SUMAIRA ASHRAF vs Dr — 2023 YLRN 20 LAHORE-HIGH-COURT-LAHORE

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SUMAIRA ASHRAF VS Dr. MUHAMMAD SHAFIQ Ss 13 & 25---Family Courts Act (XXV of 1964), S.9---Respondent/father filed petition for seeking custody of his minor son---Said petition was resisted by petitioner (mother) who filed a reply and issues were farmed---Evidence of respondent (father) in guardian petition was recorded, evidence of petitioner (mother) was submitted by way of affidavits---Petitioner filed application before Family Court for permission to produce some documents---Respondent resisted the same and contended that those documents could have easily been brought on record while filing a reply to the main petition---Family Court dismissed the said application---Held, that Guardians and Wards Act, 1890, through its S. 13, provided that on day fixed for hearing of an application, the Court should hear such evidence as may be adduced in support of application or in opposition to the application---Likewise, S. 25 of Guardians and Wards Act, 1890 provided that process envisaged in the said Act, has to be followed to the ouster of all other procedures when a Family Court deals with matters specified in the Guardians and Wards Act---Any procedure that was not forbidden by the Guardians and Wards Act, 1890 or which procedure was not envisaged statutorily in the said Act could be employed while proceeding with a matter under the said Act---Unless there was an inconsistency between the particular section of law in one enactment and the provisions of the Guardians and Wards Act, 1890, there could be no clash or contrariety and such procedure should be permissible---Present case required answering the question, whether the requirements of S. 9 of the Family Courts Act, 1964 of attaching all the documents, intended to be used in evidence, by a defendant with his written statement ,could be applied by Family Court while acting as District Court under the Guardians and Wards Act, 1890 in a way to restrain such defendant from producing any documentary evidence at a later stage---Words "…..notwithstanding anything contained in dealing with matters specified in that Act follow the procedure prescribed in that Act" as enacted in S. 25 of Guardians and Wards Act, 1890, were unambiguous and clear; they first excluded the procedure prescribed in Family Courts Act, 1964 and then emphasized on adopting the procedure given in Guardians and Wards Act, 1890---In the presence of a specified procedure provided in S.13 of the Guardians and Wards Act, 1890, the provisions of S.9 of the Family Courts Act, 1964, could have no application in view of the clear command of S. 25 of the Guardians and Wards Act,1890---Application of petitioner could not have been dismissed on basis of violation of any procedure mentioned in S.9 of the Family Courts Act, 1964, the application of which was specifically prohibited through S. 25 of the Guardians and Wards Act, 1890, since a specified procedure was devised under S. 13 of the Guardians and Wards Act, 1890---Reliance of Family Judge on S. 9 of the Family Courts Act, 1964, in the presence of S.13 of the Guardians and Wards Act, 1890, was not understandable--- Section 13 of the Guardians and Wards Act, 1890, indeed had a bearing on the matter and ought to have been looked at and referred to while deciding the application in question--- Constitutional petition was allowed and application of petitioner was deemed to be pending before the Family Court.

SUMAIRA ASHRAF vs Dr — 2023 YLRN 20 LAHORE-HIGH-COURT-LAHORE

Case information

Judgment text as reported