RAMZAN QURBAN Versus RAHEELA BIBI

SYED SHAHID BAHAR, J.--- In both the titled appeals parties are same, therefore, these cases have been clubbed up, heard together and are decided through this consolidated judgment.

2. The Appeal No.110/2022 has been preferred against the judgment and decree passed by Family Court, Dudyal dated 19.05.2022, whereby suit of the plaintiff for recovery of 15 tolas gold ornaments/other than dower has been dismissed, while the Appeal No.111/2020 has been filed against the judgment dated 19.05.2022, whereby the suit for jactitation of marriage was dismissed.

3. The main stance of the appellant in the Appeal No.110/2022 is that marital ties have already stood broken between parties, therefore, the husband-appellant Ramzan Qurban is justified to ask for return of the gold ornaments from respondent Raheela Bibi, that's why, he filed a suit for recovery of ornaments before Family Court, Dudyal.

4. In Appeal No.111/2022, the appellant Ramzan Iqbal prayed that the judgment and decree of Family Court dated 19.05.2022 is against the law and facts, hence, liable to be set aside. Appellant contended that he had divorced the respondent, on 29.01.2018, therefore, decree for jactitation of marriage be granted in his favour by setting aside the decree of trial Court.

5. I have heard the learned counsel for the parties at considerable length and perused the record.

6. Counsel for the appellant Ch. Zahid Hussain, Advocate staunchly contended that suit for recovery of ornaments before Family Court, Dadyal was filed and proper recourse available to the Family Court to return the suit to the plaintift instead of its adjudication and dismissal on merits, but this argument of the appellant is alien to his own pleadings. The appellant has not raised this point in the memo of appeal while on the other hand counsel for respondent Raja Irfan-ul-Haq supported the verdict of the Court below.

7. Be that as it may, as per general law, the party can only be allowed to argue those points which are inserted and agitated in their pleadings, but we are dealing with the matter which comes within scheme of special law i.e. Family Courts Act, even otherwise, it is a question of law pertaining to the jurisdiction of the Family Court, therefore, I am obliged to take up the matter at first.

8. Suit for recovery of gold ornaments other than the dower cannot be entertained by the Family Court. Although the dower can be enhanced by the husband subsequently by way of amount or ornaments and same can be considered for the purpose of fixed dower of wife but it is not a case of the parties in the instant matter.

9. Jurisdictional spheres of Family Court have been indicated in schedule of Section 5 are tabulated as infra:

1. Dissolution of marriage.

2. Dower.

3. Maintenance.

4. Restitution of conjugal rights.

5. Custody of children.

6. Guardianship.

7. Jactitation of marriage.

8. Dowry.

10. Family Courts Act, 1993 and rules made thereunder is a special law, free from technical shackles and modalities of general law i.e. C.P.C. and Qanun-e-Shahadat, even otherwise it is commanded in C.P.C. that a suit which is not coming within jurisdictional ambit of the Court where it is being presented, the relevant Court instead of issuing process of the Court qua its adjudication or dismissal of the same is under legal obligation to return the suit to the plaintiff for the purpose of institution before the competent court of jurisdiction. Ornaments or anything else given by the husband to his wife other than dower can safely be termed as gift, and normally under our cultural norms gift is a symbol of reciprocation that too between the spouses and in this parlance presentation of gift cannot be said to be the acquisition through fraud.

(Underlining is mine)

11. Rule 5 of the AJK Family Court Procedure Rules, 1998 speaks as infra;

"5. Where a plaint is presented to a Court not having jurisdiction,---

(a) The plaint shall be returned to be presented to the Court to which it should have been presented;

(b) ................................."

12. As adumbrated entertainment of the suit and subsequently putting it to trial and ultimately its adjudication on merits by either way when the subject matter of the suit is not included in the schedule as per section 5 of the Family Courts Act is nullity in the eye of law, coram non judice and such judgment or decision cannot be regarded as a decision under law.

13. As the plaintiff himself opted to invoke the jurisdiction of Family Court regarding a suit of civil nature instead of approaching the competent Court of civil jurisdiction, thus, at the eve of institution or presenting the instant lis before the relevant fora he is burdened to justify delay and limitation.

14. As far as the matter regarding suit for jactitation of marriage is concerned; in this regard, the plaintiff-appellant has failed to prove his claim through oral as well as documentary evidence before the learned trial Court. The learned Family Court has rightly appreciated the matter and arrived at just conclusion, which in my considered view warrants no interference by this Court. Therefore, the Appeal No.111/2022 is liable to be dismissed.

15. Nub of the above discussion is that judgment and decree regarding suit for recovery of ornaments passed by Family Court, Dudyal dated 19.05.2022 is set-aside and suit for recovery of ornaments is returned to the plaintiff to file before the competent court having jurisdiction over the matter, if so advised (subject to law of the limitation). While Appeal No.111/2022 having without any substance is hereby dismissed. No order as to costs.

File be kept in arrive.

MQ/14/HC(AJ&K) Order accordingly.