Provisions of CPC are not applicable before Family Court

PLJ 2016 AJ&K 52

Present: Sardar Abdul Hameed Khan, J.

RASHID SHAMIM--Petitioner

versus

JUDGE FAMILY COURT/CIVIL JUDGE COURT NO. II, NEW DISTRICT COMPLEX, MUZAFFARABAD and 3 others--Respondents

W.P. No. 1483 of 2013, decided on 22.1.2015.

Civil Procedure Code, 1908 (V of 1908)--

----Scope--AJ&K Family Courts Act, S. 5--Applicability in stricto senso--Family Court--Principle of justice--It is also settled law that provisions of CPC are not applicable in stricto senso to proceedings before Family Court however, principles of CPC could be attracted specially when there was no conflict between provisions of CPC and provisions of Family Court Act, 1993--Where there is no specific provision is provided in Act, Court has to consider matter in light of settled principle of justice equity and good conscious and Court can pass an order adopting principles rules of CPC.                                                                                    [Pp. 55] A & B

Minor--

----Obligation of father--It is also settled law that husband being father of child born to his wife is required under law not only to provide food and shelter to his family but also take care of other genuine needs of family.         [P. 55] C

AJ&K Family Court Act, 1993--

----S. 5--AJ&K Interim Constitution Act, 1974, S. 44--Maintenance--Jurisdiction--No procedure to specify for filing separate suits--Application for arraying minor in line of plaintiffs was allowed--Non-petitioner was entitled to recover expenses incurred on birth of child--No bar on powers of family Courts that cannot allow any party to amend its pleadings--Validity--Family Court possess exclusive jurisdiction to entertain matter pertaining to dissolution of marriage, dower, maintenance, restitution of conjugal rights, custodian of children and guardianship as there was no procedure to specify for filing separate suits, parties are also entitled to file even a single suit pertaining to any of matters for one or more than one matter jointly--It is not denied by other party that minor who has been added as party in suit is family member of petitioner--No bar for impleadment of minor in suit for maintenance subjudice before Court.                                                                             [P. 55] D & E

Raja Zulqarnain Khan, Advocate for Petitioner.

Ch. Muhammad Mumtaz, Advocate for Respondents.

Date of hearing: 22.1.2015.

Judgment

Through this writ petition filed under Section 44 of Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby, the application filed by the plaintiff Lubna Sadiq for arraying one Falak (minor) in the line of plaintiffs was allowed through the impugned order dated 15.07.2013 by Civil Judge/Judge Family Court Muzaffarabad.

2.  Brief facts forming background of the instant writ petition are that Respondent No. 2,herein filed suit on 29.09.2012 for the dower and maintenance before the Court of Respondent No. 1. It is averred that the petitioner, herein, filed a written statement in response of suit. The proceedings were in progress when Respondent No. 2 filed an amendment application in her suit contrary to the law, rules and procedure through which she sought to insert one more applicant and also element of recovery of Rs. 57465/- the expenses of birth of new baby. After hearing the said application, the Respondent No. 1 allowed the amendment application of the Respondent No. 2 illegally and contrary to the law, rules and the procedure provided by the Family Court Act, 1993vide order dated 15.07.2013. Finally, it is prayed that by accepting the writ petition order dated 15.07.2013 may very graciously be set-aside.

3.  This writ petition was admitted for regular hearing on 07.02.2014 and respondents were directed to file written statement. On 29.04.2014, the comments filed by the respondents were treated as written statement and the case was fixed for arguments.

4.  Raja Zulqarnain Khan, the learned counsel for the petitioner reiterated the points raisedin the petition and argued that suit for the payment of maintenance was subjudice before the Judge Family Court (Respondent No. 1) not the suit for recovery of any payments. It is crystal clear that in the suit of payment of maintenance, no other suit could be included hence order dated 15.07.2013 is not legal and liable to be set-aside, it is contended by the learned counsel that there is no provision for amendment in Family Court Act and in the absence of such provision, order dated 15.07.2013 could not be issued. The learned counsel further contended that by allowing amendment, nature of the suit has been changed completely, Suit of Family Court has been turned into a civil suit, which could not be adjudicated under Family Court Act as the requirement of a Civil Suit are quite different. Finally, the learned counsel prayed that by accepting the writ petition, the impugned order dated 15.07.2013 may be set-aside.

