MUZAFFAR ALI Versus MEHRUN NISSA

This is a petition filed under Article 199 of the Islamic Republic of Pakistan, 1973.

2. The facts arising out of this petition are that the petitioner was married with respondent No.l on 11‑1‑1985 at Hyderabad. Unfortunately in about a year, differences developed between the couple were such that led to the filing of Suit No. 29 of 1986 for restitution of conjugal rights by the petitioner against the said respondent. The said suit was decreed by the learned Extra Joint Civil Judge and Family Court, Hyderabad, by her judgment, dated 31‑1‑1987. An appeal was filed by respondent No.l against the said judgment under section 14 of the Family Courts Act, 1964. The Vth Additional District Judge, Hyderabad by his judgment, dated 14th October, 1987 remanded the case to the learned Family Judge with the following observations:‑

"The learned Family Judge did not frame any issue regarding the amount of dower and its nature and whether the same has been paid to the appellant or not in spite of the fact that in the pleadings such issue arises. She has not given the findings on issues properly because the burden of proving this fact that the plaintiff/respondent was entitled for restitution of conjugal rights lies on him and not on the appellant/defendant.

For the above reasons, I remand the case back to the learned Family Judge with the directions to frame the above issues regarding the amount and nature of dower and its payment and then decide the suit on merits after recording the evidence and hearing the parties. The appeal is accordingly disposed of."

The petitioner has filed the above petition for setting aside the said judgment.

3. Mr. Abdul Hameed Khan, learned counsel for the petitioner has raised the following pleas:‑

(1) The Family Courts Act is a special law; there is no power to remand under section 14 of the Act, as such the impugned order is perverse and not tenable in law.

(2) The learned Additional District Judge failed to consider that the nature and quantum of dower was seriously disputed and there is overwhelming evidence on record showing that the dower was not prompt.

4. As regards the first plea that the appellate Court under section 14 of the Family Courts Act, 1964 has no power to remand, learned counsel placed his reliance on Liaquat Baig v. Board of L& S. Edun. 1987 C L C 2425 and Farida Parveen v. Qadeeruddin Muhammad Siddiqui P L D 1971 Kar. 118.

(i) The first case 1987 C L C 2425 was a civil revision. A learned Single Judge of the High Court of Lahore set aside the order of remand passed by the Additional District Judge I, Okara with the following observations:‑

"It is provided in section 99 of the C.P.C. that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any error or defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court.

The appellate Judge did not himself reach a conclusion that the error of not framing an issue in accordance with the preliminary objection No.3 in the written statement had either affected the merits of the case or the jurisdiction of the trial Court, therefore, the order of remand passed by him is not only fanciful but is also against the law."

(ii) In the second case, Mr. Justice Muhammad Haleem (as he then was) while deciding a civil revision observed that:‑

"In the instant case the appellate Court, had not considered the judgment of the Family Court; it had merely set it aside and ordered its retrial on the consideration that the declaratory suit of the respondent was still sub-judice and until there was a decision against him the decree of deferred dower could not be passed. There is, therefore, a failure to exercise jurisdiction and in view of my judgment in the appeal that the respondent's suit was not maintainable it is, therefore, necessary that the appeal of the appellant before the appellate Court should be decided on merits. Since this relief cannot be had in the absence of any provision in the Act, I would, therefore, invoke Article 102 of the Constitution and set aside the appellate judgment in Civil Appeal No. 3 of 1968 and direct the appellate Court to hear the appeal on merits against the judgment in Suit No. 751 of 1967. It is ordered accordingly."

Both the above cases are distinguishable inasmuch as in the first case the order of remand passed by the appellate Court under its civil jurisdiction was held to be fanciful and against the law, because the non‑framing of the issue had not affected the merits of the case; and in the second case the appellate Court merely set aside the judgment of the Family Court and ordered its retrial without considering the judgment of the Family Court. There was, therefore, a failure to exercise of jurisdiction on the part of the appellate Court.

