family Court to High Court in case of Family Court
being presided over by a District Judge an Additional District Judge, or a person of such
rank and to District Court in all other cases, forum of appeal in cases, in hand, held,
clearly spelt out as High Court.-[Appeal (civil)-Jurisdiction].
(b) Guardians and Wards Act (VIII of 1890)----
----- S 47 [as amended by Guardians and Wards (Amendment) Ordinance (XI of 1980)]
and West Pakistan Family Courts Act (XXXV of 1964), Ss. 5, 14 & 25-Interpretation of
statutes-Leave to appeal-Contention that if S. 47 of Guardians and Wards Act be taken to
have been made dormant in view of combined effect of Ss. 5, 14 & 25 of Family Courts
Act, 1964 and right of appeal regulated by S. 14 of such Act, Amending Ordinance (XI of
1980) would be rendered totally redundant and redundancy cannot be imputed to
Legislature and further if effect be given to Amending Ordinance it will have to be held
that right of appeal would be regulated by S. 47 and consequently no appeals lie from an
order passed by Family Court under S. 12 of Guardians and Wards Act,
1890-Submissions, held, raise serious question of law requiring re-examination of view
adopted in case reported as P L D 1981 S C 454, hence, leave to appeal
granted.-[Interpretation of statutes].
Sakhawat Ali v. Shui Khelay P L D 1981 S C 454 ref.
Mirza Abdur Rashid Advocate and Shabbir Ghaury, Advocate-on-Record for Petitioner.
Nemo for Respondents Nos. 1 and 2
Habibur Rehman, Advocate and A. Aziz Dastagir, Advocate-on-Record for Respondent

