HURAIR ASIF Versus SENIOR CIVIL JUDGE/JUDGE FAMILY COURT

ORDER

MALIK MUHAMMAD AWAIS KHALID, J.--- The petitioner has filed instant constitutional petition with the following prayer:-

Under the above noted circumstances, it is therefore, most respectfully prayed that this writ petition may very kindly be accepted, the impugned proceedings of the learned trial court in the suit titled as Mst. Kubra Bibi and others v. Hurair Asif and others to the extent of dower may very graciously be set aside while declaring it illegal, void ab initio, against the law, facts and without lawful authority to meet with the ends ofjustice.

2. Heard. Record perused.

3. It has been noticed that respondents Nos. 2 and 3 filed a suit for recovery of dower and maintenance allowance against the petitioner before Family Court, Rajanpur, which is pending. Petitioner stated that his Nikah with respondent No.2 was solemnized orally so no condition in respect of dower was settled between the parties but thereafter respondent No.2 in connivance with other family members get prepared a bogus Nikahnama and filed aforesaid family suit against the petitioner. When it came into the knowledge of the petitioner, he filed a suit for declaration before Civil Court Multan, which is pending. The petitioner also filed an application before the Deputy Commissioner Multan, in order to conduct an inquiry in respect of preparation of bogus Nikahnama by respondent No.2 which is still pending as per stance of the petitioner.

4. Through instant petition, the petitioner has only prayed that proceedings of the family suit pending before Family Court Rajanpur be stayed till decision of the suit filed by the petitioner at Civil Court Multan. Neither any final judgment and decree nor interim order was passed by the Family Court which has been assailed through this petition. As per petitioner's own stance, oral Nikah between the spouses was solemnized on 25.11.2022. Petitioner is contesting the suit before the Family Court, Rajanpur and has filed written statement and issues have been framed and petitioner has an opportunity to raise objection and defend by producing witnesses of Nikah in his favour. The Family Courts Act, 1964, is a special law enacted with a specific purpose to precede expeditious settlement and disposal of dispute regarding the marriage and family affairs and also matter connected there and purpose of special law is advancement of justice and to avoid technicalities which are hindrance in ultimate justice between the parties. The special law always overrides provisions of a general law to the extent of any conflict or inconsistency between the two. Reliance is placed on the case of State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others (2017 SCMR 999) wherein it has been held as under:-

It is now trite law that the provisions of special law always override the provisions of the general law to the extent of any conflict or inconsistency between the two. When it comes to filing of a suit under the provisions of Insurance Act, 1938, section 15 of the Code of Civil Procedure would stand eclipsed as it comes under the shadow of section 4(1) of the Code of Civil Procedure, Section 4(1) of the Code inter alio provides 'nothing in the code shall be deemed to limit or otherwise affect any special or local law or any special jurisdiction conferred by or under any other law for the time being in force. Thus the court competent to try the suit would only be the one that falls within the definition of section 2(6) of Insurance Act, 1938.

Further reliance is placed on the case of The Lahore Polo Club through Secretary v. Additional District Judge and 3 others (2018 CLD 1214). The proceedings before the Family Court cannot be stayed only on the ground that petitioner has filed declaratory suit for cancellation of Nikahnama. While fortifying on the case of Tariq Hussain Shah v. Additional District Judge, Sahiwal and another (1996 CLC 672) where it has been held as under:-

Defendant-husband though had initiated proceedings for cancellation of Nikahnama but same had no force in the eye of law because merely filing of suit for cancellation of Nikahnama did not have any legal effect upon the questions of allowing maintenance of legally-wedded wife especially when defendant-husband had himself admitted in written statement that plaintiff was his legally wedded wife.

5. As a sequel of above discussion, instant writ petition is dismissed in limine.

MH/H-9/L Petition dismissed.