Stereo.HCJDA 38.

Judgment Sheet
LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
….
WRIT PETITION NO.4132 of 2023

NASIR SHARIF
versus

SABEELA IMTIAZ and another

JUDGMENT
Dates of hearing: 09.10.2024 & 11.11.2024

Petitioner by: Mr. Haroon Irshad Janjua,

Advocate.
Respondent No.1 by: Khawaja Khalid Farooq,
Advocate.
Mr. Khalid Ishaq, Advocate
General, Punjab.

MIRZA VIQAS RAUF, J. The petitioner was married to

respondent No.1 (hereinafter referred to as “respondent”) on 13 th
August, 2018. On account of some differences, “respondent” left the
house of the petitioner on 24th September, 2022 which prompted the
petitioner to institute a suit for restitution of conjugal rights. In order
to resist the suit, the “respondent” submitted her written statement
wherein she also claimed maintenance. On 21st November, 2023, a
preliminary objection was raised by the “respondent” with regard to
maintainability of suit for restitution of conjugal rights on the ground
that the petitioner is residing abroad and he is precluded to institute
a suit for restitution of conjugal rights. On the contrary, the petitioner
also raised an objection with regard to claim of maintenance in
response to suit for restitution of conjugal rights but while holding
the suit maintainable, Family Court also observed that claim of the
WRIT PETITION NO.4132 OF 2023. -2-

“respondent” for recovery of maintenance is tenable and adjourned

the proceedings for 28th November, 2023. On that date, learned
Senior Civil Judge (Family Division), Chakwal proceeded to fix the
interim maintenance of the “respondent” which order is now under
challenge in this constitutional petition.

2. The petition was admitted for regular hearing on 12th

December, 2023 in response to which, the “respondent” arranged her
representation on 24th January, 2024 and following order was
passed:-

“This petition arises out of order dated 28th November, 2023,

whereby the learned Senior Civil Judge (Family Division),
Chakwal proceeded to fix the interim maintenance of
respondent No.1 (wife) in a suit for restitution of conjugal
rights instituted by the petitioner.
2. This petition was admitted for regular hearing by way
of order dated 12th December, 2023 with the following
observations:-
“This petition under Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973 calls in question the
vires of order dated 28th November, 2023, whereby the
learned Senior Civil Judge (Family Division), Chakwal
proceeded to fix the interim maintenance of respondent
No.1 in a suit of restitution of conjugal rights instituted by
the petitioner.
2. Learned counsel for the petitioner inter-alia contends
that the petitioner instituted a suit for restitution of
conjugal rights, which was resisted by respondent No.1,
who in response thereof claimed maintenance. While
making reference to section 9(1b) of the Family Courts
Act, 1964, learned counsel emphasizes that while
resisting the suit for restitution of conjugal rights, a wife
can only make a claim for dissolution of marriage
including khula but she cannot claim maintenance in
response thereto. Submits that though to this effect
specific objection was raised but the learned Judge
Family Court proceeded to pass the order of interim
maintenance, which is illegal.
3. Points raised need consideration. Admit. Notice.
4. Re-list on 24.01.2024.
C.M.NO.1 OF 2023
5. Subject to notice, the proceedings before the
trial Court may continue, however, final judgment shall
not be announced, in the meanwhile.”
WRIT PETITION NO.4132 OF 2023. -3-

3. Today learned counsel for respondent No.1 while

placing reliance on AKHTAR KAMAL versus Mst. SAMREEN
AKHTAR and 2 others (2018 CLC 887), SHEHERYAR GUL
versus Mst. SADAF BIBI (2016 MLD 200) and RASHID
IQBAL versus Mst. UZMA KHAN and 2 others (2010 YLR
3246) submits that the wife can raise the claim of maintenance
while responding a suit for restitution of conjugal rights
instituted by the husband and the scope of sub-section (1b) of
Section 9 of the Family Courts Act, 1964 is not restricted only
to the claim of dissolution of marriage including Khula.
4. Conversely, learned counsel for the petitioner while
making reference to schedule part I item 1 contends that the
import of sub-section (1b) of Section 9 of the Act ibid is
restricted to clause 1 of the schedule only.
5. Though there are precedents with regard to the matter
in issue but in my humble view, sub-section (1b) of Section 9
of the Family Courts Act, 1964 needs deliberation and
interpretation, especially with regard to the words used make
a claim of “dissolution of marriage including Khula”.
6. Since matter of interpretation of a provision of law is
involved, a notice under Order XXVIIA of the Code of Civil
Procedure (V of 1908) is also issued to the learned Advocate
General Punjab.
7. In view of previous views of this Court as well as the
Peshawar High Court which are apparently against the basic
provision of law, office is directed to place this matter before
the Hon’ble Chief Justice for constitution of a larger Bench.
In furtherance to the above, by orders of the Hon’ble Chief Justice,
the matter is now before us.

