TAHIR AYUB KHAN Versus Mrs. ALIA ANWER
ORDER
MUHAMMAD IQBAL KALHORO, J.--- Controversy between the parties in the instant petition is over the preliminary decree, passed by learned VII Civil and Family Judge, Malir Karachi in the family suit No.238/2014 filed by the respondent, who is wife of the petitioner, for maintenance and recovery of dower, directing the petitioner to pay dower to the respondent.
2. Learned counsel for the petitioner has argued that there is no provision of preliminary decree in family laws; that the provisions of Civil Procedure Code, in terms whereby a preliminary decree can be passed, are not applicable by virtue of provisions under section 17 of the Family Courts Act, 1964. He has further stressed that primary duty of the family courts mainly is to bring about reconciliation between spouses and to promote sanctity and inviolability of institution of the family. In his view, if such orders are passed, it will tear off very fabric of the family-institution. In support of his arguments, he has relied upon 1999 CLC 1578, 1997 CLC 647 and 2006 YLR 1264.
3. On the other hand, learned counsel for the respondent has argued that although in terms of section 17 of the Family Courts Act, 1964, provisions of C.P.C. except sections 10 and 11 whereof are not applicable but the Family Court working as Tribunal can regulate its proceedings and can adopt any mode to foster interest of the justice. He has further contended when admission regarding non-payment of dower was made by the petitioner himself in his written statement, it was just and fair to direct the petitioner to pay the dower amount. Learned counsel has relied upon PLD 2011 SC 221, 2012 CLC 1881 in support of his arguments.
4. I have considered the submissions and gone through the relevant material. Non-payment of dower to the respondent is not disputed. The dower is prompt in nature and it has to be paid on demand. As regards the question whether the family court was competent to pass a preliminary decree when the petitioner admitted its non-payment in his written statement, needless to state that the family court in order to do substantial justice is competent to regulate its proceedings and to pass orders to promote interest of the justice. Although as per section 17 of the Family Courts Act, 1964, provisions of C.P.C. are not applicable to the family matters, but this provision cannot be read in isolation to the over-all scheme of the family laws, and/or to have put a complete bar over the family courts to adopt a mode or procedure, available in C.P.C., to ensure dispensation of the justice. The purpose and object behind enactment of section 17 of the ibid Act appears to facilitate the family court to bypass the otherwise lengthy and mundane procedure of C.P.C. and to decide family matters expediously. And, notably, the subject dower is prompt in nature and it has to be paid on demand. Therefore the petitioner cannot insist to defer its payment till conclusion of the family suit.
5. Learned counsel for the petitioner during his arguments has also contended that the petitioner has filed a suit for restitution of conjugal rights and the issue of dower has to be looked through its prism. In my estimation, if the prompt dower is not paid on demand, the wife can refuse to perform conjugal obligations to her husband. Pendency of the suit for conjugal rights, which must have its own merits, against the respondent in no way can be considered as an impediment to her to demand prompt dower from the petitioner. This petition, in view of foregoing discussion, appears to be without any merits and is dismissed accordingly along with listed applications.
ZC/T-12/Sindh Petition dismissed.