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(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 203‑‑West Pakistan Family Courts Act (XXXV of 1964) [as operative in Province of Sind]‑‑High Court's powers under Art. 203‑ Petition under Art. 203 of Constitution praying for transfer of Family Suit, under Act XXXV of 1964, from one District to another Question whether petition under Art. 203 for the relief prayed for was maintainable‑‑Held: that Art. 203 of Constitution does not provide any relief which could be granted under it to a party that under Art. 203 High Court is given powers of supervision and control for making and keeping administration of justice clean and pure; that Art. 203 is not meant to help any particular party and the duty under it can be performed irrespective of whether anybody will be harmed or not and whether anybody will be benefited by it or not and a relief of transfer of case from one family Court to another on the application of a party cannot be granted under it for the reason of convenience of the parties or any of them.

Mst. Gaman v. Taj Din P L D 1968 Lah. 987; Karim Bakhsh v. Mst. Mubarik Jan P L D 1970 Pesh. 169; Mst.Farida Parwin v. Qadeeruddin Ahmad Siddiqi P L D 1971 Kar. 118; Abdul Rehman v. Mst. Chaman Ara P L D 1972 Kar. 164; S. Zahid Ali v. Mst. Mubarak Bano P L D 1976 Kar. 68; Malkani Sahibzadi Tiwana v. Shahbaz Khan and 5 others 1985 C L C 2717; Mst.Zakia Nazar v. Tallat Mahmood 1985 M L D 253; Muhammad Iqbal and others v . Settlement Commissioner and others 1985 M L D 308; Maqbool Elahi v. Mst. Farrakhunnisa P L D 1973 Kar. 485 and Mst. Khair‑un‑Nisa v. Sayed Abdur Rahim P L D 1973 Kar. 237 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑

‑‑‑Act XXXV of 1964 [as operative in the Province of Sind]‑‑Act contains no provision regarding transfer of case from one Court to another‑‑Necessity of amendment in the Act by incorporation of S.25‑A as done in Punjab by Punjab Act XXIV of 1971 pointed out and Government of Sind's attention invited for the suggested amendment.

S. Arif Ali Shah for Petitioner. A.R. Kazi Addl. A.‑G (Sind) for Respondent.

This is a petition under Article 203 of the Constitution, praying for transfer of Family Suit No.276 of 1986, which is for restitution of conjugal rights, pending in Family Court No. 2 and Senior Civil Judge, Hyderabad, to the Family Court at Karachi, where a suit for recovery of dower, being Suit No.F.S.1064 of 1986, is pending. Before admission of the petition for hearing, notice was issued to the Advocate‑General (Sind) to hear point of view on the question, whether the petition under Article 203 of the Islamic Republic of Pakistan, 1973 for above relief is maintainable.

I have heard Mr. Syed Arif Ali Shah in support of the maintainability of the petition under Article 203 of the Constitution, and Mr. Abdur Rahim Kazi, Additional Advocate‑General. The learned Additional Advocate‑General has opposed the admission of the petition on the ground that under Article 203 no relief can be granted to any party in the nature prayed for. The learned counsel for the petitioner has, however, maintained that such a transfer of suit could be ordered under Article 203. In support, he has relied on:‑

(i) Mst. Gaman v. Taj Din P L D 1968 Lah. 987;

(ii) Karim Bakhsh v. Mst. Mubarik Jan P L D 1970 Pesh 169;

(iii) Mst. Farida Parwin v. Qadeeruddin Ahmad Siddiqi P L D 1971 Kar. 118;

(iv) Abdul Rehman v . Met. Chaman Are P I. B 1972 Kar. 164;

(v) S. Zahid Ali v. Mst. Mubarak Bano P L 1) 1976 Kar. 68.

(vi) Malkani Sahibzadi Tiwana v. Shahbaz Khan and 5 others 1985 C L C 2717 .

(vii) Mst. Zakia Nazar v, Tallat Mahmood 1985 M L D 253;

(viii) Muhammad Iqbal & others v . Settlement Commissioner and others M L D 1985 Lah. 308;

On the other hand, the learned Additional Advocate‑General has relied on Abdul Rehman v. Mst. Chaman Ara (P L D 1972 Karachi 164), S. Zahid Ali v. Mst. Mubarak Bano (P L D 1976 Karachi 68), Maqbool Elahi v. Mst. Farrakhunnisa P L D 1973 Kar. 485 and Mst. Khair un‑Nisa v. Sayed Abdur Rahim (P L D 1973 Karachi 237).

