Enforcement of Pakistani Family Court Decrees in Azad Jammu & Kashmir: AJK High Court’s Landmark Ruling on Foreign Judgments.
📘 پاکستانی فیملی کورٹ کے فیصلے کی آزاد کشمیر میں تنفیذ – آزاد کشمیر ہائی کورٹ کا اہم فیصلہ
🔍 پس منظر:
فیملی تنازعات کے مقدمات میں اگر ایک فریق آزاد جموں و کشمیر میں رہتا ہو اور دوسرا پاکستان میں، تو پاکستان کی فیملی عدالتوں کے فیصلوں کی آزاد کشمیر میں تنفیذ (Execution) ایک اہم قانونی سوال بن جاتی ہے۔
یہی مسئلہ PLD 2018 High Court (AJ&K) 25 میں زیر غور آیا، جہاں دو مقدمات کو یکجا کر کے آزاد کشمیر ہائی کورٹ نے قانونی اصول متعین کیے۔
⚖️ مختصر کہانی:
1. پہلا مقدمہ:
صباء یاسر نے فیملی کورٹ پشاور میں نان و نفقہ، مہر، میڈیکل اخراجات و دیگر دعوے دائر کیے۔ شوہر نے مکمل مقدمہ لڑا، اور فیصلہ صباء یاسر کے حق میں آیا۔
صباء یاسر نے مظفرآباد میں اس فیصلے پر عملدرآمد (Execution) کی درخواست دی، جسے لوئر کورٹ نے یہ کہہ کر مسترد کر دیا کہ پاکستان کی عدالت "غیر ملکی" ہے۔
2. دوسرا مقدمہ:
لاہور کی فیملی کورٹ نے نان و نفقہ کے حوالے سے ex-parte (یک طرفہ) فیصلہ دیا۔
مظفرآباد فیملی کورٹ نے فیصلے پر عملدرآمد سے انکار کر دیا اور شوہر کو ضمانت جمع کروانے کا حکم دے دیا۔
دونوں فیصلے آزاد کشمیر ہائی کورٹ میں چیلنج ہوئے۔
📌 آزاد کشمیر ہائی کورٹ کے اہم نکات:
1. پاکستانی عدالتیں آزاد کشمیر کے لیے غیر ملکی عدالتیں تصور ہوں گی۔
2. اگر کوئی شخص رضاکارانہ طور پر پاکستان کی عدالت میں پیش ہو کر مقدمہ لڑتا ہے، تو وہ بعد میں اس عدالت کے دائرہ اختیار پر اعتراض نہیں کر سکتا۔
3. غیر ملکی فیصلہ اگر مکمل عدالتی کارروائی اور میرٹ پر دیا گیا ہو تو وہ آزاد کشمیر میں نافذ کیا جا سکتا ہے۔
4. AJK Family Courts Act, 1993 اگر کسی معاملے پر خاموش ہو، تو CPC (دیوانی ضابطہ) کے اصول لاگو کیے جا سکتے ہیں۔
5. Precept (دوسری عدالت کو ڈگری پر عملدرآمد کی ہدایت) کا نظام قانونی ہے، اور اس کے ذریعے عدالتیں ایک دوسرے سے تعاون کر سکتی ہیں۔
6. Ex-parte فیصلے جو یک طرفہ ہوں اور مدعا علیہ کو دفاع کا موقع نہ ملا ہو، وہ قابل نفاذ نہیں ہوتے۔
7. اگر غیر ملکی فیصلہ CPC کی دفعہ 13 کی شق (b) یا (f) کے تحت استثناء میں آتا ہو، تو وہ نافذ نہیں کیا جا سکتا۔
8. Ex-parte فیصلے کی بنیاد پر فریق نیا دعویٰ آزاد کشمیر کی عدالت میں دائر کر سکتا ہے۔
🧾 نتیجہ:
اگر پاکستانی عدالت کا فیصلہ فریقین کی سماعت کے بعد دیا گیا ہو، تو وہ آزاد کشمیر میں نافذ کیا جا سکتا ہے۔
یک طرفہ فیصلے (ex-parte) قابل نفاذ نہیں ہوتے اور ان کی بنیاد پر نیا دعویٰ دائر کرنا ضروری ہوتا ہے۔
عدالتوں کو چاہیے کہ وہ انصاف کے تقاضے اور بین الریاستی عدالتی تعاون کے اصولوں کو مدنظر رکھیں۔
Must read Judgement
🔗 حوالہ:
PLD 2018 High Court (AJ&K) 25
Azad Jammu & Kashmir Family Courts Act, 1993
Civil Procedure Code, 1908 – Sections 13, 14, 46
P L D 2018 High Court (AJ&K) 25
Before M. Tabassum Aftab Alvi, C.J., Azhar Saleem Babar and Muhammad Sheraz Kiani, JJ
SABA YASIR and another---Petitioners
Versus
SENIOR CIVIL JUDGE, MUZAFFARABAD and others---Peitioners
Writ Petitions Nos.161 of 2013 and 3114 of 2016, decided on 5th July, 2018.