No. 3. ref
Dates of hearing : 12th and 13th December, 1981.
ORDER
ZAFFAR HUSSAIN MIRZA, J.-This is a petition for special leave arising out of the
judgment and order passed by a learned single Judge of the Sind High Court in a
Constitutional Petition filed by the petitioners, whereby the judgment of the learned
II-Additional District Judge, Karachi, dated 11-2-1981, on appeal filed against the order
of the First Family Judge, Karachi, dated 9-8-1980 allowing the application under section
12 of the Guardians and Wards Act, 1890 by the petitioners for the interim custody of the
minor, was upheld. The petitioners are the grandfather and grandmother of minor Farhana
Khalid, now aged about nine years who is the daughter of Khalid Iqbal Malik, from his
wedlock with Mst. Attiya Zareen Malik, respondent No. 3 herein. The father of the minor
Page No. 1 of 3
died on 20-6-1974 and it seems that the third respondents alongwith child, after the death
of her husband took up residence with the petitioners in their house After the death of her
father, with the consent of the petitioners, the third respondent shifted to her mother's
house alongwith the child in about November, 1975. The said respondent also took up a
job as a teacher in a local school, but it seems after about two years' time, the relations
between the petitioners and the third respondent became strained. At this time the third
respondent is said to have developed some illness, as a result of which she is said to be
now crippled. In April, 1979, the minor is said to have been sent to Murree and admitted
in a school for her education, which further deteriorated the relations between the parties,
and resulted in the petitioners filing a petition for guardianship of the person and property
of the minor in the Court of First Family Judge, Karachi. In these proceedings, the
petitioners also filed an interlocutory application under section 12 of the Guardians and
Wards Act, 1890, for the interim custody of the person of the minor. On this application,
by order dated 9-8-1980, the Family Judge granted interim custody of the minor to the
second petitioner subject to the supervision and control of the first petitioner.
The third respondent challenged the order in appeal, in the Court of District Judge,
Karachi, which was finally heard by the II-Additional District Judge, Karachi. The
petitioners raised preliminary objection to the maintainability of the said appeal, on the
ground ; firstly, that section 14 of the Family Courts Act, 1964, was not attracted in view
of the provisions of section 25 of the said Act; and secondly, that under section 47 of the
Guardians and Wards Act, since an order passed under section 12 of the said Act does not
figure as one of the orders in the category of appealable orders, no appeal was competent
against such order. It will thus appear that the two-fold preliminary objection raised by
the petitioners pertained to the forum as well as competency of the appeal. The learned
Additional District Judge, however, found no substance in these objections and accepted
the appeal of the third respondent by his judgment, dated 11-2-1981, setting aside the
order of interim custody and directed that the custody of the minor be handed over to the
third respondent. The petitioners then filed a Constitutional petition before the Sind High
Court and 'sought to urge the same points as were raised before the learned Additional
District Judge. The learned single Judge of the High Court took the view that by
enforcement of West Pakistan Family Courts Act, 1964, exclusive jurisdiction has been
conferred on Family Courts to entertain, hear and adjudicate upon matters specified in the
schedule to the Act, which includes matters relating to the custody of children and
guardianship. Section 14 of the said Act provides for appeal against a decision given or
decree passed by a Family Court, notwithstanding anything provided in any other law for
the time being in force. The learned Judge has further taken the view that an order on an
interim application under section 12 of the Act is a decision given within the meaning of
section 14 and therefore, an appeal lay against such an order before the District Court, in
terms of section 14(1) (b), since the original order was passed by a Family Court presided
over by a subordinate Judge below the grade of a District Judge or Additional District
Judge. In this view of the matter, the learned Single Judge, finding no legal infirmity in
the order passed by the learned Additional District Judge, dismissed the petition, by the
impugned judgment.
.
Now by virtue of section 5 of the West Pakistan Family Courts Act, 1964, the Family
Courts have been conferred exclusive jurisdiction, in matters specified in the schedule to
the said Act, which inter alia includes, the custody of children and guardianship. Section
14 of the said Act, provides for an appeal against a decision given or a decree passed by a
Family Court, to the High Court where the Family Court is presided over by a District
Judge, an Additional. District Judge or a person of such rank, and to the District Court, in
all other cases. There appears no difficulty as to forums of appeal on the clear terms of
section 14. But in regard to matters of guardianship and custody of children, controversy
was raised as to the application of section 14 to matters arising under the Guardians and
Wards Act, 1890, on account of the provisions of section 25 of the West Pakistan Family
Court Act, 1964, which reads as under
"A Family Court shall be deemed to be District Court for purposes of Guardians
and Wards Act, 1890, and notwithstanding anything in this Act, shall in dealing
with matters specified in that Act, follow the procedure prescribed in that Act."
There was a conflict of opinion between the various High Courts as to the
