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- - Art. 9 read with West Pakistan Family Courts Act (XXXV of 1964); Ss., 11, 14 &. 15 .and Guardians and Wards Act (VIII .of 1890), S. 25 Writ jurisdiction-Object of Family Courts. Act expeditious settlement of disputes relating to marriage and family affairs and connected matters-Orders of Family Court, not . otherwise appealable under Act, cannot be permitted to be challenged 'by invoking constitutional jurisdiction of High Court-Principle:-fragmentary decisions likely to delay administration of' justice to be avoided - Orders of Family Court allowing mother, seeking to have,. custody of her minor son to be examined by a psychiatrist of her choice--Held, interlocutory in nature, neither likely to - cause any tangible damage nor capable of causing any loss or damage to petitioner nor threaten any valuable or personal . property or vested rights of petitioner -and hence cannot. be challenged by invoking extraordinary constitutional jurisdiction of High Court.

Muhammad Saeed v. Mst. Fatima P L D. 19.78 Lab. 1459; Amanullah v. Mukhtar Ahmed 1979 C L C 199 ; Mrs. Feroze Aslam 'v. Muhammad Akhtar P L D 1978 Lab. 488 and Ibrahim v. Muhammad Hassain P L D 1975 S C 457 rel.

-- Art. 9 and Civil Procedure 'Code' (V of 1908), S. 113- Writ --Revision-Jurisdiction. of High Court under Art. 199 of Constitution and under S. 115, -C. P. C.-Distinction.

Muhammad Hussain v. Sikandar P L D 1974 S C 139 and Jamal Shah v. Election Commission P L D 1966 S: C I ref:

Art. 9--Writ jurisdiction - Procedure adopted by Court of competent jurisdiction-Held; can neither be objected. to nor interfered with in exercise of constitutional jurisdiction particularly in absence of violation of any mandatory provision of law:

J. H. Rahimtoola for Petitioner.

R. H. Farooqui and S. Azizul Hasan for Respondents.

Date of hearing : 27th May,. 1982.

In application (Family Suit No. 979/1981) filed under' section 2S of Guardian and Wards Act. , to get custody of her son, filed by the Respondent No. 1 (mother) against the Petitioner (father), order was passed on 21st September, 1981 by the Court of 1st Senior Civil Judge/ Family Court, Karachi whereby respondent No. I/plaintiff on her own application was allowed to be examined by a psychiatry, and the Court appointed the Head of the Department of Psychiatry (Dr. Zaki Hasan) at Jinnah Post-Graduate Medical Centre, Karachi, to examine and submit his report. He was permitted to - take assistance of any other medical expert if he chose to do so. It was further directed that if the head of the department was not available for any reason the senior most person working in the same department may examine her.

Against the above order Family Appeal No. 136/81 was filed by the petitioner which was dismissed by the learned District Judge, Karachi by order passed on 5th October, 1981 with certain modifications, which however, are not relevant for the purposes of disposal of this petition. .

2. The above-mentioned orders passed by the two Courts have now been challenged in this Court by the petitioner (father) by filing this petition under Article 9 of the P. C. O. 1981, as without lawful authority and of no legal effect.

3. 'The brief facts of the case are that Muhammad .(minor) was .boric on 17th Mary, 1980 out of the wedlock between the petitioner and the respondent No. 1, who by profession. are doctoRs.The relations between the above-named parties became strained and they started living separately. The said minor is in the custody of the petitioner.

The respondent No. 1 (the mother) on 18th May, 1981 filed an application under section 25 of the Guardian and Wards Act against the petitioner for her appointment as guardian of the said minor and for getting his custody. An application under section 12 of the said Act for interim custody of the minor was also moved by her which was partly allowed by the learned Family Judge by order passed on 8th June, 1981 with the direction that the petitioner would send the minor to meet his mother at her residence daily from 5 p. m. to 9 p. m. and on Fridays and holidays from 8 a., m. to 10 p.m.

The said order was challenged by the petitioner by filing Family Appeal No. 93/81 which was heard by the learned II Additional District Judge, Karachi. The appellate Court however allowed the said appeal on 6th July, 1981 and set aside the above order of the family Court. .

4. The petitioner in opposition to the, prayer for grant of custody to the- mother (respondent . No. 1) amongst others took the pleas that she is a mentally disturbed person, is addicted to drugs, takes high doses of barbiturates and . that she being, not even mentally fit to look after herself, any order handing over the custody of minor to her would imperil his life.