(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---
----Ss. 13 & 17---Civil Procedure Code (V of 1908), Ss. 46, 13, 14 & 2 (5)(6)---Family Courts Act (XXXV of 1964), S. 5, Sched. & S.13---Suit for recovery of maintenance allowance and dower---Execution of decree of Pakistan (foreign) Court in Azad Jammu and Kashmir---Scope---Suit was filed before Family Court in Pakistan which was contested by the defendant-husband and was decreed---Wife-decree-holder moved application before Family Court for sending precept to Family Court in Azad Jammu and Kashmir for execution of said decree which was allowed---Family Court in Azad Jammu and Kashmir returned the said execution petition with the observation that decree passed by Foreign Courts could not be executed in Azad Jammu and Kashmir---Validity---No procedure for execution of a foreign decree had been provided in S. 13 of Azad Jammu and Kashmir Family Courts Act, 1993---Family Court could exercise inherent powers in such circumstances in the interest of justice---Decree passed by the Family Court was to be executed either by the Court passing it or by any other Civil Court as directed by District Judge---Powers to execute said judgment/decree provided in Civil Procedure Code, 1908 in such situation could be followed by the Family Court---Court upon application of decree-holder might issue precept to any other Court which was competent to execute such decree---Precept, in the present case, was sent to District Judge in Pakistan in order to forward the same to the concerned Court at Muzaffarabad---District Judge had been empowered to direct any other civil Court for execution of a decree---District Judge in Pakistan while sending precept to the District Judge in Azad Jammu and Kashmir followed the relevant law and did not commit any illegality---Courts in Pakistan were foreign Courts and Azad Jammu and Kashmir was a foreign territory---Judgments/decrees passed by Pakistan Courts could be executed in Azad Jammu and Kashmir under S.13 of Civil Procedure Code, 1908---Foreign decree could be executed when defendant appeared in foreign Court and pleaded to the merits of case and submitted to the jurisdiction of said Court voluntarily---Judgment-debtor, in the present case, appeared before the foreign Court voluntarily---Defendant now could not be allowed to turn around and impeach the judgment and decree on the ground of incompetency of the Court passing it when same was sought to be enforced in another country---Impugned order passed by the Family Court in Azad Jammu and Kashmir was set aside and it was directed to continue the proceedings of execution of decree---Writ petition was allowed accordingly.
Karim Haider Shah and another v. Raja Khanizaman Khan and another PLD 1954 AJ&K 1; Lakhpat Rai Sharma v. Atma Singh AIR 1962 Punjab 228; Mst. Maryam Bibi and others v. Muhammad Iqbal and others PLD 1976 AJ&K 9; Dr. Padmini Mishra v. Dr. Ramesh Chandra Mishra AIR 1991 Orissa 263; Nasir Pervaiz v. Shazia Qayyum and 2 others 2001 CLC (SC AJK) 1072; Muhammad Sadiq v. Dr. Sabira Sultana 2002 SCMR 1950; Akhtar Ali Said Bcha v. Mst. Naheed Bibi PLD 2003 Pesh. 63; Abdul Khaliq v. Sidra Khaliq and 3 others 2014 SCR 280; Abdul Ghani v. Haji Saley Muhammad PLD 1960 Kar. 594; Mst.. Maryam Bibi and others v. Muhammad Iqbal and others PLD 1976 AJ&K 9; Tariq Mahmood v. Mst. Zarda Begum and another 1995 CLC 1102 and Grosvenor Casino Limited, Shahram-E-Kamal Ataturk, Karachi v. Abdul Malik Badruddin 1997 SCMR 323 ref.