construction of section 25. According to the view of Sind and Baluchistan High Court,
Page No. 2 of 3
the forum and right of appeal, being matters of substantive law, were governed by section
14 and the effect of section 25 was only to make the procedure provided in Guardians and
Wards Act, applicable to such proceedings before the Family Court. According to the
other view held by the Lahore and Peshawar High Courts, the words "the procedure
prescribed in that Act", occurring in section 25, were intended to include the right of
appeal conferred by that Act, namely, the Guardians and Wards Act, so that the right of
appeal in such matters was regulated by section 47 of the latter Act. It was, therefore,
held that in such matters, in terms of section 47 appeal lay to the High Court.
The learned counsel appearing for the caveator has invited our attention to Sakhawat Ali
v. Shui Khelay (P L D 1981 S C 454) and submits that the aforesaid conflict of opinion
has been set at rest, whereby it has been held that the right of appeal is governed by
section 14 of the West Pakistan Family Courts Act. Accordingly, since the original order
under section 12 in this case was passed by a Family Court presided over by a person
other than an officer of the rank of District or Additional District Judge, the appeal was
rightly entertained and disposed of.
If the matters rested at that, there would, indeed have been no difficulty in holding
accordingly. However, learned counsel for the petitioner has referred us to the Guardians
and Wards (Amendment) Ordinance (XI of 1980), published on 26-3-1980, whereby
section 47 of the said Act was amended in the following manner: -
"In the Guardians and Wards Act, 1890, in section 47, clause (j) for the full-stop at
the end a colon shall be substituted and thereafter the following proviso shall be
added, namely Provided that, where the order from which an appeal is preferred is
passed by an Officer subordinate to a District Court, the appeal shall lie to the
District Court."
It is contended on behalf of the petitioner that this amendment in law was not brought to
the notice of this Court at the time of decision of Sakhawat Ali's case and, therefore, its
effect has not been considered. The argument is that according to well established rule of
interpretation of statutes redundancy, is not to be imputed to any enactment. If, therefore,
the view that section 47 of the Guardian and Wards Act, has been made dormant, in view
of the combined effect of sections 5, 14 and 25 of the West Pakistan Family Courts Act,
as held in Sakhawat Ali's case and the right of appeal is regulated by section 14 of the
said Act, the amending Ordinance of 1980 would be' rendered totally redundant. It is
further argued that if effect is to be given to the amending Ordinance, it will have to be
held that the right of appeal would be regulated by section 47 and the consequence will
be that, no appeal would lie from an order passed by a Family Court under section 12 of
the Guardians and Wards Act.
The submissions of the learned counsel raise a serious question of law, requiring the
re-examination of the view adopted by this Court in Sakhawat Ali's case referred to above
and accordingly, we grant leave to appeal to the petitioners. The petitioners shall furnish
security for costs in the sum of Rs. 2,500. The appeal shall be beard on the same record
with liberty to the parties to file additional documents. In view of the fact that the case
relates to the custody of a minor, we order that the appeal shall be fixed for hearing
during January, 1982.
As to the prayer for stay, it has been urged by the learned counsel for the caveator,
respondent No. 3, that although the orders in the field so far, entitle her to the custody of
the minor, the petitioners have managed to deprive her of that and, therefore, he prayed
that the interim order passed by this Court be modified suitably to permit her to meet her
child more often. After considering the matter, we order that the interim order of stay
passed by this Court on 17-11-1981 shall be modified, to the extent that the petitioners
are directed to leave the minor with respondent No. 3 at her house on every Thursday at 3
p. m. and may take back the minor at 5 p. m., next day, i. e. Friday.
Leave granted
Page No. 3 of 3
1981SCMR953
Present : Karam Elahee Chauhan and Muhammad Afzal Zullah, JJ
GHULAM HUSSAIN-Petitioner
versus
Mst. FARZANA (MINOR)-Respondent
Civil Petition No. 525 of 1979, decided on 28th November 1979.
(On appeal from the judgment and order dated 7-5-1979 of the Lahore High Court at
Lahore in Civil Revision No. 553 of 1979).
Civil Procedure Code (V of 1908)--
-- O. IX, r. 13-Ex-parte decree, setting aside of-Petitioner not challenging ex-parte decree
before next appellate forum but filing writ petition directly in High Court High Court
considering points raised and dismissing petition in limine-Petitioner not calling in
question even such order and instead filing an application before Family Court, originally
seized of case praying for setting aside ex parte decree and on such application being
dismissed again filing appeal before District Court and such Court affirming decision of
Family Court-Petitioner again filing a revision petition before High Court, but such
petition also dismissed Petitioner, held, responsible for non-appearance before Family
Court and for consequential ex parte proceedings and grounds urged by him not
sustainable, no cause made out for leave to appeal to Supreme Court-Constitution of
Pakistan (1973) Art. 185(3), read with West Pakistan Family Courts Act (XXXV of
1964) S. 14.
Petitioner in person.
Nemo for Respondent.
Date of hearing : 14th November, 1979.
JUDGMENT
MUHAMMAD AFZAL ZULLAH, J.-This petition for special leave to appeal

