Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeals Nos. 49, 50 and 51 of 1968, decided on 6th February 1969.
(On Appeal from the order of the High Court of West Pakistan, Lahore, dated the 6tb May 1968, in Criminal Revision No. 15 of 1968/Criminal Revision No. 766 of 1967/Criminal Revision No. 765 of 1967).
‑Retrospectively of legislation---- Matter retrospective if it is merely procedural in nature‑Such matter, however, would not operate retrospectively if it touches a right in existence at time of passing of legislation‑Matters of procedure, what are.
The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving 1901 A C 369 is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day'", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re : Joseph Suche & Co. Limited (1875) 1 Ch. D. 48 where it was observed that as "a general rule when the Legisla ture alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a charac ter that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favorably incline towards giving effect to such procedural statutes retroactively.
Colonial Sugar Refining Company Limited v. Irving 190 A C 369; In re: Joseph Suche & Co. Limited (1875) 1 Ch. D. 48; Crawford on Construction of Statutes, 1940 Edn., p. 581 and The State v. Muhammad Jamil P L D 1965 S C 681 ref.
, Ss. 5 & 20 and Criminal Procedure Code (V of 1898), S. 488‑Mainte nance‑Sections 5 & 20 of Act XXXV of 1964 give exclusive juris diction to Family Courts to decide question of maintenance‑
Act XXXV of 1964 affects proceeding under S. 488, Cr. P. C. even commenced before and pending at time of its coming into force.
Where the contention was that the West Pakistan Family Courts Act, 1964, did not affect the jurisdiction of Magistrates under section 488, Cr. P. C. and that in any event, the provisions of the Act could not affect pending proceedings commenced before the Act came into force
Held, a comparison of provisions of section 488 of the Criminal Procedure Code, 1898 and of the West Pakistan Family Courts Act, 1964 indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Looking at the provisions as a whole it is therefore clear that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication. There is no such contrary indi cation in the West Pakistan Family Courts Act. It could, therefore, rightly be held that the Act affected also pending proceedings and Magistrates have no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance.
Alif Din v. Shaukat All P L D 1969 Pesh. 62 approved.
M. B. Zaman, Senior Advocate Supreme Court instructed by Wajid Hussain, Senior Attorney for Appellant.
Respondent in person.
Date of hearing: 6th February 1969
‑These three appeals, by special leave, arise out of proceedings commenced under section 488 of the Code of Criminal Procedure in the Court of the City Magis trate at Sialkot.
The appellant in these appeals claiming to be a son of the respondent, applied through his mother, Mst. Shamim Firdaus, for maintenance under section 488 of the Code of Criminal Procedure before the City Magistrate of Sialkot, on the 4th of September 1964. The proceeding, after dragging on for nearly three years in that Court, was ultimately transferred to the Court of the District Magistrate, Sialkot, where the respondent moved an application that in view of the provisions of the West Pakistan Family Courts Act, 1964, published in the Gazette on the 18th of July 1964, the proceedings should be filed, as they were no longer entertainable or adjudicatable by the District Magistrate. Under the said Act, it was contended, the jurisdiction was exclu sively the jurisdiction of the Family Court under section 5 thereof.
The District Magistrate on the 9th of December 1967, accepted this plea and directed the appellant to seek his remedy through the proper Court, namely, the Family Court. The appel lant went up to the High Court in revision, but a learned Single Judge of the High Court, relying on another decision of the same Court in the case of Noor Zaman v. Mst. Saidano (P L D 1967 Pesh. 343), dismissed the petition.
Two other revisional applications were, it appears, filed against the orders passed by the District Magistrate dismissing two applications under section 528 of the Code of Criminal Procedure, filed by the respondent, after the trial Magistrate had ordered that the maintenance proceedings should proceed ex parte against the respondent in view of the dilatory tactics adopted by him. The District Magistrate had not only dismissed these applications but had also directed that the Magistrate should give the respondent every reasonable opportunity to lead his evidence and to examine him in detail before passing final orders. These revisional applications, which were filed by the present appel lant in the High Court, were dismissed as having become infruc tuous, after the disposal of the main revision petition against the order of the District Magistrate holding that the proceed ings for maintenance could not be continued in the Courts of Magistrates under the Criminal Procedure Code after the coming into force of the Family Courts Act.
Before this Court it was contended, firstly, that the abovementioned Act had not affected the jurisdiction of Magistrates under section 488 of the Code of Criminal Procedure and, secondly that, in any event, the provisions of the Family Courts Act could not affect pending proceedings commenced before the Act came into force. This Court found no substance in the first contention, but gave leave to examine the second contention. Since leave was granted in the main petition, leave was also granted in the other two connected petitions.
All these appeals have been heard together. The only question which arises for consideration in these cases is as to whether the provisions of the West Pakistan Family Courts Act, 1964, applied to pending proceedings or not.
In order to determine this question it will be necessary to refer to certain provisions of the Act itself. Under subsection (3) of section 1, the Act was to come into force in such area or areas and on such date or dates as the Government may, by notification in the official Gazette, specify. It appears that by two notifications issued on the 2nd of November 1965, and the 21st of February 1967, respectively the Act has been extended to the entire area of West Pakistan, excluding the tribal areas. The District of Sialkot was not included in the first notification, but by virtue of the second notification the Act has now become applicable in the district of Sialkot as well from the 21st of February 1967.
Subsections (4) and (5) of section 1 provide as follows :‑
"(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."
