26/05/2026
PLJ 2026 Islamabad 170
Present: Muhammad Azam Khan, J.
MUHAMMAD MUNEEB ARSHAD--Petitioner
versus
Mst. AMMARA MAHROOF, etc.--Respondents
W.P. No. 5459 of 2025, decided on 3.2.2026.
Family Courts Act, 1964 (###V of 1964)--
----S. 17-A--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code, 1908 (V of 1908), S. 11--Striking off defence--Parallel foreign proceedings--Maintenance--Res judicata--Doctrine of election--Double recovery--Jurisdiction--Maintainability--Non-speaking order--Judicial propriety--Comity of courts--Overlapping liability--Unjust enrichment--Parallel maintenance proceedings in Pakistan are impermissible where a competent foreign court has already fixed and is enforcing same liability; striking off defence under S. 17-A without addressing such overlap and compliance is unlawful--Where a competent foreign court had already assumed jurisdiction and its orders were being complied with, Family Courts in Pakistan were required to avoid parallel proceedings that would result in overlapping or competing obligations for same liability and period--It was a settled principle of law that where two fora were invoked for substantially same relief on same obligation, law did not permit a litigant to ‘double run’ same claim so as to obtain two enforceable streams for one liability--It was a settled principle that before proceeding on merits, Courts were required first to examine and determine maintainability of proceedings, particularly where a specific legal objection as to jurisdiction/maintainability had been raised by opposite party--The Courts were required to first address and determine objections going to root of maintainability and jurisdiction, especially where such objections were specifically raised by a party--Questions relating to forum, parallel proceedings, prior adjudication, and competence of Court were not matters of mere technicality; rather, they struck at very authority of Court to continue with lis in manner sought--Such objections, therefore, were required to be meaningfully adjudicated at threshold or at earliest appropriate stage, rather than being deferred casually to end of trial if material on record already warranted judicial scrutiny--Impugned Order was found to be a non-speaking order--Such an Order passed by learned Trial Court, therefore, could not sustain penal consequence of Section 17-A of West Pakistan Family Courts Act, 1964--It was a settled principle of law that if foundation had been built upon illegality, entire superstructure resting upon it was bound to crumble--
🔴 “Res judicata”------Where a dispute had already been adjudicated upon by a competent forum between same parties on same cause of action, Family Courts were required to decline to reopen controversy as matter was hit by principle of “res judicata”.
🔴 "Striking off defense"------Striking off defense was a penal procedural consequence, which was required to follow only upon a clear, reasoned satisfaction of willful default--Although Section 17-A empowered Family Court to strike off defense and decree suit upon failure to pay interim maintenance, such provision did not confer unfettered or arbitrary power upon Court to proceed mechanically.