5. On the other hand, Mr. Rasheed Ahmed Oureshi, learned counsel for the respondent placed his reliance on Safdar Ali v. Muhammad Afzal P L D 1988 SC (AJ&K) 31 which supports him. In this case the Supreme Court of Azad Jammu and Kashmir on a civil appeal, while setting aside the judgment and decree of the High Court and remanding the case to the High Court, observed that:‑

"Whether, there should be a remand in a matter is always judicious discretion of the Courts which is to be exercised in accordance with the dictates of justice. Nature of the error, magnitude of miscarriage of justice and extent of prejudice to the person affected are all important factors to be duly weighed for a remand. As a general rule an order for a remand would be desirable where the hearing in the lower Court has been illegal, irregular or otherwise defective; for instance when some vital point or points arising out of the controversy have not been decided at all or have been decided without application of mind.

Since the important point of limitation, specially raised in the High Court, has not been decided, remand of the case to the High Court to decide the issue seems to be proper.

6. In the instant case, respondent No.l in her written statement stated that her prompt dower of Rs.7,000 has not been paid to her by the petitioner in spite of demand through her counsel's legal notice sent to the petitioner and that if the amount of prompt dower is paid and separate accommodation is provided to her, she was prepared to go and live with the petitioner. The learned Family Judge, framed the following issues as referred to above in the judgment:‑

(1) Whether the suit is not maintainable in law?

(2) Whether the plaintiff is not entitled for restitution of conjugal rights?

(3) What should the decree be?"

It is quite manifest that no issue as to the quantum, nature and payment of the dower was framed which has the direct bearing on the case of restitution of conjugal rights, inasmuch as if the dower is prompt and not paid and the marriage has not been consummated, non‑payment of prompt dower is a complete defence to refuse her husband to sexual intercourse and if a suit for restitution of conjugal rights is filed the same will be dismissed; and if the marriage has been consummated but the prompt dower remains unpaid she can refuse restitution of conjugal rights to her husband till such time that her prompt dower is paid to her. In that case a decree for restitution of conjugal rights can be passed conditionally on payment of prompt dower to the wife.

7. I think that there is a serious lapse on the part of the learned Family Judge. She ought to have framed an issue regarding quantum, nature and' payment of dower which had arisen out of the pleadings of the parties. The judgment by the learned Family Judge does not disclose the application of mind to the merits of the case that was before her. The omission is substantial which has prejudiced the case of respondent No.l. Furthermore, I may add, that issue No.2 has been framed wrongly, inasmuch as the burden of proof has been thrown on the respondent No.l whereas the said issue should have been `whether the plaintiff is entitled for restitution of conjugal rights'.

8. The contention of the learned counsel for the petitioner that there is no power of remand with the appellate Court under the provision of section 14 of the Family Courts Act, 1964 is misconceived. The section reads as under:‑

"14. 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 appealable‑

(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; and

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

There is a power of appeal against a decision given or a decree passed by a Family Court under section 14 of the Act. The power to hear appeal includes by implication, if not express, the power to confirm or set aside the judgment of the Family Court or to remand the case for retrial on any issue or to frame any other issue which arises out of the pleadings, but omitted by the Family Judge, which is necessary for proper adjudication of the case, resulting in injustice to either party. It is true that section 14 does not specifically mention the power of remand but the section does not even make a mention of allowing or dismissing the appeal. It is a general principle of interpretation of statutes that when a special law is silent on a particular point, there a no bar in having recourse to the provision of general law except that the provision of general law is inconsistent with the provision of special law which is not the case here. As a general rule, an order for a remand is implicit in the power of hearing an appeal and deciding the same either by confirming the judgment or dismiss it or order for rehearing the entire case or on a particular issue.

8. The second contention about the dispute over the quantum and nature of dower itself shows that the learned Family Judge ought to have framed an issue about it. Since the learned Additional District Judge has already remanded the case, it would not be fair to make any further comment on it.

9. For the aforesaid reasons, I find no substance in the petition which is dismissed with costs. The interim order of stay of proceedings granted by this Court on 26th November, 1987 stands vacated.

AA./M/809/K Petition dismissed