Updated: Wednesday June 28, 2017/AlArbia'a Shawwal 04, 1438/Budhavara Asadha 07, 1939, at 08:07:45 PM

[1][1]The Family Courts Act, 1964

(Act XXXV of 1964)

[18 July 1964]

An Act to make provision for the establishment of Family Courts. 

Preamble.– WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith;

       It is hereby enacted as follows:--- 

1.    Short title, extent and commencement.– (1) This Act may be called the [2][2][* * *] Family Courts Act, 1964.

       [3][3][(2) It shall extend to whole of the Punjab.]

       (3)   It shall come into force in such area or areas and on such date or dates as Government may, by notification in the official Gazette, specify in this behalf.

      [4][4][(4)       Nothing in this Act shall apply to any suit or any application under the Guardians and Wards Act, 1890, pending for trial or hearing in any Court immediately before the coming into force of this Act, and all such suits and applications shall be heard and disposed of as if this Act was not in force.

       (5)   Any suit, or any application under the Guardians and Wards Act, 1890, which was pending for trial or hearing in any Court immediately before the coming into force of this Act, and which has been dismissed solely on the ground that such suit or application is to be tried by a Family Court established under this Act, shall, notwithstanding anything to the contrary contained in any law, on petition made to it in that behalf by any party to the suit or application, be tried and heard by such Court from the stage at which such suit or application had reached at the time of its dismissal.]

2.    Definitions.– [5][5][(1)] In this Act, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say–

         (a)  “Arbitration Council” and “Chairman” shall have the meanings respectively assigned to them in the Muslim Family Laws Ordinance, 1961;

         (b)  “Family Court” means a Court constituted under this Act;

         [6][6][(c) “Government” means Government of the Punjab;]

         (d)  party” shall include any person whose presence as such is considered necessary for a proper decision of the dispute and whom the Family Court adds as a party to such dispute;

         (e)  prescribed” means prescribed by rules made under this Act [7][7][;]

         [8][8][(f)    “Schedule” means the Schedule appended to the Act; and

         (g)  “Union Council” means a Union Council, Municipal Committee, Cantonment Board, Union Administration or, in case of absence of any of these local governments in a local area, any other comparable body or authority constituted under any law relating to the local governments or local authorities.]

      [9][9][(2)       Words and expressions used in this Act but not herein defined, shall have the meanings respectively assigned to them in the Code of Civil Procedure, 1908.]

[10][10][3.     Establishment of Family Courts.– (1) Government shall establish one or more Family Courts in each District or at such other place or places as it may deem necessary and appoint a Judge for each of such Court:

       Provided that at least one Family Court in each District, shall be presided over by a woman Judge to be appointed within a period of six months or within such period as the [11][11][Government may extend].

       (2)   A woman Judge may be appointed for more than one District and in such cases the woman Judge may sit for the disposal of cases at such place or places in either District, as the [12][12][*] Government may specify.

       (3)   Government shall, in consultation with the High Court, appoint as many woman Judges as may be necessary for the purposes of sub-section (1).]

[13][13][4.     Qualifications of Judge.– No person shall be appointed as a Judge of a Family Court unless he is or has been [14][14][or is qualified to be appointed as] a District Judge, an Additional District Judge, [15][15][a Civil Judge or a Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat].

5.    Jurisdiction.– [16][16][1] Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [17][17][Part I of the Schedule].

[18][18][(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committed by the other.]

[19][19][(3) The Government may amend the Schedule through addition, deletion or substitution of any entry in the Schedule.]

6.    Place of sittings.– Subject to any general or special orders of Government in this behalf a Family Court shall hold its sittings at such place or places within [20][20][the District or area for which it is established] as may be specified by the District Judge.

7.    Institution of suits.– (1) Every suit before a Family Court shall be instituted by the presentation of a plaint or in such other manner and in such Court as may be prescribed.

       (2)   The plaint shall contain all [21][21][material] facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose:

[22][22][Provided that a plaint for dissolution of marriage may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children:]

       Provided [23][23][further] that parties may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice.

      [24][24][(3)    (i)     Where a plaintiff sues or relies upon a document in his possession or power, he shall produce it in court when the plaint is presented, and shall at the same time, deliver the document or a copy thereof to be filed with the plaint.

       (ii)   Where he relies on any other document not in his possession or power, as evidence in support of his claim, he shall enter such documents in a list to be appended to the plaint [25][25][giving reasons of relevancy of these documents to the claim in the plaint].]

       (4)   The plaint shall be accompanied by as many duplicate copies thereof including the Schedule and the lists of documents referred to in sub-section (3), as there are defendants in the suit, for service upon the defendants.

[26][26][8. Intimation to defendant.– (1) When a plaint is presented to a Family Court, it shall:

(a)    fix a date which shall not be more than fifteen days for the appearance of the defendant;

(b)   within two days of the presentation of the plaint, sent a notice or summons of the suit to a defendant through a process serving agency of the Family Court, registered post acknowledgment due, electronically or through courier, together with a copy of the plaint, a copy of the schedule referred to in subsection (2) of section 7 and copies of the documents and a list of documents referred to in subsection (3) of section 7; and

(c)    direct that the notice or summons issued under clause (b) also be served through affixation and shall simultaneously issue a proclamation in a newspaper.

               (2)   While issuing the notice or summons to a defendant, the Family Court shall require the defendant to submit a written statement on the day mentioned in the notice or summons.]

[27][27][9.     Written statement.– [28][28][(1) On the date fixed under section 8, the defendant shall appear before the Family Court and file the written statement, a list of witnesses and gist of evidence, and in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date.]

[29][29][(la) A defendant husband may, where no earlier suit for restitution of conjugal rights is pending, claim for a decree of restitution of conjugal rights in his written statement to a suit for dissolution of marriage or maintenance, which shall be deemed as a plaint and no separate suit shall lie for it.

(1b) A defendant wife may, in the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including khula which shall be deemed as a plaint and no separate suit shall lie for it: Provided that the proviso to sub-section (4) of Section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of khula.]

       (2)   Where a defendant relies upon a document in his possession or power, he shall produce it or copy thereof in the Court alongwith the written statement.

       (3)   Where he relies on any other document, not in his possession or power, as evidence in support of his written statement, he shall enter such documents in a list to be appended to the written statement [30][30][giving reasons of relevancy of these documents to the defence in the written statement].

       (4)   Copies of the written statement, list of witnesses and precis of evidence referred to in sub-section (1) and the documents referred to in sub-section (2) shall be given to the plaintiff, his agent or advocate present in the Court.

       (5)   If the defendant fails to appear on the date fixed by the Family Court for his appearance, then–

            (a)  if it is proved that the summons or notice was duly served on the defendant, the Family Court may proceed ex parte; provided that where the Family Court has adjourned the hearing of the suit ex parte, and defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Family Court directs, be heared in answer to the suit as if he had appeared on the day fixed for his appearance; and

            (b)  if it is not proved that the defendant was duly served as provided in sub-section (4) of section 8, the Family Court shall issue fresh summons and notices to the defendant and cause the same to be served in the manner provided in clauses (b) and (c) of sub-section (1) of section 8.

[31][31][(5A)  If the defendant fails to submit the written statement on or before the date under subsection (1), the defence of the defendant shall stand struck off and the Family Court shall decide the case under the law.]

       (6)   In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within [32][32][thirty days of the service of notice under sub-section (7) of the passing of the decree] to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, and on such terms as to costs as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit; provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also.]

[33][33][(7) The notice of passing of the ex-parte decree referred to in sub-section (6) shall be sent[34] to the defendant by the Family Court together with a certified copy of the decree within three days of the passing of the decree, through process server or by registered post, acknowledgement due, or through courier service or any other mode or manner as it may deem fit.

(8)    Service of notice and its accompaniment in the manner provided in sub-section (7) shall be deemed to be due service of the notice and decree on the defendant.]

10.    Pre-trial proceedings.– [35][34][(1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case.]

       (2)   On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their counsel.

[36][35][(3) The Family Court may, at the pre-trial stage, ascertain the precise points of controversy between the parties and attempt to effect compromise between the parties.]

       [37][36][(4) Subject to subsection (5), if compromise is not possible between the parties, the Family Court may, if necessary, frame precise points of controversy and record evidence of the parties.]

       [38][37][(5) In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband.]

       [39][38][(6) Subject to subsection (5), in the decree for dissolution of marriage, the Family Court shall direct the husband to pay whole or part of the outstanding deferred dower to the wife.]

11.    Recording of evidence.– (1) On the date fixed for [40][39][recording of the evidence] the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.

[41][40][(1A)  The Family Court shall record or cause to be recorded, the substance of the statement of a witness or may record or cause to be recorded, the statement of a witness through audio or video recording.]

       (2)   The Court shall not issue any summons for the appearance of any witness unless, within three days of the framing of issues, any party intimates the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible or practicable for such party to produce the witness.

      [42][41][(3)     The witnesses shall give their evidence in their own words:

       Provided that the parties or their counsel may further examine, cross-examine or re-examine the witnesses:

       Provided further that the Family Court may forbid any question which it regards as indecent, scandalous or frivolous or which appears to it to be intended to insult or annoy or needlessly offensive in form.]

      [43][42][(3A)  The Family Court may, if it so deems fit, put any question to any witness for the purposes of elucidation of any point which it considers material in the case.]

       (4)   The Family Court may permit the evidence of any witness to be given by means of an affidavit:

       Provided that if the Court deems fit it may call such witness for the purpose of examination in accordance with sub-section (3).

12.    Conclusion of trial.– (1) After the close of evidence of both sides, the Family Court shall make another effort to effect a compromise or reconciliation between the parties [44][43][within a period not exceeding fifteen days].

       (2)   If such compromise or reconciliation is not possible, the Family Court shall announce its judgement and give a decree.

[45][44][12A. Cases to be disposed of within a specified period.– The Family Court shall dispose of a case, including a suit for dissolution of marriage, within a period of six months from the date of institution:---

       Provided that where a case is not disposed of within six months, either party shall have a right to make an application to the High Court for necessary direction as the High Court may deem fit.]

13.  Enforcement of decrees.– (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register.

       (2)   If any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment [46][45][or] the delivery of property, as the case may be, in the aforesaid register.

       (3)   Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court [47][46][not exceeding thirty days], the same shall, if the Court so directs be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.

       (4)   The decree shall be executed by the Court, passing it or by such other Civil Court as the District Judge may, by special or general order, direct.

       (5)   A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit.

14.    Appeals.– [48][47][(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable,---

         (a)  to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and

         (b)  to the District Court, in any other case.]

       (2)   No appeal shall lie from a decree passed by Family Court–

            (a)  for dissolution of marriage, except in the case of dissolution for reasons specified in clause (a) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;

            (b)  for dower [49][48][or dowry] not exceeding rupees [50][49][one hundred thousand];

            (c)  for maintenance of rupees [51][50][five thousand] or less per month.

      [52][51][(3) No appeal or revision shall lie against an interim order passed by a Family Court.

      (4) The appellate Court referred to in sub-section (1) shall dispose of the appeal within a period of four months.]

15.    Power of Family Court to summon witnesses.– (1) A Family Court may issue summons to any person to appear and give evidence, or to produce or cause the production of any document:

       Provided that,---

      (a)  no person who is exempt from personal appearance in a Court under sub-section (1) of section 133 of the Code of Civil Procedure, 1908, shall be required to appear in person;

      (b)  a Family Court may refuse to summon a witness or to enforce a summons already issued against a witness when, in the opinion of the Court, the attendance of the witness cannot be procured without such delay, expense or inconvenience as in the circumstances would be unreasonable.

       (2)   If any person to whom a Family Court has issued summons to appear and give evidence or to cause the production of any document before it, willfully disobeys such summons, the Family Court may take cognizance of such disobedience, and after giving such opportunity to explain, sentence him to a fine [53][52][of five thousand] rupees.

16.    Contempt of Family Courts.– A person shall be guilty of contempt of the Family Court if he without lawful excuse–

         (a)  offers any insult to the Family Court; or

         (b)  causes an interruption in the work of the Family Court; or

     [54][53][(bb) misbehaves with any person in the Court premises or uses abusive language; threats or uses physical force or intimidates in any form; or]

         (c)  refuses to answer any question put by the Family Court, which he is bound to answer; or

         (d)  refuses to take oath to state the truth or to sign any statement made by him in the Family Court;

and the Family Court may forthwith try such person for such contempt and sentence him to a fine not exceeding rupees [55][54][two thousand].

17.    Provisions of Evidence Act and Code of Civil Procedure not to apply.– (1) Save as otherwise expressly provided by or under this Act, the provisions of the [56][55][Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984)], and the Code of Civil Procedure, 1908, [57][56][except sections 10 and 11,] shall not apply to proceedings before any Family Court [58][57][in respect of Part I of Schedule].

       (2)   Sections 8 to 11 of the Oaths Act, 1872, shall apply to all proceedings before the Family Courts. 

[59][58][17A. Suit for maintenance.– (1)     In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.

               (2)   In a decree for maintenance, the Family Court may:---

(a)  fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances; and

(b)  prescribe the annual increase in the maintenance.

               (3)   If the Family Court does not prescribe the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year.

               (4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant.] 

[60][59][17B. Power of the Court to issue Commission.Subject to such conditions and limitations as may be prescribed, the Court may issue a Commission to,---

(a) examine any person;

(b) make a local investigation; and

(c) inspect any property or document.] 

18.    Appearance through agents.– If a person required under this Act to appear before a Family Court, otherwise than as a witness, is a pardah nashin lady, the Family Court may permit her to be represented by a duly authorised agent. 

[61][60][19. Court fee. Notwithstanding anything contained in the Court Fees Act, 1870 (VII of 1870), the Court fee to be paid on any plaint or memorandum of appeal shall be rupees fifteen for any kind of suit or appeal under this Act.] 

[62][61][20. Family Court as Judicial Magistrate.– (1) A Family Court shall be deemed as the Judicial Magistrate of the first class under the Code of Criminal Procedure, 1898 (V of 1898) for taking cognizance and trial of any offence under this Act; the Muslim Family Laws Ordinance, 1961 (VIII of 1961); and, the Child Marriage Restraint Act, 1929 (XIX of 1929).

         (2) A Family Court shall conduct the trial of an offence under subsection (1) in accordance with the provisions of Chapter XXII of the Code of Criminal Procedure, 1898 (V of 1898) relating to the summary trials.

         (3) An offence other than contempt of a Family Court shall be cognizable on the complaint of the Union Council, Arbitration Council or the aggrieved party.] 

[63][62][21.   Provisions of Muslim Family Laws Ordinance, 1961 not affected.– Nothing in this Act shall be deemed to affect any of the provisions of Muslims Family Laws Ordinance, 1961, or the rules made thereunder.] 

[64][63][21A. Interim order pending suit.The Family Court may pass an interim order to preserve and protect any property in dispute in a suit and any other property of a party to the suit, the preservation of which is considered necessary for satisfaction of the decree, if and when passed.] 

[65][64][21B.        Intimation to Arbitration Council.– If a Family Court decrees dissolution of a Muslim marriage, the Family Court shall immediately but not later than three days from the decree send by registered post or other means a certified copy of the decree to the concerned Chairman of the Arbitration Council and upon receipt of the decree, the Chairman shall proceed as if he had received intimation of Talaq under the Muslim Family Laws Ordinance, 1961 (VIII of 1961).] 

22.    Bar on the issue of injunctions by Family Court.– A Family Court shall not have the power to issue an injunction to, or stay any proceedings pending before, a Chairman or an Arbitration Council. 

23.    Validity of marriages registered under the Muslim Family Laws Ordinance, 1961, not to be questioned by Family Courts.– A Family Court shall not question the validity of any marriage registered in accordance with the provisions of the Muslim Family Laws Ordinance, 1961, nor shall any evidence in regard thereto be admissible before such Court. 

24.    Family Courts to inform Union Councils of cases not registered under the Muslim Family Laws Ordinance, 1961.– If in any proceedings before a Family Court it is brought to the notice of the Court that a marriage solemnized under the Muslim Law after the coming into force of the Muslim Family Laws Ordinance, 1961, has not been registered in accordance with the provisions of the said Ordinance and the rules framed thereunder, the Court shall communicate such fact in writing to the Union Council for the area where the marriage was solemnized. 

25.    Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890.– A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall, in dealing with matters specified in that Act, follow the procedure prescribed in that Act. 

[66][65][25A.       Transfer of cases.– (1) Notwithstanding anything contained in any law the High Court may, either on the application of any party or of its own accord, by an order in writing,---

               (a)  transfer any suit or proceeding under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to a Family Court of another district; and

               (b)  transfer any appeal or proceeding under this Act, from the District Court of one district to the District Court of another district.

       (2)   A District Court may, either on the application of any party or of its own accord, by an order in writing, transfer any suit or proceeding under this Act from one Family Court to another Family Court in a district or to itself and dispose it of as a Family Court.

[67][66][(2a) Where a Family Court remains vacant or the presiding officer remains on leave or absent for any reason, except due to vacations, for more than thirty days a District Court may, either on the application of any party or of its own accord, by order in writing, transfer any suit or proceeding from such Family Court to another Family Court in a District or to itself and disposed it of as a Family Court.

(2b) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the Supreme Court may at any stage transfer any suit, appeal or other proceedings under this Act pending before a Court in one Province to a Court in another Province, competent to try or dispose of the same.]

       (3)   Any Court to which a suit, appeal or proceeding is transferred under the preceding sub-sections, shall, notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it:

       Provided that on the transfer of a suit, it shall not be necessary to commence the proceedings before the succeeding Judge de novo unless the Judge, for reasons to be recorded in writing directs otherwise.] 

[68][67][25B.        Stay of proceedings by the High Court and District Courts.– Any suit, appeal or proceeding under this Act, may be stayed–

            (a)  by the District Court, if the suit or proceeding is pending before a Family Court within its jurisdiction; and

            (b)  by the High Court, in the case of any suit, appeal or proceeding [69][68][:] ]

[70][69][Provided that the stay application shall be finally decided by the District Court or the High Court, as the case may be, within thirty days failing which the interim stay order shall cease to be operative.]

26.    Power to make rules.– (1) Government may, by notification in the official Gazette, make rules to carry into effect the provisions of this Act.

       (2)   Without prejudice to the generality of the provisions contained in sub-section (1), the rules so made may, among other matters, provide for the procedure, which shall not be inconsistent with the provisions of this Act, to be followed by the Family Courts. 

Schedule

[See Section 5]

[71][70][Part I]

1.      Dissolution of marriage [72][71][including Khula].

2.      Dower.

3.      Maintenance.

4.      Restitution of conjugal rights.

5.      Custody of children [73][72][and the visitation rights of parents to meet them].

6.      Guardianship.

[74][73][7.     Jactitation of marriage.]

[75][74][8.     Dowry.]

[76][75][9.     The personal property and belongings of a wife and a child living with his mother.

10.    Any other matter arising out of the Nikahnama.] 

[77][76][Part II

Offences and aid and abetment thereof under Section 337A (i), 337F (i),341, 342, 343, 344, 345, 346, 352 and 509 of the Pakistan Penal Code (Act XLV of l860)]


The Family Courts’ Act, 1964

(West Pakistan Act No. XXXV of 1964)

[Assented to by Governor on 14th July, 1964, and enforced w.e.f. 2nd November 1965]

An Act to make provision for the establishment of Family Courts.

Preamble. WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs for matters connected therewith;

Court Decisions

Expeditious settlement and disposal of family disputes--Object of Family Court Act, is to minimize technicalities and procedural bottlenecks for purpose of speedy justice between parties in shortest possible time and in shortest possible manner. PLJ 2012 SC 1

Nature and purpose of—Provisions of West Pakistan Family Courts Act, 1964 were of a beneficial nature which had enlarged the scope of jurisdiction of Family Courts and also vested the Court with power of giving substantial relief to wife and children with a right of appeal.

Legislature’s intendment that all other matters except suits and applications under Guardians and Wards Act, 1890, penning at time of enforcement of West Pakistan Family Courts Act, 1964, shall be disposed of by new forum created there under implied in subsections (4) & (5).-It is clear from the reading of these provisions that the Legislature intended that only sums and applications under Guardians anti Wards Act were to be disposed of by the Courts in which they were pending at the time of the coming into force of the Act. In other words, the necessary implication and intendment derivable from these two provisions is that all other matters pending at the time of the coining into force of the Act will be taken up and disposed of by the new forums created by the Act. This intendment is further supported by the use of strong language in section 5 of the Act, wherein the words used are: “the Family trout’s shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule”. Apart from stress on the exclusiveness of the jurisdiction, the three stages of the proceedings are dealt with separately, i.e.:---

(i) entertaining a matter

(ii) hearing a matter; and

(iii) adjudicating a matter.

This provides sufficient scope for the proposition that if a matter has been entertained in another forum, on the coming into force of the Act if that matter has gone to the exclusive jurisdiction of a forum created by the Act, it shall be heard and adjudicated by the new forum. P L D 1969 Pes.62

Purpose of the Act:—Non-applicability of provisions of C.P.C to proceedings before Family Court—Reasons stated. PLD 2003 Pesh. 63

Retrospectively - Section 5, except to extent indicated in S. I (4) & (5) retrospective in application.

The language used in section 20 is also in line with the proposition that the Legislature intended the application of section 5 to be retrospective, except to the extent indicated in subsections (4) and (5) of section 1 of the Act. Therefore, it was held that section 1 of the Act has retrospective application. P L D 1969 Pes. 62

Determining jurisdiction of Family Court—Words ‘ordinary resides’ must be construed in the context of an estranged wife who has left her husband’s abode and has sought residing at any other place of her own choice. PLD 1976 Karachi 978 rel. 2003 Lawvision 32 = PLJ 2003 Peshawar 135

It is hereby enacted as follows:---

1.      Short title, extent and commencement.---(1) This Act may be called the Punjab/Sindh/N.W.F.P./Balochistan Family Courts’ Act, 1964.

(2)         It extends to the whole of the Province of West Pakistan except the Tribal Areas.

(3)         It shall come into force in such area or areas and or such date or dates as Government may, by notification in the official Gazette specify in this behalf.

(4)         Nothing in this Act shall apply to any suit, or any application under the Guardians’ and Wards’ Act, 1890, pending for trial or hearing in any Court immediately before the coming into force of this Act, and all such suits and applications shall be heard and disposed of as if this Act was not in force.

(5)         Any suit, or any application under the Guardians’ and Wards’ Act, 1890, which was pending for trial or hearing in any Court immediately before the coming into force of this Act, and which has been dismissed solely on the ground that such suit or application is to be tried by a Family Court established under this Act shall, notwithstanding anything to the contrary contained in any law, on petition made to it in that behalf by any party to the suit or application, be tried and heard by such Court from the stage at which such or application had reached at the time of its dismissal.

2.      Definitions.---(1) In this Act, unless the context otherwise requires, the following expressions shall have the meaning hereby respectively assigned to them, that is to say:---

(a)          “Arbitration Council” and “Chairman” shall have the meanings respectively assigned to them in the Muslim Family Laws Ordinance, 1961;

(b)          “Family Court” means a Court constituted under this Act;

(c)          “Government” means the Government of West Pakistan;

(d)          “party” shall include any person who as such is considered necessary for a proper decision of the dispute and whom the Family Court adds as a party to such dispute;

(e)          “prescribed” means prescribed by rules made under this Act;

(2)         Words and phrases used in this Act but not herein defined shall have the meaning respectively assigned to them in the Code of Civil Procedure, 1908.

Court Decisions

Word “party”-Definition wide enough to include a party as such and also other persons whose presence necessary for decision of dispute-Determination of questions relating to liability to pay dower-Husband and surety both necessary parties to such determination-Preamble of Act does not affect significance of definition of “party”. P L D 1979 Lah.176

Legitimacy of minor—suit for recovery of maintenance for minor girl filed by wife was resisted by husband alleging that minor girl being not his legitimate daughter, he was not responsible for her maintenance allowance—Minor girl was born in 7th month of the marriage—Minor girl born during the said wedlock, was not illegitimate, but was lawful child of the parties—Whenever wife was charged with adultery, husband would be required to substantiate his accusation of adultery by producing four witnesses, but if no evidence except himself was available, husband would take Oath or Lain—If wife also, took Oath, no chances of retraction of charge of adultery would remain with husband and he could be punished if he would retract and retraction would amount to acknowledgement by husband—Child who was born within sim months of a valid wedlock was a legitimate child under Islamic law—Minor girl born 7th month of wedlock was lawful child of husband especially when birth entry of minor girl was got registered by the husband—Husband was rightly held responsible to pay maintenance allowance to minor girl in circumstances. PLD 2003 Lah. 264

Custody of minor--Suit for custody of minor must be instituted in Court of District Judge who can transfer case to an Additional District Judge or Civil Judge having jurisdiction under r. 5, West Pakistan Family Courts Rules, 1985 C L C 1343 P L D 1969 Lah. 834 and P L D 1972 Kar. 410 ref.

Constitutional petition-Two appeals one against dismissal of suit for dissolution of marriage and the other against dismissal of application under S.476, Cr.P.C., 1898, relating to perjury were pending before two different Appellate Courts i.e. two, different Additional District Judges-Petitioner’s Constitutional petition for trial of both appeals by any one Court and for decision of criminal appeal pertaining to proceedings under S.476, Cr.P.C. before the decision of appeal against dissolution of marriage case-Two Courts entertaining appeals arising out of S.14, West Pakistan Family Courts Act, 1964, were neither expressly created by that Act nor they were by any fiction of law deemed to be treated as Family Courts in the sense in which Family Courts were constituted by Ss.2(b) & 3 of the Family Courts Act-District Judge was directed to assign two appeals to one Appellate Court and in this regard District Judge could exercise powers under S.24, Civil Procedure Code, 1908, in respect of appeal filed against decision of dissolution of marriage while in relation to criminal appeal (relating to perjury) he could have recourse to S 528, Criminal Procedure Code, 1898-District Judge was possessed of power to assign appeal and functions of hearing appeal to any Additional District Judge-Law favors adjudication of proceedings which arise out of same/similar issues/parties together, so that one Court can view entire controversy in its correct perspective and without having to look into things independently and in isolation which approach was always prone to result into overlooking of things, matters or evidence resulting in miscarriage of justice-Constitutional petition was allowed only in respect of prayer for adjudication of appeals by one Court. 1996 M L D 1749 PLD 1976 Kar. 68-and PLD 1977 Lah. 18 ref.

3.      Establishment of Family Courts.---Government shall establish one or more Family Courts in each District or at such other place as it may deem necessary and appoint a Judge for each of such Courts.

Notification No. Integ. 10-31/64, dated 23rd January, 1967. In exercise of the powers conferred by S. 3 of W. P. Family Courts’ Act, 1964, the Governor of West Pakistan is pleased to establish a Family Court for Kalat Division with Headquarters at Kalat and to appoint the President o the Majli-e-Shoora, Kalat, to be Judge of the Court.

Court Decisions

Family Court, was primarily a Court of civil jurisdiction except for purposed proceedings for recovery of maintenance under S.488, Criminal Procedure Code--Judges of Family Court had no jurisdiction to entertain, hear and adjudicate or to take cognizance of any offence related with a matter specified in Sched of S.5 of Family Courts Act, 1964--Such offences to be tried by Courts constituted under Criminal Procedure Code and not by Family Courts.

A Judge of the Family Court can exercise the powers of a Magistrate of the Criminal Court for the limited purpose of making order of maintenance under section 488, Criminal Procedure Code, and for no other purpose. He cannot either entertain a complaint for a criminal offence such as the offence in this case i.e. under sections 466, 467 etc. and 120-B, Penal Code, nor can he commit such a criminal case to the Sessions Court. A Judge of the Family Court has not been invested with the powers of the Sessions Judge and, therefore, cannot entertain, hear and adjudicate or even take cognizance of an offence under the above provisions of Penal Code even if it relates to dower or any other matter specified in the Schedule of the Family Courts Act. 1986 P Cr. L J 2757 P L D 1978 Lah. 711 and P L D 1980 Pesh. 37 rel.