Before I proceed further, I may state that Family Courts Act, 1964, does not contain any provision for transfer of case from one Court to another Family Court so far as Sind is concerned. There has been an amendment in the Province of Punjab. There, section 25‑A has been added to the Family Courts Act, 1964, by Punjab Act XXIV of 1971. The amended provisions read as follows:‑-----

"25‑A. Transfer of cases. ‑‑Notwithstanding any thing contained in any law the High Court may either on the application of any party or of its own accord, by an order in writing: ---‑

(a) transfer any suit or proceedings under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to a Family Court of another district; and

(b) transfer any appeal or proceeding under this Act from the district Court of one district to the District Court of another district.

(2) Not relevant.

(3) Not relevant.

Proviso not relevant.

I may further state that it is agreed on all hands that section 24 of the Code of Civil Procedure is not applicable. Therefore, the question for consideration is whether the High Court in exercise of powers under Article 203 of the Constitution can transfer a family suit from one Family Court to another Family Court on an application made by a party or otherwise. Before discussing this Article, it may be convenient if Article 203 is quoted hereinbelow. It reads as follows:‑

"203. Each High Court shall supervise and control all courts subordinate to it."

I may also quote Article 102 of the 1962 Constitution. It reads as follows: ‑

"Each High Court shall supervise and control all other courts that are subordinate to it."

I have mentioned this Article, because some of the rulings cited at the Bar by both the learned counsel for the parties discuss Article 102 of the 1962 Constitution.

In support of the submission that under Article 203 of the Constitution, the High Court can transfer a family suit from one Family Court to another Family Court, Mr. Syed Arif Ali Shah has vehemently relied on the case of Mst. Gaman (supra), and on the case of Karim Bakhsh (supra). The first case is a single Judge's judgment delivered by Karam Elahee Chauhan, J. The learned Judge at page 991 of the report, relying on several cases mentioned by him on that page and comparing the provisions of Article 102 with the provisions of section 107 of the Government of India Act, 1935 and Article 227 of the Constitution of India, and referring the cases decided thereon, came to the conclusion that the High Court in its supervisory jurisdiction will have powers to transfer cases pending in subordinate Courts. It may be mentioned that in this case Mst. Gaman had filed a suit for dissolution of marriage in a Family Court at Vehari. About eight days thereafter, her husband Taj Din filed a suit in the Family Court of Lahore, for restitution of conjugal rights. Mst. Gaman filed an application in the High Court under sections 24 and 151, C.P.C. and also under Article 102 of the Constitution for the transfer of case filed by her husband in Lahore to the Family Court at Vehari, where her own suit for dissolution of marriage was pending. The counsel for the husband had no objection to the transfer of the suit to Vehari, but he argued that the Court had no jurisdiction to transfer a suit pending in a Family Court to another Family Court, which necessitated the discussion of the powers contained in Article 102 of the Constitution by the Lahore High Court. The other case of Karim Bakhsh (supra), heavily relied upon by Mr. Syed Arif Ali Shah is of a D.B. of West Pakistan High Court, Peshawar. In this case, the facts were that the respondent Mst. Mubarik Jan instituted a suit against Karim Bakhsh, the petitioner, before the Union Council for dissolution of marriage and obtained a decree. The decree was challenged by Karim Bakhsh by a revision petition before the Controlling Authority. During the pendency of the revision petition Karim Bakhsh also instituted a suit for restitution of conjugal rights before the Judge, Family Court, Peshawar. Mst. Mubarik Jan also filed a suit before the same Court for dissolution of marriage by way of 'Khula'. Both the suits were consolidated by the learned Family Court and heard together. On the pleadings of the parties, the following issues were framed:‑

(1) Whether the plaintiff has got a cause of action

(2) Whether a valid decree of dissolution has been granted to the plaintiff against the defendant by the Chairman, Ward No.13, if so, its effect

(3) Whether the plaintiff is entitled to a decree of dissolution by way of 'Khula'

(4) Relief.