During the proceedings before the learned Family Judge, on 20th July, . 1981 as application was moved by the-respondent-No. 1 under section 15 of the West Pakistan Family Courts Act, 1964 praying therein that she may be_ referred to a Psychiatrist of Jinoah -Post-Graduate Medical Centre (hereinafter referred as J. P. G. M. C.) or Civil Hospital, Karachi to give evidence and/or produce his report within a time to be fixed by the said Court after examining her condition as well as alleged contents of poison in her blood, if any, at her cost. In the application it was stated that the above prayer was made in the interest of justice to decide the important issue raised in the suit relating to the well being, welfare and health of the minor which is to be decided in view of the observations of the Family Court and lower appellate Court passed on 8th June, 1981 and 6th July, 1981, respectively to determine as to whether she is a sick person not fit to hold the custody of the minor as alleged by the petitioner. This application was opposed by the petitioner. The learned Family Judge after hearing the parties by order passed on 21st September, 1981 however allowed the same with the directions mentioned above, which order was upheld in Family Appeal No. 136/81. The Appellate Court observed that order summoning the witness (after he has examined the respondent No. 1/ mother) about the state of her mind and mental capacity to hold the custody of the -minor, was in the nature of as interim order, not a decision, and thus not appealable under section 14 of the West Pakistan Family Courts Act, 1964. The learned Appellate Court further observed that even if it was assumed that the said appeal was maintainable, in view of the serious allegations made by the petitioner in the suit that the respondent No. 1 is not in a fit state of mind, that she is. mentally disturbed and is addicted to drugs. takes high doses of barbiturates which has poisoned her blood and has made her unfit to get the custody of her minor son, the respondent No. 1 in order to prove her own case and rebut the pleas raised in the defence, was entitled to take necessary steps at the earliest stage to assist the trial Court to arrive at the correct conclusions by summoning witnesses deemed necessary by her. It was further observed that there could be no objection if the respondent No. 1

submits -herself to medical examination as prayed in the application and that the objection of the petitioner that it should not be so done, had no force. Accordingly the order of the learned Family Judge was maintained with certain modifications and the appeal was dismissed by the order passed on 21st September, 1981.

5. Mr. R. H. Farooqui the learned Advocate for the respondent No. 1 at the hearing raised preliminary objection to the maintainability of the petition, on the plea that the impugned orders are interlocutory in nature whereby neither any rights nor any controversy between the parties had been decided. Mr. Rahimtullah, the learned counsel for the petitioner on the other hand submitted that there is grave violation of the provisions of the Act of 1964 and as such the impugned orders are liable to be quashed in the exercise of the . Constitutional jurisdiction of this Court.

6. In .order to' appreciate the arguments advanced by the two learned counsel for the parties it would be relevant to reproduce herein. below sections 11 and 15 of the Act .of 1964 which provide for production and summoning of witnesses and recording of evidence by the Family Court :-(Sections reproduced). .

Unless otherwise provided by said Act itself, applicability of Evidence Act and. Civil Procedure Code:(except sections 10 and 11) to the proceedings before the Family Court have been excluded. Reference be also made here to section 14- which makes certain specified decisions and decrees passed by the Family Court appealable:

A reading of section 11 reproduced above shows. that the Family Court has the jurisdiction to examine witnesses which are produced or compel the production of witnesses by issuing summons where otherwise it is not possible for the party to produce them. Under section 15 discretion to issue summons to any person to appear and give evidence or cause the production of any document is expressly conferred upon the Family Court.

In the light of these provisions of law, in the instant case, the impugned orders passed by the Family Court allowing the application of the respondent No. 1 to submit herself for medical examination, production of the report and examining the witness can hardly be doubted.

The learned Advocate for the petitioner however made grievance that though the application was made by the respondent No. 1 to summon a reputed psychiatrist of the J. P. G. M. C or Civil Hospital Karachi to give evidence and produce his report after examining her but while allowing the application the two Courts by directing the respondent No. 1 to submit herself to medical examination to a named person (Dr. Zaki Hassan) the head of the department of. psychiatary to J. P. G. M. C. assumed the role of a party to the case and that this was an attempt on the part of the respondent No. 1 to prove .her case through the Court.

He further submitted that in any case it was not the stage when the application under section 15 could have been entertained. It was contended that since section 15 follows sections 7 and 11 of the West Pakistan Family Courts Act of 1964 the stage of summoning witnesses could arise only after the date was fixed for recording of the evidence and only then the witnesses could be produced by the parties. .