Family Court a civil Court notwithstanding being created by a special statute and mentioned in Act as distinct from civil Court. P L D 1978 Lah. 716- 1949 A C 1341 P L D 1953 Lah. 987 ref.

Family Court is a Court for the purposes of S.2 of Punjab Court Fees (Abolition) Act, 1983 and not a persona designata-Family Court is a Civil Court in every sense despite the exclusion of the Code of Civil Procedure and the Evidence Act , 1872 in their application to proceedings before such a Court and notwithstanding having been created by a special statute and mentioned in the Act as distinct from Civil Court. P L D 1991 Lah.51

Supervisory jurisdiction of High Court:-- High Court has no supervisory jurisdiction on Special Tribunals of Family Court as provided by West Pakistan Family Courts Act, 1964--While sitting over judgment passed by Special Tribunals under Family Courts Act, High Court Acts as Family Court under West Pakistan Family Courts Act, 1964. 1999CLC514

Two appeals one against dismissal of suit for dissolution of marriage and the other against dismissal of application under S.476, Cr.P.C., 1898, relating to perjury were pending before two different Appellate Courts i.e. two, different Additional District Judges-Petitioner’s Constitutional petition for trial of both appeals by any one Court and for decision of criminal appeal pertaining to proceedings under S.476, Cr.P.C. before the decision of appeal against dissolution of marriage case-Two Courts entertaining appeals arising out of S.14, West Pakistan Family Courts Act, 1964, were neither expressly created by that Act nor they were by any fiction of law deemed to be treated as Family Courts in the sense in which Family Courts were constituted by Ss.2(b) & 3 of the Family Courts Act-District Judge was directed to assign two appeals to one Appellate Court and in this regard District Judge could exercise powers under S.24, Civil Procedure Code, 1908, in respect of appeal filed against decision of dissolution of marriage while in relation to criminal appeal (relating to perjury) he could have recourse to S 528, Criminal Procedure Code, 1898-District Judge was possessed of power to assign appeal and functions of hearing appeal to any Additional District Judge-Law favors adjudication of proceedings which arise out of same/similar issues/parties together, so that one Court can view entire controversy in its correct perspective and without having to look into things independently and in isolation which approach was always prone to result into overlooking of things, matters or evidence resulting in miscarriage of justice-Constitutional petition was allowed only in respect of prayer for adjudication of appeals by one Court. 1996 M L D 1749 PLD 1976 Kar. 68 and PLD 1977 Lah. 18 ref.

Judge Muslim or Non-Muslim-Act does not provide that a Judge under Act should be a Muslim-A non-Muslim may well be a Judge for purposes of Act.

The West Pakistan Family Courts Act, 1964, provides the forum for the trial of the suit and the qualification of the Judge who can try it vide sections 3 and 4 of the Act. Whereas the former provides for the establishment of Family Courts the latter, gives qualifications of a Judge, namely that he is or has been a District Judge, an Additional District Judge or a Civil Judge. It is not provided that the Judge should be a Muslim. This qualification cannot be read into the section, therefore, it is not open to go beyond the statutory provision and look for any other qualification. It is an error to hold that the Judge should be a person professing Islam; though without doubt be occupies the position akin to that of a Qazi since he could effect a divorce on any ground, on which it could be granted under the Muslim Law. The emphasis is on the functions which are alike and not that that the judge should only profess Islam. P L D 1974 Kar.20

Persona designata:-- Family Courts-Not persona designata or tribunals but Courts for all purposes as contemplated in Arts. 102 & 242, Constitution of Pakistan (1962) and subordinate to High Court.

The various provisions In the West Pakistan Family Courts Act, 1964, clearly point to the direction that the Tribunals constituted under the Act are Courts in every sense. There is no indication or suggestion that it is any persona designata who is to perform the functions mentioned. The direction to the statute is to establish Courts and then there are laid down the qualifications of the officers who can man this Court. The functions, which the forum is required to perform, are all judicial. Each matter is to be initiated by means of a suit which is to start by means of a plaint. The plaints to suits before the Family Courts are in no way different from the plaints under the Code of Civil Procedure. After the institution of a suit, by means of a plaint, the process is issued to the defendant who is required to file a written statement. Thereafter the issues are struck, evidence is recorded and a judgment is pronounced which is to be followed by a decree. The Act does not create any new rights, but it simply specifies the course in which already existing rights of the parties with regard to dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, and guardianship may be enforced. The provisions of the Family Courts Act make it clear that the intention of law is to set up Courts and entrust matters to them in their capacity as Courts and not as a persona designata. Family Court is, therefore, a Court of law as contemplated in Article 102 read with Article 242 of the Constitution.

According to section 14 of the Family Courts Act, 1964, in such cases where a Family Court is presided over by a District Judge, an appeal shall lie to the High Court and in any other case to the District Court, which, according to section 2(21) of the West Pakistan General Clauses Act VI of 1956, and section 2(4) of the C. P. C., means the principal Civil Court of original civil jurisdiction of a district. In section 2(2) of the West Pakistan Family Courts Act, 1964, it is laid down that, “words and expressions used in this Act but not herein defined, shall have the meaning respectively assigned to them in the Code of Civil Procedure, 1908:” A District Court, according to section 3 of the Civil Procedure Code, is subordinate to the High Court and every civil Court, of a grade inferior to that of a District Court, is subordinate to the High Court and the District Court. A Family Court is thus, from all points of views, a Court subordinate to the High Court within the meaning of Article 102 of the Constitution. P L D 1968 Lah.987.

4.      Qualification of Judge.---No person shall be appointed as a judge of a Family Court unless he is or has been a District Judge, an Additional District Judge, a Civil Judge or a Qazi appointed under the Dastrual Amal Diwani Riasat Kalat.

Court Decisions

Qualification of Judges:-- No person shall be appointed as a Judge Family Court unless he is or has been a District Judge and Additional District Judge, a Civil Judge or a Qazi. Therefore, cases of family matters be dealt by senior and more experienced Judges. P.L.J.1996 Kar. 375 - 1996CLC 94.

The West Pakistan Family Courts Act, 1964, provides the forum for the trial of the suit and the qualification of the Judge who can try it vide sections 3 and 4 of the Act. Whereas the former provides for the establishment of Family Courts the latter, gives qualifications of a Judge, namely that he is or has been a District Judge, an Additional District Judge or a Civil Judge. It is not provided that the Judge should be a Muslim. This qualification cannot be read into the section, therefore. it is not open to go beyond the statutory provision and look for any other qualification. It is an error to hold that the Judge should be a person professing Islam; though without doubt be occupies the position akin to that of a Qazi since he could effect a divorce on any ground, on which it could be granted under the Muslim Law. The emphasis is on the functions which are alike and not that that the judge should only profess Islam. P L D 1974 Kar. 20

Should a judge should b a Muslim only?:- The West Pakistan Family Courts Act, 1964, provides the forum for the trial of the suit and the qualifications of the Judge who can try it vide sections 3 and 4 of the Act. Whereas the former provides for the establish­ment of Family Courts the latter, gives qualifications of a Judge, namely that he is or has been a District Judge, an Additional District Judge or a Civil Judge. It is not provided that the Judge should be a Muslim. This qualification cannot be read into the section, therefore. it is not open to go beyond the statutory provision and look for any other qualification. It is an error to hold that the Judge should be a person professing Islam; though without doubt be occupies the position akin to that of a Qazi since he could effect a divorce on any ground, on which it could be granted under the Muslim Law. The emphasis is on the functions which are alike and not that the judge should only profess Islam. P L D 1974 Kar. 20

Senior Judge. High court desired that Family Suits in Trial Court be dealt with by senior and more experienced Judges as compared to second and third class Civil Judges. 1996 C L C 94

Dastur-ul-Amal Diwani, Kalat:-- Jurisdiction of civil Court--Civil Court being included in forums declared competent to hear family suits under ‘Dastur-ul-Amal Diwani, Kalat, Civil Court, held, should be read disjunctively with Qazi appointed there under--Qazi as well as Civil Court would have jurisdiction to entertain and hear family suits under Dasturul-Amal Diwani, Kalat .-1986 C L C 2617

For Maintenance Purposes:--A Judge of the Family Court can exercise the powers of a Magistrate of the Criminal Court for the limited purpose of making order of maintenance under section 488, Criminal Procedure Code, and for no other purpose. He cannot either entertain a complaint for a criminal offence such as the offence in this case i.e. under sections 466, 467 etc. and 120-B, Penal Code, nor can he commit such a criminal case to the Sessions Court. A Judge of the Family Court has not been invested with the powers of the Sessions Judge and, therefore, cannot entertain, hear and adjudicate or even take cognizance of an offence under the above provisions of Penal Code even if it relates to dower or any other matter specified in the Schedule of the Family Courts Act.-1986 P Cr. L J 2757 P L D 1978 Lah. 711 and P L D 1980 Pesh. 37 rel.

5.      Jurisdiction.---(1) Subject to provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule.

(2)         Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committed by the other.

(3)         The High Court may with the approval of the Government, amend the Schedule so as to alter, delete or add any entry thereto.

Court Decisions

Discretionary jurisdiction:-- Defendant had given solemn commitment to make payment of maintenance at specified rate and also payment of dower amount-Decree was passed on basis of compromise between parties--Defendant, after having entered upon compromise, was expected to honour his commitment-Any attempt to avoid commitment, could not be approved nor could any equitable relief be granted in discretionary jurisdiction to such-like person-Constitutional petition against order of execution of compromise decree was not maintainable in circumstances. 1999 M L D 216

1.       <!--

Amount of Maintenance:- Amount of past and future maintenance as fixed by Family Court was modified by Appellate Court below keeping in view financial position of the husband-Quantum of maintenance as fixed by Appellate Court, keeping in view financial and other circumstances of the petitioner being fair, proper, just and reasonable, and based on evidence on record, could not be interfered with by High Court in its Constitutional jurisdiction.2000 C L C 558

 

2.      Appeal-Competency-Suit for dissolution of marriage and dower by wife having been decreed by Family Court, husband filed appeal against said judgment and decree by filing certified copy of decree for dower only-Admissibility-Filing of certified copies of all decrees in consolidated litigation at the time of preferring a single appeal, was an essential requirement of law which could not be dispensed with by Appellate Court-Grounds of appeal had shown that only challenge made by husband was in respect of decree passed against him in suit for recovery of dower and he did not challenge decree of dissolution of marriage‑‑­Such appeal was not competent, in circumstances. 1999 Y L R 1941  1981 SCMR 585; PLD 1957 Pesh. 129 and 1990 MLD 2094 ref. 

 

3.      Appreciation of Evidence:- Evidence furnished by respondent relating to dowry was not rebutted by petitioner in cross-examination--Judgment and decree of trial Court in favour of respondent was based on proper appreciation of evidence, while First Appellate Court, without considering evidence of parties and applying its independent judicial mind modified decree to the extent of decretal amount which was not borne out from record--High Court after considering entire material on record with sound and cogent reasons restored decree of trial Court--No misreading or non-reading of evidence or misconstruction of law by the High Court was pointed out--Leave to appeal was refused. PLJ 2002 SC 767 Evidence on record clearly indicated that petitioner (wife) could not live with respondent (husband) within limits imposed by Allah, she was thus, entitled to grant of decree for dissolution of marriage on basis of Khula’ -Trial Court and First Appellate Court acted illegally in not granting decree for dissolution of marriage on ground of Khula’ -Ordinarily, proper course would have been to remand case to Trial Court for decision afresh but in family matters cases should not be remanded lightly for such course would prolong agony of spouses-Judgments and decrees of Courts below were set aside and wife’s suit was decreed on ground of Khula’-Husband’s suit for restitution on conjugal rights decreed by Courts below was dismissed in circumstances. 1997 C L C 1317- 1994 MLD 119; 1984 SCMR 523 and PLD 1984 SC 329ref.

 

4.      Arrest of Judgment Deter:- Decree for maintenance of wife and children with effect from 1992, passed on 15-11-1995—Execution of decree failed and petitioner (husband) was sent to civil prison and later was released on bail but further opportunity given to him proved futile and bail was cancelled and he was again arrested—petitioner approached the High Court in its Constitutional jurisdiction and he was allowed interim bail subject to furnishing bail bond in the sum of Rs. 50,000 with a surety; order of granting bail was, however, in the background of the compromise made before the High Court that if released on bail he shall be discharging his liability under the decree—Petitioner informed the High Court that he well be getting his G.P. Fund shortly which he shall be depositing before the executing Court and further that he shall be paying his debts under the decree in instalments as he was not in a position to a pay the same in lump sum- Held, regarding his prayer that the decretal amount be received through installments, he may repeat the prayer before the executing Court, who may review the same pragmatically and keeping in view the economic condition of the petitioner—Petitioner, having undertaken to pay  the gratuity amount which he would receive within a period of six weeks from the date of present judgment, it was considered to be proper to extend his interim bail until 14th of December, 2002—If the petitioner made part payment, he would earn the sympathy of the executing Court for extending to him such concession for discharging his liabilities as are proper but if he failed, then he would be at the mercy of the executing Court as the present order of the High Court extending his interim bail shall abate – Constitutional petition was disposed of accordingly.  PLD 2003 Lah. 51

 

5.      Aversion and hatred-Proof of-Evidence recorded on oath was sufficient to display aversion and hatred against husband which was a pre-eminent consideration in the matter of divorce by Khula. Court has to reach the level of complete satisfaction that there existed disliking or hatred resulting in serious disharmony and incompatibility between the parties to live together within the limits of Allah. 2002 C L C 113-1986 CLC 27 ref.

6.       Change of forum—Suit for recovery of dowry articles was filed by wife in Civil court, prior to amendment in West Pakistan Family courts Act, 1964—After the amendment, such recovery was included in the Schedule of the West Pakistan Family Courts Act, 1964, and the suit was decreed by family Court in favour of wife—Judgment and decree passed by Family Court was maintained by Appellate court as well as by High court—Plea raised by husband was that Family court had no jurisdiction over the matter as the same was filed before Civil Court—Validity—By the change of forum, nobody would have a vested right to a particular forum to try his lis—Change of forum was a procedural matter and the same operated retrospectively—Supreme court declined to interfere with the judgments and decrees passed by the courts below. 2004 S C M R 412

 

7.       Closing of evidence-Carelessness and lethargy on the part of petitioner in producing his evidence was so much that it did not admit of any further concession to him-Law favours vigilant and not the indolent-Trial Court had no alternative and option but to decline further opportunity and resort to penal provisions in circumstances. 1999 C L C 1578 Date on which petitioner’s evidence was closed was obtained by petitioner’s counsel subject to cost and warning that it would be the last opportunity; despite that on such date neither defendant and his evidence was present nor cost was paid--Besides, no request was made on behalf of petitioner for providing another opportunity for producing evidence--Even otherwise declining adjournment or extension of time for producing evidence is absolutely discretionary and such order cannot be interfered with in writ jurisdiction. PLJ 2003 Lahore 504

 

8.       Conciliation proceedings-Omission to resort to conciliation proceedings was an irregularity-Such omission had no adverse effect upon the outcome of suit and did not warrant any interference in limited Constitutional jurisdiction.  1999 C L C 1578  1985 CLC 806 ref.

 

9.       Concurrent findings by Family Court and Appellate Court cannot be successfully assailed in writ jurisdiction, unless Courts had exceeded jurisdiction, acted without jurisdiction or findings were based on no evidence--High Court in its constitutional jurisdiction cannot sit as a Court of appeal and cannot substitute findings of facts recorded by Courts below, as such, matter should be decided by Courts invested with jurisdiction to decide them. PLJ 2003 Lahore 94 Matter was taken by the Courts below twice-No legal infirmity was found in .the concurrent findings of fact arrived at by the Courts below.­ Constitutional petition was dismissed in limine. 2000 C L C 1208 Constitutional jurisdiction against findings of fact when exercisable--Concurrent findings of Family Court and Appellate Court cannot be successfully challenged/ assailed in writ jurisdiction unless Court below was found to have exceeded jurisdiction, acted without jurisdiction or findings were shown to have been based on no evidence--Constitutional jurisdiction also cannot be invoked on the ground that evidence was not correctly appreciated--Findings of-act recorded by Courts of competent jurisdiction cannot be disturbed simply on the ground that another view could be possible on the same evidence--Courts below have given plausible reasons in support of conclusions arrived at and no case of mis-reading or non-reading was made out--Constitutional petition was dismissed against concurrent findings of fact. PLJ 2003 Peshawar 257

 

10.     Consideration for Khula- Suit having been decreed by Family Court, plaintiff wife filed appeal against judgment of Family Court only to the extent that consideration of Khula determined by Family Court as 7 Tolas of gold ornaments was illegal as she had not received the same in her dower-Wife prayed that consideration for Khula’ be set aside and her suit be decreed unconditionally but Appellate Court dismissed the appeal-Finding of Family Court that 7 Tolas of gold ornaments were given on occasion of Nikah as dower was based on entry to that effect in Nikahnama coupled with testimony of witnesses-Plaintiff/petitioner could not point out as to which of the evidence was misread or what piece of evidence was overlooked by Courts below-Judgments of Courts below not suffering from any misreading and non - reading of evidence, could not be interfered with in Constitutional jurisdiction of High Court. Marriage was dissolved on sole ground of Khula’ as no other ground for dissolution of marriage was available ­ Family Court, in circumstances was bound to determine terms and conditions for Khula’ and in doing so no illegality was committed by the Family Court. Petitioner raised objection before High Court that evidence in the case was not recorded by Family Court, but was recorded by its Reader-Said objection having not been raised by petitioner before First Appellate Court, same could not be agitated in Constitutional jurisdiction of High Court-Even otherwise Constitutional petition was not maintainable against concurrent finding of facts. 2002 C L C 1513

 

11.          Constitutional jurisdiction:- Family Court decided the issue of divorce against the husband but High Court in exercise of Constitutional jurisdiction reversed the finding of fact--­Contention of the wife was that findings of fact were intervened by High Court in its Constitutional jurisdiction very rarely unless it was established that the Trial Court had recorded the perverse findings and had drawn conclusion which was contrary to law. 2002 S C M R 1315 Family Court and Appellate Court concurrently decreed the suit-Defendant/petitioner in his Constitutional petition had challenged only the quantum of maintenance stating that he was willing to pay maintenance, but had urged that quantum of maintenance allowance as determined by the Courts was excessive which should be reduced..­ Validity-Maintenance allowance fixed by Courts below was not excessive as the same was fixed after proper assessment, evaluation and appraisal of evidence available on record regarding means of the defendant/petitioner. .Assessment of evidence or to determine amount of maintenance was function of, Family Court which was vested with exclusive jurisdiction to decide such matters-Powers of High Court in Constitutional jurisdiction were not analogus to those of an Appellate Court-High Court could declare an order passed by Family Court as without lawful authority and of no legal ‘consequence, but could not substitute its own judgment for that of Family Court by reducing quantum of maintenance allowance fixed by Family Court-No legal infirmity or jurisdictional error could be pointed out in the judgments concurrently passed by two Courts below justifying interference in exercise of Constitutional jurisdiction of High Court. 2002 C L C 1768 Suit for maintenance was decreed against petitioner and appeal filed before lower Appellate Court was disposed of in terms of compromise between the parties-­Petitioner (father) while assailing order of lower Appellate Court before High Court in Constitutional petition, demanded custody of children-Validity-Contest between the parties throughout had been with regard to quantum of maintenance and not the custody-Matter of custody could not be, therefore, agitated in proceedings which emanated from suit for maintenance- Constitutional petition was not maintainable in circumstances. 1999 Y L R 2138 Wife sought recovery of maintenance for the minors and herself and also sought recovery of delivery expenses-Suit was decreed in favour of the wife at the rate of Rs.500 each per month and a sum of Rs.22,797 as delivery expenses-Appeal against the judgment and decree passed by the Family Court was dismissed by the Appellate Court-Validity Assessment of evidence or determining the amount of maintenance is the function of Family Court which had the exclusive jurisdiction to decide such matters-While determining the amount of maintenance and assessing the expenses incurred by the wife on the ,delivery/birth of son, the Family Court had neither misread any evidence nor any material piece of evidence was overlooked-High Court declined to interfere with the judgments and decrees passed by the Courts below-Constitutional petition was dismissed in circumstances. -->2002 C L C 1748

 

12.          Court fee:— Suit having been decreed by Family Court appeal against judgment and decree was filed by appellant/judgment-debtor affixing court-fee of Rs.15 on memorandum of appeal—Appellate Court directed appellant to affix ad valorem court-fee on memorandum of appeal—On application of appellant time for affixing required court-fee was given, but he instead of affixing required court-fee, filed application for review of order of Appellate Court, which application was dismissed and memorandum of appeal was also rejected due to non-affixation of required court-fee—Appellant had contended that he being soldier was posted on border at relevant time and his counsel could not contact him and due to that reason he could not affix required, court-fee even within extended period—Appellant was responsible to keep in touch with his counsel who had filed his appeal and it could not be believed that appellant, when he was not posted at the border had never any contact with his counsel for about two months after moving application for grant of extension of time for depositing required court-fee and rejection of his memorandum of appeal—Appellant though was a soldier, but that would not entitle him to any special privilege beyond provisions of Soldiers Litigation Act, 1925—Appellant who neither had made up deficiency in court-fee even within extended period nor had shown sufficient cause for not doing the same, his appeal was rightly dismissed for non-payment of required court-fee. Mirza Daood Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1169 ref. 2003 Lawvision 209 = 2003 MLD 270

 

13.          Cruelty as ground for dissolution of marriage-  Portion of statement of wife regarding her allegations of cruelty against the husband remained unchallenged in cross-examination-Family Court dissolved the marriage on the basis of such allegation-Contention by the husband was that if the Family Court was satisfied that the spouses could not live together within the limits prescribed by Allah, then the marriage could have been dissolved on the ground of Khula’-Validity-Where the wife was not cross -  examined on the point of cruelty, the husband had accepted her such statement-Cruelty was one of the grounds recognised by law for dissolving the marriage-Family Court had taken into account all the evidence of the parties-Judgment and decree of the Family Court did not suffer from any jurisdictional defect or misreading or non - reading of evidence or any error patent on the face of the record-Petition was dismissed 2001 C L C 30-  PLD 1982 Pesh. 42 ref.

 

14.     Custody of minor:- Father got from mother custody of minor child by force during pendency of case before Guardian Court-Appellate Court directed the Guardian Court to restore the position with regard to custody of minor as it was at the time of filing of case and decide same on merits keeping in view welfare of the minor-High Court in exercise of Constitutional jurisdiction refused to interfere with order of Appellate Court-Validity- Father’s apprehension that in the event of production of minor before Guardian Court for visitation of mother, she might kidnap minor, was unfounded and misconceived-Supreme Court while declining to express any opinion on the merit of the case lest it should prejudice the interest of either of the parties, observed that custody of minor must be regulated by Guardian Court in accordance with consistent practice and law of the land having regard to the supreme interest of welfare and well-being of the minor-High Court had not committed any error of law by’ refusing to interfere with discretionary order of Appellate Court-Impugned order did not suffer from any legal infirmity or jurisdictional error warranting interference by Supreme Court-Leave to appeal was refused in circumstances. 2002 S C M R 371 Respondent (father) claimed custody of minor on the ground that petitioner (wife) had remarried, therefore, he was entitled to custody minor-Trial Court dismissed respondent’s suit on the ground that he having failed to pay maintenance as per agreement was not entitled to her custody-Appellate Court, however, decreed respondent’s, suit for custody of minor-Decree for maintenance having been passed against respondent same had got to be executed—Respondent thus, did not comply with terms of agreement in question-Appellate Court did not keep in mind welfare of minor inasmuch as, there was no allegation that mother was not being looked after properly or that she was not keeping good health due to negligence of petitioner or that she was not being educated-Welfare of minor would be best served if she remained in the custody of her mother where her maternal grand mother would also look after her-Appellate Court’s order of handing over custody of minor to respondent was set aside. 2000 SCMR 838 ref. 2004 Lawvision 14 = PLJ 2004 Lahore 6 Provisions of S.5, West Pakistan Family Courts Act, 1964, provide that in all matters mentioned in the Sched., Family Court shall have the exclusive jurisdiction‑‑­Custody of children having been specifically mentioned at Item No.5 of the Schedule, such dispute was to be tried and decided by the Family Court. 1999 C L C 1623

 

15.     Decree for dissolution of marriage:- Defendant’s side was closed during proceedings by trial Court on account of his conduct in as much as, he remained indifferent during trial--Defendant neither appeared at the time when written statement was filed with the result that written statement was filed without verification nor did he produce his evidence--Even after closing of his side be did not make any application for re-opening of his case, but preferred to argue his case through newly appointed counsel--No flaw in judgment was pointed out to show that the same suffered from any defect--No interference was warranted in judgments and decrees of Courts below. PLJ 2002 Karachi 66

 

16.     Decree, execution of-Limitation period, when to start against decree-holder-Decree-sheet was finally prepared and signed on 22-2-1990-Application for execution of decree was filed after preparation of decree-sheet-Defendant claimed that decree being time-barred, execution thereof, could not be granted-Validity-Decree would follow judgment of Family Court and decree and not the judgment would be executed--­Decree-holder could execute decree within three years from date of decree, in terms of Art. 181, Limitation Act, 1908, which would commence from the date when decree was actually drawn and signed-Limitation would not run back to date of announcement of judgment, if decree-sheet was prepared on subsequent date-Any omission or neglect on the part of Court in performance of its statutory duties could not be taken as ground to penalize decree-holder or to deprive him of his right to execute decree on account of omission or neglect on the part of Court-Period elapsing between announcement of judgment and signing of the decree will have to be accommodated in the period requisite for obtaining copies-Execution of decree within three years of preparation of decree was, thus, valid and justifiable. 1999 M L D 216  1982 CLC 550; PLD 1975 Kar. 688; 1988 CLC 390 and PLD 1967 SC 271 rel. .

 

17.     Discretionary jurisdiction:-- Defendant had given solemn commitment to make payment of maintenance at specified rate and also payment of dower amount-Decree was passed on basis of compromise between parties--­Defendant, after having entered upon compromise, was expected to honour his commitment-Any attempt to avoid commitment, could not be approved nor could any equitable relief be granted in discretionary jurisdiction to such-like person-Constitutional petition against order of execution of compromise decree was not maintainable in circumstances.  1999 M L D 216      

 

18.     Dismissal of suit for lack of territorial jurisdiction-Words “ordinarily resides”, as used in R.6, West Pakistan Family Courts Rules, 1965-Connotation-Proviso to R.6, West Pakistan Family Courts Rules, 1965, enables estranged wife to file suit for dissolution of marriage within local limits of which she ordinarily resides-Petitioner’s husband and parents were resident of different place while she was residing at another place earning her own livelihood, thus, ordinarily residing at a place different from where her parents and husband resided-Words “ordinarily resides” must be construed in the context of estranged wife who had left her husband’s abode and had sought residence at any other place of her own choice; such place of her choice would answer to the concept “ordinarily resides “-Petitioner ordinarily residing at a place of her choice, after separation from her husband, was, thus, competent to bring suit for dissolution of marriage in the Court of that place‑‑­High Court ordinarily would not go into question of fact in exercise of its Constitutional jurisdiction but where findings of Courts below on the face of record appeared to be perverse or based on no evidence (as in petitioner’s case) High Court even in Constitutional jurisdiction could take different view-Both Courts below having unlawfully refused to exercise their jurisdiction on wrong assumption that they did not have such jurisdiction, their judgments were set aside and case was remanded to Trial Court for decision on merits within specified period. 1997CLC742 PLD 1988 Kar. 602; PLD 1976 Kar. 978 and PLD 1979 SC 864 rel.

