The jurisdiction and powers of family judge play a pivotal role in shaping the outcomes of legal disputes regarding matrimonial life. However, by examining the Family Courts Act of 1964, which governs their proceedings, reveals a notable limitation i.e. the apparent absence of power to review interim orders. This article delves into the review power of family court in the light of precedents of apex courts of Pakistan.
Statutory position about review power of Family Court
Procedural law i.e. the Act (ibid) does not provide any specific provision about jurisdiction to recall the interlocutory order. A study of case laws shows that how and when this power can be exercised. An interim or interlocutory order is that in which no final verdict is pronounced, but an ancillary order is passed with an intent to keep the same operative till the final adjudication of the pending matter.
Shahida Fazil V Mst Hina Tahir and two others 2017 YLR 622
Though there is no statutory provision about review power, however, some precedents are there which shows that there is a dire need to extend the review power of family court to be exercised in certain circumstances and which say that even in absence of any express statutory provision, the family judge may recall it’s orders in certain situations. We’ll discuss the precedents which interpret the jurisdiction of authority to recall/rectify interim orders.
Case Laws about jurisdiction to review interim orders
The Family Court has the authority to apply any procedure provided by any legislation or process necessary to achieve the goals of justice and to provide the parties with substantial justice. The 1964 Act is insufficiently comprehensive to address every potential scenario. Therefore, unless a method or law is expressly forbidden, any law or procedure may be adopted to enhance the administration of justice.
When the Family judge noticed that the defendants had neglected to submit a written statement, it borrowed the provision of striking off defense from the Code of Civil Procedure 1908 and passed an order in this regard. Later, the said Court while facing the circumstance of recalling an interlocutory order of the same case cannot make excuse of non-availability of the provision of review power of family court.
The absence of such provision is not a justification for the Family Court to refuse to exercise jurisdiction. According to legal doctrine, one may refer to general law when special laws are quiet on a certain issue, with the exception of cases where general law provisions conflict with special law requirements.
Therefore, by invoking its power of review, Family Court may reappraise its own order, but only to the extent which are specified in precedents or if the order under revisit is within the established parameters.
Muhammad Saad Ali and 2 others V Mst. Maryam Khan and 2 others 2014 CLC 715
Ali Adnan Dar through Attorney V J.F.C and others PLD 2016 Lahore 73
Order of fixation of Interim maintenance before evidence
In a case of recovery of maintenance allowance, under section 17-A of Act, 1964, the family court, on the first day of appearance of defendant i.e. husband or father of plaintiff, fixes the interim monthly maintenance allowance of plaintiff i.e. wife or children which suppose to be paid during the pendency of suit till final adjudication of case. This fixation of interim maintenance allowance based on tentative assessment. And if this tentative assessment is varied at final adjudication of matter, it would not amount to recall the prior dictum nor it would attract the principal of Res-judicata.
The reason that why it does not amount to review is that the tentative assessment was made before the evidence was recorded even before the parties were heard on merits. Therefore, that previous tentative determination would neither foreclose the final decision which would be made after recording of evidence nor it would deprive the court of it’s jurisdiction to pass a final verdict after evaluating the evidence on record. The defendant can apply for appropriate direction in regard to the maintenance of minors after bringing the relevant material on record in support of his defence.
Asim Ali V Hira Asim and others 2019 YLR 2153
Mst. Zohra Irshad and another V Messers S.K.&F. Company PLD 1981 SC 598
When the matter is not decided within six months
The study of Ali Adnan Dar’s case shows that the court can review the order of interim maintenance allowance if the matter is not decided within six months. However, the condition is that the delay must be caused by the plaintiff party. Court can do this on its own motion or even on application of the defendant to recall it’s earlier order of fixation of interim maintenance.
