2011 SCMR 1361

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim, JJ

FARZANA RASOOL and 3 others—Appellants

Versus

Dr. MUHAMMAD BASHIR and others—Respondents

Civil Appeal No. 124 of 2011, decided on 16th June, 2011. .

(On appeal from the judgment/order dated 14-2-2011 passed by Lahore High Court, Multan Bench, Multan in W.P. 12336 of 2010).

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

—S. 5 & Sched.—Constitution of Pakistan, Arts. 185(3) & 199—Suit for recovery of maintenance allowance and dowry articles—Appointment of Arbitrators at defendant’s request for settlement of his family disputes with wife by giving undertaking to be bound by their decision—Suit decreed by Family Court on basis of recommendations of Arbitrators upheld by Appellate Court, but set aside by High Court on the ground that Arbitration Act, 1940 was not applicable to Family Courts—Validity—Supreme Court granted leave to appeal to consider plaintiff’s contention that Family Courts were not precluded to refer matters between parties for mediation, arbitration or decision by a third party, thus, High Court might have not interfered in proceedings where parties themselves consented for same.

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

—-Preamble, Ss. 5, Sched. 10 & 12—Provisions of Ss. 10 & 12 of West Pakistan” Family Courts Act, 1964 requiring Family Court to make efforts to effect conciliation/compromise between spouses at pre-trial and post-trial stages—Validity—Such provisions being in consonance with command of Allah Almighty described in Ayat No. 35 of Surah An – Nisa—Principles.

The procedure prescribed in the West Pakistan Family Courts Act, 1964 is different from the procedure of trial under the Civil Procedure Code and that before passing any judgment and giving a decree, the West Pakistan Family Courts Act provides at two stages that the Family Court shall undertake exercise of trying to bring about the compromise between the parties at pre-trail stage and also on the conclusion of the trial, but before pronouncement of the judgment. These provisions appear to be in consonance with the command of Allah Almighty in Surah An-Nisa. (Ayat No. 35).

A bare reading of command of Allah Almighty as described in the said Surah, reveals that efforts are to be made by induction of one Hakam from the family of husband and one from the family of wife for ultimate reconciliation or compromise, so the family ties between the husband and wife remains intact. It is the spirit of said ayat of Surah An-Nisa that Ss. 10 and 12 of the West Pakistan Family Courts Act have been promulgated to give effect to the said Ayai from Surah An-Nisa.

It is generally said that “it is better to have no house than to have a broken one” i.e., all efforts should be made that spouses even if separated are brought to re-union. Principle of bringing about compromise between the spouses for their union/reunion is to be applied even in ancillary matters, like dispute between husband and “wife in respect of dower, dowry, maintenance and all other allied matters under consideration before the court.

The Preamble of the West Pakistan Family Courts Act speaks of settlement of disputes and disposal of the matter relating to marriage and family affairs. So, the Preamble has its two parts; one “settlement of disputes” and the other “disposal of the matter”. The word “settlement” used in the Preamble appears to be more akin and in consonance with sections 10 and 12 of the Act, which provides that the Family Court shall take steps at pre and post trial stages to bring about compromise or settlement/reconciliation between the parties The second part of the Preamble relates to “disposal of disputes”, which would mean that if settlement fails, then the dispute shall be disposed of on merits.

Efforts should be made by the Judge Family Court to bring about compromise/settlement between the spouses for their reunion .and for their living together. With the same spirit and on the same analogy, any such attempt made by a Judge Family Court for settlement of any matrimonial dispute including the issue of dower, dowry, maintenance etc., is to advance the concept of Islamic Principle i.e. settlement of dispute in an amicable manner. In short, the concept of compromise in matrimonial relations as mandated by Allah Almighty is to be read in sections 10 and 12 of the Act.

Naimuddin v. Mah-e-Talat 1984 CLC 638″; Murid Hussain v. Additional District Judge 2003 MLD 547; State v. Gulzar Muhammad 1998 SCMR 867; Dilshad Sultana v. Noor Muhammad PLD 1993 Quetta 1 and Mst. Sattaran Begum v. Muhammad Muqeem Civil Petition No.599 of 2010 rel.