 

19.     Dispute Relating to Gold:- Spouses must live within parameters laid down by Islam--Parties must separate if those parameters were transgressed--Petitioner has contracted second marriage during subsistence of first marriage and was living with his second wife without providing maintenance to his first wife/respondent and daughter--Dispute between couple is with regard to 14 Tolas of gold which belongs to wife and husband is refusing to return same to her--Courts below having decreed respondents suit to that extent, High Court would not interfere with same in exercise of its Constitutional Jurisdiction. PLJ 2003 Peshawar 149

 

20.     Dissolution of marriage on ground of option of puberty--Decree on ground of khula-Validity of--Challenge to--Contention that Family Court was not justified to grant decree on ground of khula, because Respondent No. 2 neither sought divorce on such ground nor as a witness she uttered a single word in this regard--Held : No doubt Respondent No. 2 sought divorce on ground of option of puberty, but findings on that score had been returned against her--However, the fact remained that parties were married about 11 years ago, but rukhsati had not taken place till filing of suit--Since rukhsati had not taken place, so the question of hatred being agitated in her statement did not arise--Fact that parties were married more than one decade ago, but they had not lived together for a single day, and she sought divorce on ground of option of puberty clearly evinced that conscious of the Court was satisfied that parties could not live within limits of God and there was no use to order to continue a hateful union of parties--Petition dismissed. PLJ 2001 Lahore 100

 

21.     Document exhibited without objection—List of articles was annexed with the plaint and it was in the notice of the defendant right from the inception which was not only the basis of the suit but was mentioned in the plaint and the same was exhibited by the Family Court without any objection from the defendant—Suit was decreed by the Family Court in favour of the plaintiff as per the list and the judgment and decree was maintained by the Appellate Court—Contention of the defendant was that the list of the articles was not proved hence the judgments and decrees passed by the Courts below were liable to be set aside—Validity—List was exhibited without objection from the defendant and the same was in the knowledge of the defendant right from the inception of proceedings—Such document could not be objected to in the proceedings under Art. 199 of the Constitution—Both the Courts below had neither exceeded their jurisdiction nor acted without jurisdiction—Family Court had examined/assessed the evidence and its findings were based on evidence—High Court in exercise of jurisdiction under Art. 199 of the Constitution declined to interfere with the findings recorded by the Family Court—Constitutional petition was dismissed in circumstances. 2002 Lawvision 102 = 2002 CLC 1396

 

22.     Dower may not be Forfeited in Khulla:- Petitioner was found entitled to dissolution of marriage on the basis of Khula, in consideration whereof she was directed by Family Court to return dower amount already received and forgoing of remaining dower amount and maintenance allowance--Legality--Dower is a settlement in favour of wife made prior to completion of marriage a contract and is a pre-condition of a valid marriage--Payment of dower is indispensible so much so that in its absence relationship between man and wife could not be legitimized and would be regarded as a sinful union--Gift or benefit on other hand which is to be restored to husband by wife in lieu of obtaining Khula is in essence a gratuitous offering which may be bestowed by husband on wife is merely voluntary in nature--Dower whether paid or un-paid can never be in the nature of a benefit or gift which is liable to be restored in consideration for granting Khula divorce--Impugned judgment passed by Trial Court was thus, not sustainable to the extent that it makes grant of Khula subject to condition of repayment of paid amount of dower by wife to husband and to obligate her to forego unpaid dower amount--Impugned judgment and decree was thus, liable to be modified to that extent. PLJ 2003 Lahore 309

 

23.     Dower Wife’s claim for specified amount of dower was decreed by Appellate Court--Validity- petitioner claimed that contents of Nikahnama wherein specified amount of dower was entered was incorrect--Validity of marriage registered under S. 23, Family Courts Act 1964, would not be questioned in any Family Court nor would any evidence in regard thereto be admissible before such Court--Whenever marriage was questioned through fraud or misrepresentation on the ground that wife had not given free consent to marriage or marriage was fasid or was opposed to Muslim Laws or was out come of fraud remedy was not available in Family Court but the same was available in Court of general jurisdiction--Marriage under Muslim Law being civil contract, transaction of dower becomes complete on day of marriage--Endorsement of dower against columns in nikahnama is verification of settlement and arrangement already reached between parties--Whenever any woman makes demand through filing suit for recovery of dower, person who contends that entries in nikahnama were not correct, he was bound to rebut those entries through strong evidence otherwise Courts were bound to give solemn affirmation to entries in nikahnama--Petitioner has not produced any cogent evidence in rebuttal of entry relating to dower amount in nikahnama, therefore, judgment and decree of Appellate Court decreeing respondent, claim for down amount was un-exceptionable and was maintained in circumstances. PLJ 2000 Lahore 872 Dowse may be to kind or cash or an rendition of personal service—Kabin nama executed on behalf of husband and his tether though not thumb impressed by husband—Witnessed by Intern performing nikah-Held: Half of house belonged to father of husband who by executing document made wife ,of his son as -lawful owner but possession of which was rightly left to civil Court—Family Courts competent to determine if any property movable or immovable to nature formed part of dower or not—Binding nature of Kabin nama evinced from ratifiesion by -ejab and Kabool of husband—Determination by Family Court or appellate Court not suffering from lack of jurisdiction hence had banding effect on husband. P L J 1966 Peshawar 66 Amount of dower claimed by plaintiff was decreed in her favour by Appellate Court--Legality--Document on which defendant relied, was produced belatedly without any plausible explanation--Plantiff was not confronted with the same, whereby plaintiff allegedly had, received dower amount--Marginal witness were not related to respondent/plaintiff nor were they produced in Court, therefore possibility that such document was product of fraud and forgery cannot be excluded--Even otherwise, parties were living amicably and defendant being husband was in a position of active confidence, it was quite possible that he might have obtained signatures and thumb impression of plaintiff by asserting that document would be utilized for some purpose beneficial to her--Judgment in question, does not suffer from any infirmity, therefore, no interference was warranted in the same. PLJ 2002 Lahore 1601  1994 SCMR 65; PLD 1971 SC 730 ref  Wife’s suit for possession of land (given to her as dower vide “Kabinnama” and “Nikahnama” at the time of marriage) was decreed against her husband-Decree in wife’s favour was maintained up to the High Court-Validity-Plea of want of jurisdiction of Family Court to decree suit for possession of land given to wife in dower was not warranted for Family Court was empowered in terms of S.5, West Pakistan Family Courts Act, 1964, to entertain and decide such suit‑‑­Family Court was not restrained to entertain suit for recovery of immovable property given as dower to wife-Three Courts below had believed oral evidence as well as Kabinnama and Nikahnama-Petitioner had failed to point out any misreading or non‑reading of evidence by three Courts below-Leave to appeal was refused in circumstances. 1997 SCMR 1122 Second marriage without permission & consent of first wife--Plea & proof of--Claim for dower was made by petitioner on ground that without her permission & consent, Respondent No. 3 contracted second marriage--Suit was contested through general attorney, who also appeared as witness on behalf of Respondent husband--Family Court decreed suit, but Appellate Court dismissed it--Held : Notwithstanding pleadings of parties, it was admitted fact that Respondent husband contracted second marriage without permission of petitioner to that effect, petitioner’s statement made on oath remained un-rebutted as respondent husband himself did not appear in witness-box--Consent of first wife being a personal matter would be in exclusive knowledge of respondent and could not be pleaded through a third person, therefore, attorney of respondent, while appearing in witness-box on behalf of respondent, would not be in a position to rebut petitioner’s statement on oath--Held further Perusal of Nikahnama of second marriage of respondent also did not show that it was contracted with permission of Arbitration Council or that consent of petitioner was obtained by him at any stage--Writ petition was accepted and decree passed by Family Court was restored. PLJ 2001 Lahore 472 Setting aside ex parte decree against deposit of decretal amount as security in cash-Suit of the wife was decreed by the Family Court ex parte against the husband-Husband filed application for setting aside of the decree after two years of passing of the same-Family Court dismissed the application but the same was allowed by Lower Appellate Court with a condition to deposit the decretal amount as security in cash and the decree was set aside-Husband did not deposit the amount and the suit was again decreed against him-Decree passed against the husband was assailed in Constitutional petition Which was dismissed by the High Court -Validity..­ Husband completely ignored to challen the order of deposit of decretal amount passed by Lower Appellate Court before the same Court for review or before High Court to Constitutional petition and thus by implication the husband had accepted the order of Lower Appellate Court and went to Family Court without demur-Where the husband had participated in the proceedings but did not file written statement as directed by Lower Appellate Court, the Family Court rightly struck off the defence of husband and passed the decree for the recovery of dower amount-Both the Courts below and the High Court were justified to have passed order for the deposit of amount of dower before remanding the suit to Family Court for trial-Leave to appeal was refused by Supreme Court. 2001 S C M R 1323-  1988 CLC 163 1 and  1989 CLC 1630 ref. Suit of wife was decreed by Family Court ex parte against husband but same was allowed by Lower Appellate Court with condition to deposit decretal amount as security in cash and decree was set aside—Husband did not deposit amount and suit was again decreed against him—Decree passed against husband was assailed in Constitutional petition which was dismissed by High Court—Validity—Husband completely ignored to challenge order of deposit of decretal amount passed by Lower Appellate Court before same Court for review or before High court in Constitutional petition and thus by implication husband had accepted order of Lower Appellate Court and went to Family Court without demur—Where husband had participated in proceedings but did not file written statement as directed by Lower Appellate Court, Family Court rightly struck off defence of husband and passed decree for recovery of dower amount—Both Courts below and High Court were justified to have passed order for deposit of amount of dower before remanding suit to Family Court for trial—Leave refused. PLJ 2002 SC 399

 

24.     Dowry articles, shifting of onus, wife filed suit for recovery of dowry articles which was decreed in her favour by family court judgment and decree passed by family court was set aside by lower appellate court on the ground that plaintiff failed to prove dowry articles validity father of plaintiff appeared as supporting witness and stated that at the time of her marriage he had given his daughter dowry articles worth more than Rs. 500,000 and brother in law of defendant received the same having asserted such facts, plaintiff discharged her onus to prove and it was for defendant to lead evidence in rebuttal or to shake evidence of plaintiff through cross-examination defendant failed to lead evidence in rebuttal, therefore, he had to bear the consequences unless court had come to the conclusion that value claimed in dowry articles was so disproportionate to the known sources of income of family of bride or items were so out of scene with the situation and standard of living of the family, it would be reasonable for family court to require plaintiff before it to produce proof of income of her family it was not alleged, and even if it was alleged, since defendant did not produce any evidence, therefore, no such burden of proving income of parents of bride could be lumped at the door of helpless woman same principle would be held true regarding independent witness regarding purchase of dowry articles high court found it unfair that after lapse of more than ten years to hold plaintiff only entitled to recovery of articles because ten years was a long period of time and many of the articles might not have been left with any value in then, therefore, high court ordered defendant to pay a sum of Rs. 400,000 to plaintiff in lieu of dowry articles petition was allowed accordingly P. L. D. 2010 Kar 10 Suit for recovery of dowry articles was decided in favour of the plaintiff on the basis of evidence as the defendant was unwilling to decide the matter on special oath—Validity—Judgment passed by the Family Court was returned on the basis of evidence after correct appraisal and the finding was not based on any adverse presumption against the defendant for his unwillingness to decide the matter in issue on special oath under Art.163 of Qanun-e-Shahadat, 1984—High Court declined to interfere with the judgment passed by the Family Court in circumstances. 2002 Lawvision 102 = 2002 CLC 1396 Family Court decreed the suit for recovery of articles according to the list annexed with the plaint but did not determine the value of the articles— Validity—List contained particulars of each and every item of the dowry, therefore, the list could be executed to the extent of the articles specified therein—If evidence as regard the value of the articles was not available on record, no illegality was committed by the Family Court in not determining the value of the articles. 2002 Lawvision 102 = 2002 CLC 1396

 

25.     Dowry as Zar‑e‑Khula:- Subject to condition that wife would forego her dower, maintenance and dowry in lieu of Khula’ Validity- Modification of judgment to the exclusion of dowry sought -Family Court had erred in law while holding dowry as subject to Zar‑e‑Khula’ which was against settled law as well as Injunctions of Holy .Qur’an as envisaged in Surah Baqara-Finding of Family Court to the extent of considering dowry as Zar‑e‑Khula’ was, thus, without lawful authority, jurisdiction and justification‑‑ ‑Judgment in question, therefore, was modified to the extent of excluding dowry as Zar‑e‑Khula’.  P L D 1997 Lah. 108

26.     Evidence of close family members-Effect-Evidence of close family members in a family suit was best guide as to how spouses were pulling on and was very relevant. 1997 C L C 1317  1994 MLD 119 rel. PLD 1984 Lah. 240 1988 CLC 1628; 1979 CLC 174; PLD 1986 Lah. 324 and NLR 1994 Civil 615 ref.

 

27.     Ex parte Decree of Recovery of dower—Suit of wife was decreed by Family Court ex parte against husband but same was allowed by Lower Appellate Court with condition to deposit decretal amount as security in cash and decree was set aside-Husband did not deposit amount and suit was again decreed against him--Decree passed against husband was assailed in Constitutional petition which was dismissed by High Court--Validity--Husband completely ignored to challenge order of deposit of decretal amount passed by Lower Appellate Court before same Court for review or before ‘High court in Constitutional petition and thus by implication husband had accepted order of Lower Appellate Court and went to Family Court without demur--Where husband had participated in proceedings but did not file written statement as directed by Lower Appellate Court, Family Court rightly struck off defence of husband and passed decree for recovery of dower amount--Both Courts below and High Court were justified to have passed order for deposit of amount of dower before remanding suit to Family Court for trial--Leave refused. PLJ 2002 SC 399

 

28.     Execution of decree:- Petitioner had been contesting suit on behalf of husband of respondent in his capacity as attorney of defendant--Revocation of power of attorney of petitioner by defendant judgment--Effect--Decree would not be nullified only because judgment debtor acts in a malafide manner by revoking power of attorney after passing of decree, so that neither judgment debtor who was beyond jurisdiction of Court nor attorney were obligated to satisfy decree--Judgment debtor was bound to satisfy decree either himself or through attorney, who had been throughout representing him in suit--Impugned judgment being based on sound and cogent reasons, does not call for interference. PLJ 2004 SC 856 Decree in question, pertained to restitution of dowry articles--Restitution of most of dowry articles being not possible, Executing Court by impugned order directed that specified amount being value of dowry articles should be recovered from petitioner--Legality--Ex parte decree which had attained finality was to the effect that suit was ex-parte decreed as prayed for”--Word, “as prayed for” have to be read in conjunction with prayer clause of plaint wherein while seeking decree for recovery of dowry articles, further prayer was for recovery of specified amount in the alternative, as price thereof--Executing Court, thus, rightly directed for recovery of specified amount when articles were proved to have been destoryed/damaged or not recoverable. PLJ 2004 Lahore 1491 Revision petition against order of dismissal of appeal filed before Appellate court against order of transferee Executing Court—Maintainability—Special provisions of west Pakistan Family Courts Act, 1964 excluded the general provisions of Civil Procedure Code, 1908—High Court dismissed revision petition as being not maintainable. PLD 2003 Pesh. 63

 

29.     Factual controversy- High Court in a Constitutional petition while dealing with a factual controversy would not sit as Appellate Court-Errors and mistakes in assessment and scrutiny of evidence could be taken note of..­ Where impugned order on the face of it was perverse and was not sustainable in the eyes of law, the same could be set aside leaving the same again to Family Court or Appellate Court to satisfy themselves about the quantum of maintenance etc.  -->2002 C L C 1754  2000 SCMR 88 and 2001 SCMR 683 rel.

 

30.     Family Court to regulate its own proceedings, where circumstances so demand, in order to prevent course of justice being deflected from its true path—Principles. Judge Family Court is competent to regulate its own proceedings as West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances. The Act creates a Special Court for decision of matters mentioned therein. Civil Procedure Code, 1908 and Evidence Act, 1872 are not made applicable to trial before Family Court. The Family Court should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path. PLD 1970 Pesh; 52; 1987 CLC 1277; 1986 CLC 2381; PLD 1975 Lah. 7; PLD 1989 SC 532; 1993 SCMR 363; PLD 1981 SC 522; PLD 1981 SC 246; 1983 CLC 3305 and Malik Khizer Hayat Khan Tiwana v. Mst. Zainab Begum PLD 1967 SC 402 ref. 2003 Lawvision 21 = PLD 2003 Peshawar 63

 

31.     -->Filing of suit in wrong Court:-- Territorial jurisdiction of Family Court was governed by S.20, C.P.C.-Where the suit was filed in a wrong Court, under R. 5 of Family Court Rules, 1965, the plaint would be returned to the plaintiff. Plaintiff after divorce was permanently residing in house of her parents at place “I” and her daughters being in her custody were living temporarily at place “K” in connection with their education-Suit for maintenance was filed at place “I” and the same was decreed in favour of the plaintiff-Appeal filed against the decree before Lower Appellate Court was dismissed-Validity-Plaintiff could file suit, under the provisions of S.20, C.P.C. both at her permanent as well as temporary residence in respect of cause of action arising at her temporary residence-Temporary residence of the minors would be deemed to be the permanent residence of their mother--­Cause of action having arisen in favour of the plaintiff as guardian of minor at place “I” where she was residing permanently, the temporary residence of her daughters (minors) at place “K” would not affect the jurisdiction of Family Court at place “I” to entertain the suit of maintenance on their behalf-Plaintiff could invoke jurisdiction either at place “I” or at place “K” and both Courts having concurrent jurisdiction were competent to entertain the suit-Where the plaintiff after dissolution of marriage was residing at place “I” and the minors were in her custody, cause of action arose in their favour at place “I” and their ordinary place of residence under the law would be at place “I”-Suit filed at place “I” did not suffer from defect of territorial jurisdiction of Family Court-Defendant failed to point out any misreading or non-reading of evidence rendering the judgment and decree illegal or to be interfered with by High Court in its Constitutional jurisdiction. P L D 2001 Lah. 188  Territorial jurisdiction of Family Court was governed by S.20, C.P.C.-Where the suit was filed in a wrong Court, under R. 5 of Family Court Rules, 1965, the plaint would be returned to the plaintiff. --> P L D 2001 Lah. 188

 

32.     Finding of Family Court on matrimonial matters--Effect--Findings rendered by Family Court on matrimonial matters and matters ancillary thereto are judgments in rem which are binding on the whole world--Unless and until the same was set aside by adopting proper legal procedure, same has overriding and super-imposing legal effect on all other documents including tamleek mutation because legally the same occupies very high pedestal in as much as strong legal sanctity was attached thereto. PLJ 2004 Peshawar 14

 

33.     Foregoing right of maintenance in lieu of Khula divorce--Where Court had found wife legally entitled to claim maintenance and on the other hand directed her to forego same in lieu of Khula, it would be contradiction in terms and impugned judgment and decree is liable to be modified: PLJ 2003 Lahore 309

 

34.     Issuance of Certificate of Divorce:- Petitioner failing to avail opportunity of appeal (which was efficacious and effective remedy) could not invoke Constitutional jurisdiction of High Court-Constitutional remedy was also not available to petitioner on the ground that impugned judgment had undone wrong and cured manifest illegality perpetrated by certificate of Chairman that divorce notice was ineffective-Chairman had no power to decide validity of Talaq/notice and to issue certificate of its ineffectiveness. P L D 1997 Lah.484

 

35.     Jactitation of marriage-Witnesses of Nikah had admitted their signatures on Nikahnama, which being sacred document carries evidentiary value-Courts below were influenced by criminal case pending against petitioner and her husband-Criminal prosecution cannot affect adjudication of civil matter-Courts below have not applied their judicial mind rather discussed registered case against petitioner and they have failed to read evidence on record which was cogent and trustworthy-Judgment and decree of Court below was set aside and petitioner’s suit for jactitation of marriage was decreed. 2004 Lawvision 6 = PLJ 2004 Lahore 26 Witnesses of Nikah had admitted their signatures on Nikahnama, which being sacred document carries evidentiary value--Courts below were influenced by criminal case pending against petitioner and her husband--Criminal prosecution cannot affect adjudication of civil matter--Courts below have not applied their judicial mind rather discussed registered case against petitioner and they have failed to read evidence on record which was cogent and trustworthy--Judgment and decree of Court below was set aside and petitioner’s suit for jactitation of marriage was decreed. PLJ 2004 Lahore 26 Whether Civil Court had jurisdiction--Question of--Words subject to provisions of Muslim Family laws Ordinance, 1961” used in Section 5 imply only that where there is an inconsistency between Muslim Family Laws Ordinance and Family Courts Act, provisions of Ordinance will prevail--Accordingly, suit of present nature, will be heard and tried not in accordance with provisions of Ordinance but by proper law applicable--Under Section 20 of CPC, a suit, including a suit for jactitation of marriage, could be instituted in Court within whose local limits, defendant is for time being residing--Held: Parties residing at Islamabad and cause of action having also accrued there, Senior Civil Judge, Isalamabad did have jurisdiction to entertain and try suit--Petition converted into appeal and appeal accepted.PLJ 1991 SC 146  PLD 1960 SC 307 rel  PLD 1963 SC 51 and PLD 1967 SC 580 ref Plaintiff denied solemnizing Nikah with defendant—Marriage was allegedly an arranged marriage and had taken place in the house of plaintiff where he father and other relatives were also present—Defendant produced a witness who was stated to be Vakeel of the plaintiff and had given consent on behalf of the plaintiff for the marriage- Defendant failed to prove on record that the witness was appointed as Vakeel by plaintiff in presence of two witnesses nor any witness was produced to prove that the plaintiff had appointed him as her Vakeel—Witness who was neither related to plaintiff within the prohibited degree nor was her near related to plaintiff within the prohibited degree nor was her near relative nor was resident of the same locality—Family court decreed the suit in favour of the plaintiff but the Appellate Court allowed the appeal and the suit was dismissed—Validity—When the witness acting as Vakeel had no lawful authority to give consent on behalf of the plaintiff, then such Vakeel could not perform Ijab-o-Qabool—Defendant failed to prove consent of marriage by the plaintiff—When the consent of woman was missing or secured through duress and pressure, such marriage was not a valid marriage—High Court in exercise of Constitutional jurisdiction set aside the judgment and decree passed by the Appellate Court and that of the Family Court was restored—Constitutional petition was allowed in circumstances.  PLD 2003 Pesh 1

 

36.     Jurisdiction of Family Court:- Family Court has the jurisdiction to entertain and adjudicate upon the matters specified in Sched. of West Pakistan Family Courts Act, 1964-Maintenance is specified in the Sched. and the Family Court has jurisdiction to adjudicate the matter. -->If the Family Court was not presided over by the District Judge, under S.14 of West Pakistan Family Courts Act, 1964, the decision given or decree passed by Family Court was appeal able to District Judge-Judgment and decree was passed by Senior Civil Judge and appeal was heard by District Judge both the Courts below thus had lawful authority to pass judgments and decrees respectively. -->2002 C L C 1748  Legislature by providing that suits for jactitation of marriage would be exclusively tried by Family Court, had conferred jurisdiction on that Court to also examine validity of marriage one way or the other-Chairman of Arbitration Council had no power to issue certificate either rejecting divorce or holding the same to be ineffective-Family Court being possessed of exclusive jurisdiction to determine validity of marriage, had power to examine validity of act or omission of Chairman.-P L D 1997 Lah. 108 PLD 1973 Lah. 381; PLD 1974 Lah. 78; 1979 CLC 462; PLD 1988 Kar. 169 and 1994 SCMR 1740 ref. Provisions of West Pakistan Family Courts Act, 1964 were of a beneficial nature which had enlarged the scope ‘ of jurisdiction of Family Courts and also vested the Court with power of giving substantial relief to wife and children with a right of appeal. 2002 M L D 784 Suit for dissolution of marriage filed in Family Court at Karachi--Defendant’s plea that both parties being Canadian citizens, Court at Karachi lack, jurisdiction to entertain and try such suit--Despite such plea defendant could not show that parties had lost their Pakistani citizen ship--Nikahnama was admittedly registered at Karachi--Plaintiff admittedly was not residing at the given address at Karachi--Marriage between parties having been solemnized in Karachi under Islamic Law, second Nikah at Canada was exercise in futility--Second Nikah over and above existing valid Nikah is not recognized in Islam nor is judicial separation--If all the facts asserted by plaintiff were correct, she was justified in instituting suit in Karachi. PLJ 2002 Karachi 117 Family Courts Act, 1964 nature and purpose of Provisions of West Pakistan Family Courts Act, 1964 were of a beneficial nature which had enlarged the scope of jurisdiction of Family Courts and also vested the Court with power of giving substantial relief to wife and children with a right of appeal. 2002 Lawvision 87 = 2002 MLD 784 Family Courts to have exclusive jurisdiction to entertain, bear and adjudicate upon matters specified in schedule-Chairman Union Committee, held. had no power to decide matter with regard to dowar amount. P L J 1981 Lahore 174

 

37.     Jurisdiction to transfer cases:- Transfer of family suit from a Court subordinate to one High Court to a Court subordinate to another High Court—Jurisdiction to transfer such-like cases would vest in Supreme Court, because High Court could order the transfer of family cases, when both the Courts were located within its own territorial jurisdiction—Provisions of S. 23(3). C.P.C. would not be applicable, Civil Procedure Code, 1908 being a Federal Law and West Pakistan Family Courts Act, 1964, a Provincial Law. PLD 1995 Lah. 198 dissented from]. PLD 2002 Pesh. 30

 