3. Learned counsel for the petitioner contended that a suit before

the Family Court can be instituted by presentation of plaint in terms
of Section 7 of The Family Courts Act, 1964 whereas by virtue of
Sub-Section (1b) of Section 9, a defendant (wife), while resisting a
suit for restitution of conjugal rights, filed by the husband, may make
a claim for dissolution of marriage, including khula in her written
statement, which shall be treated as a plaint. He added that wife
cannot raise any other claim in the written statement, while replying
the suit for restitution of conjugal rights, as in the present case.
Learned counsel emphasized that the interim maintenance of
“respondent” was thus fixed in transgression of the lawful powers.
WRIT PETITION NO.4132 OF 2023. -4-

Learned counsel contended with vehemence that the impugned order

is not tenable at all.

4. Conversely, learned Advocate General, Punjab submitted that

the object of The Family Courts Act, 1964 is to ensure expeditious
disposal of the family disputes. He added that the procedure provided
for the trial of the suit in the Code of Civil Procedure (V of 1908)
cannot be pressed into service in a suit tried under The Family Courts
Act, 1964. Learned Law Officer, while making reference to Section
7 of the Act, ibid, argued with vehemence that there is no bar in
joining all the claims in one suit. While making reference to Section
9(1b) of The Family Courts Act, 1964, learned Advocate General,
Punjab submitted that it has wider impact and while defending a suit
filed by the husband, wife can raise any claim permissible under the
Act, ibid. It is argued that the aim of The Family Courts Act, 1964 is
to short circuit the procedural technicalities. In order to supplement
his contentions, learned Advocate General, Punjab placed reliance
on Mst. YASMEEN BIBI versus MUHAMMAD GHAZANFAR KHAN
and others (PLD 2016 Supreme Court 613), Sayed ABBAS TAQI
MEHDI versus Mst. Sayeda SABAHAT BATOOL and others (2010
SCMR 1840) and Major MUHAMMD KHALID KARIM versus Mst.
SAADIA YAQUB and others (PLD 2012 Supreme Court 66).

5. On the other hand, learned counsel for the “respondent”

submitted that counter claim in maintenance is not prohibited under
The Family Courts Act, 1964, while resisting the suit for restitution
of conjugal rights by a wife. It is argued with vehemence that the
impugned order is unexceptionable.

6. We have heard learned counsel for the parties as well as

learned Advocate General, Punjab and perused the record as well.

7. The matter in issue stems from a suit for restitution of conjugal

rights, instituted by the petitioner against the “respondent”, being his
wife. While resisting the suit, the “respondent” submitted her written
statement wherein she also claimed the maintenance. Though an
WRIT PETITION NO.4132 OF 2023. -5-

objection was raised by the petitioner before the Family Court that
“respondent” cannot raise a claim of maintenance, while responding
suit for restitution of conjugal rights but it was turned down and the
Family Court by way of the order dated 28th November, 2023 fixed
Rs.12,000/- as interim maintenance allowance of the “respondent”.
It would be apposite to observe that though the impugned order is
interim and ordinarily this Court exercises restraint to interfere with
the interim or interlocutory orders in exercise of constitutional
jurisdiction but when some patent illegality is apparently floating on
the surface of record or petition raises some substantial question of
law, exercise of constitutional jurisdiction cannot be abdicated. This
was the reason that the petition was admitted for regular hearing and
ultimately on account of involvement of important legal question, the
matter was referred to the Hon’ble Chief Justice for constitution of a
Larger Bench.