5.  Ch. Muhammad Mumtaz, advocate, the learned counsel for the respondents while controverting the arguments advanced on behalf of petitioner argued that the learned Judge Family Court has passed the impugned order in right direction which warrants no interference by this Court. The learned counsel contended that the non-Petitioner No. 2 is entitled to recover expenses incurred on birth of a child and petitioner being father of child born to his wife is required under law not only to provide food and shelter to his family but also take care of other genuine needs of family. The learned counsel further contended that under the Family Courts Act, 1993 there is no absolute bar on the powers of the Family Courts that these cannot allow any party to amend its pleadings and the learned Judge has rightly allowed the application for impleading minor in the line of plaintiffs. Finally, the learned counsel cited the following case law and craved for dismissal of the writ petition with costs.

1.       2005 SCR 37,

2.       1999 CLC 81,

3.       1983 CLC 3305,

4.       PLJ 2012 SC (AJ&K) 169.

6.  I have heard the learned counsel for the parties and gone through the relevant record with due care.

7.  From perusal of the record it reveals that the non- petitioner Lubna Sadiq filed a suit for dower and a separate suit for maintenance allowance before Judge Family Court Muzaffarabad, during proceedings, she filed an application for arraying one Falak (minor) in the line of plaintiffs. The petitioner herein, filed objections on the said application. The learned Family Judge after hearing both the parties, accepted the application of Lubna Sadiq and order was passed to impleadminor in the line of plaintiffs.

8.  As far as the stance of the learned counsel for the petitioner regarding rules and procedure of Family Court Act, 1993 regarding the amendment in suit/application or consolidating the suit etc is concerned. It is pertinent to mention that the family Court Act is special law which is meant to provide speedy relief to the families. It is also obvious that no provision for amendment of the pleadings is provided and it is also obvious neither Civil Procedure Code nor the Qanoon-e-Shahdat Order, 1984 applies to the proceedings under Family Court Act, but at the same time there is no provision in the Act prohibiting or putting absolute bar on the powers of the Family Court to allow any party to amend its pleadings. It is added that the Family Court Act can adopt any procedure not expressly barred under the, law for the final disposal of the case in this manner, the amendment in the pleadings which is necessary for final disposal of the family suit can be allowed by the judge Family Court.

9.  It is clear from the pleadings of the Respondent No. 2, that Lubna Sadiq was pregnant at the time of institution of the suit for maintenance allowance, wherein she claimed the maintenance and allied expenses, hence, the application for the amendment is a continuation of the stance of the respondents taken in the suit.

10.  It is also settled law that provisions of Civil Procedure Code are not applicable in stricto senso to the proceedings before the Family Court however, principles of CPC could be attracted specially when there was no conflict between the provisions of Civil Procedure Code, 1908 and the provisions of the Family Court Act, 1993. Wherefrom, it can safely be concluded that where there is no specific provision is provided in the Act, the Court has to consider the matter in the light of the settled principle of justice equity and good conscious and in this eventuality Court can pass an order adopting the principles/ rules of CPC etc. The above findings of the Court are fortified by 2005 SCR 37.

11.  It is also settled law that the husband being father of the child born to his wife is required under law not only to provide food and shelter to his family but also take care of other genuine needs of family.

12.  It may be added that under Section 5 of the Family Court Act, the Family Court possess the exclusive jurisdiction to entertain the matter pertaining to dissolution of marriage, dower, maintenance, restitution of conjugal rights, custodian of children and guardianship as there is no procedure to specify for filing separate suits, the parties are also entitled to file even a single suit pertaining to any of the matters for one or more than one matters jointly.

13.  It is not denied by the other party that the minor Falak who has been added as party in the suit is the family member of the petitioner. So, there was no bar for impleadment of the minor in the suit for maintenance subjudice before the Court.

In light of what has been stated above, the impugned order has been passed by the Family Court is in right direction which warrants no interference by this Court. Resultantly, the writ petition stands dismissed.

(R.A.)  Petition dismissed

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