arises out of an order passed by the Lahore High Court at Lahore on 7-5-1979, dismissing
the petitioner's revision under section 115, C. P. C, calling in question the refusal by a
Family Court to set aside an ex parte order of maintenance for the minor daughter of the
petitioner and its affirmation by the appellate Court in appeal under section 14 of the
West Pakistan Family Courts Act, 1964 (West Pakistan Act No. XXXV of 1964).
According to the facts stated in the petition the maintenance case was fixed before
the learned Family Judge, Gujrat on 3-9-1974. The petitioner was present but the
respondent was absent. The case was adjourned to 19-10-1974. It may be mentioned here
that earlier the matter was pending before another Court and it had been transferred to the
learned Family Court at Gujrat by an order of the District Court, 19th and 20th were
declared public holidays. On 21st of October 1974 the petitioner did not attend the Court
and ex parte proceedings were then taken against him. Ultimately, on 18-2-1975 an ex
parte decree in favour of the respondent, was passed.
The petitioner did not challenge the ex parte decree before the next appellate
forum, i.e. the District Court under section 14 of the Act. He filed a writ petition directly
in the High Court wherein he raised several points including the legality and propriety of
the ex parte proceedings, as also the merits of the ex parte decree and the conduct of the
proceedings before the learned Family Court. By an elaborate order, a learned Single
Judge, considered the points of law and merits and dismissed the writ petition in limine
on 26-4-1976. The petitioner did not call in question the said order of the High Court any
further. Instead he filed an application before the learned Family Court for setting aside
the original ex parte proceedings and decree which was dismissed on 20th March, 1978.
Page No. 1 of 3
He then filed an appeal before the District Court under section 14 of the Act which was
dismissed on 4-4-1979. The decision of the learned trial Court was affirmed. 1n the
appellate judgment particular reference was made to the observations o the High Court on
the merits of the explanation furnished by the petitioner for his non-appearance on 21st
October 1974, the date next after the Eidul-Azha holiday. Not satisfied by the aforenoted
proceedings in the High Court on the writ side as also under the Act and Rules, for
seeking the setting aside of the ex parte proceedings and decree; the petitioner again
moved the High Court, this time under a different jurisdiction namely section 115 of the
Code of Civil Procedure. A learned Single Judge by the impugned order dismissed the
revision petition both on merits and on law. It has also been observed in para. 3 of the
impugned order that the revision petition was not competent since the appellate order of
the learned Additional District Judge had attained finality under section 14 of the Family
Court Act.
The petitioner has himself argued his case. He has orally reiterated the points
taken in the main petition. On factual side he has added that after his earlier failure to
secure the custody of the minor daughter, he now again intends making application for
her custody on the grounds that his divorced wife has remarried and that she had issues
from ha second wed-lock. Notwithstanding the so expressed intention of the petitioner to
seek a remedy, wherein if relief is granted. to him, he might be able to avoid the payment
of the maintenance to his daughter in future, he has pressed this petition against the
earlier final order of maintenance passed in favour of his daughter, so as to avoid
payment thereunder.
The petitioner had while arguing his writ petition in the High Court, submitted an
explanation for his non-appearance on 21st of October, 1974, which in the context of the
present proceedings it is necessary to notice. He had explained that he was a Government
employee and could not get have frequent enough to attend the proceedings. This, it was
observed by the learned Judge who decided the writ petition (not the same who passed
the impugned order) was "too fluffy to be accepted as satisfactory". He could have at
least engaged a counsel. It will be noticed that the order of maintenance was not passed
till 18-2-1975. Even if be was unable to appear before the Family Court on 21-10-1974,
he could have at the earliest opportunity visited the Court to find out what had happened
to his case. He did not care to do so. He cannot now complain that he had been
condemned unheard. He had all the opportunity to defend the proceedings". The other
learned Judge who dismissed the petitioner's revision petition made similar observations
in so far as the merits of the case are concerned; namely, " . . . . . . . . . . . . the petitioner is
himself to blame since he did not put in appearance before the Court on 21st October,
1974, soon after the Court opened after the public holidays. He conceded that according
to the rules on the civil side it is not necessary to send any notice and the parties have to
appear on the next opening day if the case is fixed on some date which is declared a
public holiday . . . . . . . . . This petition is liable to be dismissed". The learned Judge in
addition observed that this petition is also not competent since the appellate order of the
learned Additional District Judge has attained finality under section 14 of the Family
Courts Act".
Although the petitioner took the position before the High Court that ha was
conscious that, according to the rules, it was necessary for the parties to appear on the
next working day, if the case is fixed on a date which is declared a public holiday, yet he
has taken a different plea in the petition that he was "not aware about the law regarding
attending the Court on the day following an incidental holiday, and secondly, lived in a
far away place in District Campbellpur". Ignoring the divergent pleas taken before the
High Court, in writ petition and the revision petition, we asked the petitioner as to why he
failed to enquire about the fate of the application for maintenance which was fixed for
19-10-1974 (which was declared z public holiday) for nearly l I years. According to his
assertion in the petition. he became aware of the ex parte decree on examination of the
file on 8-4-1976. He gave a frank and candid reply that : (i) he was dejected on account
of attitude of some Courts in not attending to his pleas including those relating to the
alleged bias of the Presiding Judge/s; and (it) due to the realisation that the case against
him was v about any force and that it must have been dismissed on account of what he
stated, clear position of law laid down by the Supreme Court in Mst. Hamida Begun v.
Sjvd Mashaf Hussain Shah (1).
Page No. 2 of 3
The learned Family Judge as also the learned Additional District Judge exercising
the powers of an appellate Court, as a result of proceedings conducted on the petitioner's
application and after affording him enough opportunity did not find sufficient cause for
setting aside the ex parse decree. The explanation offered by the petitioner for his non-
appearance on 21-10-1974 and subsequent thereto for a considerable time offered before
the learned lover Courts or the explanation offered in this Court cannot be considered as
enough for setting aside the ex parse decree. A party cannot be permitted to prejudge the
issues pending before a Court of law in his own mind and boycott the proceedings on his
own assumptions. He cannot be a Judge on his own pleas. If the petitioner wanted to get
relief on basis of a ruling of this Court in support of his assumption that there was no case
for the grant of maintenance to the respondent, he should have (1) P L D 1958 S C (Pak.)
284 put up appearance and thus should have assisted the Court by placing his point of
view before the same. The mere fact that the petitioner, as, explained by him now formed
au adverse opinion about the conduct of proceedings by a Judge presiding on the Family
Court, did not entitle him to disassociate himself from the proceedings. ' He had a remedy
of approaching competent forum in proper proceedings for seeking the redress qua the
alleged bias.
After hearing the petitioner at a considerable length, we agree with the learned
Single Judge in the High Court that the petitioner is himself to be blamed for his non-
appearance before the learned Family Judge and for the consequential ex parte
proceedings and decree. Although it was possible for this Court to decide the petition on
purely legal grounds including those which partly prevailed with the learned lower Courts
in the two rounds of litigation, yet we considered it necessary, in view of the arguments
addressed by the petitioner, to deal with the question of the refusal of the learned lower
Courts to set aside the ex parte proceeding and decree. This, however, would not mean
that we have not endorsed the view of the High Court that the revision was not competent
nor would it imply that after agitating the questions of merits in the High Court in its B
writ jurisdiction, the petitioner was at liberty to reagitate the same before the lower
forums once again.
We also do not consider it a fit case for going into the question o the strength of
the original application from the respondents side for maintenance. Firstly, in view of our
decision on the question of the setting aside of the ex parte proceedings and decree it is
not necessary and secondly, any comment made by this Court in this behalf might
prejudice the case of the either party in the proceedings which the petitioner, according to
hi statement, intents to launch afresh for securing the custody of the minor. With the
above observation we find no merit in this petition and the same is dismissed.
Petition dismissed.
Page No. 3 of 3
Present : Dorab Patel and Muhammad Haleem, JJ
SAKHAWAT ALI AND ANOTHER-Appellants versus
Mst. SHUI KHELAY-Respondent
Civil Appeal No. 24 of 1980, decided on 22nd March, 1981.
(On appeal from the judgment and order of the Lahore High Court dated 10-1-
1980 in the F. A. O. 210 of 1979).
(a) Guardians and Wards Act (VIII of 1890)-
S. 25-Guardiansbip-Custody of children-Poverty of mother. Held, no ground for