This indicates that so far as proceedings under the Guardians and Wards Act, 1890, are concerned, the provisions of this Act are not to apply to pending proceedings and all pending proceedings, which had been dismissed solely on the ground that such suit or application had to be tried by a Family Court established under the Act, are to be restored, if so desired by any party, and to be heard by the Court in which it was pending before such dismissal from the stage at which it wag at the time of its dismissal. It is clear, therefore, that so far as proceedings under the Guardians and Wards Act are concerned, the provisions of the Family Courts Act are not to apply to. pending proceedings.
Section 5 of the Act is as follows :‑
"5. Jurisdiction.‑Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule,"
Section 20 of the Act provides as follows :‑
"20. Investment of powers of Magistrates on Judges.‑Government may invest any Judge of a Family Court with powers of Magistrate, First Class to make order for maintenance under section 488 of the Code of Criminal Procedure, 1898."
In exercise of the powers given by this latter section all Judges of Family Courts were invested with powers of Magistrates of First Class to make orders for maintenance under section 488 of the Code of Criminal Procedure by a notification issued on the 5th of April 1966.
The Schedule referred to in section 5 is to the following effect :‑
(i) Dissolution of Marriage,
(ii) Dower,
(iii) Maintenance,
(iv) Restitution of Conjugal Rights,
(v) Custody of Children and Guardianship.
From these provisions it is clear beyond any doubt that as from the 5th of April 1966, when Judges of Family Courts became invested with powers of Magistrates of First Class, the only Court which had jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule, was the Family Court. The question, however, is that did this also affect pending proceedings or, in other words, did the provisions of the Family Courts Act have retroactive effect.
The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving (1905 A C 369) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the A passing of the Act", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retroactive effect.
To the same effect are the observations of Jessel, master of the Rolls, in the case of In re : Joseph Suche & Co. Limited ((1875) 1 Ch. D. 48), where it was observed that as "a general rule when the Legislature alters the rights of parties by taking away or conferring any right 6 of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is on exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights."
The question for consideration there was regarding the right of a secured creditor of a company to prove for the full amount of his debt without deducting the value of his Securities in the course of the winding up. That was held to be, in substance, a right of action for the recovery of a debt and, therefore, section 10 of the English Judicature Act was held not to apply retrospectively.
The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition, page 581, as follows :‑
As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions.
This principle has also been fully adopted by this Court in the cases of The State v. Muhammad Jamil (P L D 1965 S C 681) and Muhammad Alam v. The State (P L D 1967 S C 259).
The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favorably incline towards giving effect to such procedural statutes retroactively.
Keeping these principles in view we now propose to examine the provisions of the West Pakistan Family Courts Act. As already indicated, in the absence of the provisions of subsections (4) and (5) of section 1, pending proceedings, even under the Guardians and Wards Act, would have been affected and heard and determined by the Family Courts, to which exclusive jurisdiction had been given.
It further appears that by section 4 only persons who are District Judges or Additional District Judges or at least Civil Judges, can be appointed Judges of Family Courts. All proceedings in Family Courts are to be commenced by a plaintiff on which, no matter what the nature of the cause of action or the amount claimed, only a fixed court‑fee of rupee one is to be paid (vide section 19). Then orders of Family Courts have been made appealable under section 14 of the said Act. The appeal lies to the High Court direct if the order has been made by a District Judge or an Additional District Judge, and to the 'District Court in any other case. All other provisions of procedure are akin to those of a civil suit, and except in so far as expressly provided by the Act the provisions of the Evidence Act and the Code of Civil Procedure also apply to proceedings under the Family Courts Act. (Vide section 17).
With regard to a proceeding for maintenance under section 488 of the Code of Criminal Procedure, however, it has to be pointed ‑out that the proceeding is of a summary nature and the maximum amount that a Magistrate can order thereunder is only Rs. 400 in the aggregate. No such limitation is fixed under the Family Courts Act, but the Family Court is also invested with the powers of a Magistrate for the purposes of section 488 of the Code of Criminal Procedure in addition to its powers as a Family Court. It, therefore, can exercise both the jurisdictions if so considered necessary. Again, no appeal lies from a proceeding under section 488 of the Code of Criminal Procedure. It can only be revised under sections 435 and 439 of the Code of Criminal 'Procedure. But an order of a Family Court is appealable. This is a valuable right, for, a revision is not, like an appeal, a matter of right.
A comparison of these provisions thus indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters.
Looking at the provisions as a whole we are of the view that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be give retroactive effect unless the law contains a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act. We would, therefore, hold that the Act affected also pending proceedings and the District Magistrate was right in holding that the Courts of Magistrates had no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance. He was, however, in our view, wrong: in dismissing the application, for, if he had no jurisdiction to, adjudicate, the only order he could have passed on the application was to direct that the papers should be returned to the applicant for presentation in the proper Court. In this view of the matter, the app; al from the main revision petition in the High Court must fail and is, accordingly, dismissed. The appeals from the other petitions must thereafter be held to have become infructuous and be also dismissed as such.
Since in proceedings under section 488 of the Code of' Criminal Procedure the Court has also power to make order for costs we would like to make it clear that in this case costs will not follow the event, but each party will bear his own costs in these appeals, as we are not satisfied that the respondent could not have taken this objection earlier.
Before we part with these appeals we would also like to point out that the attention of this Court has also been drawn to a. decision of a learned Single Judge of the West Pakistan High Court in the case of Alif Din v. Shaukat Ali (P L D 1969 Pesh. 62), where a similar question was considered, and the same view taken. We approve of this decision.
This matter has been pending for a very long time but we hope that the Family Court will now deal with it expeditiously.
K.B.A. Appeals dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer