EJAZ MAHMOOD vs Mst. HUMAIRA AND ANOTHER

' This Constitutional Petition assails the order dated 16th March, 1982 passed by Mr. Shaukat Ali, Judge Family Court, Lahore, viz. Respondent No, 2.

2. Mst. Humaira, respondent No, 1, filed a suit against the petitioner before the Judge Family Court, Lahore, for the recovery of Rs, 25,000 on account of prompt dower on 25th June, 1981. The petitioner filed his written statement on 22nd November, 1981 wherein he pleaded inter alia that since he had divorced respondent No, 1 on 7th April, 1981 therefore, Mst. Humaira as a measure of retaliation had filed the suit.

3. During the pendency of the suit, Mst. Humaira, respondent No, 1, moved an application seeking amendment in the plaint to the effect that as the divorce had become effective from 6th December, 1981 therefore; she might be permitted to amend the plaint so as to add the claim in regard to deferred dower as well amounting to Rs, 25,000. The amendment as prayed for by Mst.

Humaira was opposed by the petitioner but the learned Judge Family Court, after hearing the parties, through his impugned order dated 16th March, 1982 permitted respondent No, 1 to amend her plaint,

4. The petitioner questions the validity of the impugned order on the grounds: (a) that the provisions of Code of Civil Procedure were not applicable to the proceedings under the Family Courts Act and, therefore, there being no provision regarding amendment in the Family Courts Act, no amendment could be allowed; (b) that the amendment allowed through the impugned order was based on fresh cause of action and could not be joined in the same suit; (c) that the cause of action being different, a new set of witnesses was required to be produced which was not possible in the suit already pending; (d) that in fact the petitioner had divorced respondent No, 1 on 7th April, 1981 and she filed the suit for recovery of prompt dower on 25th June, 1981 i. e. After the divorce whereby she expressly waived her right in regard to the deferred dower amounting to Rs, 25,000 and, therefore, she could not subsequently be permitted to add the claim by way of amendment which she had already waived; and (e) that the impugned order is not a speaking order.

5. It is true that the provisions of the Code of Civil Procedure are not applicable to the trial of a family suit for which procedure has been provided in the Family Courts Act, 1964 and while trying a family suit, the Family Court can adopt any procedure not expressly barred under the law, for the final disposal of the cause. In this manner, the amendment in the pleadings which is necessary for the final disposal of a family suit can also be allowed by the Judge Family Court.

6. The claim of Rs, 25,000 on account of deferred dower which has been allowed to be included in the suit by way of amendment became available to respondent No, 1 after she was divorced by the petitioner. In orde to avoid multiplicity of suit, the learned Judge Family Court, was justified. In allowing respondent No, 1 to amend her plaint so as to include this claim as well. After amendment having been so allowed, the parties could be permitted to produce witnesses not already entered in the list filed by them.

7. The claim of the petitioner is that he pronounced divorce on 7th April, 1981. Under section 7 of the Muslim Family Laws Ordinance, a `Talaq' becomes effective after the expiration of 90 days from the day on which notice of `Talaq' is delivered to the Chairman. Even if it be accepted that the petitioner pronounced `Talaq' on 7th April, 1981 and delivered notice in regard to the same to the Chairman on the same day, `Talaq' would be effective on 7th July, 1981. The suit for prompt dower- was filed by respondent No, 1 on 25th June, 1981 i, e. Before the 'Talaq' became effective. In these circumstances, the question of express waive of the claim in regard to the deferred dower does not arise inasmuch as a the time of the institution of the suit, the amount on account of deferred dower has not yet become payable to her because the 'Talaq' has not yet become effective.

8. In the impugned order the learned Judge Family Court has brief( stated the circumstances justifying the amendment allowed by him and it cannot be said by any stretch of imagination that his order is not a speaking one.

9. It may also be observed that impugned order is not a final order. It is thus positively an interlocutory order. No Constitutional Petition is maintainable against the interlocutory order as the remedy by way of appeal is still available and the vires of the interlocutory order can be challenged in appeal.

10. For the foregoing reasons, it is concluded that there is no merit in the instant Constitutional Petition which is, therefore, dismissed leaving the parties to bear their own costs.