Chormal Balchand Firm, Chowrahat v. Kasuri Chand Seraoji and another AIR 1938 Cal. 511; Shaliq Ram v. Firm Daulat Ram AIR 1967 SC 739; Robeena Fazil v. Yasin Khan 2005 SCR 37; Mst. Saima Tabassum v.Syed Sher Shah and 3 others 2016 MLD 1430; Noor Hussain v. The State PLD 1966 SC 88; Commission Income Tax AJ&K, Muzaffarabad v. Messrs Haji Ali Khan and Co. Forest Lessee Havelian PLD 1985 SC (AJK) 62; Mian Nazir Ahmad v. Abdur Rashid Qaureshi 1986 CLC (AJ&K) 1309 and Hasham Issaq v. Karachi Gas Company Ltd. PLD 1969 Kar. 109 rel.
Muhammad Siddique Rathore v. Muhammad Muzaffar Khan PLD 2005 (AJ&K) 1 per incuram
(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---
----Ss. 13 & 17---Civil Procedure Code (V of 1908), Ss. 46, 13 (b) (f), 14 & 2(5) (6)---Family Courts Act (XXXV of 1964), S.5, Sched. & S.13---Suit for recovery of maintenance allowance---Ex-parte decree passed by Pakistan Court---Execution of said foreign decree in Azad Jammu and Kashmir---Scope---Suit was decreed ex-parte by Family Court in Pakistan and decree was sent to Family Court Azad Jammu and Kashmir for hearing and its disposal---Family Court Azad Jammu and Kashmir directed the judgment-debtor to deposit surety bond---Plea of judgment-debtor was that ex-parte decree of maintenance allowance passed by Family Court in Pakistan was not executable in Azad Jammu and Kashmir as same would be hit by exception (b) & (f) of S.13, C.P.C.---Validity---No procedure for execution of a foreign decree had been provided in S.13 of Azad Jammu and Kashmir Family Courts Act, 1993---Family Court could exercise inherent powers in such circumstances in the interest of justice---Decree passed by the Family Court was to be executed either by the Court passing it or by any other Civil Court as directed by the District Judge---Powers to execute said judgment/decree provided in Civil Procedure Code, 1908 in such situation could be followed by the Family Court---Court upon application of decree-holder could issue precept to any other Court which was competent to execute such decree---Precept in the present case was sent to District Judge in Pakistan in order to forward the same to the concerned Court at Muzaffarabad---District Judge had been empowered to direct any other civil Court for execution of a decree---District Judge in Pakistan while sending precept to the District Judge Azad Jammu and Kashmir followed the relevant law and did not commit any illegality---Courts in Pakistan were foreign Courts and Azad Jammu and Kashmir was a foreign territory---Judgments/decrees passed by Pakistan Courts could be executed in Azad Jammu and Kashmir under S.13 of Civil Procedure Code, 1908---Where any of the provisions (a) to (f) of S.13, C.P.C. were attracted in the case then judgment/decree passed by a foreign Court would not be executed---Judgment in the present case had not been passed on merits to the case which was against the principles of natural justice---Foreign judgment in circumstances was not conclusive to be executed---Ex-parte judgment passed by foreign Court was not to be executed in Azad Jammu and Kashmir---Family Court in Azad Jammu and Kashmir was restrained to execute an ex-parte decree of maintenance allowance passed by a foreign Court---Wife-decree-holder might file suit on the basis of said decree before Family Court in Azad Jammu and Kashmir---Writ petition was allowed accordingly.
Fayyaz Ahmad Janjua for Petitioners.
Chaudhary Shaukat Aziz for Petitioners.
Sardar M.R. Khan for Respondent No.3 (in Writ Petitin No.161 of 2013).