8. At the very outset, we do not feel any hesitation to observe that

in order to make provision for the establishment of Family Courts for
the expeditious disposal, settlement and disposal of the disputes
relating to marriage and family affairs and for the matters connected
therewith, The Family Courts Act, 1964 (hereinafter referred to as
“Act, 1964”) was promulgated and enforced w.e.f. 02nd November,
1965. It is obvious from the preamble of the “Act, 1964” itself that
its prime object was to ensure expeditious settlement and disposal of
the disputes relating to marriage and family affairs and the matters
connected therewith. For carrying out the purpose and object of the
“Act, 1964”, Family Courts were established in each district by
virtue of Section 3 of the “Act, 1964”, which were vested with
exclusive jurisdiction to entertain, hear and adjudicate upon the
matters specified in Part I of the Schedule of the “Act, 1964”. We
deem it apt to observe that before promulgation of the “Act, 1964”,
all such matters were dealt with by the civil courts under the Code of
Civil Procedure (V of 1908), which was a cumbersome, lengthy and
tiring process. This was the reason that after the promulgation of the
WRIT PETITION NO.4132 OF 2023. -6-

“Act, 1964” through Ordinance LV 2002, Section 12-A was inserted

whereby Family Court was bound down to dispose of the cases,
including suit for dissolution of marriage, within a period of six (06)
months from the date of institution. To this effect, judgment in the
case of Mst. Yasmeen Bibi (supra) is of significance importance,
relevant extract from the same is reproduced below:-

“9. The preamble of the West Pakistan Family Courts Act,

1964 is to the following effect:

"Preamble.- WHEREAS it is expedient to make provisions for the

establishment of Family Courts for the expeditious settlement and
disposal of disputes relating to marriage and family affairs and for
matters connected therewith."

In the schedule amended upto date, the matrimonial disputes

include:

(i) dissolution of marriage [including Khula)

(ii) dower
(iii) maintenance
(iv) restitution of conjugal rights
(v) custody of children [and visitation rights of parents to meet
them]
(vi) guardianship
(vii) jactitation of marriage
(viii) dowry
(ix) personal property and belongings of wife

10. Before promulgation and enactment of the Muslims

Family Laws Ordinance, 1961, and the West Pakistan Family
Courts Act, 1964, such matters were dealt with by the Civil Courts
or Criminal Courts with regard to the maintenance allowance,
which was a cumbersome, lengthy and tiring procedure. For
getting the final relief of her grievances, the wife had to wait for
years for recovery of dower, maintenance and other ancillary
matters. In cases of dissolution of marriage, it had to consume
years and after getting the decree by that time, majority of the
wives had to become grey haired and much beyond the
remarriage-able age, beside incurring heavy expenses on getting
the relief with regard to a meager amount of maintenance, dower
etc.
It was in the above background that the Legislature felt
essential to provide for establishment of Family Courts to deal with
all matrimonial disputes, mentioned above, in an expeditious
manner, curtailing the life of litigation in such cases. To curb and
suppress the mischief of delaying tactics on the part of
unscrupulous husbands, several amendments were introduced to
the Family Court Act, 1964. Some amendments bearing striking
features may be cited below:-
WRIT PETITION NO.4132 OF 2023. -7-

"S.12-A. Case to be disposed of within a specified

period. A Family Court shall dispose of a case, including a
suit for dissolution of marriage, within a period of six months
from the date of institution:

Provided that where a case is not disposed of within six

months either party shall have a right to make an application
to the High Court for necessary direction as the High Court
may deem fit."

"S. 17-A. This newly enacted provision was with the object
to curb the mischief of delaying tactics and the Family Court
was brought under obligation to pass interim order, directing
the husband to pay interim maintenance allowance to the
children and the wife after filing written statement or at any
stage thereafter."

"The provision of S.21-A was also added to the Family Court

Act, conferring power upon Family Court to preserve and
protect any property, which is in dispute in a suit or any other
property of a party to the suit for the future satisfaction of the
decree."

To further accelerate and expedite the disposal of such

cases, the District Appeal Court and the High Court, orders
staying the proceedings before the Family Court, shall cease
to be effective on expiring of thirty days time. Again, under
section 14, through amendment, it was made mandatory for
the Court of Appeal to decide the case positively within four
months.

