Mst. MUNEEZA WAQAR Versus CIVIL AND FAMILY JUDGE AT KARACHI EAST

ORDER

MUHAMMAD IQBAL KALHORO, J.--- Petitioner is aggrieved by an order dated 06.01.2016, whereby her Family Suit No.1836/2014 filed by her for dissolution of marriage against respondent No.2 Shahid Ahmed Ansari was dismissed in non-prosecution on the ground that despite directions of the court, she had failed to appear for pre-trial proceedings.

2. Notice of this petition was issued to respondent No.2 through ordinary modes of service but without any result, hence at the request of learned counsel for the petitioner, the order for substitute service on him through publication in two daily newspapers was passed. In compliance thereof, in two daily newspapers viz. "Jang" and "The News" dated 06.05.2016 the publications were got published and copies thereof were submitted by the counsel for the petitioner on 16.05.2016 when this matter was fixed. On that day, respondent was called absent, however, in the interest of justice and for appearance of the respondent, this matter was put off for today. Today also the respondent is called absent without any intimation; therefore, he is declared as ex parte.

3. Learned counsel for the petitioner while relying upon the case of Noreen Rehman v. Raja Javed Akhtar reported in 1997 CLC 142 has argued that dismissal of the petitioner's case in default just because of her failure to personally appear before the Family Court in pre-trial proceedings is not warranted by law. According to him, the law does not require that in the suit for dissolution of marriage, personal appearance of the lady/plaintiff is necessary.

4. I have considered the arguments of learned counsel for the petitioner and perused the record and have taken guidance from the cited decision. Admittedly, the petitioner is a Canadian citizen and does not reside here. She has filed suit through her attorney, who is her maternal uncle. Per terms of section 18 of the West Pakistan Family Courts Act, 1964, appearance in the court through agent is legally permissible and therefore if the plaintiff does not appear before the Family Court, no adverse inference can be drawn against her. And even if the plaintiff does not appear in spite of specifically directed by the Family Court for the purpose of her participation in reconciliation proceedings, her suit would not be dismissed for non-prosecution. At the most from her conduct, it would be presumed that she is not interested in reconciliation proceedings, and in such event further procedure as provided by law would be followed. It is apparent that learned Family Court instead of following well-defined procedure of law proceeded to dismiss the suit of the petitioner on the ground which does not warrant dismissal of her suit.

5. In addition to above, it may not be out of place to observe here that if the Family Court was of the view the petitioner's wish regarding reconciliation proceedings should be found out by asking her personally about it, it could have proceeded to ascertain such fact through a video link, such facility due to modern devices has become easily accessible and can be resorted to in certain circumstances because the law does not bar adopting such procedure, if it is in the interest of justice. In the light of above discussion, I am of the view that the Family Court misdirected itself while dismissing the suit of the petitioner in default on account of her failure to appear in the pre-trial proceedings. Impugned order being patently illegal and against the natural norms of justice is set aside. Resultantly the matter is remanded back to the learned Family Court to adopt the proper procedure of law, if the plaintiff is not appearing to participate in pre-trial proceedings and decide her suit on merits within a period of two months after serving notice on the respondent.

The petition is disposed of in the above terms along with listed application.

ZC/M-116/Sindh Order accordingly.