38.     Khula- Suit for dissolution of marriage and for restitution of conjugal rights filed respectively by wife and husband--Trial Court dismissed suit of wife for dissolution of marriage while decreed husband’s suit for restitution of conjugal rights--Appellate Court, however, reversed such findings and decreed wife’s suit, while dismissed husband’s suit--Validity--Perusal of statement of wife (plaintiff) would reveal that she had categorically stated that she would prefer to die than to live in the house of her husband--Trial Court on account of such statement of plaintiff, was not justified to allow such hateful union to continue any further--Appellate Court having taken all such aspects of case into consideration had returned its finding in favour of plaintiff (wife)--Neither plaintiff nor defendant had brought on record any documentary evidence on question of benefits to be given to wife in lieu of khula--Both parties had tried to build their case on oral evidence on that score--Appellate Court in such context had not deemed it proper to impose any condition while granting divorce on basis of Khula--No interference was, thus, warranted in the judgment and decree of Appellate Court whereby plaintiff’s suit had been decreed. PLJ 2001 Lahore 354 Trial Courts decreed for dissolution of marriage through Khula in favour of wife was maintained, however condition placed by trial Court that petitioner must return paid dower amount and forego un-paid dower amount and also to forego decreed maintenance allowance was declared to be without legal effect. 2003 Lawvision 190 = PLJ 2003 Lahore 227 Wife had stated that it was not possible for her to reside and develop conjugal relation with her husband at all and she had been condemned as a “good for-nothing” member of the society which was not compatible with the law of Shariat-Wife had been subdued and rewarded under “Swara” custom of the area as valid “Badal.e.Sulh” against the law and for twenty-five years she was left in the house of her parents like an “Uzv.e.Mu’attal”, useless limb of the society-Marriage having rightly been, dissolved by Family Court on ground of Khula’, High Court declined interference in the matter.-2001 C L C 557 Wife proved aversion and hatred against her husband in suit for dissolution of marriage-Family Court dissolved the marriage on the basis of Khula’-Validity-Where the question of fact had been satisfactorily discussed and appraised, High Court declined to interfere with the findings of Family Court granting the dissolution of marriage by way of Khula’-Petition was dismissed in circumstances. 2002 C L C 113 1999 SCMR 2631 and 2000 SCMR 1563 ref. Right of Khula’ should not be allowed to be exercised by wife against husband only because she was not willing to live with him nor would it justify that she be granted dissolution of marriage on her passing whims-Court would have to see that there was genuine disagreement between parties due to which they could not continue happy and harmonious marital life-Each case has to be decided on its own merits on basis of evidence brought on record-Family Court on basis of appraisal of evidence had come to conclusion that it was not possible for parties to observe limits prescribed by God-While coming to such conclusion Trial Court had also mentioned about several efforts which were made in Court for reconciliation between parties but it all ended in failure-Trial Court, thus, rightly decided to grant decree for dissolution of marriage to wife against husband for consideration that wife would not be entitled to receive dower money fixed at time of ‘Nikah’ between them-No latent or patent defect in impugned judgment and decree was pointed out so as to call for any interference in Constitutional jurisdiction of High Court-Grant of Khula’ to wife was maintained in circumstances. 1998CLC625- 1985 CLC 2539; PLD 1986 Quetta 185 and 1989 MLD 2227 ref. Wife seeking dissolution of marriage on ground of Khula’ had deposed in her statement that the wanted divorce even at cost of her life, meaning thereby that she would prefer to die than to go and live with husband—Genuine cause existed for their separation on basis of Khula’ in view of seen unhappy relationship and difference of temperaments between the parties—Spouses could not be forced to live together in hateful union and within limits ordained by Almighty Allah—Court, in such situation was bound to terminate marriage tie between husband and wife—Marriage is a civil contract between two opposite sexes for procreation of children and for social set-up and any condition imposed on wife restraining her from exercising her right of claiming divorce would be void ab initio—No restriction could be imposed on wife contrary to principles of Islam and Sunna—Holy Prophet (p.b.u.h.) had directed Muslim woman to get divorce on basis of Khula’ if she was not able to lead her present life within the limits prescribed by Almighty Allah—Wife could again and again take plea of Khula’ if she established a case for grant of dissolution of marriage—Family Court, in circumstances, had rightly decreed the suit filed by wife on ground of Khula’—Prayer of defendant that plaintiff be restrained from re-marrying any other person, could not be accepted as it was against principles of Qur’an and Sunna and Allah Almighty had given right to every body to contract marriage, 2003 Lawvision 200 = 2003 CLC 370 Closing evidence of husband-Validity-Wife filing suit for dissolution of marriage on ground of cruelty and Khula’ and stated unambiguously that she had cultivated hatred against husband-Husband had failed to produce evidence in rebuttal despite he was afforded six opportunities for production of evidence-Family Court closed evidence of husband and order of Family Court was upheld in appeal-Concurrent order of Courts below could not be interfered with in absence of any reasonable ground. -->2000 M L D 120 Suit was decreed with a condition that wife would pay amount and golden ornaments to the husband-Appellate Court on appeal, removed condition from the decree of the Trial Court with regard to the payment of amount and ornaments-Husband though in his written statement had alleged that the wife had left his house taking away ornaments and cash, but he did not make a specific demand that some benefits were conferred by him upon the plaintiff and that she should return the same as consideration for Khula`-In the absence of any demand made by the defendant either in his pleadings or in evidence for payment of amount and ornaments to him, the Family Court was not bound to order payment of the said items-Appellate Court had rightly set aside order of the Trial Court removing condition of payment of amount and the ornaments. 2002 C L C 40--PLD 1989 Lah. 31 and PLD 1991 SC 779 ref.  Plaintiff had categorically stated that she would prefer to die or drown in the river than to live in the house of her husband, the defendant-Court in view of such clear-cut statement of plaintiff should not allow hateful union between the parties to continue any further-In absence of any evidence brought by parties with regard to benefit given to defendant/husband, in lieu of dissolution of marriage on the ground of Khula’, Court was justified not to impose any condition while granting dissolution of marriage on basis of Khula’. 2001 C L C 1759 Family Court decreed the suit. subject to the return of golden ornaments to husband, but Appellate Court on appeal modified the decree of the Family Court by removing the condition of return of golden ornaments to the husband-Husband had never demanded that the ornaments be returned to him as a consideration of Khula’-Husband was required not only to prove benefits given by him to his wife as a result of marriage, but he should specifically demand the return of the same-Decree passed by the Family Court was rightly modified by the Appellate Court by removing the condition of return of golden ornaments to the husband. 2001 C L C 137  PLD 1991 SC 779 ref. Woman married under Muslim Law is entitled to obtain a decree for dissolution of her marriage on anyone or more of the grounds available under the law-Each ground is separate and enough for dissolution-If marriage is dissolved on other grounds also, it means that result would have been the same irrespective of the fact whether plea of Khula’ was raised or not-Legal rights cannot be curtailed by implication.. -->P L D 2002 S.C.273  1984 SCMR 1432 ref. failure of re-conciliation between parties at pre-trial stage, effect, wife had a right to seek khula from husband through a court of law, when relations between them were strained to such an extent where they became irreconcilable position that she could no more live in peace an harmony with husband, wife was granted khula in circumstances. 2010. C. L. C. 58 Consideration for `Khula’ can never be deemed to be recovery of articles of dowry or maintenance allowance which are independent right of marital spouses--Suit for dissolution of marriage filed by plaintiff cannot be termed as res-judicata of suit for recovery of articles of dowry--Maintenance allowance and dowry articles cannot be the basis and consideration of right of Khula in a suit for dissolution of marriage--Judgment and decree of Appellate Court on such basis thus, does not warrant interference. PLJ 2003 Lahore 1596 Female had solemnized the second marriage after Khula-Contention of the ex-husband was that Family Court had not considered the ground of Khula’ in real perspective and female had entered into marriage again-Validity-Held., High Court could not take notice of subsequent events viz, second marriage by the female--­Constitutional petition was dismissed in circumstances. 1999 M L D 2176 No right of appeal in such case having been provided under the provisions of S. 14(2) of Family Courts Act, 1964, Constitutional jurisdiction could not take place of appellate jurisdiction. PLJ 2001 Karachi 106 -Plaintiff in her plaint had although alleged cruelty and gave evidence to support such claim but she could not mention any specific habit of husband, or any incident in which he gave her physical or mental torture--Mere fact that wife stated that she was not prepared at all to live with her husband would not be sufficient to dissolve marriage on the ground of khula therefore, in such case she is bound to bring on record some reasons for hatred developed in her mind--Reason for hatred can however, be collected from pleadings of parties, evidence on record and attentive hearing of parties by the Court itself during reconciliation proceedings. PLJ 2004 Lahore 183 Plaintiff in her plaint had although alleged cruelty and gave evidence to support such claim but she could not mention any specific habit of husband, or any incident in which he gave her physical or mental torture-Mere fact that wife stated that she was not prepared at all to live with her husband would not be sufficient to dissolve marriage on the ground of khula therefore, in such case she is bound to bring on record some reasons for hatred developed in her mind-Reason for hatred can however, be collected from pleadings of parties, evidence on record and attentive hearing of parties by the Court itself during reconciliation proceedings. 1985 CLC 2539; NLR 1986 Civil 87 ref. 2004 Lawvision 19 = PLJ 2004 Lahore 183

 

39.     Legitimacy of minor—suit for recovery of maintenance for minor girl filed by wife was resisted by husband alleging that minor girl being not his legitimate daughter, he was not responsible for her maintenance allowance—Minor girl was born in 7th month of the marriage—Minor girl born during the said wedlock, was not illegitimate, but was lawful child of the parties—Whenever wife was charged with adultery, husband would be required to substantiate his accusation of adultery by producing four witnesses, but if no evidence except himself was available, husband would take Oath or Lain—If wife also, took Oath, no chances of retraction of charge of adultery would remain with husband and he could be punished if he would retract and retraction would amount to acknowledgement by husband—Child who was born within sim months of a valid wedlock was a legitimate child under Islamic law—Minor girl born 7th month of wedlock was lawful child of husband especially when birth entry of minor girl was got registered by the husband—Husband was rightly held responsible to pay maintenance allowance to minor girl in circumstances. PLD 2003 Lah. 264

 

40.     List of dowry articles:- Marriage being a happy occasion preparing detailed list of what was given to the bride was in most instances not given much importance for fear of being considered as a bad omen when situation required proof of what was actually given, list prepared from memory, receipts ad other related material has to be relied upon. 2010, M. L. D.1

41.     Maintainability of petition-Dismissal of family suit for non-prosecution was neither decision nor decree, therefore, same was not appeal able -Remedy of plaintiff was to file fresh suit, which was not barred under any provision of West Pakistan Family Courts Act, 1964-Such efficacious arid adequate remedy being available to plaintiff, Constitutional petition was not competent and not maintainable in circumstances. 1998 M L D 850

 

42.     Maintenance allowance,  Concurrent findings of fact by the Courts below-Husband had not taken the plea of his weak financial position-Family Court decreed the suit and Lower Appellate Court maintained the same-Validity-Both the Courts below had properly evaluated the evidence produced by the parties and had given valid reasons in their conclusions-Judgment of Family Court was neither arbitrary/perverse, nor suffered from any jurisdictional error-High Court declined to interfere with such judgment by exercising extraordinary powers under Art. 199 of the Constitution which could be exercised only in exceptional cases-Amount of maintenance worked out by the Family Court being reasonable, judgments of both the Courts below were maintained-Constitutional petition was dismissed in circumstances. 2001 C L C 1273-  PLD 1961 Pesh. 66; 1991 CLC 739; 1987 SCMR 670; PLD 1985 AJ&K 212; AIR 1929 All. 236 and 1995 CLC 327 distinguished.1997 MLD 2655; 1999 SCMR 2331; PLD 1991 SC 543 and 1998 SCMR 457 ref. Contention that past maintenance allowance cannot be claimed by respondents (children) and at the most maintenance allowance may be awarded from date of suit and not from date of alleged non-payment of allowance to children--According to S. 5 and Item 3 of Schedule of Family Courts Act, 1964 no distinction has been made with regard to period of maintenance in terms of past or future--Concurrent judgments of learned Courts below have been passed on due appreciation of law and facts and no case has been made out warranting indulgence of High Court in exercise of jurisdiction under Art. 199 of Constitution. PLJ 2003 Lahore 1494 Minor children’s entitlement to claim maintenance past and present from their father--Petitioner (father) in his written statement did not express a word that he was ever anxious or made bonafide demand, for custody of his children whether son or daughter, therefore, prima facie, they could not be deemed to have remained with the mother_ against wishes of their father--Minors were thus, entitled to claim . maintenance from their father--As far past maintenance, trial Court had passed order in terms of provisions of S. 17-A of the Family Courts Ordinance--Order for maintenance has been passed with effect from a point of time which is after the institution of suit by minors--Trial Court being authorized to pass such order, no interference was warranted in impugned order for maintenance of minors. PLJ 2004 Lahore 266 Appropriateness-Suit filed by wife and minor daughter was decreed by Family Court-Lower Appellate Court modified the decree and fixed a sum of Rs.2,000 and Rs.1,000 per month as maintenance for wife and minor daughter respectively-Validity-Where monthly income of the petitioner was Rs.6,000 per month, Lower Appellate Court had correctly fixed the maintenance which was proper considering the financial position of the petitioner. No illegality having been committed by the Lower Appellate Court in exercise of its jurisdiction, Constitutional petition was dismissed. 2001 C L C 78 Children in actual custody of mother notwithstanding order of Guardian Court to hand over custody to father-Entitlement to maintenance‑‑­Children being in actual custody of mother were entitled to separate maintenance notwithstanding order of Guardian Court to hand over custody to father-Order of Guardian Court, thus, did not deprive. children of their maintenance allowance.  1997 C L C 1592-1985 CLC 487 rel.1991 CLC 766 and PLD 1958 (W.P.) Lah. 596 ref. High Court in exercise of Constitutional jurisdiction had upheld judgment of Lower Appellate Court and dismissed Constitutional petition--Validity--Maintenance fixed by Courts below was proper and same was within exclusive jurisdiction of Family Court and Lower Appellate Court--Petitioner could have challenged findings of Courts below in limited Constitutional jurisdiction of High Court only if he had succeeded in proving that findings of two Courts below were not based on any evidence or were based on total misreading of evidence--High Court had rightly dismissed Constitutional petition--Leave refused- PLJ 2001 SC 593 Decree passed in and upheld by appellate Court--Respondent field suit for maintenance for her son, 4 daughters as well as for herself for iddat period @ Rs. 2000/-per month--Family Court decreed suit to extent of 3 daughters and Respondent but dismissed it to extent of son and a daughter being major--Appellate Court upheld decree--Challenge to--Held: Petitioner while taking plea of poverty and weak financial position could not escape from his lability and would not be allowed to deprive children from her legitimate right of maintenance--Held Further In case of male child on attaining age of majority, father is not responsible for his maintenance, but in case of female child, parents are still responsible for her maintenance till she is not married, because even after attaining majority, they cannot lead an independent life and are always in need of protection of their parents. PLJ 2001 Lahore 310 Decree passed by Family Court was affirmed by Appellate Court—Contention was that under Islamic Law, age of puberty was the age of majority, but Courts below had not fixed the date uptil which petitioner (father) had to make payment to his minor sons—Validity—Petitioner had raised such ground neither in written statement nor in appeal nor any issue was framed in this respect—Petitioner had moved number of applications, but not a single application had been moved in this regard—Such ground was taken for the first time in Constitutional jurisdiction, which could not be allowed. 2002 Lawvision 111 = 2002 CLC 101 Decree passed by Family Court was affirmed by Appellate Court—Validity—-Both the Courts below after considering evidence on record had concurrently found that petitioner was liable to make payment to both his children, who were still minors and also to make payment of six months to his divorced wife—Finding of fact could not be interfered with in Constitutional jurisdiction unless shown to be unwarranted or based on misreading of evidence—Impugned judgments were based on cogent reasons and evidence on record—No illegality or misreading or non-reading of evidence was pointed out by petitioner—Constitutional petition was dismissed in circumstances. PLD 1989 Lah. 69; PLD 1993 Lah. 549; Shagufta Bani v. Musarrat Hanif and others 1982 CLC 1821; Naeem Gul’s case 1989 ALD 93; Mst. Kausar Parveen v. Ghulam Rasool PLD 1981 Lah. 511; Muhammad Tufail v. Additional District Judge 1985 MLD 1275 ref. 2002 Lawvision 111 = 2002 CLC 1010 Bar or abridgement of right of appeal as contained in S.14(2)(c) of West Pakistan Family Court Act, 1964, would apply to the judgment.-debtor and not to the decree-holder as the Legislature had thought it fit, not to provide an appeal against a decree for a meagre amount-If the Family Court had awarded maintenance allowance for Rs.500 p.m. or less the wife or the minor children were entitled to file an appeal before the higher Court-interpretation of S.14(2)(c) of the Act to the effect that bar of right of appeal was also applicable to decree-holder (wife and minor ) would entail injustice, hardship and anomaly and such interpretation would defeat the purpose of the Act for which it was enacted. 2002 M L D 784 PLD 1978 Lah. 328; PLD 1979 Lah. 241; 1987 CLC 1496 and 1995 PCr.LJ 1247 ref. Suit filed by plaintiff for maintenance for herself as well as for her minor daughter was decreed by Trial Court and Appellate Court, in appeal, partly accepted appeal and maintenance allowance granted to plaintiff was set aside whereas maintenance granted to minor daughter was maintained-Validity-No appeal under S.14(2)(c) of West Pakistan Family Courts Act, 1964 was maintainable against maintenance of Rs.500 or less per month-Maintenance allowance in case having been granted to plaintiff at rate of Rs.500 per month, judgment and decree passed by Trial Court was not appeal able -Appellate Court being not competent to entertain appeal, order passed by it was coram non judice and was of no legal effect. 2002 M L D 1526 Leave to appeal was granted by Supreme Court to examine in detail the relevant law as to whether first wife could refuse to live with her husband and perform marital obligations on account of second marriage of her husband. --> 2002 S C M R 1149 Right of Appeal—Bar or abridgement of right of appeal as contained in S.14(2)(c) of West Pakistan Family Courts Act, 1964, would apply to the judgment-debtor and not to the decree-holder as the Legislature had thought it fit not to provide an appeal against a decree for a meagre amount—If the Family Court had awarded maintenance allowance for Rs.500 p.m. or less the wife or the minor children were entitled to file an appeal before the higher Court—Interpretation of S.14(2)(c) of the Act to the effect that bar of right of right of appeal was also applicable to decree-holders (wife and minor) would entail injustice, hardship and anomaly and such interpretation would defeat the purpose of the Act for which it was enacted. 2002 Lawvision 87 = 2002 MLD 784 Wife’s contention was that her husband had married second wife, thus, she under the law was entitled to refuse to live with him and perform matrimonial obligations--Husband’s contention was that wife had withdrawn her application for amendment of plaint to add the ground of his second marriage without permission and its implication--Supreme Court, however, granted leave to appeal to examine in detail the relevant law as to whether wife could refuse to live with her husband and perform martial obligations on account of his second marriage. PLJ 2002 SC 1090 Petitioner/husband against whom decree for maintenance was passed concurrently by Courts below had assailed quantum of maintenance allowance without contesting judgment and decree on merits-Courts below on basis of evidence on record determined quantum of maintenance allowance payable to respondent wife and minor son. who were not properly maintained by the petitioner-Concurrent findings of fact based, on unrebutted evidence on record could not. be disturbed by High Court in exercise of its Constitutional jurisdiction when such judgments were not suffering from any misreading or non-reading of evidence. 2000 C L C 1823 -->Striking off defence for  non-filing of written statement- Defence of defendant was struck off for non-filing of his written statement -Validity-Provisions of West Pakistan Family Courts Act, 1964 or rules framed thereunder having nowhere authorised Family Court to strike off defence of defendant on non-filing of his written statement, order striking off defence of defendant was declared to be illegal by the High Court. 2001 C L C 567  1990 PLD 180 and PLD 1989 Lah. 69 ref. Respondent taking special oath in the manner offered by petitioner--Respondent’s suit was decreed on basis of special oath offered by petitioner--Validity--Petitioner’s plea that Court should not have acted on his offer and should have instead given him chance to lead evidence and that provisions of Oaths Act, 1873 were not applicable to proceedings before Family Court was repelled--Petitioner had not denied in his writ petition that he did not make offer of his own free will or that the same was not accepted that the oath as taken in accordance with law--No prohibition was spelt out in any law including Family Courts Act, 1964 and Oaths Act, 1873 that provisions of latter Act were not applicable to proceedings in the former Act--Judgment and decree rendered by Trial Court warranted no interference. PLJ 2001 Lahore 227   

Both Family Court and Appellate Court concurrently decreed suits filed by plaintiff. ..Conduct of defendant in both Family Court and Appellate Court remained indifferent as neither he appeared before Family Court on any date of hearing despite his service nor at the time when written statement was filed by him and same: was lying without verification on file of the Family Court-Such conduct of defendant had shown that he was not interested in challenging judgment and decree of Trial/Family .Court. ..Defendant had failed to point out any flaw or defect in concurrent judgments of both the Courts below and had remained indifferent throughout proceedings before Courts below and was neither alive to his responsibilities nor interested in his matters..­ Concurrent judgments of Courts below could not be interfered with by High Court in exercise of its Constitutional jurisdiction-Constitutional petition was dismissed in circumstances. 2002 M L D 1094

Courts below granting maintenance to minor children with effect from specified date i.e. three years prior to filing of application for maintenance‑,‑Validity-Such order would not appear to suffer from any legal infirmity-Father was, thus, liable to pay maintenance till minor’s custody was actually handed over to him. 1997 C L C 1592 PLD 1966 (W.P.) Lah. 703 and PLD 1972 SC 302 rel. Failure to avail alternate remedy-Unclean hands of the petitioner-Effect-Maintenance suit filed by wife was decreed by Family Court and appeal filed by husband was dismissed by the Appellate Court-Husband only assailed execution proceedings pending in Executing Court and the judgment and decree passed by the Trial Court as well as the Appellate Court were not assailed-Validity-Conduct of the husband showed that he had not come before High Court with clean hands and he had not exercised all the remedies available to him before approaching the High Court under Constitutional jurisdiction-Petition was dismissed in limine. 2001 Y L R 313 2001 SCMR 159; ‘ 2001 SCMR 279 2001 CLC 518 and 2001 CLC 494 ref. -->Leave to appeal was granted by Supreme Court to examine the question as to whether judgment of High Court was delivered in consonance with law.  -->Neither there appeared to be any misreading of evidence nor any material piece of evidence appeared to have been overlooked by the Family Court while determining the amount of maintenance awarded to the minor children-High Court in its Constitutional jurisdiction, reduced the amount of maintenance of each child from Rs.300 to Rs.200-Validity-When High Court exercises Constitutional jurisdiction, its powers were not analogous to those of an Appellate Court-High Court, although, could strike down an order passed by a Subordinate Court or a Tribunal as without lawful authority and of no legal effect but it could not substitute its own judgment for that of the Subordinate Court or Tribunal-High Court reduced the maintenance amount for each child mainly for the reason that father of children had also to maintain four children from his second marriage, whereas Family Court had already taken notice of the same by allowing the father to retain half of his monthly income--­Balance having already been struck by the Family Court while allowing maintenance to the children, no infirmity could be found either in the judgment of Family Court or that of the Appellate Court justifying interference by the High Court in the exercise of Constitutional jurisdiction. -->2000SCMR88

 

43.     Majority of Children:- Maintenance allowance allowed by Family Court to four minor children had been challenged by petitioner/husband contending that two of the children were major and earning their livelihood-Respondent/wife appearing as witness in Family Court had stated that all the four children were minors and were residing with her-Petitioner/husband in his cross-examination had admitted that all children were residing with their mother -Petitioner/husband, thus, failed to prove that two of the children were major and were earning their livelihood--­Family Court having jurisdiction in the matter, after taking into consideration evidence brought on record, had rightly decided that all children were minors and were residing with her mother-Forum which had jurisdiction to decide a question of fact, could decide same rightly or wrongly, but such decision would not call for interference in Constitutional jurisdiction of High Court. 1999 M L D 899 Maintenance allowance granted by Court below to minor daughter assailed by petitioner—Petitioner however, miserably failed to bring on record any documentary or strong evidence to show that minors were in easy circumstances and not fit to be maintained by grand-father while evidence on record would show that he was financially fit person as grand-father of minors and can easily maintain his grand children as he is bound to maintain minor grand children of his deceased son, who are also legal heirs in property owned by him-Appellate Court having rightly ordered maintenance allowance of minors, no interference was warranted. 2004 Lawvision 15 = PLJ 2004 Lahore 9

Maintenance allowance granted, by Court below to minor daughter assailed by petitioner--Petitioner however, miserably failed to bring on record any documentary or strong evidence to show that minors were in easy circumstances and not fit to be maintained by grand-father while evidence on record would show that he was financially fit person as grand-father of minors and can easily maintain his grand children as he is bound to maintain minor grand children of his deceased son, who are also legal heirs in property owned by him--Appellate Court having rightly ordered maintenance allowance of minors, no interference was warranted. PLJ 2004 Lahore 6

 

44.     Marriage-Proof:‑‑Suit for jactitation of marriage filed by lady was decreed, whereas suit for restitution of conjugal rights filed by man was dismissed-Forged “Nikahnama” was shown to the lady by the man and she filed a suit for jactitation of marriage and pending that suit, she was abducted by the man and was forced to withdraw her suit by giving statement in favour of the man and accepting the forged Nikahnama-Father of lady got F.I.R. registered against the man and by order of High Court, she was allowed to go with her father-Both parties again filed a suit for jactitation of marriage and for restitution of conjugal rights respectively-Statement recorded by lady in her earlier suit-Evidentiary value-Earlier statement having been recorded during her abduction, same could not be a conclusive proof of having her owned Nikah in circumstances.- 1999CLC594

 

45.     Minors were not bound by document of “Shariat-Nama” written on behalf of their mother that she would not demand maintenance for her minor children--Minor’s mother was not legally competent to forego or to contract away their rights. PLJ 2003 Lahore 280

 

46.     Misconstruction and mis-interpretation of dower deed by Appellate Court--Findings recorded in dower deed were apparently self clashing and were devoid of legal merits--Dower deed in question, stipulate three kinds of dowers firstly Rs. 50,000/- in cash, secondly 30 tolas gold ornaments and 5 marlas plot--Appellate Court while interpreting dower deed took the view that in case Rs. 50,000/- in cash as dower was not paid then plaintiff would be entitled to plot and that payment in cash having not been proved, therefore, she was entitled to plot only--View taken by Appellate Court relating to entries in dower deed being its figment of imagination was entirely untenable--Perusal of dower deed would indicate that no stipulation of the nature inferred therefrom by Appellate Court was contained therein. PLJ 2003 Peshawar 325

 

47.     Nikah of sui juris Lady:- Lady accused being sui juris had contracted marriage with co-accused with her free­will and consent arid in said wedlock a daughter had been born..­ Family Court had already passed decree in favour of the accused lady in a suit filed for jactitation of marriage against another person who had claimed Nikah with her before her Nikah with the co-accused..­ Judgment of Family Court though had been assailed before Appellate Court, but its operation had not been suspended -Pendency of criminal proceedings against the accused, thus, would be abuse of process of law-Criminal proceedings pending against accused were quashed in circumstances. 2002 M L D 793

 

48.     Nikah—proof—Presence of Aadil witnesses—Defendant claimed to be husband of plaintiff and produced witnesses of Nikah who were first cousins of the defendant—No independent was solemnized with the plaintiff—Effect—Witnesses deposing in favour of defendant being his close relatives were interested witnesses, who could not relied upon by High Court in circumstances. PLD 2003 Pesh. 1

 

49.     Non-registration of Nikah—Nikah was alleged to be solemnized in a big town, yet it was not registered as per S. 5 of Muslim Family Laws Ordinance, 1961—Effect—Non-registration of Nikah supported the case of plaintiff that Nikah between the parties had not been solemnized—If Nikah had been solemnized, the same would have been registered in accordance with the provisions of Muslim Family Laws Ordinance, 1961. PLD 2003 Pesh. 1

 

50.     Oath:- Applicability of Oaths Act to proceedings before Family Court-Held, any oath not repugnant to justice or decency and common in locality or race can be taken P L J 1981 Lahore 179

 

51.     Option of puberty, Court declined to grant dissolution of marriage on the said ground as the same was not established and instead ordered dissolution of marriage on ground of Khula’-Validity-Ground of Khula’ was though not agitated by wife in the plaint, but Court in view of the conduct of parties concluded that parties could not live within the limits of God; that there was no use to order the continuation of hateful union of the parties and that it was in the interest of the parties that they should be separated so as to lead their independent and amicable life-High Court declined interference in the judgment of Trial Court. 2001 C L C 477-  1992 CLC 937; PLD 1990 Kar. 239 and 1991 CLC 1234 ref.

 

52.   Parties acquired American citizenship--Nikah performed in U.S.A.--Petitioner came to Pakistan on contract and respondent No. 1 also joined him as wife--Talaq pronounced by petitioner in Pakistan--Suit for jactitution of marriage--Whether Family Court had no jurisdiction--Question of--High Court has taken view that parties not being citizens of Pakistan, Family Court could not entertain suit--This view seems to have been formed on account of words “subject to provisions of Family Laws Ordinance 1961” employed in Section 5 of Act--Held: This view does not appear to be correct. PLJ 1991 SC 146

 

53.     Plea of disobedience of wife—Wife lived with her husband abroad as long as she had visa and thereafter she returned to Pakistan and was living with her parents at the place where she had a job—Husband contended that wife was not entitled to maintenance on account of her refusal to stay with his parents in Pakistan and her refusal amounted to her disobedience—Validity—If the husband had arranged for her wife to live with him and she had refused to do so, then she could be considered to be disobedient wife and disentitled, to the maintenance allowance—Wife, in circumstances, could not be considered to be disobedient merely on the ground that she did not reside with the parents of her husband in Pakistan after he sent her back from abroad where he was gainfully employed—Wife was not under obligation to live with the parents of her husband—Husband who had second wife though with permission of his first wife was bound to provide separate accommodation to his first wife and she could not be compelled to live with others—Wife was willing to live with her husband and perform conjugal duties if the husband could provide her proper arrangements and accommodation but he having failed to do so, the wife was entitled to maintenance allowances, Ahmed Ali v. Sabha Khatun Bibi and others PLD 1952 Dacca 385; Naik Muhammad v. Bagh Ali PLD 1987 Lah. 208; Mst. Sharifan Bibi and another v. Ghulam Hussain and others 1986 SCMR 1466; M. Sabbar Idrees and others v. Clare Benedicta Canville 1986 SCMR 1967; Muhammad Sadiq Hussain v. Mst. Khurshid Fatima and another 1978 SCMR 130 and Abdul Latif v. Surat Khatoon and others 1988 CLC 1560 ref. 2001 Lawvision 88 = 2001 MLD 1650

 

54.     Powers of Controlling Authority:-- Marriage under Muslim Law, was a civil contract-.Essentials of marriage were that any person who was capable of contracting a marriage, was not suffering from any legal disability; was of sound mind and who understood nature of contract and would enjoy freedom to enter into the contract of marriage -Nikah Registrar under Muslim Family Laws Ordinance, 1961, being a public servant within meaning of S.21, P.P.C. discharged public duty-If any party was of the view that Nikah Registrar had interpolated in the entries of Nikah Register, such. party could approach the Deputy Commissioner who was the Controlling. Authority and could get the same corrected. -->P L D 2000 Lah. 355-PLD 1967 Kar. 165 ref.