denying her custody of her children.-[Custody of minors].
(b) West Pakistan Family Courts Act (XXXV of 1964)-
Link 1
--- Ss. 14 & 25-Appeal in guardianship matters-District Judge empowered under
Rules framed under Act XXXV of 1964 to transfer guardianship cases to civil
Judges-Civil Judge when acting as Guardian Judge, appeal against his order as per
cl. (b) of subsection (i) of S. 14, held, lies to District Court and not to High Court.-
[Appeal (civil)].
Mst. Zaibun Nisa v. Muhammad Muzammil P L D 1972 Kar. 410 and Muhammad
Ismail v. Mst. Zubeida Khatoon P L D 1973 Kar. 503 approved.
Muhammad Ismail v. Fazal Ahmad P L D 1969 Lab. 834 ; Juma Khan v. Mst. Gul
Ferosha P L D 1972 Pesh. 1 ; Mst. Parveen v. Kh. Muhammad Asghar P L D 1975
Lab. 334 and Manzoor Hussain v. District Judge, Multan P L D 1977 Lab. 911
not approved.
Khizar Hayat Tiwana v. Zainab Begum and others P L D 1967 S C 402 ;

Garikapati Veeraya v. N. Subbiah Choudhury and others P L D 1957 S C (Ind.)
448 and F. A. Khan v. The Government of Pakistan P L D 1964 S C 520
distinguished.
(c) West Pakistan Family Courts Act (XXXV of 1964)-
Link 1
S. 25-Section 25, held, prescribes procedure of Guardians and Wards Act, 1890 to
be followed by Guardian Judge and not procedure contained in such Act-Mode of
trial prescribed in Act XXXV of 1964-Contains sweeping departures from mode
of trial in suits under Civil Procedure Code, 1908-Provisions of Act XXXV of
1964 regulating trial of guardianship cases-To be followed by Family Courts-
Obligation imposed by S. 25 of Act XXXV of 1964 to follow procedure
prescribed in Guardians and Wards Act, 1890-An obligation imposed on Courts
and not regulative of rights of parties after Family Courts became functus officio.
(d) Interpretation of statutes-
View of writers of jurisprudence-May sometimes be relevant to construction of

words in a statute-Word "procedure" as interpreted by Privy Council, held, to be
given same meaning, such meaning being adopted by Legislature in view of
Legislature being presumed to be aware of judgments of superior Courts.-[Words
and phrases].
Colonial Sugar Refining Company Limited v. Irving 1905 A C 369 ref.
Page No. 1 of 6
(e) West Pakistan Family Courts Act (XXXV of 1964)--
S. 25-Trial, mode of-Appeal-Section 25 of Act XXXV of 1964, held, enacted only

in order to regulate mode of trial before Family Judge-Intention of Legislature,
held further, would be defeated if ordinary meaning of word "procedure" enlarged
so as to include "the provisions relating to appeal".-[Words and phrases].
Karam Elahi Maul, Advocate-on-Record for Appellants.
S. M. Almas All, Advocate and Ch. Akhtar Ali, Advocate-on-Record for

Respondent.
Date of hearing : 22nd March, 1981.
JUDGMENT
DORAB PATEL, J.-The respondent's husband died at Kalabagh on the 27th of

March, 1975 and the respondent was living with him at the time of his death with
her three minor children. However, after her husband's death, the appellant took
minor children away with him to Karachi, therefore, the respondent filed a suit
against the appellant in the Court of the Civil Judge, Mianwali, under the
Guardians and Wards Act, 1890, for the custody of her minor children. The
appellant contested the suit on the ground of jurisdiction, as the children were in
Karachi, and on the further ground that his brother had divorced the respondent
before his death. He also stated that the respondent was in any event not entitled
to the custody of her children, because she was not financially in a position to
maintain them. The learned Judge had no hesitation in rejecting the appellant's
frivolous objection to 'the jurisdiction. of the Court, and he also held that the
appellant had failed to prove that the respondent had been divorced b her husband
before his death. Therefore, as the poverty of the respondent was no ground for
denying her custody of her children, by his judgment dated 10-6-1969, he allowed
the respondent's application.
The appellant challenged this judgment in an appeal in the Lahore High Court and
in a well-considered judgment dated 10-1-1980 Munawwar Elahee Rana, J.,
dismissed the appeal, Nit as one of the respondent's children had meanwhile
become a major, the respondent's claim was upheld only with regard to the two
younger children. The appellant, therefore, filed a petition for leave and leave was
granted despite the concurrent findings against the appellant. However, the appeal
was directed to be heard as soon as it was ready.
Now, . although the respondent was successful in both the Courts, she was not
able to obtain the custody of her children, because of the dilatory tactics of the
appellant which continued in this Court, and emboldened by his success in
outwitting the judgments of the Courts, the appellant had sought an adjournment
again yesterday when the appeal came up for hearing before us. The request,
which seemed innocuous, because it was pressed on pleas of illness and death of
relations, was opposed by Mr. Almas Ali on grounds which shocked us. Mr.
Almas Ali stated that he bad been informed that both the minor girls had been
married off by the appellant. But, he admitted that the older of the two girls,
Kulsoom Jahan, was just over 15 years old. However, as the other daughter, Miss
Sarwar, is not yet fifteen, we were shocked to learn that she had been married off.
Mr. Bhatti; however, stated on instructions that Miss Sarwar had married of her
own free will. Even if this be true, the appellant has filed this appeal in order to
become Miss Sarwar's guardian and as Miss Sarwar was staying with him, his
conduct borders on contempt. And, but for the fact that Miss Sarwar's interests
might suffer, we would have taken appropriate action against the appellant. We
will not, least her future be jeopardised, and for the same reason, we do not wish
to make any observations on Mr. Almas Ali's submission that Miss Sarwar's
marriage is not legal, therefore, we would turn to Mr. Almas Ali's submission that
this appeal must be dismissed, as the appellant's first appeal in the Lahore High
Court was incompetent, because it was hit by section 14 of the West Pakistan
Page No. 2 of 6
Family Courts Act, 1964 (hereinafter called the said Act). On the other hand, Mr.
Bhatti relied on section 25 of the said Act, and Mr. Almas Ali's submission is
supported by judgments of the Sind & Baluchistan High Court in Mst. Zaibun
Nisa v. Muhammad Muzammil (PLD 1972 Kar 440) and in Muhammad Ismail v.
Mst. Zubeida Khatoon (P L D 1973 Kar. 503) whilst Mr. Bhatti's submission is
supported by judgments reported in Muhammad Ismail v. Fazal Ahmad (P L D
1969 Lab. 834), in Juma Khan v. Mst. Gul Ferosha (P L D 1972 Pesh. 1), in Mst.
Parveen v. Kh. Muhammad Asghar (P L D 1975 Lah. 334) and in Manzoor
Hussain v. District Judge, Multan (P L D 1977 Lab. 911).
There is no pronouncement by this Court on the question under consideration,