Both the suits were disposed of by the learned Family Court by a common judgment passed on 29th November, 1969. The finding on Issue No. l was that Mst. Mubarik Jan had a cause of action. Issue No.2 was also held in favour of the plaintiff, and it was observed that in view of the fact that the respondent had applied to a Union Council for the dissolution of her marriage which relief was granted and the present petitioner's revision against it was also dismissed, the marriage stood properly dissolved. He further observed that in the proceedings before the Family Court the respondent could rely on the decree which she had obtained in her favour and that the regular suit which was filed by her amounted to duplication. He, however, examined the ground on which the decree of dissolution of marriage was granted and held that the right to dissolve the marriage was delegated to her in the Nikahnama, that the Chairman of the Union Council constituted a proper Conciliation Court which could and had granted her the decree of dissolution of marriage. The marriage thus stood dissolved under section 8 of the Muslim Family Laws Ordinance (VIII of 1961). The decree in the opinion of the learned trial Judge was properly granted. His conclusion was that the suit of Karim Bakhsh for restitution, of conjugal rights, in the presence of a lawful decree for dissolution of the marriage, was incompetent. As regards Issue No.3, the Family Court found that, in the presence of a proper decree of dissolution of marriage granted to Mst. Mubarik Jan against Karim Bakhsh, it was not proper to re‑open the question, particularly because the petitioner was not able to prove that the decree which was passed in favour of Mst. Mubarik Jan was a nullity in law.

The decree was accordingly upheld, and the suit of Mst. Mubarik Jan was decreed and Karim Bakhsh's suit was dismissed. Aggrieved by the judgment, Karim Bakhsh filed separate appeals before the District Judge, Peshawar. The appeal filed by him against the decree, dissolving the marriage, was dismissed by the District Judge on the ground that it was incompetent. An appeal against the judgment of the Family Court dismissing the suit for restitution of conjugal rights was then pending. The said appeal seemed to have become infructuous owing to the decree for dissolution of marriage. Then a petition under Article 102 of the Constitution was filed, questioning the judgment and decree passed by the Family Court and reliance was placed by the counsel on the cases of Mst. Gaman (supra) and Mst. Safia Begum v. Abdul Hamid (P L D 1968 Lahore 1358). Writing the opinion of the Court, Nasim Hassan Shah, J noted that Article 102 of the Constitution did not provide any relief which could be granted under it, nor did it refer to the qualification, which might entitle anybody to apply to the Court for getting relief thereunder. The learned Judge observed that it was a provision which stood in contrast with such provisions as Article 98 of the Constitution of 1962, and section 151 of the Civil Procedure Code of 1908. After discussing the provisions of Article 98 of the Constitution and section 151 C . P. C . in comparison to Article 102 of the Constitution of 1962, the honourable Judge observed that the power is meant to enable the High Court to discharge its duties as a superior Court towards fair and proper administration of justice. He held that the High Court has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. In support of the observation, reference was made to several decisions, which I need not refer to here for the sake of brevity, in the judgment at page 175 of the report, and it was further observed, "We respectfully agree with this view and our reason for holding this view is that this supervision and control is for making and keeping the administration of justice pure and not to help any particular party. This duty can be performed irrespective of whether any body has been harmed or not and irrespective of whether any body will be benefited by it or not. Its exercise may be distasteful to some and gratifying to others, but that is immaterial because this power is not exercised ex debito justitiae but in the interest of good administration of justice. It was further observed that in the process of supervising the conduct of the subordinate Courts it is possible that some order passed or direction given by a subordinate Court be set aside or suitably modified with the incidental result that one of the parties to a cause be benefited. The relief that may come to the party, however, would come to it only collaterally. Proceeding further, it was observed that it is not contemplated in the terms of Article 102, that the High Court should issue an order against a party to a cause as such. It was concluded that the High Court under this provision was concerned only with the courts subordinate to it rather than with the parties to a cause. After having observed so and considering the merits of the petition, it was finally observed that no justification existed, therefore, to invoke the powers and control vested in the High Court under Article 102 of the Constitution in that case. .

Now, taking up Mst. Farida Parwin's case (supra), it may be stated that, in this case, it was observed by Muhammad Haleem, J (now Chief Justice of Pakistan), at page 127, that the words "supervise and control" in Article 102 also empower the High Court to exercise judicial control over the decision of the subordinate Courts, but the learned Judge qualified the statement that limits within which it had to be exercised was a different question.