Ali Adnan Dar through Attorney V J.F.C an others PLD 2016 Lahore 73
Family court power to review order of striking of defence of plaintiff
In case of non-appearance of plaintiff and his counsel, the course of proceeding is the dismissal of suit in default ( dismiss for non-prosecution). However, in the Sajjad khan’s case, instead of dismissing the suit for non-prosecution, plaintiff’s right of defence was struck off, that was indeed a harsh order and was not sustainable in the eyes of law. The judge acknowledged that the impugned decision was incorrect which materially prejudiced the case of plaintiff and therefore, rectified the error which amounts to review of order.
However, constitutional Jurisdiction cannot be exercised despite of the fact that the family court is not bestowed upon through explicit provision of law to pass such order of recalling an earlier decision. The reason behind not interfering in the order is that the writ of certiorari is a discretionary remedy with the object to foster justice and right a wrong arising from the subordinate courts and tribunals etc. acting wholly without or in excess of jurisdiction, or refuses to get exercise a jurisdiction, or act in violation of principals of natural justice or any other error resulting in manifest injustice. Whereas said rectifying order was curing the manifest illegality therefore, the extraordinary jurisdiction ought not to be involved
Sajjad Khan V Momana Urooj 2018 CLC 1052
Nawab Syed Raunaq Ali and other V Cheif Settlement Commissioner and others PLD 1973 SC 236
Abdul Majid and others V The state Transport AIR 1960 pat 333
Exercise Of Review Power by family executing court
In a case, a disabled (blind) son filed a review application in execution proceeding to not discontinue his maintenance allowance on account of his attaining majority because he was disable and not in a position to maintain himself.
Executing court dismissed that application, and appellate forum also maintained that decision. High court took up that matter which held that in normal course a father is bound to maintain his son only till the time he attains the age of majority, however, the exception to this general rule is the disability of the son by infirmity or disease in which case the father’s obligation to maintain his adult son is extended.
It was also held that the family court is a quasi judicial forum, which can regulate it’s own procedure. The only restrain is that it must not be in contravention of the settled principal of law and must not cause injustice to the litigants. So, the executing judge is also fully empowered to recall the order.
Ali Akbar V Additional District Judge Malikwal and others PLD 2017 Lahore 787
Humayun Hassan V Arslan Humayun and others PLD 2013 SC 557
Muhammad Tabish Naeem Khan V Additional District Judge Lahore and others 2014 SCMR 1365
Review of Order of Striking of Defence of defendant
Saad Ali’ case study shows that the mandate of law is not to make the court helpless by not providing the express provision of review power of family court, rather the only intention of legislature was to conclude the family cases expeditiously. The same is fully empowered to recall it’s order of striking of defence of defendant due to non submission of the written statement within time frame.
Muhammad Saad Ali and 2 others V Mst. Maryam Khan and 2 others 2014 CLC 715
Muzaffar Ali V Mst. Mehrun Nisa and 2 others 1989 CLC 1805
Muhammad Sarwar V Sughran Bibi and 2 others 1996 MLD 1057
Javed Bashir V J.F.C Lahore and another 2003 MLD 814
Family Judge may adopt any procedure
Precedents show that the judge has to adopt the procedure of his choice in order to meet the situations not visualized in the act applicable.
Muhammad Din V Mst Aliya Bibi and another PLD 2007 Lahore 425
Khalil ur Rehman Bhutta V Razia Naz 1984 CLC 890
Shahzada Jawaid V Mst Sadia Rauf and another 2000 MLD 1301
Mirza Shahid Baig V Mst. Lubna Riaz and 2 others 2004 CLC 1545
Exercising power of review by family court against final Judgement not permissible
The provisions of the Act does not provide remedy of review to the higher forums against final Judgement and decree of subordinate forum. Even the High Court exercises constitutional Jurisdiction only where the order is passed without lawfull authority and jurisdiction, and not otherwise. Section 14 of the act gives right of appeal against judgement and decree or decision. Neither the appellate forum nor the family trial judge himself is allowed to rectify or reopen the matter once it is finally decided.