because the judgment in Khizar Hayat Tiwana v. Zalnab Begum and others (P L D
1967 S C 402), is not only distinguishable on the facts, but the Court also did not
have any occasion to examine the provisions of section 14 or of section 25 of the
said Act. Therefore, we would first examine these sections.
Section 14 reads :-
"14. Appeal.-(1) Notwithstanding anything provided in any other law for the time
being in force, a decision given or decree passed by a Family Court shall be
appealable----
(a) to the High Court, where the Family Court is presided over by a District
Judge, an Additional District Judge or any person notified by Government to be of
the rank and status of a District Judge or an Additional District Judge; and
(b) to the District Court, in any other case.
(2).:'…………….
There is no ambiguity about this section, unless we ignore the elementary fact that
there have always been two tiers of Courts in the District and Sessions Courts of
the country. The Civil Judges form the lower tier of the District Courts, whilst the
District Judges and the Additional District Judges constitute the upper tier of the
District Courts. There is a similar hierarchy of Courts on the criminal side. And,
appeals from the judgments of District Judges and of Additional District Judges
have always been filed in the High Courts, whilst, subject to the question of
pecuniary jurisdiction, appeals from the lower tier of the District Courts, namely,
the Civil Judges, have been filed in the District Courts. Now, there can be no
question of the valuation of the dispute in guardianship matters, but the District
Judges are empowered, under the rules framed under the said Act, to transfer
guardianship cases to Civil Judges. And, when a Civil Judge acts as the Guardian
Judge, clause (b) of subsection (1) of section 14 prescribes that an appeal against
his order lies to the District Court. This is in accordance with the law of
generations and therefore, the abstract proposition that there cannot be an appeal
within a Court has no relevance to our Jurisprudence.
As section 14 is so clear, at first sight, it is difficult to understand the contention

of the respondent that he could have challenged the Guardian Judge's order in the
instant case only in the Lahore High Court. But, according to him, an appeal
against an order of the Guardian Judge could be filed, in view of section.47 of the
Guardians and Wards Act, only in a High Court, and, therefore, as section 25 of
the said Act superseded in terms the provisions of section 14, his appeal was
validly filed.
Section 25 reads :-
"Family Court deemed to be a District Court for purposes of Guardians and

Wards Act, 1890.-A Family Court shall be deemed to be a District Court for the
purposes of the Guardians and Wards Act, 1890, and notwithstanding anything
contained in this Act shall, in dealing with matters specified in that Act, follow the
procedure prescribed in that Act."
Page No. 3 of 6
The section does not, in terms, repeal section 14 nor does it refer to the litigants'
right of appeal. Therefore, the respondent's contention assumes that section 25
amounts to an implied repeal of section 14 in all guardianship matters. Now, if
that had been the intention of the Legislature, it would have enacted accordingly,
because repeals are not to be lightly implied. Secondly, even on the footing that a
statute has to be read as a whole, what does section 25 enact. It only prescribes
that the procedure of the Guardian and Wards Act shall be followed by the
Guardian Judge and not the procedure contained in the said Act. Therefore, we
would explain her that the mode of trial prescribed in the said Act contains
sweeping departure from the mode of trials in suits under the Civil Procedure
Code. As the novel procedure contained in the said Act has been examined in
detail in Mst. Zaibun Nisa's case, it is not necessary to recapitulate the difference
between the mode of trial under the said Act and the mode of trial in a suit under
the Civil Procedure Code and the Evidence Act. And, the mode of trial laid down
in the said Act is expressly excluded by section 25. Secondly, as according to this
section; the Guardian Judge has to "follow the procedure prescribed" in the
Guardians and Wards Act, it would be sufficient to observe that whilst this Act
does not contain elaborate provisions for the conduct of a trial in guardianship
cases, it contains some provisions for regulating such trials, and the effect of the
words quoted is that these provisions have to be followed by Family Courts,
whenever they hear guardianship cases. But the procedure prescribed for hearing
a case under the Guardians and Wards Act has nothing to do with the question of
the forum in which an order this Act can be challenged by the aggrieved party.
Therefore, in our humble opinion, section 47 of the Guardians and Ward Act is
irrelevant to the construction of section 25, because this section has been enacted
only in order to regulate the' procedure of the trial before the Family Court. And,
this section neither states nor implies that it is intended to govern the rights of
parties after the Family Court has become functus officio by deciding the case
before it.
However, according to Mr. Bhatti, the words in section 25 "the procedure