7. I have carefully considered the arguments advanced . by the two learned counsel for the parties. Perusal of the record shows that serious questions raised as to the physical/mental capability of the respondent No.1/mother to have the custody of her minor son whose welfare and life according to the petitioner would be in jeopardy, led to the filing of the application by the respondent No. 1 upon which the impugned. orders were passed. She wanted herself to be examined by a reputed psychiatrist of J. P. G. M. C. or Civil Hospital Karachi and summon him to submit his report and give evidence. The impugned orders which, have been passed are interlocutory in nature which neither in any manner are likely to cause any tangible damage nor are capable of causing any loss or damage to the petitioner or otherwise threaten any valuable or personal property or vested rights of the petitioner. Such orders which by the relevant law itself are not even trade appealable,. cannot be challenged by invoking extraordinary constitutional jurisdiction of this Court. He would have sufficient opportunity to challenge the said orders in appeal, if the case was decided against him. I am fortified in the view expressed by me a above by the judgment given in the case of Muhammad Saeed v. Usti Fatima (P L D 1978 Lab. 1459) where the learned Division Bench observed :--

There is yet another aspect of the case. The constitutional jurisdiction is invoked and made available in cases of imminent, grave and tangible threats to valuable personal and - property rights and that too subject, inter alia, to the condition that the legal remedy, if at all any available in the circumstances, is not efficacious or adequate. In this case, an order which by itself caused no tangible damage to the appellant and is incapable of causing any, was challenged. In order to pose a real threat to him it has to be substituted by another order and the moment it so happens, a right of appeal would accrue to the appellant which. right is certainly more extensive and beneficial being available in the same hierarchy and on both questions of law as well as of facts. Thus the case of the petitioner was not a fit one to be entertained in constitutional jurisdiction."

Reference may also be usefully made to the case of Amanullah v. Mukhtar Ahmed (1979 C L C 199). The petitioner had challenged an interlocutory order made by the Rent Controller refusing to summon witness whom he wanted to examine in the defence in an ejectment case filed against him by the respondent. Against the said order refusing to summon the witness, constitutional petition was filed which was dismissed by the learned Single Judge with the observation that the point raised was squarely covered by the decision of the Division Bench in the case of Muhammad Saeed v. Mst. Fatima. The said judgment was challenged in appeal and the learned

Division Bench held :-.

"A perusal of Article 199 of the Constitution would show that the constitutional jurisdiction of the High Court can be invoked only when an injury is caused to a person or there is an imminent threat of its being caused to him, and no other adequate remedy is available. This pre-condition for the exercise of extraordinary powers of the High Court is not satisfied in the instant case. No harm has been caused to the appellant as yet inasmuch as he continues to enjoy possession of the premises in question despite the passing of the impugned order. If his case has been prejudiced by that order, the effect thereof will be felt by him only when an order of eviction is passed against him. If, eventually, the ejectment application is dismissed, he will have nothing to worry about. On the other hand, if it succeeds he will be able to challenge the order of eviction."

8. There is another reason which has persuaded me to decline the exercise of jurisdiction in this case. The West Pakistan Family Courts Act, 1964 'has been enacted as is evident from its preamble to make provisions for the establishment of family Courts for the expeditious settlement of disputes relating to marriage and family affairs and matters connected therewith and by virtue of section 25 the provisions of the Act have been made applicable to the proceedings under the Guardian and Wards Act, 1890 as well. If each and every order of the Family Court which otherwise is not appealable under the Act is permitted to be challenged by invoking constitutional jurisdiction of the High Court i B would defeat: the very purpose for which the Act was enacted, The principle is that fragmentary decisions likely to delay the administration of justice are to be avoided. Similar opinion in a case arising out of proceed ings under Rent Laws was expressed by the learned Division Bench of Lahore High Court in the case of Amanullah v. Mukhtar, wherein. it was held :-

"The object behind the legislation contained in the Ordinance was to ensure quick disposal of cases relating to disputes between landlords and tenants. If every- order passed by a Rent Controller, during the hearing of a case, is allowed to be challenged by means of a writ petition it might not only amount to the abuse of the constitutional jurisdiction but would also defeat the very purpose for which the Ordinance was enacted. It was, inter alia, for the aforesaid .reason that appeals against interim orders were disallowed by the Supreme Court in the case of Ibrahim v. Muhammad Hussain P L D 1975 S C 457 because such appeals were likely to result in fragmentary decisions which . tend to delay the administration of justice.