11. Keeping in view the clear and manifest intention and object
of the Legislature by drastically amending the provisions of the
Family Courts Act, a Division Bench of the Peshawar High Court,
after elaborately dealing with the same held that, "by now, the
Family Court alone has exclusive jurisdiction to deal with all the
matrimonial disputes of whatever nature, irrespective of territorial
jurisdiction, provided that the Family Court where the wife resides
shall have the jurisdiction to entertain such suits/claims [see.
Muhammad Tariq v. Mst. Shaheen (PLD 2006 Peshawar 189)].
The view held by the Division Bench of the Peshawar High Court
was not set aside by the Supreme Court thus, the same had
attained finality and has got strong persuasive effects, which
cannot be lightly ignored.

12. Keeping in view the agonies of the parties, particularly the

wife, in matrimonial disputes to curtail the mischief of delay and to
shorten the life of litigation in such cases, the Law and Justice
Commission of Pakistan recommended to the Federal
Government and all the Provincial Governments to establish
Family Courts in each District and Tehsil Headquarter, which shall
be preferably presided over by a female Judge so that the wives
who are not well acquainted and familiar with the court
WRIT PETITION NO.4132 OF 2023. -8-

proceedings are provided maximum protection and friendly

environments.

13. To provide quicker relief to the wife, amendments were

also made in the relevant provisions, where dissolution of marriage
is sought on the basis of "Khula", that on failure of conciliation
efforts made by the Family Court at preliminary stage, the Family
Court is invested with powers to dissolve the marriage there and
then, without subjecting the wife to unending litigation.

14. It is demonstrably clear from these drastic amendments

made in the Family Courts Act including the new provisions
added therein, that the Legislature was well aware of the miseries
and plight of the wives, seeking relief through the obsolete law then
in vogue thus, to minimize the same not only all matrimonial
disputes were brought under one and the same umbrella of the
Family Court but also provided for the target date, both for the
Family Court and for the Appeal Court, by which such cases shall
be decided conclusively. The jurisdiction and powers of all other
courts thus stand excluded in these matters much less Civil Court
therefore, pushing one or the other party to the Civil Court would
be in clear violation of the mandatory provision of the law on the
subject and would amount to reverse the efficacious remedies
available to them under the new scheme of law.”

9. In the case of Sayed ABBAS TAQI MEHDI versus Mst. Sayeda

SABAHAT BATOOL and others (2010 SCMR 1840), while outlining
the object and scope of the “Act, 1964”, the Supreme Court of
Pakistan held as under:-

“7. It is pertinent to mention here that Family Court had dismissed

the applications for setting aside ex parte decree on merits as well
being time-barred as is evident from the orders dated 10-5-2004.
Similarly first appellate court had dismissed the appeals vide
orders dated 11-11-2004 on merits. The concurrent conclusions
arrived by the courts below were upheld by the learned High Court
vide impugned judgments. It is also admitted fact that provisions
of Evidence Act and Code of Civil Procedure are not applicable
qua the proceedings before the Judge, Family Court, in terms of
section 17 of West Pakistan Family Courts Act, 1964, therefore,
under West Pakistan Family Courts Act, 1964, the Family Court
has to regulate its own proceedings in accordance with the
provisions of this Act and in doing so it has to proceed on the
premises that every procedure is permissible unless clear
prohibition is found in law meaning thereby that the Family Court
can exercise its own powers to prevent the course of justice being
deflected from the path. Keeping in view the circumstances of the
case in hand the learned Judge, Family Court, had rightly come
to the conclusion that service of the appellant/defendant was
effected in view of the remarks on the registered A/D which was
sent by the Family Court to the appellant/defendant. The finding
WRIT PETITION NO.4132 OF 2023. -9-

is based on logic. It is also in consonance with Order V, Rule 17

of C.P.C. As mentioned above C.P.C. is not applicable but the
Judge, Family Court, is not debarred to follow the principle of
C.P.C. coupled with the fact that Haji Wali Muhammad Khan,
Advocate, had appeared before the Court twice who could not
appear unless and until he had received instructions on behalf of
appellant/defendant either directly or through his agent which is
also in consonance with Order III, Rule 4(5), C.P.C. There is, no
conflict between Order III, Rule 4(5), C.P.C. and provisions of
West Pakistan Family Courts Act, 1964. The purpose and object
to make provision for the establishment of Family Courts for the
expeditious settlement and disposal of disputes relating to
marriage and family affairs and for matters connected therewith
as is evident from the preamble of the said Act. It is settled
principle of law that Act be read as a whole then it is crystal clear
that what the Family Courts Act has done is that it has changed
the forum, changed the method of trial and empowered the court
to grant better remedies. …”