prescribed in that Act" were intended to include the right of appeal conferred by
that Act, namely the Guardians and Wards Act. But the obligation imposed by
section 25 to follow the procedure prescribed in the Guardians and Wards Act is
an obligation imposed on the Court, and there is nothing in the section to
support the view that it was intended to regulate the rights of the parties after the
Family Courts had become functuss officio. Secondly, on the footing that the word
"procedure" is ambiguous, we have to follow the construction placed on it by the
superior Courts on the principle that the Legislature is aware of the judgments of
the superior Courts. And, in the Colonial Sugar Refining Company Limited v.
Irving (1905 A C 369), the Privy Council observed that the proposition that a right
of appeal is not a matter of procedure "does not admit of doubt". This dictum has
been followed in innumerable cases by the Courts of the sub-continent and by our
Courts and, therefore, on the footing that the word "procedure" in section 25 of
the said Act is ambiguous, the only meaning that can be placed on it is the
meaning by the Privy Council. And, it was for these reasons that the Sind &
Baluchistan High Court took the view that an appeal against an order of a
Guardian Judge, who is not a District Judge or an Additional District Judge, lies to
the District Court under clause (b) of sub-, section (1) of section 14.
We now turn to the other view and we would begin with the judgment of the
Division Bench in Muhammad Ismail's case. The learned Judges observed at page
840 :-
"Ordinarily the word 'procedure' connotes details of the mode of trial to be

adopted in a particular Court and would not include the provisions relating to
appeal."
This dictum is in accordance with the view taken by the Sind & Baluchistan High
Court. But, after holding that the word "procedure" did not ordinarily include "the
provisions relating the appeal", the learned Judges went on to hold that the word
"procedure" in section 25 of the said Act could not be given its ordinary meaning
because if the ordinary meaning of the word was followed it would lead to
Page No. 4 of 6
anomalous consequences. And, as to how these anomalous consequences would
arise, the learned Judges observed :---
"Since under section 25 of Act the Family Court has to be equated with a District
Court for the purposes of cases under the Guardians and Wards Act, it appears to
us that sub-clause (b) of subsection (1) of section 14 would be straightaway
excluded inasmuch as the order passed by the Family Court in a case of this kind
would be only in its capacity as a District Court and no Court can hear an appeal
against its own order or from that of a concurrent jurisdiction. Likewise, clause
(a) would also be inapplicable inasmuch as it could be invoked only in a case
where the Family Court is 'presided over by a District Judge, an Additional
District Judge, or a person notified by Government to be of the rank and of the
status of a District Judge or an Additional District Judge. It appears to us that
where a Civil Judge, Ist Class, functions as a Family Court while dealing with a
case relating to the custody or guardianship of a minor, the rank and status of an
Additional District Judge must be conferred on him, by means of a notification in
order to make his order appealable under clause (a) of subsection (1) of section
14. The learned counsel for the appellant could not place any such notification on
the record. It would thus appear that the order in question or any such order would
not at all be amenable to an appeal. Obviously nothing could be further from the
intention of the Legislature than to impart a finality of such an order of the
Family Court which cannot be deemed to have become sacrosanct."
With all respect to the learned Judges, these observations overlook the fact that
the Family Court has been made a District Court only by an express deeming
provision. Secondly, and this is much more important, for the reasons which we
have given, we are unable to agree with the assumption of the learned Judges that
an appeal in the District Court could not lie against the order of the Family Judge,
because "no Court can hear an appeal against its own order or from that of a
concurrent jurisdiction." But, it was only because the learned Judges assumed that
the order of the Guardian Judge could not be challenged in an appeal in the
District Court that they went on to hold that the ordinary meaning of the word
"procedure" had to be modified in order to confer a right of appeal in favour of
the litigant who was unsuccessful bell ore the Family Court, therefore, with
respect, as the assumption thus made by the learned Judges was erroneous, we are
unable to agree with the judgment of the learned Judges.
The next judgment which supports the appellant's claim is that of a learned Single
Judge of the Peshawar High Court in Jumma Khan's case. In this judgment, the
learned Single Judge approved of the proposition laid down by the Indian
Supreme Court in Garikapali Veeraya v. N. Subbiah Choudhury and others (P L D
1957 S C (Ind.) 448) that an appeal was a vested right and not a matter of
procedure, but the learned Judge nonetheless held that the word "procedure" in
section 25 of the said Act included the right of appeal. With respect, the reasons
which led the learned Judge to reach this conclusion are not clear, but as he has,
before reaching this conclusion, relied upon a judgment of this Court in F. A.
Khan v. The Government of Pakistan (PLD 1964 SC 250) we may point out that
Kaikaus, J., observed in this judgment that original and appellate proceedings are
only steps "in one proceeding". Now, there can be no doubt that for some
purposes an appeal may be treated as a continuation of the original suit or
application, but, even if we assume that an appeal is a continuation of the suit or
application filed in the Court of the first instance, this does not lead to the
conclusion that the right of appeal is a matter of procedure. And, therefore, we are
unable to agree with the view taken in Jumma Khan's case.
We now turn to the judgment of the Lahore High Court in Mst. Parveen v.
Khawaja Muhammad Asghar. The learned Single Judge of the Lahore High Court,
who heard this case, was rightly of the view that he was bound by Muhammad
Ismail's case and that the judgments of the Sind & Baluchistan High Court were
only of persuasive value. But, although the learned Single Judge purported to
follow Muhammad Ismail's case, as we pointed out, in Muhammad Ismail's case
the learned Judges were of the view that the word "procedure" did not ordinarily
include "the provisions relating to appeal" and, therefore, they had modified its
Page No. 5 of 6
ordinary meaning. But, the learned Single Judge, who decided Mst. Parveen's
case, did not hold that the word "procedure" would not ordinarily include "the
provisions relating to appeal." On the contrary he held that the word "procedure"
included provisions relating to appeals, because according to him this was the
meaning placed on the word by writers of jurisprudence, and he also relied on
judgments of/ the Indian Supreme Court. With due respect, whilst the view of
writers l of jurisprudence may sometimes be relevant to the construction of words
in a statute, what is much more relevant to the instant case is the construction
placed on the word "procedure" by the Privy Council in the Colonial Sugar
Refining Company's case, because the Legislature is presumed to be aware of the
judgments of the superior Courts. Next, as to the judgments of the Indian
Supreme Court, the statutory and constitutional provisions construed in those
cases were not only not in part materia with section 25 of the said Act, but there
was also no similarity between the provisions construed by the Indian Supreme
Court and section 25 of the said Act. And, on the contrary, we are satisfied that
section 25 has been enacted only in order to regulate the mode of the trial before
the Family Judge, therefore, it would defeat the f intention of the Legislature if we
were to enlarge the ordinary meaning of the word "procedure" so as to include
"the provisions relating to appeal". Therefore we are unable to agree with the
judgment in Mst. Parveen's case.
The only other judgment which supports the appellant's case is the judgment of a
Division of the Lahore High Court in Manzoor Hussain's case. But, as this
judgment merely follows the view taken in Muhammad Ismail's case and in Mst.
Parveen's case, we are unable to agree with it and, we hold that the correct law
was laid down by the Sind & Baluchistan High Court in Mst. Zaibun Nisa v.
Muhammad Muzammil and in Muhammad Ismail v. Mst. Zubeida Khatoon. The
appeal, therefore, fails and is dismissed.
The only question which remains for examination is that of costs, and Mr. Bhatti
submitted that the objection to the maintainability of the appellant's appeal in the
High Court had not been taken before the High Court. The submission appears to
be correct, but a respondent is entitled to resist an appeal on all grounds available
to him under the law, and, further we are shocked by the appellant's conduct,
therefore, the appeal is dismissed with costs.
s. A. H. Appeal dismissed.
Page No. 6 of 6
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Family Appeal