9. Reference may also be made to the -case of MRs.Feroze Aslam v. Muhammad Akhtar (P LD 1978 Lab. 488). A writ petition was filed to question the order passed by a Rent Controller .who after setting aside an earlier order of ex parte ejectment against the tenant, proceeded to hear the application for eviction on merits. On behalf of the landlord it was contended that he would suffer unnecessary hardships through the conduct of proceedings by a forum which according to him had no jurisdiction to proceed with the matter any further. The learned Single Judge (Mr. Justice Muhammad Afzal Zullah, as be then was) dismissed the petition placing reliance upon the observations of the Honoprable Supreme Court in the case of Ibrahim v: Muhammad Hussain (P L D 1975 S C 457) that fragmentary decisions are most inconvenient which tend to delay administration of justice and further Observed :-

"The party aggrieved in such situation should wait till a final order is passed against it and then file an appeal.

I am in respectful agreement 'with the above observations made' by the learned Lahore High Court in the cases referred above. Grievance, if any, can be made by the petitioner in an appeal against the final order.

10. Mr. Rahimtoola the learned counsel for the petitioner however submitted that the High Court under Article 98 of the 1962 Constitution and Article 199 of the Constitution of 1973 having regard to its nature of content is assimilable to its jurisdiction under .section 115, C. P. C. except in two important respects; first the former jurisdiction being creation of the Constitution stands on higher pedestal than that under section 115. C. P. C., second, the former jurisdiction has a wider reach than the: jurisdiction under. section '115, C. P. C. which is confined to the subordinate Courts. The learned counsel placed reliance for the above proposition on the observations made in the case-of Muhammad Hussain v. Sikandar (P L D 1974 S C 139) Without least disputing the proposition, supported as it is by authoritative principle laid down by Honourable Supreme Court, in my opinion the learned counsel has not properly construed the same. In the said very judgment the Honourable Supreme Court observed :-

"It is wholly wrong to consider that the above constitution as provision was designed to empower the High Court to interfere . with the decision of a Court or Tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case. it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal which is not the intention of the Constitution makers."

Reference may here. be made to the case of Jamal Shah v. Election Commission (P L D 1966_S C 1) where while pointing out the distinction between the jurisdiction of the High Court under section 115 and the exercise of powers under Article 98 of the then Constitution, in the opinion delivered by Honourable Mr. Justice Kaikaus (as he then was), it was observed :-

"It is necessarily involved in this provision that. a Court acting illegally or with material irregularity is still acting with jurisdiction. An illegality or irregularity in the exercise of jurisdiction is not the same as acting without jurisdiction. This proposition which is involved in section 115, C. P. C. is one that has been accepted even in England

It was further held :-

"If an order passed in the illegal or irregular. exercise of jurisdiction is not without jurisdiction, can it be said that it is "without legal effect" It is only acts without jurisdiction as have no legal effect. When a judicial tribunal acts with jurisdiction its order has full legal effect till it is set aside by appeal, revision, etc. Let me refer to. examples where a Court acts illegally, in the exercise of jurisdiction. A Court acts illegally in the exercise of jurisdiction when, by a misinterpretation of the relevant provision, it entertains a suit which is barred by res judicato, or Order II, rule 2, or Order IX, rule 8, C. P. C. or which is time-barred. Now it is impossible to say about the decree passed by the Court in such cases that it has no legal effect. It is .a good and valid decree binding on the parties unless it is set aside in appeal or revision. On the other hand if a Court acts without jurisdiction its order or decree is of no legal effect and has to be ignored."

11. Lastly as to -the contention raised by the: learned counsel for the petitioner that by nominating the head of the Department of Phychiatry of J. P. G. M. Centre, Karachi, the Family Court assumed .the a role of a party to the case or that it was an attempt on the part of the respondent No. 1 to prove her case through the Court, -I find the same to be without any substance. No objection can be taken to the procedure adopted by the Court of competent jurisdiction and the same cannot be interfered with by this Court in exercise of its Constitutional jurisdiction particularly in -the absence of violation of any mandatory pro-. vision of law which could render the proceedings as without lawful authority and of no legal effect. The witnesses are yet to be examined and it would be for the concerned Court to evaluate the evidence produced and come to its own findings.

12. Both the learned counsel for the parties cited a number of other cases wherein are discussed principles governing exercise of constitutional jurisdiction by the High Court. I have carefully gone through the said cases but do not consider it necessary to refer them here for the conclusion reached by me that I do not find, any illegality or impropriety in. the exercise of its jurisdiction on. the part of the Family Court, in passing the impugned orders on the application filed by the respondent No.l.

For the reasons discussed above I find no merit in this petition which is accordingly dismissed with costs.

As the question of custody and welfare of a minor of tender age is involved, the Family Court is directed to dispose of the case by 30th November, 1982. Parties are directed to appear before the concerned Family Court on 22nd August, 1982.

S. Q. Petition dismissed.

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