10. In case of a family dispute, a suit shall be instituted by

presentation of a plaint or in such other manner or in such court as
may be prescribed and the plaint shall contain all material facts
relating to the disputes and shall contain a schedule giving number
of witnesses intended to be produced in support of the plaint, the
names and addresses of the witnesses and brief summary of the facts
to which they will depose. In terms of proviso to Section 7 of the
“Act, 1964”, a plaint for dissolution of marriage may contain all
claims relating to dowry, maintenance, dower, personal property and
belongings of wife, custody of children and visitation rights of
parents to meet their children. On presentation of a plaint, a Family
Court is required to fix a date of not more than fifteen (15) days for
appearance of the defendant. For this purpose, Section 8 of the “Act,
1964” is very pertinent. Section 9 of the “Act, 1964” lays down the
procedure for submission of written statement by the defendant in
the suit. Sub-Sections (1a) and (1b) are since relevant, so Section 9
of the “Act, 1964” to that extent is reproduced below:-

“S.9. (1) Written statement. On the date fixed under Clause (a) of
sub-section (1) of section 8, the plaintiff and the defendant shall
appear before the Family Court and the defendant shall file his
written statement, and attach therewith list of his witnesses
alongwith a precise of the evidence that each witness is expected
to give.
WRIT PETITION NO.4132 OF 2023. -10-

(1a) A defendant husband may, where no earlier suit for

restitution of conjugal rights is pending, claim for a
decree of restitution of conjugal rights in his written
statement to a suit for dissolution of marriage or
maintenance, which shall be deemed as a plaint and
no separate suit shall lie for it.
(1b) A defendant wife may, in the written statement to a suit
for restitution of conjugal rights, make a claim for
dissolution of marriage including khula which shall be
deemed as a plaint and no separate suit shall lie for it.
(Underlining supplied for emphasis)

Before moving further, we feel it necessary to observe that in order

to understand the scope of Section 9(1b) of the “Act, 1964”, one
cannot ignore Section 7 and more specifically its proviso, which read
as under:-

“S.7. Institution of suits. (1) Every suit before a Family Court shall
be instituted by the presentation of a plaint or in such other manner
and in such Court as may be prescribed.

(2) The plaint shall contain all [material] facts relating

to the dispute and shall contain a Schedule giving the
number of witnesses intended to be produced in support of
the plaint, the names and addresses of the witnesses and
brief summary of the facts to which they would depose:

Provided [further] that the parties may, with the

permission of the Court, call any witness at any later stage,
if the Court considers such evidence expedient in the interest
of justice.

[Provided that a plaint for dissolution of marriage may

contain all claims relating to dowry, maintenance, dower,
personal property and belongings of wife, custody of children
and visitation rights of parents to meet their children and]

[(3) (i) Where a plaintiff sues or relies upon a document in

his possession or power, he shall produce it in Court when
the plaint is presented, and shall at the same time, deliver
the document or a copy thereof to be filed with the plaint.

(ii). Where he relies on any other document, not in his

possession or power, as evidence in support of his claim he
shall enter such documents in a list to be appended to the
plaint [giving reasons of relevancy of these documents to the
claim in the paint.
(4) The plaint shall be accompanied by as many
duplicate copies thereof including the Schedule and the lists
of documents referred to in sub-section (3), as there are
defendants in the suit, for service upon the defendants.
(Underlining supplied for emphasis)
WRIT PETITION NO.4132 OF 2023. -11-

From joint reading of proviso to Section 7 and Sub-Section (1b) of

Section 9 of the “Act, 1964”, it can safely be inferred that scope of
latter is not limited or confined but wider enough.