Dilnawaz V Miss Ambar Gull Khan 2002 CLC 1850
Saghir Ahmad V Mst. Rukhsana Tabasum and 2 others 1999 YLR 882
The review provison is neither applicable to the proceedings of appellate forum, and nor tothe proceedings of authority having supervisory constitutional Jurisdiction.
Anwar Masih V Wilat and 2 others 1983 CLC 2365
Mst Zainab Khatoon V Main Ghulam Shabbir and others PLD 1965 SC 55
De-exhibiting of document is not allowed
The documents which are once exhibited in evidence in a family case, cannot be de-exhibited later by the judge by recalling it’s earlier dictum of exhibiting the same because remedy of review is not available under the Act.
Mst Faiza Firdous V Ghulam Sabir 2002 CLC 1801
Non-maintainability of Constitutional Jurisdiction against Interim Order
Under section 14(3) of the Act, 1964, the interlocutory/interim orders passed by the family judge are not subject to revision or appeal or review, so that the matter should not be struck up because of all those factors. The provision of revision or appeal has been given against the final decision.
Therefore, under the constitutional jurisdiction, such right should not be allowed to be exercised by bringing under attack such interim orders in Constitutional jurisdiction. Party affected had to wait till it is matured into a final decision and then to assail it in the proper exclusive forum created for the purpose of examining such verdicts.
It also has been held by the superior judges in a number of case laws that interference at the interlocutory stage should be avoided through constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, more particularly when the legislatures have not provided any appeal against interlocutory orders in the relevant statutes.
Bringing of orders at interlocutory stages in higher forums is also discouraged because it tends to curtail remedies like appeal.
Mst. Sharam Elahi V Additional District Judge and others 2023 YLR 497
Shahida Fazil V Mst Hina Tahir and two others 2017 YLR 622
Syed Qadas Abbas v. Mst. Samina Shahbaz 2010 CLC 32
Shah Ameer Mujtaba V XX Civil and Family Judge Karachi(east) 2015 MLD 840
Mst. Maham Shabbir V Salman Haider 2014 CLC 330
Syed Saghir Ahmad Naqvi V Province of Sindh through Chief Secretary, S&GAD, Karachi and another
1996 SCMR 1165
Mohtarma Benazir Bhutto MNA and Leader of the opposition, Bilawal House, Karachi V The state
1999 SCMR 1447
Mushtaq Hussain Bukhari V the state 1991 SCMR 2136
It is consistent view that in cases of factual controversies, constitutional petition is not maintainable because they cannot be resolved without full fledged trial.
Muhammad Arslan V Muhammad Akram 1989 SCMR 918
Muhammad Younas Khan and 12 others V. Government of N.W.F.P through Secretary, Forest and Agricultural, Peshawar and others 1993 SCMR 618
Ghulam Muhammad V Moor Bibi 1980 SCMR 933
Muhammad Akhtar V President Cantonment Board, Sialkot Cantt Election Authority(Tribunal)1981 SCMR 291
Federation of Pakistan V Muhammad Sabir Khan PLD 1991 SC 476
Grounds of maintainability of writ jurisdiction
The interim maintenance allowance is normally fixed U/S-17-A after obtaining written statement from defendant, however, if it is found excessive, illegal or irregular then the writ under Article 199 of the Constitution of Pakistan becomes maintainable especially in case if the alimony is exorbitant on the face of it.
Sikhawat Hussain v. Farzand Bibi and 6 others 2004 MLD 1834
Ghulam Mohy-ud-Din v. Mst. Mehvish 2002 YLR 3771
Muhammad Khalid Javeed V. Mst. Shahida Parveen and 4 others 2007 YLR 1366
Aamer Mehmood Hussain v. Naeha Aamer Sayed and 2 others 2011 MLD 1105
Abrar Hussain v. Mehwish Rana and 3 others PLD 2012 Lahore 420
Nadeem Raza v. J.F.C and 3 others 2013 YLR 965
Syed Aqdas Abbas V Mst Samina Shehbaz 2010 CLC 32