Shahid Ali Awan for Private Respondents Nos. 2 to 5 (in Writ Petition No.3114 of 2016).
JUDGMENT
M. TABASSUM AFTAB ALVI, C.J.---The captioned Writ Petitions have been filed by petitioners under Article 44 of the Azad Jammu and Kashmir Interim Constitution 1974, whereby, orders dated 14th July, 2012 and 29th Oct, 2016, passed by the learned Senior Civil Judge, empowered as Judge Family Court, Muzaffarabad, and the learned Judge Family Court No.IV, Muzaffarabad, respectively, have been called in question for having been passed without lawful authority. As a common question of law, relating to execution of foreign decrees, is involved in the titled Writ Petitions; therefore, these are being consolidated and decided through the instant single judgment.
2. The facts leading to Writ Petition No.161/2013, are that petitioner, Mst. Saba Yasir, resident of Peshawar, and Yasir Bashir, respondent No.3, residents of Muzaffarabad, contracted marriage on 6th April, 2006. However, later on, their relations became strained, thereupon, Mst. Saba Yasir, went to her parents at Peshawar and instituted a suit against Yasir Bashir, respondent-defendant, before judge Family Court, Peshawar, on 5th January, 2010, for recovery of dower amount Rs.5,00,000/- as well as 15 tolas gold ornaments along with possession of house measuring 10 marlas, situated at Mohallah Dental Hospital, Central Plate, Muzaffarabad AK, for maintenance allowance at the rate of Rs.5,000/-pm for herself and Rs.3000/-pm for minor Hamaila Yasir and also claimed recovery of Rs.50,000/- as medical expenditures, dowry articles amounting to Rs.4,89,500/- and Rs.5,00,000/-, debt allegedly received by her husband Yasir Bashir. After institution of the aforesaid suit, Yasir Bashir, respondent-defendant was summoned through process of Court; however, he failed to turn up, hence, was proceeded ex-parte and consequently, an ex-parte decree was passed in favour of Mst. Saba Yasir, petitioner-plaintiff on 25th Feb, 2010. Admittedly, later on, respondent-defendant moved an application for setting aside the ex-parte decree, supra, which was allowed and same was set-at-naught vide order dated 10th May, 2011. Thereafter, respondent-defendant, filed written statement; wherein, he took the plea of jactitation of marriage and raised various legal and factual objections to the claim of petitioner-plaintiff. The learned Judge Family Court, Peshawar, in light of pleadings of the parties framed as many as 15 issues and parties were given opportunity to produce evidence, as defendant had refused pre and post trial reconciliation on account of his plea of jactitation of marriage. Thereafter, both the parties produced evidence in support of their respective claims and finally the learned Judge Family Court, Peshawar, after hearing arguments, delivered its judgment and passed decree dated 28th February, 2012, wherein, following relief was granted to petitioner-plaintiff as well as her minor daughter Hamaila Yasir, which reads as under:-
"In the light of above discussion plaintiff is entitled to recover her dower as prayed for, she is further allowed to recover her maintenance at the rate of Rs.5000/- from Jan. 2009 till she remains in the wedlock of defendant. Plaintiff No.2 is allowed to recover her maintenance at the rate of Rs.1500/- Per Month with 15% increase Per Annum since July 2009 till her marriage. Plaintiff is also allowed to recover medical expenses as prayed for. The claim of plaintiff for recovery of dowry articles and rupees 5 Lac stands dismissed for want of proof, the claim of defendant also dismissed."