 

55.     Powers of judge:- Dissolution of marriage on ground of Khula’ on the basis that wife had been made victim of cruelty and that she had developed hatred against her husband and that she could not live in matrimonial bondage with him—Factum of cruelty stood proved from evidence of wife and witnesses of both wife and even of the husband—Basis of Khula’ though was the return of consideration of benefit already received by the wife, but khula’ could also be granted to wife on the basis of facts and circumstances showing that matrimonial union of spouses could not remain within the limits ordained by Allah—Whenever court would home to the conclusion after looking into evidence that factum of cruelty had been proved, then Court would gibe a release to wife from matrimonial ties—Evidence on record, in the present case, had proved that downer amount, though was paid by the husband to wife at the time of Nikah, but same was immediately taken back from her—Family Court having dissolved marriage on basis of Khula’ suit fro restitution of conjugal rights filed by defendant husband against plaintiff wife was rightly considered as infructuous – Omission of Family Court to give finding in suit for restitution of conjugal right filed by husband, would not affect merits of case of wife for dissolution of marriage on ground of Khula. PLD 2003 Lah. 260

56.     Powers of Judge, Family Court to regulate its own proceedings, where circumstances so demand, in order to prevent course of justice being deflected from its true path—Principles. Judge Family Court is competent to regulate its own proceedings as West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances. The Act creates a Special Court for decision of matters mentioned therein. Civil Procedure Code, 1908 and Evidence Act, 1872 are not made applicable to trial before Family Court. The Family Court should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path. PLD 1970 Pesh; 52; 1987 CLC 1277; 1986 CLC 2381; PLD 1975 Lah. 7; PLD 1989 SC 532; 1993 SCMR 363; PLD 1981 SC 522; PLD 1981 SC 246; 1983 CLC 3305 and Malik Khizer Hayat Khan Tiwana v. Mst. Zainab Begum PLD 1967 SC 402 ref. 2003 Lawvision 21 = PLD 2003 Peshawar 63

 

57.     Principle of res judicata--Applicability--­Cause of action in such cases is of recurring nature-Previous withdrawal of suit does not operate as res judicata in such matters. 1999 Y L R 875 1986 CLC 27 and PLD 1983 Lah.442 rel.

 

58.     Procedure in Appeal:- Appeal against dismissal of suit for dissolution of marriage was withdrawn by counsel of plaintiff on mistaken view of law--Constitutional petition--Maintainability--Apart from the fact that appeal had been withdrawn by plaintiff’s counsel from the court of District Judge only on account of his negligence or carelessness, act and conduct of District Judge in passing mechanical order on application for withdrawal of appeal, without realizing that factually appeal was rightly instituted or raising question of maintainability was also a factor which led to petitioner in withdrawing her appeal and consequently filing constitutional petition in High Court--Order of District Judge allowing withdrawal of appeal was without lawful authority, effect of that order was that he had refused to exercise jurisdiction, which was actually vested in him--Order of District Judge in allowing withdrawal of appeal was declared to have been passed without lawful authority and of no legal effect--Appeal filed before District Judge would be deemed to have been validly instituted and pending--District Judge was directed to decide plaintiff’s appeal after providing opportunity of hearing to both parties- PLJ 2002 Quetta 45 Appeal against judgment and decree of Trial Court-Petitioner (wife) filed suit for maintenance for herself and for her son whereas (husband) filed suit for restitution of conjugal rights-Trial Court decreed the suit of the wife but in appeal allowance of son was maintained but that of wife was refused-Suit of husband for restitution of conjugal rights was also decreed-Judgment of Appellate Court was challenged by wife in Constitutional petition contending that Appellate Court below having not appreciated evidence on record properly, High Court could embark upon appraisal of evidence brought on record-Validity-Evidence could be appraised by Appellate Court only and not by High Court in exercise of its Constitutional jurisdiction-Petitioner having failed to point out any irregularity or jurisdictional defect in judgment passed by Appellate Court below,, finding of fact recorded by it, could not be interfered with by High Court in exercise of its Constitutional jurisdiction. 2001 C L C 338

 

59.     Proof of Age:- High Court’s direction for Radiological Examination of plaintiff--Age of plaintiff on basis of such examination was determined and they were found to be minors--Trial Court’s finding was thus, found to be unexceptional and no illegality was committed by that Court in placing reliance on medical examination of plaintiffs whereby were found to be minors.PLJ 2003 Lahore 280

Provision of S.7. West Pakistan Family Courts Act, 1964 makes it mandatory upon the parties to give schedule of witnesses giving summary of evidence and also production of all the documents in possession of the parties—Family Court, under S.7 is possessed with power to allow any witness to produce any document on record and pass order as the Court thinks expedient and just for the fair administration of justice. 2002 Lawvision 173 = 2002 CLC 1801 Appeal against judgment of Family Court—Appointment of referee—Suit having been decreed by Family Court, defendant husband filed appeal against the same—During pendency of appeal, a referee was appointed with consent of the parties and it was agreed that appeal against judgment and decree of Family Court be decided on statement of referee to be made on basis of oath on Holy Qur’an—About seven weeks after appointment, referee appeared in Court and made his statement on oath regarding list of dowry articles which were with defendant-husband—Defendant filed application for cancellation of appointment of referee after statement of referee had been recorded and stated that case be decided on merits, which application was rejected by Appellate Court and appeal was decided on the basis of statement of referee—Defendant who, did not raise any objection within period of about seven weeks with regard to appointment of referee made with consent of parties, could not prove that referee so appointed was partial to the plaintiff—Defendant having agreed to be bound by statement of referee and also having co-operated in that behalf till statement of referee was against him, he could not be allowed to resile subsequently—Judgment of Appellate Court being based on proper reasoning, and there being no illegality same could not he interfered with by High Court in exercise of its Constitutional Jurisdiction. Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763; Muhammad Bashir v. Qazi Bashir Ahmad 1996 MLD 674 and Naimuddin v. Mst. Mah-e-Talat and 2 others 1984 CLC 638 ref. 2003 Lawvision 132 = 2003 MLD 547

 

60.     Provisions of Civil Procedure Code, 1908‑‑­Applicability-Closing of evidence by Family Court-Wife and children filed suit for maintenance against husband/father who failed to produce his evidence despite repeated adjournments were granted to him for the purpose-Family Court by invoking provisions of OXVII, R.3, C. P. C. closed evidence of husband/father-Validity-Not at the discretion of the parties to produce their evidence at their convenience and leisure and continue seeking adjournments to prolong the proceedings for indefinite period-Provisions of C.P.C., though were not applicable to proceedings before Family Court, yet said Court had the power to close the evidence of parties-Family Court, thus, did not act illegally or without jurisdiction in closing the evidence-Such an order was fully justified in circumstances.  1999 Y L R 830-PLD 1982 Lah. 281 rel.

 

61.     Provisions of Evidence Act/Qanun-e-Shahadat and Code of Civil Procedure—Applicability in proceedings before Family Courts—Provisions of Evidence Act, 1872, Qanun-e-Shahadat and Code of Civil Procedure have been made inapplicable under S.17 of West Pakistan Family Courts Act, 1964—Special provisions would exclude general provisions of law; special provisions of Family Court thus would exclude provisions of Evidence Act/Qanun-e-Shahadat as well as Civil Procedure Code—Intention behind such bar seemed to be ensuring the expeditious settlement and disposal of disputes relating to family affairs—Family Court should and must, when circumstances so demanded, exercise its own powers to prevent course of justice being deflected from its true path—Witness could not be compelled to give answer to a question. 2003 Lawvision 18 = 2003 MLD 1215

 

62.     Ratification of Order:- Family Court fixed past maintenance at Rs.2,500 p.m. w.e.f. 12.10.1997 and future maintenance, at Rs.5,000 p.m. -Appellate Court modified the judgment by reducing current maintenance of Rs.5,000 and fixed the same at Rs.3,000 p.m. w.e.f. 12.10.1997-Contention of father was that Appellate Court order was erroneous in that the current maintenance of Rs.5,000 had been reduced, but the date from which the same had been given effect to viz. 12.10.1997 was eventually the commencing date for past maintenance granted by Family Court-Validity-Order of the Appellate Court suffered from technical error, which had to be rectified by the said Court itself-High Court remanded the case to Appellate Court for rectifying the impugned order. --> 2002 C L C 1754

 

63.     Re-Call of Ordr:- Trial Court’s power to recall its earlier order whereby right of cross-examination was closed and case was fixed for ex-parte arguments--Application for re-calling order in question,-was allegedly without verification or even supporting affidavit--Effect--Family Court can entertain any application without verification or even supporting affidavit–Where, however, Court requires that applicant should furnish affidavit in support of averments made in the application, then concerned party would be bound to do the needful--Parties to suit having not pressed the Court to frame issues and record evidence to decide disputed questions of fact Court was free to take into consideration averments made in application and recall the earlier order impugned in that application--Court was competent to recall or cancel its interim order to secure ends of justice--Order impugned being just and proper, no interference was warranted therein in exercise of constitutional jurisdiction. PLJ 2002 Lahore 82  PLD 1995 Kar. 388; PLD 1960 Lah. 1031; PLD 1973 Lahore 95; 1983 CLC 265; 1988 MLD 1143; 1989 ALD 228; PLJ 1993 Lahore 255; 1983 CLC 3305; 1984 CLC 890 and;NLR 1985 Civil 57 ref.

 

64.     Re‑summoning of witness-Where petitioner was present at the time of recording of evidence and opportunity to cross‑examine wits given to petitioner re‑summoning of witness for cross‑examination could not be ordered. Also held that, Examination of Secretary, Union Council was not relevant being not an eye‑witness of Nikah in question. 1999CLC594

65.     Return of “benefits”- Maintenance paid to wife by husband-Not “bents “-Suits for recovery of maintenance, and dower and subsequently filed suit for dissolution of marriage were decreed-Suit for dissolution of marriage on ground of Khula’ was decreed with condition that wife would not be entitled to claim dower and maintenance in lieu of Khula’ ‑‑­Validity-Judgment and decree of Family Court to the extent of “dower” was correct in making decree conditional on returning the same-Suit for recovery of dower, however, having been decreed, wife would have to relinquish the same as decree for dissolution of marriage on basis of Khula’ was sought by her‑‑­Claim of maintenance, however, was not benefit received by wife from husband and, therefore, not returnable in case of Khula’ for it was duty of husband to maintain his wife so long as she remained in wedlock-Petitioner (wife) was entitled to recover the same .in accordance with decree passed in suit for maintenance, which had not been challenged-Decree passed by Trial Court for dissolution of marriage on basis of Khula’ to the extent of relinquishment of claim for maintenance allowance, therefore, was declared to be without lawful authority and of no legal effect.  1999 C L C 160-PLD 1975 Lah. 766 and PLD 1967 SC 97 ref.

 

66.     Right of appeal-­ No right of appeal in such case having been provided under the provisions of S.14 (2) of West Pakistan Family Courts Act, 1964, Constitutional jurisdiction could not take place of appellate jurisdiction. Relation of young spouses was severely strained and they could not live together as husband and wife-Marriage between the parties was rightly dissolved by Family Court on the basis of Khula’-Constitutional petition being not maintainable was dismissed in limine. -->  2001 C L C 507

 

67.     Second marriage without prior permission by existing wife--Effect--Held : If a husband took an additional wife in contravention of S. 6 of Muslim Family Laws Ordinance, 1961 the wife was entitled to obtain a decree for dissolution of marriage on that ground. PLJ 2004 Peshawar 251

 

68.     Special oath, non-taking of-- Suit for recovery of dowery articles was decided in favour of the plaintiff on the basis of evidence as the defendant was unwilling to decide the matter on special oath.. ­ Validity-Judgment passed by the Family Court was returned on the basis of evidence after correct appraisal and the finding was not based on any adverse presumption against the defendant for his unwillingness to decide the matter in issue on special oath under Art.163 of Qanun-E-Shahadat, 1984-High Court declined to interfere with the .judgment passed by the Family Court in circumstances. 2002 C L C 1396

 

69.     Suit for dissolution of marriage on the basis of cruelty--No prayer reading for Khula--Pro and contra evidence--Family Court granting decree on the basis of Khula—Contention that Family Court could not grant such decree--Held: Family Court in absence of specific prayer for Khula was competent to pass such decree if it was otherwise satisfied from record that parties could not live within the limits of God in any case--Further held: Family Court is neither arbitrary nor perverse, hence does not call for interference by High Court in exercise of constitutional jurisdiction—Writ Petition was dismissed. PLJ 2004 Peshawar 237

 

70.     Suit for recovery of “Mahar”-Appellate Court below had advanced very convincing reasons while passing the judgment with regard to payment of amount of “Mehr”-Petitioner had not been able to point out any material irregularity or infirmity in the judgment and decree passed by Appellate Court. below-Such judgment and decree could riot be interfered with by High Court in exercise of its revisional jurisdiction. 2001 M L D 834

 

71.     Suit for recovery of dower (gold ornaments)— Suit decreed by Family Court and upheld by Appellate Court—Validity—Appellate Court had appraised evidence in accordance with law—No irregularity or jurisdictional defect had been pointed out in impugned judgment—Husband was reluctant to discharge his liability by way of returning fourteen Tolas gold ornaments—Such conduct of husband was not appreciable—High Court refused to accept prayer of husband and dismissed Constitutional petition. 2003 Lawvision 26 = 2003 CLC 878

 

72.     Suit for recovery of dowery articles Document exhibited without objection.­ List of articles was annexed with the plaint and it was in the notice of the defendant right from the inception which was not only the basis of the suit but was mentioned in the plaint and the same was exhibited by the Family Court without any objection from the defendant-Suit was decreed by the Family Court in favour of the plaintiff as per the list and the judgment and decree was maintained by the Appellate Court.. ­Contention of the defendant was that the list of the articles was not proved hence the judgments and decrees passed by the Courts below were liable to be set aside-Validity-List was exhibited without objection from the defendant and the same was in the knowledge of the defendant right from the inception of proceedings-Such document could not be objected to in the proceedings under Art.199 of the Constitution. Both the Courts below had neither exceeded their jurisdiction nor acted without jurisdiction-Family Court had examined/assessed the evidence and its findings were based on evidence-High Court in exercise of jurisdiction under Art. 199 of the Constitution declined to interfere with the findings recorded by the Family Court-Constitutional petition was dismissed in circumstances. Family Court decreed the suit for recovery of articles according to the list annexed with the plaint but did not determine the value, of the articles. ­ Validity.-List contained particulars of each and every item of the dowery, therefore, the list could be executed to the extent of the articles specified therein-If evidence as regard the value of the articles was not available on record, no illegality was committed by the Family Court in not determining the value of the articles.-2002 C L C 1396

 

73.     Suit for recovery of possession of land as Haq Mahar Application for setting aside decree on allegation of fraud-Suit was finally decreed up to Supreme Court-Defendant/judgment-debtor filed application under S.12(2N, C.P.C. alleging that after decision of Supreme Court he came to know that Nikahnama and Kabin Nama on basis of which suit was decreed were forged and fictitious-Validity-Supreme Court having finally decided matter after taking into consideration Nikahnama, Kabin Nama and plea of fraud, application filed under S.12(2), C.P.C. was rightly dismissed and the dismissal order could not be interfered with by the High Court. -->2002 C L C 484

 

74.     Suit for recovery of prompt dower--Suit was dismissed by Trial Court--Appellate Court in appeal, however, decreed plaintiff’s suit--Validity--Defendant sought to take advantage of the principle of “As-Sumat”, however, apart from non-production of evidence in proof thereof, he failed to make proper pleadings to press into service such principle--Prompt dower to the extent of specified amount was recorded in “Nikahnama”, which being duly filled up and registered in accordance with law is a public document--Parties were bound by the recital, contained in “Nikahnama”--There was no plea or evidence that any amount was privately fixed as dower other than the dower mentioned in “Nikahnama”--Dower publicly announced and evidenced by register deed would be accepted while provisions of Articles 101 and 102 of Qanun-e-Shahadat 1984, would render oral evidence to prove dower to be fictitious one in admissible--No interference was, thus, warranted in the judgment and decree of Appellate Court whereby plaintiff’s suit was decreed. PLJ 2001 Lahore 282

 

75.     Suit for restitution of conjugal rights--Suit for restitution of conjugal rights filed about three months after effectiveness of divorce was rightly dismissed by trial Court--Appellate Court acted without jurisdiction while reversing judgment passed by trial Court--Disputes of heinous nature had erupted between parties and there was admission of divorce by respondents in F.I.R. which he got registered against petitioner on the basis of his complaint--Order of Appellate Court was set side while that of Trial Court restored whereby respondents suit for restitution of conjugal rights was dismissed. PLJ 2003 Lahore 1360     

 

76.     Suit for return of dowery articles-District Judge had refused to allow return of the other articles which in the light of evidence on record stood admittedly given by way of dowery in the absence of any rebuttal or evidence that the goods mentioned in the list were not given as such-District Judge, thus failed to read evidence on record and this was a case of gross misreading of record-Judgment and decree of the District, Judge were held to be without lawful authority by the High Court in its Constitutional jurisdiction under Art. 199 of the Constitution-Validity. .No misreading or non-reading of evidence by the High Court was found-High Court in its Constitutional jurisdiction rightly exercised its powers, wherein .the order of the District Judge was found contrary to the evidence recorded by the parties and his findings were perverse which resulted in miscarriage of justice-Supreme Court declined interference in the findings of the High Court in circumstances. 2002 S C M R 701 Where marriage was dissolved on various grounds including Khula’, then wife would be entitled to recover dower and dowry, but where it was dissolved solely on the ground of Khula’ then her offer made for getting marriage dissolved on Khula’ would be examined-Wife tiled suit for dissolution of marriage on various grounds viz. cruelty, non-payment of maintenance, non-performance of marital obligations, impotency of husband and Khula’-Wife also filed suit for recovery of dowry amount-Family Court decreed the suit for dissolution of marriage on all such grounds holding that wife in lieu of Khula’ would not be entitled to claim dower, dowry and maintenance -Husband, in view of such findings, filed in latter suit an application for rejection of the plaint-Wife filed application for clarification of judgment and decree, but it was dismissed by Family Court and its order was maintained by the Appellate Court-High Court accepted Constitutional petition tiled by wife and set aside the conditions regarding relinquishment of dower, dowry and maintenance-Contention of husband was that High Court in exercise of Constitutional jurisdiction could not change judgment and decree passed by Family Court, especially when the wife had not challenged same and her petition for clarification had been dismissed by Courts below-Held’: wife in her deposition recorded before Family Court had forgiven only her claim for remaining amount of dower in lieu of Khula’ and had not given up her claim of dowry-Marriage was dissolved on various ‘rounds including Khula’-Where marriage was dissolved on other grounds also, then wife would be entitled to recover amount of dower and dowry, but where it was dissolved solely on ground of Khula’, then situation would be different and it would be examined keeping in view the offer she had made for getting marriage dissolved on Khula­ Findings of High Court were correct and not open to any exception. ­Supreme Court dismissed the appeal of husband while making it clear that suit tiled by wife for recovery of dowry amount would be decided on its own merits. -->P L D 2002 S. C. 273 1991 MLD 1531 ref.

 

77.     Suit for return of marriage gifts—Transfer of such suit to (N.W.F.P.) from Civil Court/Family Court (Sindh)—Schedule to West Pakistan Family Courts Act, 1964 did not include marriage gifts to be the subject-matter of dispute with reference to S.5 of the said Act—Suit at (Sindh) had to be a civil suit and in case it was so, the jurisdiction to transfer it under S. 23(3), C.P.C. would vest in Sindh High Court. 2002 Lawvision 27 = PLD 2002 Peshawar 30

 

78.     Talaq in form of “Mubaraat”-Withdrawal of notice of Talaq-Chairman, Union. Council declined to issue certificate of Talaq to petitioner/lady on ground that since her husband/respondent had filed application for withdrawal of notice of Talaq within period of 90 days of receipt of notice, divorce had been rendered ineffective-Document of Talaq had clearly shown that it was not a unilateral pronouncement of Talaq, but it was a Talaq inform of “Mubaraat” which had been entered into by consent of both parties..­ Document of pronouncement was a mutual revocation of contract of marriage entered into at time of Nikah and since both parties had mutually revoked contract, one party could not unilaterally revive the contract without consent of other -Talaq in form of “Mabaraat” was irrevocable from the date of its execution and provisions of S.7, Muslim Family Laws Ordinance, 1961 would be inapplicable to such a case-If party to Talaq applied for a certificate from Chairman, regarding effectiveness of Talaq, he would have no option but to declare Talaq as effective-Application for cancellation or revocation to Chairman and issuance of cancellation certificate was incompetent and was without lawful authority-Once triple divorce had been pronounced, Talaq would become irrevocable. 2002 M L D 778 Suit for return of marriage gifts-Transfer of such suit to (N.W.F.P.) from Civil Court/Family Court (Sindh)-Schedule to West Pakistan Family Courts Act, 1964 did not include marriage gifts to be the subject. matter of dispute with reference to S.5 of the said Act-Suit at (Sindh) had to be a civil suit and in case it was so, the jurisdiction to transfer it under S.23(3), C.P.C. would vest in Sindh High Court. P L D 2002 Pesh. 30

 

79.     Validity of registered marriage- Validity of marriage registered under Muslim Family Laws Ordinance, 1961, would not be questioned by Family Court nor any evidence in regard thereto would be admissible before the said Court-.If marriage was questioned on ground of fraud or misrepresentation, remedy would not be available with the Family Court, but with the Court of general jurisdiction-Legislature had provided that four copies of Nikahnama should be prepared, one was to be kept by Registrar of Nikah, second one to be sent to concerned Municipal Corporation, Municipal Committee or Union Council as the case may be, third copy was to be supplied to bride and fourth one to the bridegroom, to verify that entries in Nikahnama were according to the terms of marriage settled between the parties. -->P L D 2000 Lah. 355

 

80.     Value of dowry articles:- Decree for restitution of dowry articles or payment of price thereof--Most of the articles were either missing or damaged or not recoverable--Ordinarily, although defendant/husband had option whether he would deliver articles of dowry or pay value thereof, however, where such articles were not recoverable either having been lost, damaged or destroyed, Executing Court can direct him to pay value thereof. PLJ 2004 Lahore 1491

 

81.     Version of wife-Need for due consideration by Court-Scope-Where Family Court considered all the ambient circumstances including the attitude of the wife and had come to the conclusion that at the time of recording of evidence the wife displayed intense hatred on her face, wife was entitled to right of divorce by way of Khula’ -While deciding the question of dissolution of marriage on the ground of Khula’, the Courts would have to assign due significance to the version of wife and unless the same appeared to be a flagrantly whimsical and fanciful, desire of wife to secure the dissolution of marriage, her words could not be struck down or ignored. 2002 C L C 113-1989 CLC 3; 1991 CLC 805; PLD 1983 Lah. 549; 1992 CLC 1733 and 1999 SCMR 2631 ref.

Dismissal of suit for lack of territorial jurisdiction-Words “ordinarily resides”, as used in R.6, West Pakistan Family Courts Rules, 1965-Connotation-Proviso to R.6, West Pakistan Family Courts Rules, 1965, enables estranged wife to file suit for dissolution of marriage within local limits of which she ordinarily resides-Petitioner’s husband and parents were resident of different place while she was residing at another place earning her own livelihood, thus, ordinarily residing at a place different from where her parents and husband resided-Words “ordinarily resides” must be construed in the context of estranged wife who had left her husband’s abode and had sought residence at any other place of her own choice; such place of her choice would answer to the concept “ordinarily resides “-Petitioner ordinarily residing at a place of her choice, after separation from her husband, was, thus, competent to bring suit for dissolution of marriage in the Court of that place--High Court ordinarily would not go into question of fact in exercise of its Constitutional jurisdiction but where findings of Courts below on the face of record appeared to be perverse or based on no evidence (as in petitioner’s case) High Court even in Constitutional jurisdiction could take different view-Both Courts below having unlawfully refused to exercise their jurisdiction on wrong assumption that they did not have such jurisdiction, their judgments were set aside and case was remanded to Trial Court for decision on merits within specified period. 1997CLC742 PLD 1988 Kar. 602; PLD 1976 Kar. 978 and PLD 1979 SC 864 rel.

Powers of judge:- Dissolution of marriage on ground of Khula’ on the basis that wife had been made victim of cruelty and that she had developed hatred against her husband and that she could not live in matrimonial bondage with him—Factum of cruelty stood proved from evidence of wife and witnesses of both wife and even of the husband—Basis of Khula’ though was the return of consideration of benefit already received by the wife, but khula’ could also be granted to wife on the basis of facts and circumstances showing that matrimonial union of spouses could not remain within the limits ordained by Allah—Whenever court would home to the conclusion after looking into evidence that factum of cruelty had been proved, then Court would gibe a release to wife from matrimonial ties—Evidence on record, in the present case, had proved that downer amount, though was paid by the husband to wife at the time of Nikah, but same was immediately taken back from her—Family Court having dissolved marriage on basis of Khula’ suit fro restitution of conjugal rights filed by defendant husband against plaintiff wife was rightly considered as infructuous – Omission of Family Court to give finding in suit for restitution of conjugal right filed by husband, would not affect merits of case of wife for dissolution of marriage on ground of Khula. PLD 2003 Lah. 260

Family Court to regulate its own proceedings, where circumstances so demand, in order to prevent course of justice being deflected from its true path. PLD 2003 Pesh. 63

-->Family Court, territorial jurisdiction of:-- Two different places of dwelling-Plaintiff after divorce was permanently residing in house of her parents at place “I” and her daughters being in her custody were living temporarily at place “K” in connection with their education-Suit for maintenance was filed at place “I” and the same was decreed in favour of the plaintiff-Appeal filed against the decree before Lower Appellate Court was dismissed-Validity-Plaintiff could file suit, under the provisions of S.20, C.P.C. both at her permanent as well as temporary residence in respect of cause of action arising at her temporary residence-Temporary residence of the minors would be deemed to be the permanent residence of their mother--Cause of action having arisen in favour of the plaintiff as guardian of minor at place “I” where she was residing permanently, the temporary residence of her daughters (minors) at place “K” would not affect the jurisdiction of Family Court at place “I” to entertain the suit of maintenance on their behalf-Plaintiff could invoke jurisdiction either at place “I” or at place “K” and both Courts having concurrent jurisdiction were competent to entertain the suit-Where the plaintiff after dissolution of marriage was residing at place “I” and the minors were in her custody, cause of action arose in their favour at place “I” and their ordinary place of residence under the law would be at place “I”-Suit filed at place “I” did not suffer from defect of territorial jurisdiction of Family Court-Defendant failed to point out any misreading or non-reading of evidence rendering the judgment and decree illegal or to be interfered with by High Court in its Constitutional jurisdiction.
Filing of suit in wrong Court. Territorial jurisdiction of Family Court was governed by S.20, C.P.C.-Where the suit was filed in a wrong Court, under R. 5 of Family Court Rules, 1965, the plaint would be returned to the plaintiff. --> P L D 2001 Lah. 188

Alternate adequate remedy-Non-availing of -Maintainability of petition-Dismissal of family suit for non-prosecution was neither decision nor decree, therefore, same was not appeal able -Remedy of plaintiff was to file fresh suit, which was not barred under any provision of West Pakistan Family Courts Act, 1964-Such efficacious arid adequate remedy being available to plaintiff, Constitutional petition was not competent and not maintainable in circumstances. 1998 M L D 850

Powers of Controlling Authority:-- Marriage under Muslim Law, was a civil contract-.Essentials of marriage were that any person who was capable of contracting a marriage, was not suffering from any legal disability; was of sound mind and who understood nature of contract and would enjoy freedom to enter into the contract of marriage -Nikah Registrar under Muslim Family Laws Ordinance, 1961, being a public servant within meaning of S.21, P.P.C. discharged public duty-If any party was of the view that Nikah Registrar had interpolated in the entries of Nikah Register, such. party could approach the Deputy Commissioner who was the Controlling. Authority and could get the same corrected. -->P L D 2000 Lah. 355-PLD 1967 Kar. 165 ref.

