25/07/2023
2023 SCMR 153
فیملی کورٹ میں اگر حلف کی پیشکش دوسرا فریق قبول کرلے تو پھر اسکی پابندی لازم ہے اور اس سے منحرف نہ ہوا جاسکتا ہے
Section 14 and Sub-section (2) of Section 17 of the Family Courts Act, 1964 and Sections 8 to 11 of the Oaths Act, 1873.
Binding effect of an offer of special oath, if accepted by the other party.
It is a self-confessed position that the petitioner filed an application for special oath which was accepted by the respondent No.1 and the special oath was taken in the mode and manner proposed by the petitioner. Nevertheless, under Section 17 of the 1964 Act, the application of the QSO 1984 and the provisions of the Code of Civil Procedure 1908 (“CPC”), except Sections 10 and 11 have been excluded and made inapplicable to the proceedings before the Family Court in respect of Part-I of the Schedule, but concomitantly under Sub-section (2) of Section 17, it is enumerated in tandem that Sections 8 to 11 of the Oaths Act, 1873 (“Oaths Act”) shall apply to all proceedings before the Family Court. The power of the Court to tender certain oaths is provided in Section 8 of the Oaths Act which envisages that if any party to, or witness in, any judicial proceeding offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, tender such oath or affirmation to him. Whereas under Section 9 of the Oaths Act, if any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in Section 8 if such oath or affirmation is made by the other party to, or by any witness in, such proceeding, the Court may, if it thinks fit, ask such party or witness, or cause him to be asked, whether or not he will make the oath or affirmation provided that no party or witness shall be compelled to attend personally in Court solely for the purpose of answering such question. So far as the conclusiveness and unwaveringness of evidence as against the person offering to be bound is concerned, Section 11 elucidates lucidly and unambiguously that the evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. The phraseology “conclusive proof” brings into play inconspicuously the general principle of estoppel and sets forth that a party, who offers to be bound by the evidence given by the opposite party or a witness on special oath, shall not have the right to challenge the evidence which shall be conclusive and definitive proof of the matter.
The letter of the law makes it unequivocally clear that under the provisions of the Oaths Act, a party in litigation can offer the opposite party to accept or reject the claim on special oath, but they cannot compel each other to take the special oath, however if the offer is accepted by the other party then a binding agreement comes into existence and the party making the offer has no right and authority in law to resile from it. When the Court communicates the offer to the other party and gets hold of his assent or refusal, as the case may be, it in fact plays a role as an intermediary between the parties and when the offer is accepted by the other party, the acceptance is transmitted to the party inviting the other to take special oath, thereafter the agreement is completed between the parties unless the offer is withdrawn before its acceptance by the other side. The stipulations of the Oaths Act cannot be construed to give an unfair or inequitable advantage to one party over the other, so in the event of an offer or proposal to be bound by the oath of the opposite party, then obviously, due to the mutuality of the promise between them, the party making an offer has no right to resile from it after the offer is accepted and the special oath is taken. In the absence of any such satisfactory or sufficient cause the Court is obligated to implement the agreement and to record the statement of the party concerned to make a decision in the case accordingly. The petitioner cannot wriggle out or withdraw his offer which was given by him voluntarily before the Family Court and the same acted upon according to his will