The aforesaid judgment and decree dated 28th February, 2012, were challenged by Yasir Bashir, defendant, in the Court of Additional District Judge-XIII, Peshawar, on 10th April, 2012 whereby, his appeal was dismissed on merits vide judgment dated 22nd October, 2012. During the aforesaid proceedings, Mst. Saba Yasir, moved an application to Judge Family Court, Peshawar, for sending a precept to Judge Family Court, Muzaffarabad, under section 46,C.P.C, for execution of the aforesaid decree, which was allowed vide order dated 12th June,2012, and through letter dated 27th June, 2012, the learned Judge Family Court, Peshawar, requested to District and Sessions Judge, Peshawar, that since the judgment-debtor is resident of Muzaffarabad, Azad Kashmir, and petitioner has made a request for transfer of the execution petition to Muzaffarabad, Azad Kashmir, therefore, decree is transmitted for its transfer to Muzaffarabad, Azad Kashmir. The learned District and Sessions Judge, Peshawar, through letter dated 29th June, 2012, forwarded the aforesaid decree to the learned District and Sessions Judge, Muzaffarabad, for further action. The learned District and Sessions Judge, Muzaffarabad, after receiving the aforesaid decree, sent the same to Senior Civil Judge, empowered as Judge Family Court, Muzaffarabad, through order dated 6th July, 2012. The learned Judge Family Court, Muzaffarabad, after receiving the aforesaid precept/execution petition, wrote a letter to District Judge, Muzaffarabad, dated 14th July, 2012, with the observation that High Court of Azad Jammu and Kashmir in its judgment in the case titled Muhammad Siddique Rathore v. Muhammad Muzaffar Khan, reported in PLD 2005 AJ&K 1, held that decrees passed by Foreign Courts are not executable in Azad Kashmir, so the execution petition was returned to District Judge, Muzaffarabad, for further order. The aforesaid order dated 14th July, 2012, has been called in question by Saba Yasir, petitioner/decree-holder, which is subject matter of Writ Petition No.161/2013.
3. The facts forming background of Petition No.3114/2016, are that, in year 2002, Mushtaq Hussain, petitioner, resident of Muzaffarabad, and Mst. Munazza Waris, resident of Lahore, solemnized marriage; however, later on, their relations became strained, due to which, latter along with minors Shahwaiz and Anoosha, filed a suit for maintenance allowance and delivery expenditures, before Judge Family Court, Lahore, on 2nd September, 2013. The petitioner-defendant was proceeded ex-parte and consequently an ex-parte decree was passed in favour of private respondents-plaintiffs, on 22nd January, 2014. After attaining finality, the learned Judge Family Court, Lahore, sent the aforesaid ex-parte decree, through District Judge, Lahore, to District Judge, Muzaffarabad, which was returned to District Judge, Lahore; however, later on, a Reference was sent to the Hon'ble Chief Justice of Shariat Court AJ&K, whereby execution application was sent to the concerned Family Court, Muzaffarabad, for hearing and disposal under law, through order dated 12th September, 2014. The learned Judge Family Court No. IV, Muzaffarabad, heard arguments on maintainability of the aforesaid execution petition, however, directed petitioner/judgment-debtor, Mushtaq Hussain, to deposit surety bond of Rs.14,00,000/- (fourteen lac) with the Court till next date of hearing, vide the impugned order dated 29th October, 2016, which is subject matter of Writ Petition No.3114/2016.
4. Mr. Fayyaz Ahmad Janjua, the learned Counsel for Mst. Saba Yasir, petitioner, after narrating facts of the case, submitted that the learned Judge Family Court, Muzaffarabad, committed illegality while sending precept back to the learned District and Sessions Judge, Muzaffarabad, in light of judgment of the High Court titled Muhammad Siddique Rathore v. Muhammad Muzaffar Khan, reported in PLD 2005 (AJK) 1 because territory of Azad Jammu and Kashmir, is under the control of Pakistan; hence, Pakistani Courts are not foreign Courts and judgments and decrees passed by said Court, can normally be executed in Azad Jammu and Kashmir. He further submitted that if this Court arrives at conclusion that Pakistani Courts are foreign Courts, even then the decree in hand is executable, because the same is not hit by any of the exceptions enumerated under section 13 of Civil Procedure Code, 1908, rather Yasir Bashir, defendant, voluntarily appeared and contested suit before Family Court, Peshawar, hence, after himself submitting to the jurisdiction of Family Court, Peshawar, he cannot question its jurisdiction. He in reply to the argument of the learned Counsel for respondent, that under section 17 of the AJ&K Family Courts Act, 1993, provisions of Code of Civil Procedure, are not applicable, submitted that when Family Courts Act or Rules, do not provide procedure and are silent about any matter, then the provisions of C.P.C can be applied to such matter. The learned Counsel finally submitted that by setting aside the impugned order dated 14th July, 2012, the learned Senior Civil Judge/Judge Family Court, Muzaffarabad, may be directed to continue proceedings for execution of decree passed by the learned Judge Family Court, Peshawar. He, in support of his arguments, cited the following case law:-
i. Chormal Balchand Firm, Chowrahat v. Kasuri Chand Seraoji and another [AIR 1938 Calcutta 511],
ii. Karim Haider Shah and another v. Raja Khanizaman Khan and another [PLD 1954 AJ&K 1].