Re-summoning of witness-Where petitioner was present at the time of recording of evidence and opportunity to cross-examine wits given to petitioner re-summoning of witness for cross-examination could not be ordered. Also held that, Examination of Secretary, Union Council was not relevant being not an eye-witness of Nikah in question. 1999CLC594Validity of registered marriage-Jurisdiction of Family Court-Validity of marriage registered under Muslim Family Laws Ordinance, 1961, would not be questioned by Family Court nor any evidence in regard thereto would be admissible before the said Court-.If marriage was questioned on ground of fraud or misrepresentation, remedy would not be available with the Family Court, but with the Court of general jurisdiction-Legislature had provided that four copies of Nikahnama should be prepared, one was to be kept by Registrar of Nikah, second one to be sent to concerned Municipal Corporation, Municipal Committee or Union Council as the case may be, third copy was to be supplied to bride and fourth one to the bridegroom, to verify that entries in Nikahnama were according to the terms of marriage settled between the parties. -->P L D 2000 Lah. 355

Family Courts Act, 1964 - nature and purpose of—Provisions of West Pakistan Family Courts Act, 1964 were of a beneficial nature which had enlarged the scope of jurisdiction of Family Courts and also vested the Court with power of giving substantial relief to wife and children with a right of appeal. Bar or abridgement of right of appeal as contained in S.14(2)(c) of West Pakistan Family Courts Act, 1964, would apply to the judgment-debtor and not to the decree-holder as the Legislature had thought it fit not to provide an appeal against a decree for a meagre amount—If the Family Court had awarded maintenance allowance for Rs.500 p.m. or less the wife or the minor children were entitled to file an appeal before the higher Court—Interpretation of S.14(2)(c) of the Act to the effect that bar of right of right of appeal was also applicable to decree-holders (wife and minor) would entail injustice, hardship and anomaly and such interpretation would defeat the purpose of the Act for which it was enacted.
Provisions of West Pakistan Family Courts Act, 1964 were of a beneficial nature which had enlarged the scope ‘ of jurisdiction of Family Courts and also vested the Court with power of giving substantial relief to wife and children with a right of appeal. 2002 M L D 784

-->Filing of suit in wrong Court:-- Territorial jurisdiction of Family Court was governed by S.20, C.P.C.-Where the suit was filed in a wrong Court, under R. 5 of Family Court Rules, 1965, the plaint would be returned to the plaintiff. Plaintiff after divorce was permanently residing in house of her parents at place “I” and her daughters being in her custody were living temporarily at place “K” in connection with their education-Suit for maintenance was filed at place “I” and the same was decreed in favour of the plaintiff-Appeal filed against the decree before Lower Appellate Court was dismissed-Validity-Plaintiff could file suit, under the provisions of S.20, C.P.C. both at her permanent as well as temporary residence in respect of cause of action arising at her temporary residence-Temporary residence of the minors would be deemed to be the permanent residence of their mother--Cause of action having arisen in favour of the plaintiff as guardian of minor at place “I” where she was residing permanently, the temporary residence of her daughters (minors) at place “K” would not affect the jurisdiction of Family Court at place “I” to entertain the suit of maintenance on their behalf-Plaintiff could invoke jurisdiction either at place “I” or at place “K” and both Courts having concurrent jurisdiction were competent to entertain the suit-Where the plaintiff after dissolution of marriage was residing at place “I” and the minors were in her custody, cause of action arose in their favour at place “I” and their ordinary place of residence under the law would be at place “I”-Suit filed at place “I” did not suffer from defect of territorial jurisdiction of Family Court-Defendant failed to point out any misreading or non-reading of evidence rendering the judgment and decree illegal or to be interfered with by High Court in its Constitutional jurisdiction. P L D 2001 Lah. 188

Appeal-Competency-Suit for dissolution of marriage and dower by wife having been decreed by Family Court, husband filed appeal against said judgment and decree by filing certified copy of decree for dower only-Admissibility-Filing of certified copies of all decrees in consolidated litigation at the time of preferring a single appeal, was an essential requirement of law which could not be dispensed with by Appellate Court-Grounds of appeal had shown that only challenge made by husband was in respect of decree passed against him in suit for recovery of dower and he did not challenge decree of dissolution of marriage--Such appeal was not competent, in circumstances. 1999 Y L R 1941 1981 SCMR 585; PLD 1957 Pesh. 129 and 1990 MLD 2094 ref.

Change of forum—Suit for recovery of dowry articles was filed by wife in Civil court, prior to amendment in West Pakistan Family courts Act, 1964—After the amendment, such recovery was included in the Schedule of the West Pakistan Family Courts Act, 1964, and the suit was decreed by family Court in favour of wife—Judgment and decree passed by Family Court was maintained by Appellate court as well as by High court—Plea raised by husband was that Family court had no jurisdiction over the matter as the same was filed before Civil Court—Validity—By the change of forum, nobody would have a vested right to a particular forum to try his lis—Change of forum was a procedural matter and the same operated retrospectively—Supreme court declined to interfere with the judgments and decrees passed by the courts below. 2004 S C M R 412

Closing of evidence-Carelessness and lethargy on the part of petitioner in producing his evidence was so much that it did not admit of any further concession to him-Law favours vigilant and not the indolent-Trial Court had no alternative and option but to decline further opportunity and resort to penal provisions in circumstances. 1999 C L C 1578

Conciliation proceedings-Omission to resort to conciliation proceedings was an irregularity-Such omission had no adverse effect upon the outcome of suit and did not warrant any interference in limited Constitutional jurisdiction. 1999 C L C 1578 1985 CLC 806 ref.

Concurrent findings of fact -Effect. Matter was taken by the Courts below twice-No legal infirmity was found in .the concurrent findings of fact arrived at by the Courts below. Constitutional petition was dismissed in limine. 2000 C L C 1208

Constitutional jurisdiction of High Court-Interference in finding of fact--Family Court decided the issue of divorce against the husband but High Court in exercise of Constitutional jurisdiction reversed the finding of fact--Contention of the wife was that findings of fact were intervened by High Court in its Constitutional jurisdiction very rarely unless it was established that the Trial Court had recorded the perverse findings and had drawn conclusion which was contrary to law. 2002 S C M R 1315

Constitutional petition -Maintainability-Suit for maintenance was decreed against petitioner and appeal filed before lower Appellate Court was disposed of in terms of compromise between the parties-Petitioner (father) while assailing order of lower Appellate Court before High Court in Constitutional petition, demanded custody of children-Validity-Contest between the parties throughout had been with regard to quantum of maintenance and not the custody-Matter of custody could not be, therefore, agitated in proceedings which emanated from suit for maintenance- -Constitutional petition was not maintainable in circumstances. 1999 Y L R 2138

Constitutional petition- Maintenance and delivery expenses- Wife sought recovery of maintenance for the minors and herself and also sought recovery of delivery expenses-Suit was decreed in favour of the wife at the rate of Rs.500 each per month and a sum of Rs.22,797 as delivery expenses-Appeal against the judgment and decree passed by the Family Court was dismissed by the Appellate Court-Validity Assessment of evidence or determining the amount of maintenance is the function of Family Court which had the exclusive jurisdiction to decide such matters-While determining the amount of maintenance and assessing the expenses incurred by the wife on the ,delivery/birth of son, the Family Court had neither misread any evidence nor any material piece of evidence was overlooked-High Court declined to interfere with the judgments and decrees passed by the Courts below-Constitutional petition was dismissed in circumstances. -->2002 C L C 1748

Jurisdiction of Family Court to examine such question one way or the other-Extent-Legislature by providing that suits for jactitation of marriage would be exclusively tried by Family Court, had conferred jurisdiction on that Court to also examine validity of marriage one way or the other-Chairman of Arbitration Council had no power to issue certificate either rejecting divorce or holding the same to be ineffective-Family Court being possessed of exclusive jurisdiction to determine validity of marriage, had power to examine validity of act or omission of Chairman.-P L D 1997 Lah. 108 PLD 1973 Lah. 381; PLD 1974 Lah. 78; 1979 CLC 462; PLD 1988 Kar. 169 and 1994 SCMR 1740 ref.

Jurisdiction to transfer cases:- Transfer of family suit from a Court subordinate to one High Court to a Court subordinate to another High Court—Jurisdiction to transfer such-like cases would vest in Supreme Court, because High Court could order the transfer of family cases, when both the Courts were located within its own territorial jurisdiction—Provisions of S. 23(3). C.P.C. would not be applicable, Civil Procedure Code, 1908 being a Federal Law and West Pakistan Family Courts Act, 1964, a Provincial Law. PLD 1995 Lah. 198 dissented from]. PLD 2002 Pesh. 30

Jurisdiction—Suit for return of marriage gifts—Transfer of such suit to (N.W.F.P.) from Civil Court/Family Court (Sindh)—Schedule to West Pakistan Family Courts Act, 1964 did not include marriage gifts to be the subject-matter of dispute with reference to S.5 of the said Act—Suit at (Sindh) had to be a civil suit and in case it was so, the jurisdiction to transfer it under S. 23(3), C.P.C. would vest in Sindh High Court. PLD 2002 Pesh. 30

Constitutional petition:--Suit for maintenance-Quantum of maintenance-Family Court and Appellate Court concurrently decreed the suit-Defendant/petitioner in his Constitutional petition had challenged only the quantum of maintenance stating that he was willing to pay maintenance, but had urged that quantum of maintenance allowance as determined by the Courts was excessive which should be reduced.. Validity-Maintenance allowance fixed by Courts below was not excessive as the same was fixed after proper assessment, evaluation and appraisal of evidence available on record regarding means of the defendant/petitioner. .Assessment of evidence or to determine amount of maintenance was function of, Family Court which was vested with exclusive jurisdiction to decide such matters-Powers of High Court in Constitutional jurisdiction were not analogus to those of an Appellate Court-High Court could declare an order passed by Family Court as without lawful authority and of no legal ‘consequence, but could not substitute its own judgment for that of Family Court by reducing quantum of maintenance allowance fixed by Family Court-No legal infirmity or jurisdictional error could be pointed out in the judgments concurrently passed by two Courts below justifying interference in exercise of Constitutional jurisdiction of High Court. 2002 C L C 1768

Lady accused being sui juris had contracted marriage with co-accused with her freewill and consent arid in said wedlock a daughter had been born.. Family Court had already passed decree in favour of the accused lady in a suit filed for jactitation of marriage against another person who had claimed Nikah with her before her Nikah with the co-accused.. Judgment of Family Court though had been assailed before Appellate Court, but its operation had not been suspended -Pendency of criminal proceedings against the accused, thus, would be abuse of process of law-Criminal proceedings pending against accused were quashed in circumstances. 2002 M L D 793

Children in actual custody of mother notwithstanding order of Guardian Court to hand over custody to father-Entitlement to maintenance--Children being in actual custody of mother were entitled to separate maintenance notwithstanding order of Guardian Court to hand over custody to father-Order of Guardian Court, thus, did not deprive. children of their maintenance allowance. 1997 C L C 1592-1985 CLC 487 rel.1991 CLC 766 and PLD 1958 (W.P.) Lah. 596 ref.

Petitioner failing to avail opportunity of appeal (which was efficacious and effective remedy) could not invoke Constitutional jurisdiction of High Court-Constitutional remedy was also not available to petitioner on the ground that impugned judgment had undone wrong and cured manifest illegality perpetrated by certificate of Chairman that divorce notice was ineffective-Chairman had no power to decide validity of Talaq/notice and to issue certificate of its ineffectiveness. P L D 1997 Lah.484

Family Court fixed past maintenance at Rs.2,500 p.m. w.e.f. 12.10.1997 and future maintenance, at Rs.5,000 p.m. -Appellate Court modified the judgment by reducing current maintenance of Rs.5,000 and fixed the same at Rs.3,000 p.m. w.e.f. 12.10.1997-Contention of father was that Appellate Court order was erroneous in that the current maintenance of Rs.5,000 had been reduced, but the date from which the same had been given effect to viz. 12.10.1997 was eventually the commencing date for past maintenance granted by Family Court-Validity-Order of the Appellate Court suffered from technical error, which had to be rectified by the said Court itself-High Court remanded the case to Appellate Court for rectifying the impugned order. --> 2002 C L C 1754

Suit for dissolution of marriage on ground of Khula’ -Suit was decreed with a condition that wife would pay amount and golden ornaments to the husband-Appellate Court on appeal, removed condition from the decree of the Trial Court with regard to the payment of amount and ornaments-Husband though in his written statement had alleged that the wife had left his house taking away ornaments and cash, but he did not make a specific demand that some benefits were conferred by him upon the plaintiff and that she should return the same as consideration for Khula`-In the absence of any demand made by the defendant either in his pleadings or in evidence for payment of amount and ornaments to him, the Family Court was not bound to order payment of the said items-Appellate Court had rightly set aside order of the Trial Court removing condition of payment of amount and the ornaments. 2002 C L C 40--PLD 1989 Lah. 31 and PLD 1991 SC 779 ref.

Suit for dissolution of marriage on ground of Khula-Family Court decreed the suit. subject to the return of golden ornaments to husband, but Appellate Court on appeal modified the decree of the Family Court by removing the condition of return of golden ornaments to the husband-Husband had never demanded that the ornaments be returned to him as a consideration of Khula’-Husband was required not only to prove benefits given by him to his wife as a result of marriage, but he should specifically demand the return of the same-Decree passed by the Family Court was rightly modified by the Appellate Court by removing the condition of return of golden ornaments to the husband. 2001 C L C 137 PLD 1991 SC 779 ref.

Appeal against judgment and decree of Trial Court-Petitioner (wife) filed suit for maintenance for herself and for her son whereas (husband) filed suit for restitution of conjugal rights-Trial Court decreed the suit of the wife but in appeal allowance of son was maintained but that of wife was refused-Suit of husband for restitution of conjugal rights was also decreed-Judgment of Appellate Court was challenged by wife in Constitutional petition contending that Appellate Court below having not appreciated evidence on record properly, High Court could embark upon appraisal of evidence brought on record-Validity-Evidence could be appraised by Appellate Court only and not by High Court in exercise of its Constitutional jurisdiction-Petitioner having failed to point out any irregularity or jurisdictional defect in judgment passed by Appellate Court below,, finding of fact recorded by it, could not be interfered with by High Court in exercise of its Constitutional jurisdiction. 2001 C L C 3382002 C L C 1754 2000 SCMR 88 and 2001 SCMR 683 rel.

Jactition of marriage—Plaintiff denied solemnizing Nikah with defendant—Marriage was allegedly an arranged marriage and had taken place in the house of plaintiff where he father and other relatives were also present—Defendant produced a witness who was stated to be Vakeel of the plaintiff and had given consent on behalf of the plaintiff for the marriage- Defendant failed to prove on record that the witness was appointed as Vakeel by plaintiff in presence of two witnesses nor any witness was produced to prove that the plaintiff had appointed him as her Vakeel—Witness who was neither related to plaintiff within the prohibited degree nor was her near related to plaintiff within the prohibited degree nor washer near relative nor was resident of the same locality—Family court decreed the suit in favour of the plaintiff but the Appellate Court allowed the appeal and the suit was dismissed—Validity—When the witness acting as Vakeel had no lawful authority to give consent on behalf of the plaintiff, then such Vakeel could not perform Ijab-o-Qabool—Defendant failed to prove consent of marriage by the plaintiff—When the consent of woman was missing or secured through duress and pressure, such marriage was not a valid marriage—High Court in exercise of Constitutional jurisdiction set aside the judgment and decree passed by the Appellate Court and that of the Family Court was restored—Constitutional petition was allowed in circumstances. PLD 2003 Pesh 1

Jurisdiction of Family Court -Scope- Family Court has the jurisdiction to entertain and adjudicate upon the matters specified in Sched. of West Pakistan Family Courts Act, 1964-Maintenance is specified in the Sched. and the Family Court has jurisdiction to adjudicate the matter. -->If the Family Court was not presided over by the District Judge, under S.14 of West Pakistan Family Courts Act, 1964, the decision given or decree passed by Family Court was appeal able to District Judge-Judgment and decree was passed by Senior Civil Judge and appeal was heard by District Judge both the Courts below thus had lawful authority to pass judgments and decrees respectively. -->2002 C L C 1748

Legitimacy of minor—suit for recovery of maintenance for minor girl filed by wife was resisted by husband alleging that minor girl being not his legitimate daughter, he was not responsible for her maintenance allowance—Minor girl was born in 7th month of the marriage—Minor girl born during the said wedlock, was not illegitimate, but was lawful child of the parties—Whenever wife was charged with adultery, husband would be required to substantiate his accusation of adultery by producing four witnesses, but if no evidence except himself was available, husband would take Oath or Lain—If wife also, took Oath, no chances of retraction of charge of adultery would remain with husband and he could be punished if he would retract and retraction would amount to acknowledgement by husband—Child who was born within sim months of a valid wedlock was a legitimate child under Islamic law—Minor girl born 7th month of wedlock was lawful child of husband especially when birth entry of minor girl was got registered by the husband—Husband was rightly held responsible to pay maintenance allowance to minor girl in circumstances. PLD 2003 Lah. 264

Maintenance allowance, Concurrent findings of fact by the Courts below-Husband had not taken the plea of his weak financial position-Family Court decreed the suit and Lower Appellate Court maintained the same-Validity-Both the Courts below had properly evaluated the evidence produced by the parties and had given valid reasons in their conclusions-Judgment of Family Court was neither arbitrary/perverse, nor suffered from any jurisdictional error-High Court declined to interfere with such judgment by exercising extraordinary powers under Art. 199 of the Constitution which could be exercised only in exceptional cases-Amount of maintenance worked out by the Family Court being reasonable, judgments of both the Courts below were maintained-Constitutional petition was dismissed in circumstances. 2001 C L C 1273- PLD 1961 Pesh. 66; 1991 CLC 739; 1987 SCMR 670; PLD 1985 AJ&K 212; AIR 1929 All. 236 and 1995 CLC 327 distinguished.1997 MLD 2655; 1999 SCMR 2331; PLD 1991 SC 543 and 1998 SCMR 457 ref.

Maintenance allowance allowed by Family Court to four minor children had been challenged by petitioner/husband contending that two of the children were major and earning their livelihood-Respondent/wife appearing as witness in Family Court had stated that all the four children were minors and were residing with her-Petitioner/husband in his cross-examination had admitted that all children were residing with their mother -Petitioner/husband, thus, failed to prove that two of the children were major and were earning their livelihood--Family Court having jurisdiction in the matter, after taking into consideration evidence brought on record, had rightly decided that all children were minors and were residing with her mother-Forum which had jurisdiction to decide a question of fact, could decide same rightly or wrongly, but such decision would not call for interference in Constitutional jurisdiction of High Court. 1999 M L D 899

Maintenance claimed by wife and minor daughter.. Appropriateness-Suit filed by wife and minor daughter was decreed by Family Court-Lower Appellate Court modified the decree and fixed a sum of Rs.2,000 and Rs.1,000 per month as maintenance for wife and minor daughter respectively-Validity-Where monthly income of the petitioner was Rs.6,000 per month, Lower Appellate Court had correctly fixed the maintenance which was proper considering the financial position of the petitioner. No illegality having been committed by the Lower Appellate Court in exercise of its jurisdiction, Constitutional petition was dismissed. 2001 C L C 78

Family Court granted past and future maintenance to the minor, which judgment was upheld by Appellate Court with modification in current maintenance-Contention of petitioner (father) was that maintenance had been granted beyond his capacity-Validity-Evidence had been duly assessed and no miscarriage of justice had occurred-Petitioner claimed his entire source of income to be Rs.5,000 from rent of shop, but was prepared to pay Rs.3,500 (i.e. Rs.2,000 as current maintenance and Rs.1,500 as instalment towards past maintenance)-Not conceivable as to how petitioner would maintain himself, his second wife and child from second wife, while living in a posh area from remaining income of Rs.1,500-Reasonableness was patently lacking in such contention of petitioner-No cogent ground was available to upset the findings of Appellate Court-Constitutional petition as against such findings could not be .entertained. --> 2002 C L C 1754

Amount of past and future maintenance as fixed by Family Court was modified by Appellate Court below keeping in view financial position of the husband-Quantum of maintenance as fixed by Appellate Court, keeping in view financial and other circumstances of the petitioner being fair, proper, just and reasonable, and based on evidence on record, could not be interfered with by High Court in its Constitutional jurisdiction.2000 C L C 558

Decree for maintenance of wife and children with effect from 1992, passed on 15-11-1995—Execution of decree failed and petitioner (husband) was sent to civil prison and later was released on bail but further opportunity given to him proved futile and bail was cancelled and he was again arrested—petitioner approached the High Court in its Constitutional jurisdiction and he was allowed interim bail subject to furnishing bail bond in the sum of Rs. 50,000 with a surety; order of granting bail was, however, in the background of the compromise made before the High Court that if released on bail he shall be discharging his liability under the decree—Petitioner informed the High Court that he well be getting his G.P. Fund shortly which he shall be depositing before the executing Court and further that he shall be paying his debts under the decree in instalments as he was not in a position to a pay the same in lump sum- Held, regarding his prayer that the decretal amount be received through installments, he may repeat the prayer before the executing Court, who may review the same pragmatically and keeping in view the economic condition of the petitioner—Petitioner, having undertaken to pay the gratuity amount which he would receive within a period of six weeks from the date of present judgment, it was considered to be proper to extend his interim bail until 14th of December, 2002—If the petitioner made part payment, he would earn the sympathy of the executing Court for extending to him such concession for discharging his liabilities as are proper but if he failed, then he would be at the mercy of the executing Court as the present order of the High Court extending his interim bail shall abate – Constitutional petition was disposed of accordingly. PLD 2003 Lah. 51

Recovery of maintenance-Failure to avail alternate remedy-Unclean hands of the petitioner-Effect-Maintenance suit filed by wife was decreed by Family Court and appeal filed by husband was dismissed by the Appellate Court-Husband only assailed execution proceedings pending in Executing Court and the judgment and decree passed by the Trial Court as well as the Appellate Court were not assailed-Validity-Conduct of the husband showed that he had not come before High Court with clean hands and he had not exercised all the remedies available to him before approaching the High Court under Constitutional jurisdiction-Petition was dismissed in limine. 2001 Y L R 313 2001 SCMR 159; ‘ 2001 SCMR 279 2001 CLC 518 and 2001 CLC 494 ref.

Past maintenance-Courts below granting maintenance to minor children with effect from specified date i.e. three years prior to filing of application for maintenance-,-Validity-Such order would not appear to suffer from any legal infirmity-Father was, thus, liable to pay maintenance till minor’s custody was actually handed over to him. 1997 C L C 1592 PLD 1966 (W.P.) Lah. 703 and PLD 1972 SC 302 rel.

Marriage-Proof:--Suit for jactitation of marriage filed by lady was decreed, whereas suit for restitution of conjugal rights filed by man was dismissed-Forged “Nikahnama” was shown to the lady by the man and she filed a suit for jactitation of marriage and pending that suit, she was abducted by the man and was forced to withdraw her suit by giving statement in favour of the man and accepting the forged Nikahnama-Father of lady got F.I.R. registered against the man and by order of High Court, she was allowed to go with her father-Both parties again filed a suit for jactitation of marriage and for restitution of conjugal rights respectively-Statement recorded by lady in her earlier suit-Evidentiary value-Earlier statement having been recorded during her abduction, same could not be a conclusive proof of having her owned Nikah in circumstances.- 1999CLC594

Nikah—proof—Presence of Aadil witnesses—Defendant claimed to be husband of plaintiff and produced witnesses of Nikah who were first cousins of the defendant—No independent was solemnized with the plaintiff—Effect—Witnesses deposing in favour of defendant being his close relatives were interested witnesses, who could not relied upon by High Court in circumstances. PLD 2003 Pesh. 1

Non-registration of Nikah—Nikah was alleged to be solemnized in a big town, yet it was not registered as per S. 5 of Muslim Family Laws Ordinance, 1961—Effect—Non-registration of Nikah supported the case of plaintiff that Nikah between the parties had not been solemnized—If Nikah had been solemnized, the same would have been registered in accordance with the provisions of Muslim Family Laws Ordinance, 1961. PLD 2003 Pesh. 1

Principle of res judicata--Applicability--Cause of action in such cases is of recurring nature-Previous withdrawal of suit does not operate as res judicata in such matters. 1999 Y L R 875 1986 CLC 27 and PLD 1983 Lah.442 rel.

Provisions of Civil Procedure Code, 1908--Applicability-Closing of evidence by Family Court-Wife and children filed suit for maintenance against husband/father who failed to produce his evidence despite repeated adjournments were granted to him for the purpose-Family Court by invoking provisions of OXVII, R.3, C. P. C. closed evidence of husband/father-Validity-Not at the discretion of the parties to produce their evidence at their convenience and leisure and continue seeking adjournments to prolong the proceedings for indefinite period-Provisions of C.P.C., though were not applicable to proceedings before Family Court, yet said Court had the power to close the evidence of parties-Family Court, thus, did not act illegally or without jurisdiction in closing the evidence-Such an order was fully justified in circumstances. 1999 Y L R 830-PLD 1982 Lah. 281 rel.