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Family Appeal

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2007 S C M R 1935

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

NASIR ALI alias KHIZAR HAYAT----Petitioner

Mst. TAJ BEGUM and others----Respondents

Civil Petition No.2565-L of 2005, decided on 12th October, 2005.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.185(3)---Suit for

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 12th October, 2005.

H.B.T./N-2/SC Petition dismissed.

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ADDITIONAL DISTRICT JUDGE, ALIPUR, DISTRICT MUZAFFARGARH and

Civil Petition No.3444-L of 2004, decided on 18th October, 2005.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 14---Right of appeal, exercise of---Principles---Dissolution of marriage---Object

(b) Interpretation of statutes---

----Proviso to a provision of law---Construction---Scope---Provision of proviso is to be

(c) West Pakistan Family Courts Act (XXXV of 1964)---

---Ss. 5 & 14---Constitution of Pakistan (1973), Art.185(3)--Dissolution of marriage---

Date of hearing: 18th October, 2005.

KARAMAT NAZIR BHANDARI, J.--- Respondent No.2-wife filed a suit for

Whether the plaintiff is entitled to get decree of dissolution of marriage as prayed

5. Section 14 of the Family Courts Act, 1964 reads:--

(b) to the District Court, in any other case.

(2) No appeal shall lie from a decree by a Family Court:-

(b) for dower or dowry not exceeding Rupees thirty thousand;

(c) for maintenance of Rupees one thousand or less per month.

M.H./A-181/S Petition dismissed.

Present: Iftikhar Muhammad Chaudhry and Deedar Hussain Shah, JJ

SYED MUHAMMAD ---Petitioner

Mst. ZEENAT and others---Respondents

Civil Petition No. 134-Q of 1998, decided on 1st November, 2000.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 17---Civil Procedure Code (V of 1908), S.48---Execution of decree passed by

(b) West Pakistan Family Courts Act (XXXV of 1964)---

(c) Islamic Law---

---- Dower---Recovery of---Limitation---Prompt dower is to be recovered during

(d) West Pakistan Family Courts Act (XXXV of 1964)---

Basharatullah, Senior Advocate Supreme Court and Mehta W.N. Kohli,

IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioner seeks leave to appeal against

3. Learned counsel contended that execution application filed by respondent on 10th

The petition is dismissed and leave to appeal is refused.

Q.M.H./M.A.K./S-84/S Petition dismissed

Present: Nasim Hasan Shah and Saad Saood Jan, JJ

Mirza DAUD BAIG--Petitioner

ADDITIONAL DISTRICT JUDGE,

Civil Petition No. 1031 of 1986, decided on 27th April, 1987.

West Pakistan Family Courts Act (XXXV of 1964)--

Mahmood A. Qureshi Advocate-on-Record for the Petitioner.

Date of hearing: 27th April, 1987.

"Section 19. Court-fee.-- Notwithstanding anything to the contrary contained in

The relevant part of section 7 is reproduced below for facility of reference: --

M . B . A . / D-2 / S Petition dismissed

Present: Muhammad Afzal Zullah and Javid Iqbal, JJ

Mst. KANIZ MAI--Petitioner

MUHAMMAD NAWAZ and another--Respondents

Constitution of Pakistan (1973)- -

Date of -searing: 24th January, 1987.

4.Leave to appeal accordingly, is granted. Security Rs.2,500. Stay order passed on

S.Q./K-6/S Leave granted.