11. To discover the theme of above provisions, we can make

reference to AKHTAR KAMAL versus Mst. SAMREEN AKHTAR and
2 others (2018 CLC 887), relevant portion from the same is
reproduced below:-

“9. The apparent intention in promulgating the West Pakistan

Family Courts Act, 1964 appears to be that it is a beneficial legislation
enacted for the facilitation of the parties and expeditious justice as
could be practicable. The insertion of subsections (1a) and (lb) and
Section 9 of the West Pakistan Family Courts Act, 1964 are one of
the steps in this direction of speedy justice. It is reproduced for
convenience as under:-
S.9. (1) Written Statement.--- On the date fixed under clause (a) of
subsection (1) of section 8, the plaintiff and the defendant shall
appear before the Family Court and the defendant shall file his
written statement, and attach therewith list of his witnesses
along with a precise of the evidence that each witness is
expected to give.

[(la). A defendant husband may, where no earlier suit for restitution

of conjugal rights is pending, claim for a decree of restitution of
conjugal rights in his written statement to a suit for dissolution
of marriage or maintenance, which shall be deemed as a plaint
and no separate suit shall lie for it.

(lb). A defendant wife may, in the written statement to a suit for

restitution of conjugal rights, make a claim for dissolution of
marriage including khula which shall be deemed as a plaint and
no separate suit shall lie for it:

Provided that the proviso to subsection (4) of section 10 shall

apply where the decree for dissolution of marriage is to be
passed on the ground of khula]

(2) ………………………………………………………..

(3) …………………………………………………………

(4) …………………………………………………………

(5) ……………………………………………………………

(a) ……………………………………………………………

(b) ….…………………………………………………………

(6) ……………………………………………………………
WRIT PETITION NO.4132 OF 2023. -12-

(7) ……………………………………………………………

(underlines supplied)

By the insertion of the above subsection either party may submit their
claim in the written statement. Though in subsection (lb) of the West
Pakistan Family Court Act, 1964, the relief of only dissolution of
marriage and Khula is mentioned as a claim .to be set up by the wife,
however, in the subsection the word "including khula" is used which
has enlarged its scope.

10. In the case of Emperor v. Jiand and another AIR 1928 Sind
149, while interpreting the word "includes" the Full Bench held that:-

"It is well-known rule of interpretation that the word "includes"

is used as a word of enlargement and ordinarily implies that
something else has been given beyond the general language
which precedes it to add to the general clause a species
which does not naturally belong to it."

Similarly, in AIR 1932 Madras 474 titled Madras Central Urban

Bank, Ltd. v. Corporation of Madras, the Division Bench held that.-

"when it is mentioned that a particular definition 'includes'

certain things, it should be taken that the legislature either
intended to settle a difference of opinion on the point or
wanted to bring in order matters that would not properly come
within the ordinary connotation of the word or expression or
phrase in question".

11. In the case of Malik Muhammad Inam and others v.

Federation of Pakistan and others 2006 SCMR 1670, the august
Supreme Court of Pakistan while interpreting the word 'include' or
'included' in a statute held as under: -

Where in defining any, the Legislature uses the word

"included" or "includes", the rule of interpretation is that it is
used as a word of enlargement and it ordinarily implies that
something else has been included, which falls outside the
general meaning of the word. It may also be used to give a
comprehensive description that includes what is not obvious,
what is uncertain and what, in the ordinary sense, is not
impossible."

In the case of Mushtaq Ahmad v. The State, 1991 SCMR

543, the august Supreme Court of Pakistan also commented upon the
expression "includes" as under:-

The word "includes" is very generally used in interpretation

clauses in order to enlarge the meanings of the words or
phrases occurring in the body of the Statute; and when it is
so used these words or phrase must be construed as
comprehending, not only such things as they signify
according to their natural import, but also those things which
the interpretation clause that they shall include. But the word
"include" is susceptible of another construction which may
WRIT PETITION NO.4132 OF 2023. -13-

become imperative, if the context of the Act is sufficient to

show that it was not merely employed for the purpose of
adding to the natural significance of the words or expressions
defined. It may be equivalent to 'mean and include' and in
that case it may afford an exhaustive explanation of the
meaning which for the purpose of Act, must invariably be
attached to these words or expressions.

