High Courts cannot Assume Jurisdiction of an Appellate Court in Family Cases: Says SC


In legal matters , jurisdiction always plays a pivotal role. If a court does not have jurisdiction in a matter, the case cannot be proceeded further before the same court even for a single day. Every court is required by law to determine its jurisdiction first and then proceed with the matter, lest the case is rejected after spending many years on the wrong forum.

Similarly, every court is conferred upon by the law a specific jurisdiction to decide cases. No court is allowed to transgress that limit and intrude into the jurisdiction of another court. Even the Supreme Court is not an exception in this regard. This rule is equally applicable to all the courts of the land.

Recently, a case came before the Supreme Court from the judgment of the Peshawar High Court wherein the HC had allowed a writ petition against the judgment of an appellate court in a family matter. it is noteworthy that there is only oneย  appeal available to an aggrieved party in family law against an order or a judgment of a family court. There is no concept of second appeal as we have under section 100ย  of CPC in civil matters.

In a recent case, M. Hamad Hassan versus Mst. Isma Bukhari etc , The Supreme Court has delved intoย  the issue where the High Courts assumes the role of an appellate court in family cases and start looking into the factual background of the case. The Supreme Court has disapprove this practice and has held that appeal is a statutory remedy which can be said to be available as a matter of right when the law provides so, otherwise not. If the High Courts set over judgments in family matters against the orders of theย  family courts and delve into factual backgrounds of the cases, this practice amounts to assume the appellate jurisdiction on the part of the High Courts which is not allowed, because the law does not provide for a second appeal in family matters. The Supreme Court has also quoted many precedents in this regard and tried to set the law on right path where writs are filed against the family courts and the HCs delves into factual background.

However, it is clarified that the Supreme Court has not held that writ jurisdiction of a High Court cannot readily be invoked in a family matter against the judgments of a family court. A High Court can be moved if there is a legal infirmity in the judgment of a family court, or where the orders passed in original or appellate jurisdiction in a family matterย  is perverse and illegal on the face of it, and the error is flouting on the surface, or where there is jurisdictional error in the order ofย  a family court.

In conclusion, the Supreme Court has only deprecated the practice where the High Courts delves into facts of a case in family matters and assume the role of an appellate forum against the judgment of a lower appellate court. The law does not allow this practice in family laws

Note: this is a Leave Refusing Order of the Supreme Court.

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