The next case of Abdul Rehman v. Mst. Chaman Ara (supra), relied upon by Mr. Syed Arif Ali Shah is a Full Bench decision of this Court, consisting of Qadeeruddin Ahmed, C.J., Abdul Kadir Shaikh and Muhammad Haleem, JJ. Mr. A.R. Kazi, the learned Additional Advocate‑General (Sind) has also relied on it. In this case, referring to Article 102, it was observed in paragraph 16, that a glance at it would show that the Article mentions no relief which could be given to a party under it. It did not even refer to any proceedings, order, judgment, relief or remedy. They are all outside the ambit of the provision except of course to the extent that the conduct of the Courts themselves may be involved in them. It was further observed that it merely confers on the High Court the power of supervision and control over its subordinate Courts. This power has nothing to do with grievance of parties or with doing justice to them. It was further observed that the High Court was under this Article concerned with its lower Courts only and had to keep an eye on them so that they might not fail to do their own duties apart from the problems and interest of the parties. Such duties‑ are to attend the Courts regularly and punctually; to hear and decide those cases only which fall within their jurisdiction and not to hear and decide those which might be ousting their jurisdiction; to obey legitimate directions of their superior authorities; to know the law and to conduct themselves like judicial officers. It was further observed that their judicial orders and judgment are subject to scrutiny, on appeal or revision, in accordance with the provisions that confer those jurisdiction on Courts of various grades. These observations, in my view, do not support the contention of Mr. Syed Arif Ali Shah. However, he referred to paragraph 18 of the judgment, which I quote here in extenso:

"18. My learned brothers, who are members of this Full Bench, have made two suggestions. Firstly that in order to emphasise the administrative nature of Article 102 a direction should be issued to the office that all applications made under it should be laid before the Chief Justice. Secondly, that as far as practicable no judge should make an order under this Article which may look, like exercising the jurisdiction of an appellate or revision Court. The latter suggestion can be followed in good many cases by pointing out the defect or declaring an order bad and then returning the case for disposal accordingly, but there would still be a few cases in which it will be proper to make direct orders such as the cases which are to be transferred from one Court to another."

The learned counsel particularly relied on the last part of the last sentence of the paragraph quoted that there would still be a few cases in which it will be proper to make direct order such as the case which are to be transferred from one Court to another", but these observations should be understood in the context of the earlier observations, such as where a case is filed incompetently or without jurisdiction, then it could be transferred, and not where a transfer is sought for the sake of convenience of the parties or some analogous grounds. It would be proper if here I refer to the D.B. judgment of this Court, namely, S. Zahid Ali v. Mst. Mubarak Bano (supra), wherein the cases of Mst. Gaman, Mst, Safia Begum and Karim Bakhsh, relied upon by Mr. Syed Arif Ali Shah, have been considered by Muhammad Haleem, J (as the hounourable Judge then was), and it was observed that in both the cases the relief was sought to be invoked at the instance of et party and in both the cases leave was granted ex debito justitise, but in the latter case, it was further observed that such relief could be granted when no other relief was available and that too in a very rare and exceptional cases. It was, with respect, further observed that, however, one aspect of Article 102 of the late Constitution, which corresponds to Article 203 of the present Constitution was overlooked from an angle that it did not provide for any relief to a party. Nonetheless the relief of transfer was given at the behest of a party, which aspect was considered in another D.B. case, namely, Karim Bakhsh v. Mubarak Jan, and therein it was observed as follows:‑

"We respectfully agree with the view expressed in the above judgment that a Family Court, constituted under the West Pakistan Family Courts Act XXXV of 1964, is a court subordinate to the High Court, within the meaning of Article 102 of the Constitution. Likewise, we agree with the proposition that the power conferred by the Article on the High Court to supervise and control all other courts that are subordinate to it being a general power and includes the control of subordinate Courts not merely administratively but also judicially. We are also in accord with the view taken in those judgments, that Article 102 confers upon the High Court unlimited power to correct or revise all proceedings, orders and judgments of the Courts subordinate to it, for the purposes of enforcing the law correctly and guiding or compelling the subordinate Courts to follow the law and to exercise their jurisdiction properly."