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

—-Preamble & S. 17—Civil Procedure Code (V of 1908), Preamble—Qanun-e-Shahadat (10 of 1984), Art. 1(2)—Exclusion of application of C.P.C. and Qanun-e-Shahadat to proceedings before Family Court—Object—Object of West Pakistan Family Courts Act, 1964 being to shorten agony of litigating parties and provide them justice as early as possible—Object of exclusion of C.P.C., and Qanun-e-Shahadat, 1984 was to avoid technicalities by providing a short, simple and speedy methodology for settlement and disposal of disputes relating to family matters—Family Court could adopt any procedure which being neither illegal nor expressly barred by West Pakistan Family Courts Act, 1964 nor offends any right of parties—Principles.

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

—-S. 5 & Sched:—Constitution of Pakistan, Arts. 185(3) & 199—Suit for recovery of maintenance allowance and dowry articles—Appointment of Arbitrators at request of defendant (husband) for settlement of his family disputes with plaintiff (wife) by giving undertaking to be bound by their decision, if any—Suit decreed by Family Court on basis of unanimous decision/award of Arbitrators upheld by Appellate Court, but set aside by High Court on ground that Arbitration Act, 1940 was not applicable to Family Courts—Validity—Defendant had voluntarily made statement on oath in court seeking resolution of his matrimonial disputes with plaintiff by nominating a panel of Arbitrators of his choice by giving an undertaking to be bound by their decision—Family Court after rejecting defendant’s objection had incorporated in its judgment such decision of Arbitrators—Option to enter into a compromise at any stage of proceedings vested with parties before pronouncement of judgment—Defendant could make request for compromise at post trial stage and Family Court could not have refused same—No illegality had been committed in entrusting such dispute to Arbitrators in whom defendant had reposed full confidence by making unqualified and unconditional statement and that too on oath—Provisions of Ss. 10 and 12 of West Pakistan Family Courts Act, 1964 conferred jurisdiction upon Judge Family Court to make an effort to bring about compromise between spouses—Defendant’s conduct in objecting such decision of Arbitrators was liable to be condemned—Supreme Court set aside impugned judgment and restored that of Appellate Court and Family Court in circumstances.

Naimuddin v. Mah-e-Talat 1984 CLC 638; Murid Hussain v. Additional District Judge 2003 MLD 547; State v. Gulzar Muhammad 1998 SCMR 867; Dilshad Sultana v. Noor Muhammad PLD 1993 Quetta 1 and Mst. Sattaran Begum v. Muhammad Muqeem Civil Petition No.599 of 2010 rel.

(e) West Pakistan Family Courts Act (XXXV of 1964)—

—Ss. 10 & 12—Pre-trail and post-trial conciliation proceedings—Scope—Option to enter into a compromise at any stage of trial vested with parties before pronouncement of judgment.

(f) Administration of justice—

—-Conduct of a party before a court of law is always taken as relevant.

(g) Administration of justice—

—-Undertaking given by a party in court of law—Validity—Retraction from such undertaking or its withdrawal could not be allowed as sanctity to judicial proceedings would be preserved at any cost—Qanun­e-Shahadat (10 of 1984), Art. 114—Principles.

Undertaking given by a party in the court of law has to be given sanctity, because on the one hand there is a legal estoppel, and on the other moral and ethical against it. Retraction from such undertaking cannot be allowed, because the same would result in distrust of the public litigants in the judiciary and would tarnish the sacred image of the Judicial Officers before whom once a consent is given by making a statement on oath and later on withdrawn, therefore, it would become a mockery of law and facts. If such practice is allowed to prevail and is ignored by the courts, it cannot add to the trust of public litigants in the judiciary and judicial system, but would reflect on lack of trust in the judiciary, which cannot be permitted, because sanctity to the judicial proceedings has to be preserved at any cost. [Qanun-e-Shahadat (10 of, 1984), Art. 114].

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants.

Ex parte for Respondent No. 1.

Pro forma Respondents Nos. 2 and 3.

Date of hearing: 16th June, 2011.

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