Quantum of maintenance allowance:-- Petitioner/husband against whom decree for maintenance was passed concurrently by Courts below had assailed quantum of maintenance allowance without contesting judgment and decree on merits-Courts below on basis of evidence on record determined quantum of maintenance allowance payable to respondent wife and minor son. who were not properly maintained by the petitioner-Concurrent findings of fact based, on unrebutted evidence on record could not. be disturbed by High Court in exercise of its Constitutional jurisdiction when such judgments were not suffering from any misreading or non-reading of evidence. 2000 C L C 1823

Recovery of dower—Suit of wife was decreed by Family Court ex parte against husband but same was allowed by Lower Appellate Court with condition to deposit decretal amount as security in cash and decree was set aside—Husband did not deposit amount and suit was again decreed against him—Decree passed against husband was assailed in Constitutional petition which was dismissed by High Court—Validity—Husband completely ignored to challenge order of deposit of decretal amount passed by Lower Appellate Court before same Court for review or before High court in Constitutional petition and thus by implication husband had accepted order of Lower Appellate Court and went to Family Court without demur—Where husband had participated in proceedings but did not file written statement as directed by Lower Appellate Court, Family Court rightly struck off defence of husband and passed decree for recovery of dower amount—Both Courts below and High Court were justified to have passed order for deposit of amount of dower before remanding suit to Family Court for trial—Leave refused. PLJ 2002 SC 399

-->Reduction of amount of maintenance by High Court under its Constitutional jurisdiction:-- Leave to appeal was granted by Supreme Court to examine the question as to whether judgment of High Court was delivered in consonance with law. -->Neither there appeared to be any misreading of evidence nor any material piece of evidence appeared to have been overlooked by the Family Court while determining the amount of maintenance awarded to the minor children-High Court in its Constitutional jurisdiction, reduced the amount of maintenance of each child from Rs.300 to Rs.200-Validity-When High Court exercises Constitutional jurisdiction, its powers were not analogous to those of an Appellate Court-High Court, although, could strike down an order passed by a Subordinate Court or a Tribunal as without lawful authority and of no legal effect but it could not substitute its own judgment for that of the Subordinate Court or Tribunal-High Court reduced the maintenance amount for each child mainly for the reason that father of children had also to maintain four children from his second marriage, whereas Family Court had already taken notice of the same by allowing the father to retain half of his monthly income--Balance having already been struck by the Family Court while allowing maintenance to the children, no infirmity could be found either in the judgment of Family Court or that of the Appellate Court justifying interference by the High Court in the exercise of Constitutional jurisdiction. -->2000SCMR88

Return of “benefits “-Maintenance paid to wife by husband-Not “bents “-Suits for recovery of maintenance, and dower and subsequently filed suit for dissolution of marriage were decreed-Suit for dissolution of marriage on ground of Khula’ was decreed with condition that wife would not be entitled to claim dower and maintenance in lieu of Khula’ --Validity-Judgment and decree of Family Court to the extent of “dower” was correct in making decree conditional on returning the same-Suit for recovery of dower, however, having been decreed, wife would have to relinquish the same as decree for dissolution of marriage on basis of Khula’ was sought by her--Claim of maintenance, however, was not benefit received by wife from husband and, therefore, not returnable in case of Khula’ for it was duty of husband to maintain his wife so long as she remained in wedlock-Petitioner (wife) was entitled to recover the same .in accordance with decree passed in suit for maintenance, which had not been challenged-Decree passed by Trial Court for dissolution of marriage on basis of Khula’ to the extent of relinquishment of claim for maintenance allowance, therefore, was declared to be without lawful authority and of no legal effect. 1999 C L C 160-PLD 1975 Lah. 766 and PLD 1967 SC 97 ref.

Right of appeal- No right of appeal in such case having been provided under the provisions of S.14(2) of West Pakistan Family Courts Act, 1964, Constitutional jurisdiction could not take place of appellate jurisdiction. Relation of young spouses was severely strained and they could not live together as husband and wife-Marriage between the parties was rightly dissolved by Family Court on the basis of Khula’-Constitutional petition being not maintainable was dismissed in limine. --> 2001 C L C 507

Special oath, non-taking of-- Suit for recovery of dowery articles was decided in favour of the plaintiff on the basis of evidence as the defendant was unwilling to decide the matter on special oath.. Validity-Judgment passed by the Family Court was returned on the basis of evidence after correct appraisal and the finding was not based on any adverse presumption against the defendant for his unwillingness to decide the matter in issue on special oath under Art.163 of Qanun-E-Shahadat, 1984-High Court declined to interfere with the .judgment passed by the Family Court in circumstances. 2002 C L C 1396

Suit for dissolution of marriage and maintenance-Both Family Court and Appellate Court concurrently decreed suits filed by plaintiff. ..Conduct of defendant in both Family Court and Appellate Court remained indifferent as neither he appeared before Family Court on any date of hearing despite his service nor at the time when written statement was filed by him and same: was lying without verification on file of the Family Court-Such conduct of defendant had shown that he was not interested in challenging judgment and decree of Trial/Family .Court. ..Defendant had failed to point out any flaw or defect in concurrent judgments of both the Courts below and had remained indifferent throughout proceedings before Courts below and was neither alive to his responsibilities nor interested in his matters.. Concurrent judgments of Courts below could not be interfered with by High Court in exercise of its Constitutional jurisdiction-Constitutional petition was dismissed in circumstances. 2002 M L D 1094

Suit for dissolution of marriage by wife on ground of cruelty and Khula’-Closing evidence of husband-Validity-Wife filing suit for dissolution of marriage on ground of cruelty and Khula’ and stated unambiguously that she had cultivated hatred against husband-Husband had failed to produce evidence in rebuttal despite he was afforded six opportunities for production of evidence-Family Court closed evidence of husband and order of Family Court was upheld in appeal-Concurrent order of Courts below could not be interfered with in absence of any reasonable ground. -->2000 M L D 120

Suit for dissolution of marriage on ground of Khula’. Plaintiff had categorically stated that she would prefer to die or drown in the river than to live in the house of her husband, the defendant-Court in view of such clear-cut statement of plaintiff should not allow hateful union between the parties to continue any further-In absence of any evidence brought by parties with regard to benefit given to defendant/husband, in lieu of dissolution of marriage on the ground of Khula’, Court was justified not to impose any condition while granting dissolution of marriage on basis of Khula’. 2001 C L C 1759

Consideration for Khula- Suit having been decreed by Family Court, plaintiff wife filed appeal against judgment of Family Court only to the extent that consideration of Khula determined by Family Court as 7 Tolas of gold ornaments was illegal as she had not received the same in her dower-Wife prayed that consideration for Khula’ be set aside and her suit be decreed unconditionally but Appellate Court dismissed the appeal-Finding of Family Court that 7 Tolas of gold ornaments were given on occasion of Nikah as dower was based on entry to that effect in Nikahnama coupled with testimony of witnesses-Plaintiff/petitioner could not point out as to which of the evidence was misread or what piece of evidence was overlooked by Courts below-Judgments of Courts below not suffering from any misreading and non - reading of evidence, could not be interfered with in Constitutional jurisdiction of High Court. Marriage was dissolved on sole ground of Khula’ as no other ground for dissolution of marriage was available Family Court, in circumstances was bound to determine terms and conditions for Khula’ and in doing so no illegality was committed by the Family Court. Petitioner raised objection before High Court that evidence in the case was not recorded by Family Court, but was recorded by its Reader-Said objection having not been raised by petitioner before First Appellate Court, same could not be agitated in Constitutional jurisdiction of High Court-Even otherwise Constitutional petition was not maintainable against concurrent finding of facts. 2002 C L C 1513

Suit for dissolution of marriage on other grounds and Khula’. Distinction-Woman married under Muslim Law is entitled to obtain a decree for dissolution of her marriage on anyone or more of the grounds available under the law-Each ground is separate and enough for dissolution-If marriage is dissolved on other grounds also, it means that result would have been the same irrespective of the fact whether plea of Khula’ was raised or not-Legal rights cannot be curtailed by implication.. -->P L D 2002 S.C.273 1984 SCMR 1432 ref.

Suit for maintenance -Right of appeal-Bar or abridgement of right of appeal as contained in S.14(2)(c) of West Pakistan Family Court Act, 1964, would apply to the judgment.-debtor and not to the decree-holder as the Legislature had thought it fit, not to provide an appeal against a decree for a meagre amount-If the Family Court had awarded maintenance allowance for Rs.500 p.m. or less the wife or the minor children were entitled to file an appeal before the higher Court-interpretation of S.14(2)(c) of the Act to the effect that bar of right of appeal was also applicable to decree-holder (wife and minor ) would entail injustice, hardship and anomaly and such interpretation would defeat the purpose of the Act for which it was enacted. 2002 M L D 784 PLD 1978 Lah. 328; PLD 1979 Lah. 241; 1987 CLC 1496 and 1995 PCr.LJ 1247 ref.

Suit for maintenance-Appeal, maintainability of-Suit filed by plaintiff for maintenance for herself as well as for her minor daughter was decreed by Trial Court and Appellate Court, in appeal, partly accepted appeal and maintenance allowance granted to plaintiff was set aside whereas maintenance granted to minor daughter was maintained-Validity-No appeal under S.14(2)(c) of West Pakistan Family Courts Act, 1964 was maintainable against maintenance of Rs.500 or less per month-Maintenance allowance in case having been granted to plaintiff at rate of Rs.500 per month, judgment and decree passed by Trial Court was not appeal able -Appellate Court being not competent to entertain appeal, order passed by it was coram non judice and was of no legal effect. 2002 M L D 1526

Suit for maintenance-Leave to appeal was granted by Supreme Court to examine in detail the relevant law as to whether first wife could refuse to live with her husband and perform marital obligations on account of second marriage of her husband. --> 2002 S C M R 1149

Suit for recovery of “Mahar”-Appellate Court below had advanced very convincing reasons while passing the judgment with regard to payment of amount of “Mehr”-Petitioner had not been able to point out any material irregularity or infirmity in the judgment and decree passed by Appellate Court below-Such judgment and decree could riot be interfered with by High Court in exercise of its revisional jurisdiction. 2001 M L D 834

Suit for recovery of dowry articles Document exhibited without objection.. List of ,articles was annexed with the plaint and it was in the notice of the defendant right from the inception which was not only the basis of the suit but was mentioned in the plaint and the same was exhibited by the Family Court without any objection from the defendant-Suit was decreed by the Family Court in favour of the plaintiff as per the list and the judgment and decree was maintained by the Appellate Court.. Contention of the defendant was that the list of the articles was not proved hence the judgments and decrees passed by the Courts below were liable to be set aside-Validity-List was exhibited without objection from the defendant and the same was in the knowledge of the defendant right from the inception of proceedings-Such document could not be objected to in the proceedings under Art.199 of the Constitution. Both the Courts below had neither exceeded their jurisdiction nor acted without jurisdiction-Family Court had examined/assessed the evidence and its findings were based on evidence-High Court in exercise of jurisdiction under Art. 199 of the Constitution declined to interfere with the findings recorded by the Family Court-Constitutional petition was dismissed in circumstances. Family Court decreed the suit for recovery of articles according to the list annexed with the plaint but did not determine the value, of the articles. Validity.-List contained particulars of each and every item of the dowery, therefore, the list could be executed to the extent of the articles specified therein-If evidence as regard the value of the articles was not available on record, no illegality was committed by the Family Court in not determining the value of the articles.-2002 C L C 1396

-->Suit for recovery of maintenance allowance. Striking off defence for non-filing of written statement-Defence of defendant was struck off for non-filing of his written statement -Validity-Provisions of West Pakistan Family Courts Act, 1964 or rules framed thereunder having nowhere authorised Family Court to strike off defence of defendant on non-filing of his written statement, order striking off defence of defendant was declared to be illegal by the High Court. 2001 C L C 567 1990 PLD 180 and PLD 1989 Lah. 69 ref.

Suit for recovery of possession of land as Haq Mahar Application for setting aside decree on allegation of fraud-Suit was finally decreed up to Supreme Court-Defendant/judgment-debtor filed application under S.12(2N, C.P.C. alleging that after decision of Supreme Court he came to know that Nikahnama and Kabin Nama on basis of which suit was decreed were forged and fictitious-Validity-Supreme Court having finally decided matter after taking into consideration Nikahnama, Kabin Nama and plea of fraud, application filed under S.12(2), C.P.C. was rightly dismissed and the dismissal order could not be interfered with by the High Court. -->2002 C L C 484

Suit for return of dowery articles-District Judge had refused to allow return of the other articles which in the light of evidence on record stood admittedly given by way of dowry in the absence of any rebuttal or evidence that the goods mentioned in the list were not given as such-District Judge, thus failed to read evidence on record and this was a case of gross misreading of record-Judgment and decree of the District, Judge were held to be without lawful authority by the High Court in its Constitutional jurisdiction under Art. 199 of the Constitution-Validity. .No misreading or non-reading of evidence by the High Court was found-High Court in its Constitutional jurisdiction rightly exercised its powers, wherein .the order of the District Judge was found contrary to the evidence recorded by the parties and his findings were perverse which resulted in miscarriage of justice-Supreme Court declined interference in the findings of the High Court in circumstances. 2002 S C M R 701 Where marriage was dissolved on various grounds including Khula’, then wife would be entitled to recover dower and dowry, but where it was dissolved solely on the ground of Khula’ then her offer made for getting marriage dissolved on Khula’ would be examined-Wife tiled suit for dissolution of marriage on various grounds viz. cruelty, non-payment of maintenance, non-performance of marital obligations, impotency of husband and Khula’-Wife also filed suit for recovery of dowry amount-Family Court decreed the suit for dissolution of marriage on all such grounds holding that wife in lieu of Khula’ would not be entitled to claim dower, dowry and maintenance -Husband, in view of such findings, filed in latter suit an application for rejection of the plaint-Wife filed application for clarification of judgment and decree, but it was dismissed by Family Court and its order was maintained by the Appellate Court-High Court accepted Constitutional petition tiled by wife and set aside the conditions regarding relinquishment of dower, dowry and maintenance-Contention of husband was that High Court in exercise of Constitutional jurisdiction could not change judgment and decree passed by Family Court, especially when the wife had not challenged same and her petition for clarification had been dismissed by Courts below-Held’: wife in her deposition recorded before Family Court had forgiven only her claim for remaining amount of dower in lieu of Khula’ and had not given up her claim of dowry-Marriage was dissolved on various ‘rounds including Khula’-Where marriage was dissolved on other grounds also, then wife would be entitled to recover amount of dower and dowry, but where it was dissolved solely on ground of Khula’, then situation would be different and it would be examined keeping in view the offer she had made for getting marriage dissolved on Khula Findings of High Court were correct and not open to any exception. Supreme Court dismissed the appeal of husband while making it clear that suit tiled by wife for recovery of dowry amount would be decided on its own merits. -->P L D 2002 S. C. 273 1991 MLD 1531 ref.

Talaq in form of “Mubaraat”-Withdrawal of notice of Talaq-Chairman, Union. Council declined to issue certificate of Talaq to petitioner/lady on ground that since her husband/respondent had filed application for withdrawal of notice of Talaq within period of 90 days of receipt of notice, divorce had been rendered ineffective-Document of Talaq had clearly shown that it was not a unilateral pronouncement of Talaq, but it was a Talaq inform of “Mubaraat” which had been entered into by consent of both parties.. Document of pronouncement was a mutual revocation of contract of marriage entered into at time of Nikah and since both parties had mutually revoked contract, one party could not unilaterally revive the contract without consent of other -Talaq in form of “Mabaraat” was irrevocable from the date of its execution and provisions of S.7, Muslim Family Laws Ordinance, 1961 would be inapplicable to such a case-If party to Talaq applied for a certificate from Chairman, regarding effectiveness of Talaq, he would have no option but to declare Talaq as effective-Application for cancellation or revocation to Chairman and issuance of cancellation certificate was incompetent and was without lawful authority-Once triple divorce had been pronounced, Talaq would become irrevocable. 2002 M L D 778 Suit for return of marriage gifts-Transfer of such suit to (N.W.F.P.) from Civil Court/Family Court (Sindh)-Schedule to West Pakistan Family Courts Act, 1964 did not include marriage gifts to be the subject. matter of dispute with reference to S.5 of the said Act-Suit at (Sindh) had to be a civil suit and in case it was so, the jurisdiction to transfer it under S.23(3), C.P.C. would vest in Sindh High Court. P L D 2002 Pesh. 30

Version of wife-Need for due consideration by Court-Scope-Where Family Court considered all the ambient circumstances including the attitude of the wife and had come to the conclusion that at the time of recording of evidence the wife displayed intense hatred on her face, wife was entitled to right of divorce by way of Khula’ -While deciding the question of dissolution of marriage on the ground of Khula’, the Courts would have to assign due significance to the version of wife and unless the same appeared to be a flagrantly whimsical and fanciful, desire of wife to secure the dissolution of marriage, her words could not be struck down or ignored. 2002 C L C 113-1989 CLC 3; 1991 CLC 805; PLD 1983 Lah. 549; 1992 CLC 1733 and 1999 SCMR 2631 ref.
Wife proved aversion and hatred against her husband in suit for dissolution of marriage-Family Court dissolved the marriage on the basis of Khula’-Validity-Where the question of fact had been satisfactorily discussed and appraised, High Court declined to interfere with the findings of Family Court granting the dissolution of marriage by way of Khula’-Petition was dismissed in circumstances. 2002 C L C 113 1999 SCMR 2631 and 2000 SCMR 1563 ref.

Case of sucklings-- Matter relating to custody of children and visitation right of parents, falls with exclusive jurisdiction of Family Court--Family Court had finally dismissed the suit of petitioner seeking custody of minors--Decree passed by Family Court had earned confirmation up-till Supreme Court--Suit was instituted to determine right of visitation of petitioner based on whatsoever ground or an agreement between spouses falls within exclusive jurisdiction of Family Court--Even if right of visitation was not agitated in earlier suit, the right of visitation of parties did exist and could be claimed in finally decided suit. PLJ 2012 Lahore 213 = 2012 Law vision 223

 

Suit for dissolution of marriage decreed in lieu of payment as a zar-e-khula--Invoking of constitutional jurisdiction--Challenge to--Validity of--When the respondent paid her (to the petitioner) Haq-e-Mehr--Petitioner had not joined to the respondent after obtaining a decree--Earlier decree was passed while the suit was filed on 10.8.2006--She had not joined to the respondent after the suit decreed and even before for which period she claimed the maintenance--It is apparent that she did not allow to respondent to perform conjugal rights and insisted upon for dissolution of marriage--Peculiar circumstances makes the case that where petitioner persistently and insistently claims the decree for dissolution should have returned the amount received as haq mehr--She was entitled for decree only on the basis of khulla, therefore, no illegality in the impugned judgment could be pointed out into miscarriage of justice--Petition dismissed. PLJ 2009 Lahore 162 = 2009 Law vision 381  

Cr.P.C. is different exercise of jurisdiction--Validity--In habeas corpus petition matter is to be solved summarily relating to illegal and improper detention of a person in public or private custody by police or a private person without legal authority or jurisdiction--Held: Where it becomes the duty of Court to interfere take immediate steps and action for production of detenue. PLJ 2009 Cr.C. (Peshawar) 912 = 2009 Law vision 263

 

1.              Amount of Maintenance

2.              Appeal-Competency

3.              Appreciation of Evidence

4.              Arrest of Judgment Deter

5.              Aversion and hatred

6.              Change of forum

7.              Closing of evidence

8.              Conciliation proceedings

9.              Concurrent findings

10.          Consideration for Khula

11.          Constitutional jurisdiction

12.          Court fee

13.          Cruelty as ground for dissolution of marriage

14.          Custody of minor

15.          Decree for dissolution of marriage

16.          Decree, execution of-Limitation period

17.          Discretionary jurisdiction

18.          Dismissal of suit for lack of territorial jurisdiction

19.          Dispute Relating to Gold

20.          Dissolution of marriage on ground of option of puberty

21.          Document exhibited without objection

22.          Dower may not be Forfeited in Khulla

23.          Dower

24.          Dowry articles,

25.          Dowry as Zar‑e‑Khula’

26.          Evidence of close family members

27.          Ex parte Decree of Recovery of dower

28.          Execution of decree

29.          Factual controversy

30.          Family Court to regulate its own proceedings

31.          Filing of suit in wrong Court

32.          Finding of Family Court on matrimonial matters

33.          Foregoing right of maintenance in lieu of Khula divorce

34.          Issuance of Certificate of Divorce

35.          Jactitation of marriage

36.          Jurisdiction of Family Court

37.          Jurisdiction to transfer cases

38.          Khula

39.          Legitimacy of minor

40.          List of dowry articles

41.          Maintainability of petition

42.          Maintenance allowance

43.          Majority of Children

44.          Marriage-Proof

45.          Minors were not bound by document of “Shariat-Nama

46.          Misconstruction and mis-interpretation of dower deed by Appellate Court

47.          Nikah of sui juris Lady

48.          Nikah—proof

49.          Non-registration of Nikah

50.          Oath

51.          Option of puberty

52.          Parties acquired American citizenship

53.          Plea of disobedience of wife

54.          Powers of Controlling Authority

55.          Powers of judge

56.          Powers of Judge, Family Court to regulate its own proceedings

57.          Principle of res judicata--Applicability

58.          Procedure in Appeal

59.          Proof of Age

60.          Provisions of Civil Procedure Code, 1908‑‑­Applicability

61.          Provisions of Evidence Act/Qanun-e-Shahadat and Code of Civil Procedure

62.          Ratification of Order

63.          Re-Call of Ordr

64.          Re‑summoning of witness

65.          Return of “benefits

66.          Right of appeal

67.          Second marriage without prior permission by existing wife--Effect

68.          Special oath, non-taking of

69.          Suit for dissolution of marriage on the basis of cruelty

70.          Suit for recovery of “Mahar

71.          Suit for recovery of dower (gold ornaments)—

72.          Suit for recovery of dowery articles 

73.          Suit for recovery of possession of land as Haq Mahar

74.          Suit for recovery of prompt dower

75.          Suit for restitution of conjugal rights

76.          Suit for return of dowery articles

77.          Suit for return of marriage gifts

78.          Talaq in form of “Mubaraat

79.          Validity of registered marriage

80.          Value of dowry articles

81.          Version of wife-Need for due consideration by Court-Scope

6.      Place of sitting.---Subject to any general or special orders of Government in this behalf, a Family Court shall hold its sitting at such place or places within the District or areas for which it is established as may be specified by the District Judge.

Court Decisions

Territorial jurisdiction - Where wife/respondent claimed herself to be resident of a village and no specific question controverting her such stand was put to the witnesses, non framing of issue regarding territorial jurisdiction had not affected the main controversy between the parties and did not cause prejudice to any party-Trial Court had scanned the evidence produced by the wife/respondent in its true perspective-Judgment of Trial Court thus, did not suffer from any jurisdictional defect as the same was passed in accordance with law. 1999 Y L R 822- 1985 CLC 1448 and 1985 CLC 2028 ref.

Complaint by District Magistrate--Effect--Complaint not lodged by aggrieved party--Aggrieved party obtaining decree for dissolution of marriage and not interested in pursuing matter--Order of District Magistrate for registration of case, held, was without lawful authority and of no legal effect. 1986 P Cr. L J 2023

7.      Institution of suit.---(1) Every suit before a Family Court shall be instituted by the presentation of a plaint or in such other manner and in such Court as may be prescribed.

(2)         The plaint shall contain all material facts relating to the dispute and shall contain a Schedule giving the number of witnesses indeed to be produced in support of the plaint, the names and addresses of the witnesses and a brief summary of the facts to which they would depose:

Provided further that the parties may, with the permission of the Courts, call any witness and at any later stage, if the Court considers such evidence in the interest of justice.

Provided that a plaint for dissolution of marriage may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children; and

(3) (i)   Where as a plaintiff sues or relied upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be field with the plaint.

(3)        (ii)   Where he relies on any other document, not in his possession or power, as evidence in support of his claim, he shall enter such documents in a list to be appended to the plaint giving reasons of relevancy of these documents to the claim in the plaint.

(4)         The plaint shall be accompanied by as many duplicate copies thereof including the Schedule and the lists of documents referred to in sun-section (3), as there are defendants in the suit, for service upon the defendants.

Court Decisions

All Claims by Wife in one Suit:-- Now By virtue of amendment in the proviso to Sub Section 2 of Sec.7 a plaint for dissolution of marriage may contain all claims relating to dowry, Maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to met their children.

A Family Court shall conduct hearing of the suits as expeditiously as possible and shall not adjourn hearing for a period exceeding seven days and shall dispose off the suit within a period of 120 days from the date fixed by the court for the appearance of the Defendant. (Time limit Fixed by amendment in this section when Added Sub. Section 5 in it by Senate Bill No. III of 1999.

Doctrine of res judicata, held, not applicable-- Circumstances might arise where it would be impossible for parties to lead life within the limits prescribed by Islamic Law; it would be open to wife to seek dissolution of marriage on ground of Khula notwithstanding that request for dissolution of marriage on ground of Khula` had earlier failed-Order of Family Court dissolving marriage as ground of Khula`, held, legal exercise of jurisdiction. P L D 1985 Lah.340- P L D 1983 Lab 442 ref.

Dissolution of marriage on basis of Khula--Wife seeking divorce, inter alia on ground of hatred towards husband--Five out of seven issues decided against wife--Such failure on her part to prove various issues in suit, held, did not necessarily mean that admitted rift between parties was w bout any cause because without cause there would not have been rift and parties would have been living together. 1985 C L C 415

Right of appeal could not be made to disappear in absence of clear indication to that effect--Suit for activation of marriage--Appeal-Subsection (2) of S. 14, West Pakistan Family Courts Act, 1964, not taking away right of appeal against decision or decree in suit for jactitation of marriage--Appeal against such decisions or decree, held, competent. 1985 C L C 1229

Matrimonial matter-Question raised standing concluded by findings of fact-Refusal of High Court to interfere with such findings not suffering from any infirmity-Leave to appeal refused. 1984 S C M R 1052

Plaint—Suit decreed “as prayed for” – Scope—Words “as prayed for” being important would be read in conjunction with prayer clause of the plaint. PLD 2004 Lah. 249

Application for the appointment of guardian of minors-List of witnesses was not filed separately but the names of witnesses were mentioned in the body of plaint by the petitioner--Petitioner filed an application seeking permission to submit list of witnesses-Family Court dismissed the application on the ground that the same was not filed within seven days after the settlement of issues-Petitioners were not seeking the issuance of summons for the appearance of any witness rather they desired the Court to permit them to examine their witnesses whose names and addresses were already disclosed in the body of plaint-Validity-Parties had absolute right to produce any witness and it was incumbent upon the Family Court to examine such witnesses subject to the requirements of law. 1999 M L D 2153

Constitutional petition-Review-Suit for recovery of articles of dowry-Documents containing list of dowry articles and receipts of dowry were exhibited as part of the record of the case--Husband moved application to de-exhibit the said documentary evidence produced by the petitioner (wife) which was accepted by the Family Court and the documents were de-exhibited-Validity-De-exhibiting the documents, both the lists and the receipts, was entirely an action without lawful authority and jurisdiction-Neither Civil Procedure Code, 1908 nor Qanun-e-Shahadat, 1984 applied to the proceedings under the West Pakistan Family Courts Act, 1964-Family Court while de-exhibiting the documents had recorded reasons which was completely a new anomaly where the Court reviewed its earlier order, which was not available to the Family Court under the West Pakistan Family Courts Act, 1964-When a document was exhibited by the Family Court, same could not be de-exhibited through review of the earlier order-Order of the Family Court being patently illegal and without jurisdiction, High Court in the exercise of Constitutional jurisdiction had the power to set aside such order. 2002 CLC 1801 1983 CLC 2365 and PLD 1965 SC 55 ref.

Territorial jurisdiction of Court-Minor whose custody was sought by father from mother of minor resided in territorial jurisdiction of Family Court before which application for custody of minor was transferred-Mother who was having custody of minor also resided in territorial jurisdiction of said Family Court and refusal to hand over custody of minor also took place within territorial jurisdiction of that Family Court wherein application for custody of minor was pending-Application of mother of minor with regard to objection of territorial jurisdiction of Family Court, was rightly dismissed. 1998 M L D 1813 1989 CLC 604; PLD 1987 Kar. 239; 1985 CLC 1343; PLD 1968 Kar. 774 and PLD 1959 Lah. 967 ref.