12. Thus merely specifying the word Khula and dissolution would
not mean that the wife can claim only these two reliefs in her written
statement but the word "including" used in Section 9(lb) would enlarge
its scope and the wife is not supposed to file separate suit for
maintenance and custody of minor etc instead all these claims can be
joined in the written statement. The word used in the concluding para
(lb) are also very relevant which support the case of the respondent
No. 1, i.e. "shall be deemed as a plaint and no separate suit shall lie
for it" and it further strengthen the case of the respondent No.1, and
whatever she claimed in her written statement would be considered
as if she has filed a separate suit to this effect.

13. This view also finds support from the case titled Rana Ahsan
Mahmood Ahid v. Judge Family Court, Faisalabad and 2 others 2010
YLR 3264 and from the judgment of the Division Bench of this Court
rendered in the case of "Sheheryar Gul v. Mst. Sadaf Bibi" 2016 MLD
200. The arguments on this point to the contrary advanced by the
learned counsel for the petitioner are thus repelled.”

12. Before us, a contention is raised by learned counsel for the

petitioner that custody matters are entirely different from rest of the
claims under the “Act, 1964” and Schedule I appended thereto; we
are mindful of the fact that initially the matter relating to
guardianship and custody of the minors were to be dealt with by the
Guardian Courts under the Guardians and Wards Act, 1890 but such
matters were later on also made part of Schedule I to the “Act, 1964”
so as to avoid unnecessary delay and procedural rigors. Guidance to
this effect can be sought from Major MUHAMMAD KHALID
KARIM versus Mst. SAADIA YAQUB and others (PLD 2012
Supreme Court 66). Relevant excerpt from the same is reproduced
below:-

“5. Heard. Prior to the enforcement of Family Courts Act, 1964, the
disputes, relating to and concerning the family affairs (except
guardianship etc.) such as the dissolution of marriage, recovery of
dower, dowery, maintenance, enforcement of conjugal rights and
jactitation etc. (subject to the amendment of the schedule to the Act
1964 from time to time) were within the jurisdiction of ordinary civil
court. Whereas, the issues about the guardianship and custody of the
minors were the subject matter of the Guardian Courts constituted
WRIT PETITION NO.4132 OF 2023. -14-

under Guardians and Wards Act, 1890. It seems that on account of

delays, in the adjudication of this class of cases, which possibly was
due to the complexity of procedure and the rush of work in such
courts, but undoubtedly was adversely affecting the family union and
comity, the legislature in order to prevent the above enforced the Act,
1964. It is so clear from the preamble of the Act that this law was
enforced with a vivid object to take out the matters falling within the
ambit thereof from the ordinary regime qua dispensation of justice,
and for the expeditious disposal of such matters, special forum was
created in which the rigors of procedural implications and the
requirements of the Evidence Law (Qanun-e-Shahadat Order, 1984)
were either dispensed with or were simplified; with an addition of a
statutory mechanism, enabling the parties for an amicable settlement
of their disputes, through the courtesy of the Court was provided.
Therefore, to achieve the aforesaid object, section 5 of the Act, 1964
conferred exclusive jurisdiction to the Family Court
to entertain, hear and adjudicate upon matters specified in Part-I of
the schedule to the Act. It may be pertinent to refer here, that if the
original Act, 1964 is examined there were six entries/items to the
schedule, relating to the matters about dissolution of marriage, dower,
maintenance, restitution of conjugal rights, custody of the childr
en and guardianship. However, these items have been increased
from time to time e.g. khula' is added to the dissolution cases;
the custody issues also involve visitation rights of the parents to meet
the minors; jactitation of marriage, dowery, personal property and
personalbelongings of the wife have also been made part ther
eof and subjected to the jurisdiction of the Family Court.
Furthermore, Subsections (4) & (5) to Section 1 of the Act 1964 were
added which read:--
"(4). Nothing in this Act shall apply to any suit, or any application
under the Guardians and Wards Act 1890, pending
for trial or hearing in any Court immediately before the
coming into force of this Act, and all such suits and
applications shall be heard and disposed of as if this Act were not
in force.
(5). Any suit, or any application under the Guardians and Wards
Act, 1890, which was pending for trial or hearing in any Court
immediately before the coming into force of this Act, and which
has been dismissed solely on the ground that such suit or
application is to be tried by a Family Court established under this
Act, shall, notwithstanding anything to the contrary contained in
any law, on petition made to it in that behalf by any party to the
suit or application be tried and heard by such Court from the stage
at which such suit or application had reached at the time of its
dismissal."
Whereas, section 20 confers powers upon the Family Court to
exercise all powers of Judicial Magistrate of first class under the Code
of Civil Procedure. Likewise, under section 25 of the Act, 1964, it is
enunciated "a Family Court shall be deemed to be a District Court for
the purpose of the Guardians and Wards Act, 1890, and
notwithstanding anything contained in this Act, shall in dealing with
the matter specified in that Act, follow the procedure prescribed in that
Act". Besides, for the purposes of inter alia the 'territorial jurisdiction'
WRIT PETITION NO.4132 OF 2023. -15-

