IRFAN AHMED vs II-JUDICIAL MAGISTRATE EAST, AT KARACHI and another
This constitutional petition challenges an interim order passed by a Family Court. The core legal question concerns the maintainability of a constitutional petition against an interim order of a Family Court, given that Section 14(3) of the Family Courts Act, 1964, precludes appeals or revisions against such orders, and Section 17 of the same Act excludes the application of Section 115 of the Code of Civil Procedure, 1908. The Court held that the petition is maintainable because, following the Full Bench precedent in Zaibun Nisa v. Muhammad Muzzamil (PLD 1972 Karachi 401), revision proceedings are barred, leaving the constitutional jurisdiction of the High Court as the only available remedy for challenging such interim orders. The Court admitted the petition to regular hearing and recorded a consent arrangement between the parties regarding visitation rights for the petitioner, while the petitioner undertook to comply with the impugned order pending the final outcome of the petition. The judgment affirms that the High Court's constitutional jurisdiction remains the appropriate forum for challenging interim family court orders where statutory revision is expressly excluded.
- Is a constitutional petition maintainable against an interim order of a Family Court?
- Does Section 115 of the Code of Civil Procedure 1908 apply to proceedings under the Family Courts Act 1964?
- Can an appeal or revision be filed against an interim order of a Family Court under the Family Courts Act 1964?
- Section 14(3), Family Courts Act 1964
- Section 17, Family Courts Act 1964
- Section 115, Code of Civil Procedure 1908
ORDER
' SABIHUDDIN AHMED, CJ.---To be filed before the next date.
As regards the maintainability of this petition, learned counsel has urged that under the newly added section 14(3) of the Family Courts Act, an appeal or a revision does not lie against an interim order of a Family Court and therefore, this petition appears to be the only remedy. I am also conscious that a Full Bench of this Court in Zaibun Nisa v. Muhammad Muzzamil (PLD 1972 Karachi 401) has clearly held that in view of section 17 of the Family Courts Act, section 115, C.P.C. Will not apply and therefore a revision will not be maintainable. Considering the above Full Bench judgment of this Court, it is not possible to rely on the view taken by some Indian Courts and this petition is found to be maintainable. By consent the petition is admitted to regular hearing and fixed on 28-10-2005 and both learned counsel agree that they will make efforts to work out amicable settlement. The petitioner undertakes that he will comply with the impugned order subject to the result of this petition instantly and the respondent agree that visitation rights will be available to the petitioner for four hours every Friday so that he may collect the minors from the house between 4 and 5 p.m. And re-deliver them at the house of the respondent's father before 9- 00 p.m. The petitioner may also visit the respondent or the minors at the residence of her father at any other time by mutual agreement but will not remove the children except as stated above.
3. To come up along with main petition.
Cited by 4 cases
- Waseem Ijaz vs Additional District Judge, Lahore and another 2019 [M] C.L.R. 1649
- Mst. ERAM RAZA and 2 others vs Syed MUTAQI MUHAMMAD ALI and another 2018 MLD 727
- ALI ADNAN DAR through Attorney vs JUDGE FAMILY COURT and others 2016 PLD Lahore 73
- Mian SHIRAZ ARSHAD vs VIIITH CIVIL AND FAMILY JUDGE, KARACHI (SOUTH) 2009 YLR 1016