Discussing further the case of Karim Bakhsh, it was additionally pointed out that a limitation was imposed on the application of Article 102 while accepting that it included the transfer of suits. ‑It was noted that Article 102 did not provide any relief which could be granted under it, nor did it refer to the qualification which may entitle anybody to apply to the Court for getting relief under it. It was further pointed out that while elaborating the above limitation the D . B . observed as follows: ‑

"No doubt, in the process of supervising the conduct of the subordinate Courts it is possible that some order passed or direction given by subordinate Court be set aside or suitably modified with the incidental result that one of the parties to a cause be benefited. The relief that may come to the party, however, would come to it only collaterally. Moreover, it is not contemplated in the terms of Article 102, that the High Court should issue an order against a party to cause as such. This also shows that the High Court is under this provision concerned only with the Courts subordinate to it rather than with the parties to a cause."

As for the decision in Mst. Farida Parween v . Qadeeruddin Ahmad Siddiqui (P L D 1971 Kax. 118), it was also approved on the footing that the appellate judgment was not set aside on the consideration that one of the parties was aggrieved, but because the appellate Court had to be checked and controlled since it had acted" without jurisdiction. Article 102 had thus been interpreted:‑

"It merely confers on the High Court the power of supervision and control over its subordinate Courts. This power has nothing to do with grievance of parties or with doing justice to them: The High Court is under this Article concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their own duties apart from the problems and interests of the parties . .... Article 98 of the Constitution is one of the provisions which provides a remedy to the aggrieved party. Section 151, C.P. C gives overall powers to Courts for doing justice. But Article 102 merely empowers the High Court to supervise and control the Courts which are subordinate to it so that they may be guided, kept in check and even encouraged to act and conduct themselves rightly as Courts. If a party applies to the High Court under the Article it merely brings the failure, faults, or dereliction of duty to the notice of the High. Court and if the High Court takes action on such an application it does so for keeping the administration of justice pure and not to help the appellant. "This duty is to be performed (by the High Court) irrespective of whether anybody has been harmed or not and irrespective of whether anybody will be benefited by it or not". It is easy to imaging that an action taken under this Article may be against the liking and even the private interests of both the parties to a proceeding".

Mr. Syed Arif Ali Shah concedes that the cases of Malkani Sahibzadi Tiwana v. Shahbaz Khan (1985 CLC 2717), Mst. Zakia Nazar v. Tallat Mahmood (1985 M L D 253), and Mst. Khurshid Akhtar v. Muhammad Saleem Shah (1985 M L D 308) cited by him are not directly on the point. Now remains to be considered the case of Maqbool Elahi v. Mst. Farrakh‑un‑Nisa PLD 1973 Kar. 485. In this case, a Revision Application under section 115 C.P.C. read with Article 102 of the late Constitution and Provisional Constitution Order, 1969 was filed in the following circumstances:‑----

The parties were married to each other, but the applicant divorced the respondent. The respondent filed a suit against the applicant in Family Court, Sukkur. The suit was dismissed, but, on appeal, the Additional District Judge decreed it for 86.2,100.00. Against the appellate judgment, a petition, as aforesaid, was filed in this Court, which came up before Tufail Ali A. Rehman, C.J. In support of maintainability of .the petition, four cases, namely, Mst. Gaman v. Taj Din (supra), Safia Begum v. Abdul Hameed (P L D 1968 Lahore 1358), Karim Bux v. Mubarak Jan (supra) and Farida Parwin v. Qadeeruddin (supra) were cited and all were distinguished. Although this was not a case for transfer of the case from one Family Court to another and was a case for exercising power under Article 102 of the Constitution, but it was held that Article 102 is not intended to be a remedy for an aggrieved party. Mr. S. Arif Ali Shah, however, laid much emphasis on last sentence used in paragraph 18 of the Full Bench judgment of this Court in Abdur Rahman v . Mst. Chaman Ara, where Qadeeruddin Ahmad, C.J. has observed that "there would still be a few cases in which it will be proper to make direct orders such as the cases which are to be transferred from one to another Court". This observation, in my opinion, should be understood in the context of the principle that where it is necessary in the fair or proper administration of justice or to keep it clean and pure, a case could be transferred.

Lastly, the Family Courts Act, 1964, was amended in Punjab by adding section 25‑A by Punjab Act XXXIV of 1971. If the powers of transfer of a suit from one Family Court to another Court could be exercised under Article 102 of the Constitution of 1962, then there was no need to amend the Family Courts Act, 1964. After considering all the cases cited for and against, I have reached the following conclusions:

(i) That Article 203 of the Constitution does not provide any relief, which could be granted under it.