iii. Lakhpat Rai Sharma v. Atma Singh [AIR 1962 Punjab 228].
iv. Shalig Ram v. Firm Daulat-Ram [AIR 1967 SC 739].
v. Mst. Maryam Bibi and others v. Muhammad Iqbal and others [PLD 1976 AJ&K 9].
vi. Dr. Padmini Mishra v. Dr. Ramesh Chandra Mishra [AIR 1991 Orissa 263].
5. Conversely, Sardar M.R. Khan, the learned Counsel for Yasir Bashir, respondent No.3, vehemently submitted that the learned Judge Family Court, Muzaffarabad, did not commit any illegality while sending precept back to the learned District and Sessions Judge, Muzaffarabad, because in Pakistan under section 14 of Family Courts Act, 1964, the District and Sessions Judge is an Appellate forum, whereas in Azad Kashmir, Shariat Appellate Bench of the High Court is an Appellate forum in family matters; hence, precept sent by District and Sessions Judge, Peshawar, to District and Sessions Judge, Muzaffarabad, is without lawful authority. He further pointed out that section 46, C.P.C, relates to precepts, Order XXI, Rules, 3, 6 and 8 relate to execution of decrees and sections 38 to 48, C.P.C relate to procedure for execution; however, under section 17 of the AJ&K Family Courts Act, 1993, provisions of the Code of Civil Procedure, 1908, will not apply to the proceedings before the Family Court; hence, C.P.C. will not be applicable in Family Courts for execution of the judgments and decrees. He contended that although respondent No.3, appeared and contested case before Family Court, Peshawar; however, the decree passed by the aforesaid Court cannot be executed in Azad Kashmir rather the same provides only valid cause of action and foundation for filing a suit in a competent Court of Azad Kashmir; hence, the instant Writ Petition is liable to be dismissed. The learned Counsel, in support of his contentions, placed reliance upon the following authorities:--
i. Nasir Pervaiz v. Shazia Qayyum and 2 others [2001 CLC (SC AJK) 1072].
ii. Muhammad Sadiq v. Dr. Sabira Sultana [2002 SCMR 1950].
iii. Akhtar Ali Said Bcha v. Mst. Naheed Bibi [PLD 2003 Peshawar 63].
iv. Abdul Khaliq v. Sidra Khaliq and 3 others [2014 SCR 280].
6. Chaudhary Shaukat Aziz, the learned Counsel for Mushtaq Hussain, petitioner-defendant, narrated detailed facts of the case and submitted that an ex-parte decree of maintenance allowance, dated 22nd January, 2014, was passed by the learned Judge Family Court, Lahore, against his client, which is not executable, because the same is hit by exceptions (b) and (d) of section 13 of C.P.C, and the aforesaid decree only provides foundation to decree-holder for filing fresh suit before concerned Court in AJ&K. He further contended that even otherwise the decree dated 22nd January, 2014, is not executable, because under Rule 4 of the AJ&K Family Courts Procedure Rules, 1998, a wife has been authorized to file suits for dissolution of marriage or dower only and not for maintenance allowance, within the local limits of which she resides ordinarily. He finally craved for acceptance of Writ Petition No.3114/2016, and submitted for setting aside the impugned order dated 29th October, 2016.
7. Conversely, Mr. Shahid Ali Awan, the learned Counsel for respondents Nos.2 to 5 in Writ Petition No.3114/2016, submitted with vehemence that after hearing arguments on maintainability of execution petition and seeking bail b