of the Family Court, the Family Court Rules, 1965 were enforced; the
Rule 6 whereof prescribes the Court shall have the jurisdiction to try
a suit will be that within the local limits of which :-

(a) the cause of action wholly or in part has arisen; or

(b) where the parties reside or last resided together:
Provided that in suits for dissolution of marriage or dower, the Court
within the local limits of which the wife ordinarily resides shall also
have jurisdiction.

13. After having threadbare discussion and going through the

principles laid down in the precedents noted, hereinabove, we feel
no reason to differ with the opinion of the Division Bench of
Peshawar High Court, Peshawar in the case of SHEHERYAR GUL
versus Mst. SADAF BIBI (2016 MLD 200) to the following effect:-

“5. Section 9(1) and (2) are relevant to resolve the controversy
emerged from the impugned order which read as under:--
"9. WRITTEN STTAEMENT"

(1) On the date fixed under clause (a) of sub-section (1) of

section 8, the plaintiff and the defendant shall appear
before the Family Court and the defendant shall file his
written statement, and attach therewith list of his
witnesses alongwith a precise of the evidence that each
witness is expected to give.

(2) Where a defendant relies upon a document in his

possession or power, he shall produce it or a copy
thereof in the Court alongwith the written statement".
6. After insertion of above provisions of law, the written statement
had attained the status of plaint. So, as provided in section 7(2) of
the Family Courts Act that a plaint shall contain all material facts
relating to the dispute and shall contain a schedule giving the number
of witnesses intended to be produced in support of plaint, names and
addresses of the witnesses and brief summary of the facts to which
they would depose. The proviso to the above section also empower
the Court to allow either of the parties to call any of the witnesses at
any later stage if it considers such evidence expedient to the interest
of justice.”
14. The nutshell of above discussion is that we are of the
unanimous view that a wife while resisting a suit for restitution of
conjugal rights can raise any of the permissible claims covered under
the “Act, 1964” but in such a case the Family Court would be obliged
to provide opportunity to the husband (plaintiff) to file a rejoinder in
 WRIT PETITION NO.4132 OF 2023. -16-

response thereto, which shall be treated as written statement on his

behalf. After arriving at this conclusion, we have noticed that though
the Family Court allowed the “respondent” to raise her claim of
maintenance while responding in the suit for restitution of conjugal
rights, filed by the petitioner but without affording the latter an
opportunity to submit rejoinder, as observed hereinabove and
proceeded to fix interim maintenance of the “respondent” which
even otherwise, to our mind, is negation of Section 17-A of the “Act,
1964”. To this effect there is a consensus amongst all in attendance.

15. On account of above reasons, we allow this petition and

set-aside the order dated 28th November, 2023 with the direction to
the Family Court to permit the petitioner to file his rejoinder to the
claim of maintenance, raised by the “respondent” in her written
statement and on receipt of the same, if so filed, proceed to fix
interim maintenance, strictly in accordance with law, with no order
as to costs.

(SADAQAT ALI KHAN) (MIRZA VIQAS RAUF)

JUDGE JUDGE

(JAWAD HASSAN)
JUDGE
Sajjad

APPROVED FOR REPORTING

JUDGE JUDGE

JUDGE