Suit for dissolution of marriage-Territorial jurisdiction of Family Court-Term “ordinarily resides” as used in R.6, West Pakistan Family Courts Rules, 1965--Connotation-Words “ordinarily resides” connote that benefit be given to wife who had shifted from place of her husband to other place and proves that she has been residing at a place where she was invoking jurisdiction of Family Court--Where estranged wife under fear of her death shifts her residence for invoking jurisdiction of Family Court other than the place of her husband and proves to the Court that she was ordinarily residing within its jurisdiction, Family Court being Special Court can accept the same after examining evidence on record--Rule 6, West Pakistan Family Courts Rules, 1965, provides procedure in suits for dissolution of marriage and it deviates from normal procedure by authorizing Family Court to adjudicate family suits within local limits of which wife ordinarily resides-Provision of R.6, West Pakistan Family Courts Rules, 1965, being enabling provision is for benefit of wife and it can be read in that context when estranged wife who has left her husband’s abode and has sought residence at any other place of her own choice and proves that she had been ordinarily residing over there, then Family Court cannot refuse jurisdiction to hear her suit, when she invokes jurisdiction by filing family suit-If the wife has successfully proved that she had to leave place of her husband due to fear of death and has come to live at a different place with her uncle, Family Court at the place where wife has shifted has thus, jurisdiction to adjudicate her case. 1996 M L D 2017 Petitioner’s two applications, one seeking direction to respondent to get herself re-examined medically for determining her virginity and the other for sending her thumb-impression with the Nikahnama for comparison to finger-prints expert, were dismissed by Trial Court-Both the orders were not found to have suffered from any jurisdictional defect-Discretion exercised by Trial Court in dismissing petitioner’s both the said applications also did not appear to be defective. 1991 P Cr. L J 410

Limitation for filing a suit for, maintenance is six years as per Art.120, Limitation Act,1908.Both under the Muslim Family Laws Ordinance, 1961 as also the Punjab Muslim Family Courts Act, 1964 the Arbitration Councilor the Family Court are called upon to grant maintenance by enforcing the same substantive law namely Muslim Law which requires a husband/father to maintain the neglected wife and children.

The provisions of Limitation Act, 1908 are applicable to proceedings before the Family Court and section 3 of the Limitation Act obliges a Court in no unmistakable term to reject the claim if it is beyond the time prescribed by the first Schedule to the Act. There is no specific Article in the Schedule providing limitation for filing suits for maintenance, with the result that the resort must be had to the residuary Article 120 of the Limitation Act which prescribes 6 years, period as limitation. 1990 CLC 934 PLD 1.972 SC 302 ref. 1985 CLC 1184 and PLD 1981 Lah. 761 ref.

Framing of additional issue-Powers of Family Court-Grievance of the petitioner was that the Family court declined to frame additional issue as desired by him-Validity-Unlike Civil Procedure Code, 1908, the Family Court was restrained to formulate issues at later stage as the same was violative of S.11(2) of the West Pakistan Family Courts Act, 1964, which was a mandatory provision of law to summon evidence within three days of framing of issues-Family Court might allow any evidence at later stage under proviso to S.7 of the West Pakistan Family Courts Act, 1964, if the same was expedient for justice-High Court declined to interfere with the order passed by the Family Court-Constitutional petition was dismissed in limine. P L D 2002 Lah. 410

Non-Making a ground Of Khula in Plaint Dissolution of marriage on ground of Khula--Wife seeking dissolution of marriage but not making prayer for grant of Khula in her plaint-Raising of such plea in her statement before Family Court at time of evidence, held, would entitle such wife for grant of Khula. 1987 C L C 2323 P L D 1983 S C 169 and P L D 1984 S C 331 ref. finding of Family Court and Appellate Court below refusing dissolution of marriage of petitioner wife on ground of Khula, ignoring statement of wife that she would relinquish her dower and claim for maintenance in lieu of grant of Khula, held, was without lawful authority--High Court in exercise of constitutional jurisdiction set aside concurrent order of Courts below and remanded case to Trial Court to decide afresh after affording parties opportunity to adduce evidence. 1987 C L C 2323

Description by wife, plea of--Such plea being a pure question of fact could not be enquired into by High Court in Constitutional jurisdiction. 1989SCMR615

Suit for maintenance by wife--Plea of divorce from specified date alleged by husband--No issue having been framed on that aspect, petitioner could not agitate such question of fact in Constitutional jurisdiction. 1989SCMR615 1986 CLC 2312 distinguished.

Dissolution of marriage on ground of Khula’--Non-fulfilment of conditions by parties would not render decree dissolving ,marriage on basis of Khula’ as ineffective--Imposition merely created a civil liability and decree for dissolution of marriage passed by way of Khula’ could not be considered as dependant an requiring wife to fulfil the conditions first. P L D 1987 Lah.420 P L D 1983 S C 169 ref.

Dissolution of marriage--Respondent contracted second marriage, before issuance of stay order--Exercise of constitutional jurisdiction, held, would not serve any useful purpose--Earlier stay order was withdrawn in circumstances. 1986 C L C 2410

Dissolution of marriage-Certain plea not raised in Constitution petition but decree passed in suit alone was challenged therein Plea in question even otherwise not open for consideration by High Court but should have been raised by petitioner either in proceedings for dissolution of marriage or in Court of Family Judge who passed decree -Refusal of High Court to go into such plea, held, unexceptionable in circumstances. 1984 S C M R 1138 Khula-Wife filing suit for dissolution of marriage on grounds of cruelty and that husband being of a bad character had established illicit relations with his own brother’s wife-Trial Court rejecting application of wife on grounds that no convincing evidence to prove allegation$ was forthcoming-Trial Court failing to take account of all circumstances and effect of allegations made, which normally led to a state of affairs where it would be difficult for spouses to live together within limits prescribed by Allah-Application of principle of Khula’ on these grounds, held, required to be taken into account and could not be brushed aside simply for failure of wife to produce convincing evidence about cruelty etc.-- Order of Appellate Court for not taking into account the crucial controversy, declared to be without lawful authority and of no legal effect.-- 1984 C L C 3330

8.      Intimation to defendant.---(1) Where a plaint is presented to a Family Court it:---

(a)         shall fix a date of not more than thirty days for the appearance of the defendant;

(b)         shall issue summons to the defendant to appear on a date specified therein;

(c)          shall within three days of the presentation of the plaint, send:---

(i)           to each defendant, by registered post, acknowledgement due, or by courier service or by both a notice of the suit, together with a copy of the plaint, a copy of the Schedule referred to in sub-section (2) of section 7 and copies of the documents referred to in sub-section (3) of the said section; and

(ii)         to the Chairman of the Union Council within whose jurisdiction the defendant or defendants, as the case may be, reside, and where the defendants reside within the jurisdiction of different Union Councils, to the Chairman of every such Union Council, a notice of the plaint having been presented.

(2)         Every summons issued under clause (b) of sub-section (1) shall be accompanied by a copy of the plaint, a copy of the Schedule referred to in sub-section (2) of section 7, and copies of the documents and list of documents referred to in sub-section (3) of the said section.

(3)         On receipt of the notice under clause (c) of sub-section (1), the Chairman shall display the notice on the Notice Board of the Union Council for a period of seven consecutive days, and shall, as soon as may be, after the expiry of the said period, inform the Family Court of the notice having been so displayed.

(4)         Service of the plaint and its accompaniments in the manner provided in clause (b) or clause (c) of sub-section (1) shall be deemed to be due service of the plaint upon the defendant.

(5)         Every notice and its accompaniments under clause (c) of sub-section (1) shall be served at the expense of the plaintiff. The postal charges for such service shall be deposited by the plaintiff at the time of filing the plaint.

(6)         Summons issued under clause (b) of sub-section (1) shall be served in the manner provided in the Code of Civil Procedure, 1908, Order V, Rules 9, 10, 11, 16, 17, 18, 19, 20, 21, 23, 24, 26, 27, 28 and 29. The cost of summons shall be assessed and paid as for summons issued under the Code of Civil Procedure, 1908.

Explanation.---For the purposes of this section, the expression “Union Council” means a Union Council, Town Committee or Union Committee constituted under section 57 of the Electoral College Act, 1964 (IV of 1964).

PUNJAB AMENDMENT

Act XXIV of 1971

Amendment of section 8 of W. P. Act XXXV of 1964. In the West Pakistan Family Courts’ Act, 1964, hereinafter referred to as the said, Act, in section 8:---

(i)           in sub-section (1), for clause (c), the following clause shall be substituted;

(c)          shall within three days of the presentation of the plaint, send to each defendant by registered post, acknowledgement due, a notice of the suit, together with a copy of the plaint, a copy to the Schedule referred to in sub-section (2) of section 7 and copies of the documents and a list of documents referred to in sub-section (3), of the said section; and

(ii)         sub-section (3) and the Explanation occurring at the end of the section shall be deleted.

Court Decisions

Mode of service on defendant in family suit-Provisions of S.8, West Pakistan Family Courts Act, 1964, as it was enacted on the day of its inception, was applicable in the Province of Baluchistan-Defendant in a family suit could, therefore, be intimated by making publication in the newspaper that a case was pending against him. P L D 1994 Quetta 97 PLD 1965 C&P Statutes 305; PLD 1969 C&P Statutes 47 and PLD 1970 C&P Statute 323 ref.

Service of notice on mother of minors (defendant):- Service of notice of suit on mother (defendant) through her brother was held good and on failure of her to appear on adjourned date of hearing, ex parte order was passed against her. Trial Court, in all fairness should have ordered repetition of fresh notices in ordinary course as well as through registered post to the mother-Where the defendant was a woman and where question of custody of minors was involved, Courts should adopt more reasonable approach and much caution while holding service of notice on a woman defendant-Defendant having shown sufficient cause for her non-appearance on adjourned date of hearing, order passed by Trial Court on said date declaring service of notice on defendant as good was incorrect and not warranted in law-Order of Trial Court was set aside by High Court in exercise of its Constitutional jurisdiction.-2000 C L C 320

New plea:- Petitioner taking new ground for the first time in Constitutional petition which he had not taken in Court below. Petitioner for the first time agitating in Constitutional petition that rule laid down in S. 8(a)(i), West Pakistan Family Courts Act, 1964 had been violated by Trial Court by not sending summons to him by registered post acknowledgement due-Petitioner had not taken such ground in application under R. 13, West Pakistan Family Courts Rules, 1965, about setting aside ex parte decree passed against him--Such fresh plea not raised in lower forum, could not be raised in Constitutional petition. 1998 CLC 319 1990 MLD 344 and 1991 CLC 1326 ref. Real dispute being not between the spouses, but Court being guardian, was duty bound to determine as to where welfare of ward/child lay and said finding could not be arrived at unless party in whose custody minors were living, was extended proper opportunity to contest matter on merits. 2000 C L C 320

Soldiers (Litigation) Act-West Pakistan Family Courts Act (XXXV of 1964), Ss. -8(6) & 9(5), (6) and West Pakistan Family Courts Rules, 1965, rr. 4(2) & 13, Soldiers (Litigation) Act . (IV . of 1925), Ss. 4, 6, 10, 11 & 12-Soldiers (Litigation) Rules, 1938, rr. 5 & 8-High Court (Lahore) Rules and Orders Vol. 1, Chap. VI-A & Vol. IV, Chap. VII and Civil Procedure Code (V of 1908), O. V, r. 28-Matrimonial dispute-Suit “of wife for dissolution of marriage, dower and maintenance decreed by trial Court against soldier or husband in disregard of relevant provisions of law-High Court is writ jurisdiction setting aside original and appellate orders of Courts below-Exercise of discretion by High Court against wife-Held, unexceptionable in circumstances of case-Leave to appeal refused. 1983 S C M R 569

9.      Written statement.---(1) On the date fixed under clause (a) of sub-section (1) of section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement; and attach therewith a list of his witnesses alongwith a précis of the evidence that each witness is expected to give.

(1a)   A defendant husband may, where no earlier suit for restitution of conjugal rights is pending, claim for a decree of restitution of conjugal rights in his written statement to a suit for dissolution of marriage or maintenance, which shall be deemed as a plaint and no separate suit shall lie for it.

(1b)   A defence wife may, in the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including khula which shall be deemed as a plaint and no separate suit shall lie for it:---

Provided that the proviso to sub-section (4) of section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of khula.

(2)         Where a defendant relies upon a document in his possession or power, he shall produce it or a copy thereof in the Court alongwith the written statement.

(3)         Where he relies on any other document not in his possession or power as evidence in support of his written statement, he shall enter such documents in a list to be appended to the written statement giving reasons of relevancy of these documents to the defence in the written statement.

(4)         Copies of the written statement, list of witnesses and précis of evidence referred to in sub-section (1) and the documents referred to in sub-section (2) shall be given to the plaintiff, his agent or advocate present in the Court.

(5)         If the defendant fails to appear on the date fixed by the Family Court for his appearance then:---

(a)         if it proved that the summons or notice was duly served on the defendant, the Family Court may proceed ex-parte:---

Provided that where the Family Court has adjourned the hearing of the suit ex-parte, and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Family Court directs, be heard in answer to the suit as if he had appeared on the day fixed for his appearance; and

(b)         if it is not proved that the defendant was duly served as provided in sub-section (4) of section 8, the Family Court shall issue fresh summons and notice to the defendant and cause the same to be served in the manner provided in clauses (b) and (c) of sub-section (1) of section 8.

(6)         In any case in which a decree is passed ex-parte against a defendant under this Act, he may apply within thirty days of the service of notice under sub-section (7) of the passing of the decree, to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, on such terms as to cost as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit.

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendant also.

(7)         The notice of passing of the ex-parte decree referred to in sub-section (6) shall be sent to the defendant by the Family Court together with a certified copy of the decree within three days of the passing of the decree, through process server or by registered post, acknowledgement due, or through courier service or any other mode or manner as it may deem fit.

(8)         Service of notice and its accompaniment in the manner provided in sub-section (7) shall be deemed to be due service of the notice and decree on the defendant.

Court Decisions

Written statement—Purpose-Defendant, for the purpose of filing a written statement is bound to appear in the Family Court himself and his attendance cannot be dispensed with— Where the written statement was filed by special attorney of the defendant, the same did not deserve consideration in the eye of law and Court was right in taking the view that the suit remained uncontested. PLD 2001 Lah. 495 PLD 1979 Lah. 217 and 1981 SCMR 395 distinguished.

Striking off defence of defendant for his non-appearance and non-submission of written statement -Defendant having been served for specified date appeared on that date but Presiding Officer being on leave, case was adjourned to next specified date,-Court was on session on that date but defendant did not turn up nor any written statement was filed on his behalf, consequently his defence was struck off--Record did not suggest that defendant had sought any adjournment for filing of written statement-Held, Court instead of striking off defendant’s defence which was not warranted should have proceeded against defendant ex parte--Provisions of S.9(5), West Pakistan Family Courts Act, 1964, postulate that if defendant had failed to appear on the date fixed by Family Court, the Court should proceed ex parte-Where, however, defendant appears on adjourned date of hearing or before such hearing and assigns good cause for his previous non appearance, he should be heard in answer to the suit as if he had appeared on the day fixed for his appearance-Course adopted by Court in striking off defence of defendant was not warranted by law-Order in question, striking off defence of defendant was set aside-Trial Court was directed to allow defendant to put in his written statement and then proceed with the case in accordance with law. P L D 2000 Kar.348 1991 CLC 539; 1983 SCMR 619; PLD 1987 SC (AJ&K) 127; PLD 1991 Pesh. 25; 1993 CLC 1325; 1989 CLC 1575; 1991 CLC 539 and 1983 SCMR 319 ref.

Pleadings-- Written statement filed on 20-3-1980-Application for amendment moved on 12-11-1981 without showing any reason for delay by mere saying that it was “due to an oversight”-Mere saying “due to an oversight”, held, was not enough to allow amendment. P L D 1985 Kar. 362

Ex parte decree, setting aside of- Petitioner wife had failed to show that order setting aside ex parte decree of dissolution of marriage had been passed without jurisdiction or in excess of jurisdiction by Family Court-Order passed by Family Court could not be interfered with in Constitutional jurisdiction of High Court. 1992 C L C 1314

Producing audio cassette as proof of conversation--Husband intended to produce such cassette having, recorded intimate conversation with the wife in the privacy of their conjugal bed room. Where no evidence was recorded, it was not possible to fix an exact date of the conversation-Burden- to prove the conversation and its timing was upon the petitioner which he failed to discharge.

Failure to file audio cassette alongwith gist of evidence that each witness was expected to give-No witness was produced by the husband to prove the contents of the audio cassette. Where the husband failed to provide such evidence as required by S.9 of West Pakistan Family Courts Act, 1964, Family Court did not commit any illegality in not considering the contents of the cassette in circumstances. P L D 2000 Kar.348

Allegation of adultery—Proof:-- Husband failed to produce four witnesses in support of his allegation of adultery before the Family Court and repeated the same allegation in the High Court -Effect--Where the husband did not produce the required witnesses before the Family Court, the same showed that the allegations were false-Such person was a Fasiq (liar, rebellious, disobedient to Allah) and according to Surah 24:17An-Nur of the Holy Qur’an, testimony of such person could not be accepted by the Court. P L D 2000 Kar.348 Al-Qur’an: An-Nur, Surah 24 rel.

Setting aside an ex parte decree--Limitation--Conflict between provisions of Family Courts Act and the Family Courts Rules--Effect-Reasonable time for making an application for setting aside an ex parte decree has been prescribed under S.9(6) of the Act, while under R.13 of the Rules framed under the Act, time limit is prescribed as thirty days for setting aside of such decree--To the extent that R.13 prescribes the test of reasonable time to thirty days, it clearly goes beyond the provisions of S.9(6) of Family Courts Act, 1964 and cannot be sustained. PLD 1984 Lah. 202 rel.
Ex parte decree by a Family Court--Provisions of O. IX, R.6, C.P.C. inapplicable to such proceedings--Family Court, in accordance with provisions of Family Courts Act is bound to take some evidence before decreeing a claim against ex parte defendant. P L D 1989 Lah. 69

Consideration for transfer in cases--Main factor for transfer of case of husband for custody of children, held, was the admitted resident of children at place ‘J’--Common practice for custody of minors was that such children were required to appear in Court frequently so that parties should have access to them--If the case was tried at any other place than ‘J’ education of minor would suffer and they would otherwise also be put to inconvenience of travelling during pendency of case for their custody-To meet such situations S. 9, Guardians and Wards Act had been framed requiring proceedings for custody of children to be launched at place- where such children had an admitted residence--Case against wife for custody of children pending in Court at ‘H’ was transferred to Court at place ‘J’ where wife’s case for maintenance against husband was pending and where minor children had their admitted residence. 1987 C L C 1204

At the pre-trial proceedings, the Court has first to ascertain the points at issue between the parties and an attempt is to be made by the Court to effect a compromise or reconciliation between the parties. Section 10, no doubt, contemplates presence of the parties concerned before the Court at the pre-trial hearing, but according to subsection (4) thereof, if no compromise or reconciliation is possible, the Court has to frame issues in the case and fix a date for recording evidence. There is, therefore, no such provision in section 10, under which ex parte proceedings can be ordered due to non-appearance of a party. The only provision in the Act which empowers the `Family Court to proceed ex parte is contained in section 9(5), but the same can be pressed into service only when the defendant in the case fails to appear on the date fixed by the Court for his appearance and the summons or notice was duly served on him. If the petitioner could not attend the Court, all that the Family Judge was required to do under subsection (4) of section 10 was to frame issues and-fix a date for recording of evidence. Since the Act is a Special Law, the procedure provided therein has to be strictly followed. There is no provision in the Act for fixing the case for ex parte proof in absence of the defendant at a pre-trial hearing. 1987 M L D 492

10.  Pre-trial proceeding.---(1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case.

(2)         On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the précis of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their Council.

(3)         At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.

(4)         If no compromise or reconciliation is possible, the Court shall frame the issues in the case and fix date for the recording of the evidence;

Provided that notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.

Court Decisions

Scope-Efforts for compromise and reconciliation is an obligation of the Presiding Officer of Family Court, who has to make an attempt at a pre-trial stage of proceedings and after the close of evidence of parties, to bring about reconciliation between the parties.
Reconciliation proceedings-- -Failure to record details of dialogue between the parties-Mention of the fact that post-trial and pre-trial reconciliation proceedings failed was enough and it was not necessary for Family Court to record details of dialogue and harsh words used by the parties during proceedings-Failure of such trials would indicate that all possible efforts to bring about reconciliation and to persuade the parties to live as spouses within the limits of Allah, culminated in failure. 2002 C L C 113

Constitution of Board for reconciliation. Wife filed suit for repudiation of her Nikah on attaining the age of puberty-Marriage between the spouses was not consummated-Family Court after following the proper procedure for trial decreed the suit-Contention raised by the husband was that Family Court was supposed to constitute a Board for reconciliation between the spouses-Validity-Wife on attaining the age of puberty, exercised her right under the law and proper procedure was followed by the Family Court-Where on illegality or irregularity had been committed by the Family . Court, such judgment could not be interfered with in the Constitutional jurisdiction of High Court-Constitutional petition being without merit was dismissed in circumstances. 2000CLC 1116 1986 CLC 3025 ref.

Presence of parties, held, necessary for effecting compromise or reconciliation by affording them opportunity to meet each other and to explore possibility of reconciliation -Departure, held further. can be made in given circumstances of a case and such departure would not amount to failure on part of Court to comply with mandatory provinces. 1981 C L C 243-P L D 1979 Lab. 217 ref.

Personal attendance- Defendant appearing before Family Court at outset submitting his written statement and also remaining present when date fixed for reconciliation - Held, fulfilled his obligations under provisions of Act-Insistence on personal attendance of defendant necessarily leading to delay conclusion of suit and such conclusion already considerably delayed, petition praying for forcing personal attendance of defendant dismissed. 1981 S C M R 395

Words “reconciliation/compromise” as used in S.10 of the Act. Words “reconciliation/compromise” would postulate adoption of such measures which could be proved as a factor for harmonious union between the spouses after redressal of grievances between them which had led to have recourse to litigation. P L D 1993 Quetta 1

Statement of compromise recorded without oath. Statement of compromise was not denied by appellant which had also been signed by his counsel-Such statement was accepted by respondent and judgment and decree was passed accordingly. Law does not require that even for a compromise statement ,should be made by a party on oath--Judgment and decree of the Court which otherwise was possessed of jurisdiction to pass such a judgment and decree could not result in nullifying such proceedings merely because statement was not made on oath. 1999 Y L R 1177

Dissolution of marriage-Petitioner (husband) contended that since decree dissolving marriage had not yet become absolute, therefore, summoning of respondent (wife) might create chances for a compromise resulting into saving of marriage bond-Attempt was made for conciliation between the parties twice as enjoined by Ss. 10 & 12 of the Act, but both attempts had ended in failure-Held, in such a situation, it would be wishful thinking per presume that there might be another chance for compromise if the petition was admitted and respondent was summoned to face the same. 1997 M L D 2855

Dispensing with of personal attendance-Personal attendance of a party in family Court, held, not indispensable and in given circumstances of a case can be dispensed with. 1981 C L C 243

Closing his evidence:- Suits were consolidated and were fixed for recording the evidence--Case was adjourned for recording, evidence of husband, after recording the evidence of wife but he failed to adduce any evidence despite Several adjournments--On last date fixed for producing evidence, husband having failed to produce evidence, his defence was closed and case was fixed for post-trial reconciliation and arguments-Husband had failed to point out any illegality committed by Trial Court in closing his evidence-Family cases were meant to be decided as early as possible and dragging of case fixed for hearing where a last opportunity had already been afforded, was not justified-Constitutional petition, was incompetent as arguments in the case were yet to be heard and judgment and decree of Family Court were yet to be passed which would give husband right to file appeal against orders of Family Court. 2000 Y L R 2840

Conciliation proceedings-Omission to resort to conciliation proceedings was an irregularity-Such omission had no adverse effect upon the outcome of suit and did not warrant any interference in limited Constitutional jurisdiction. 1999 C L C 1578 1985 CLC 806 ref.

Object--Family Court would act as arbitrator in exercising judicial powers to organize compromise with a view to save matrimonial life from further deterioration.
Family Judge in fact acts, as arbitrator and in exercising judicial powers to organize a compromise with a view to save matrimonial life from further deterioration and in the suit of dissolution of marriage a decree for restitution of conjugal rights would be awarded in the largest interest of spouses keeping in mind that act - of the divorce had not been considered desirable, by the religion, and it would ‘ not amount to having exercised authority without jurisdiction because such powers of reconciliation or compromise have been conferred on a Family Judge.

Compromise between spouses on the conditions laid down by wife--’-Both parties signing compromise order passed by Family Court. Order of compromise could not be deemed to have been passed without lawful authority and jurisdiction merely for the reasons that wife had been directed to join her husband. P L D 1993 Quetta 1

Irregularity--Provision, of law under S. 10(2)(3) of Act though mandatory and to be followed in its true spirit, yet violation thereof only an irregularity inviting penalty. 1981 C L C 243

Ex parte decree-Pre-trial stage--No provision of Act, held, enables Family Court to pass ex parte decree in case of failure of a party to appear at pre-trial stage. 1981 C L C 243

11.  Recording of evidence.---(1) On the date fixed for the recording of the evidence, the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.

(2)         The Court shall not issue any summons for the appearance of any witness unless, within three days of the framing of issues, any party intimates the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible for such party to produce the witness.

(3)         The witnesses shall give their evidence in their own words:---

Provided that the parties or their Council may further examine, cross-examine or re-examine the witness:---

Provided further that the Family Court may forbid any question which it regards as indecent, scandalous or frivolous or which appears to it to be intended to insult or annoy or is needlessly offensive in form.

(3-A)       The Family Court may, if it so deems fit, put any question to any witness of the purposes of elucidation of any point which it considers material in the case.

(4)         The Family Court may permit the evidence of any witness to be given by means of an affidavit:---

Provided if the Court deems fit, it may call such witness for the purpose of further examination in accordance with sub-section (3).

Court Decisions

Evidence-Closing Of , Family Court can close evidence of a party failing to adduce evidence without sufficient cause-Act, aiming at securing expeditious disposal of matrimonial disputes, does not contain any provision to effect that evidence of a party shall not be closed in any case.-P L D 1982 Lah. 281

Defendant as well as his father whose name was mentioned in schedule of witnesses filed by defendant in his written statement, appeared in Court at time when case was called-Even if Trial Court was of the view that there was no justification for further adjournment of the case, statements of defendant and his father should have been recorded by Court-Family Court having failed to do so, judgment and decree passed by Court after closing evidence of defendant was rendered without lawful authority-High Court in exercise of Constitutional jurisdiction set aside judgment and decree of Trial Court and remanded case to be decided afresh after allowing defendant to produce his evidence. 1991 M L D 2349

Petitioner challenging decree based on Khula in writ jurisdiction--Contentions raised that he was not afforded opportunity for effecting compromise or to produce evidence in rebuttal of evidence produced by respondent against him--Same grounds urged in Suprem3 Court but not established from record which showed that sufficient opportunities were provided to petitioner for the purpose but he failed to avail the same--Leave to appeal refused. 1988 S C M R 273

List of witnesses was not filed separately but the names of witnesses were mentioned in the body of plaint by the petitioner--Petitioner filed an application seeking permission to submit list of witnesses-Family Court dismissed the application on the ground that the same was not filed within seven days after the settlement of issues-Petitioners were not seeking the issuance of summons for the appearance of any witness rather they desired the Court to permit them to examine their witnesses whose names and addresses were already disclosed in the body of plaint-Validity-Parties had absolute right to produce any witness and it was incumbent upon the Family Court to examine such witnesses subject to the requirements of law. 1999 M L D 2153

Recovery of past maintenance—Statement of wife that she was Ghair Abad for the last three years was not specifically challenged in cross-examination and thus would be deemed to have been admitted—Wife was rightly found to be entitled to recover past maintenance by the Court, in circumstances, PLD 2001 Lah. 495

Framing of additional issue-Powers of Family Court-Grievance of the petitioner was that the Family court declined to frame additional issue as desired by him-Validity-Unlike Civil Procedure Code, 1908, the Family Court was restrained to formulate issues at later stage as the same was violative of S.11(2) of the West Pakistan Family Courts Act, 1964, which was a mandatory provision of law to summon evidence within three days of framing of issues-Family Court might allow any evidence at later stage under proviso to S.7 of the West Pakistan Family Courts Act, 1964, if the same was expedient for justice-High Court declined to interfere with the order passed by the Family Court-Constitutional petition was dismissed in limine. P L D 2002 Lah. 410

Muhammadan Law—Rules Suit for dissolution of marriage under Ordinance-Whether rules of evidence under Muhammadan Law should apply-Special Leave to Appeal granted by Supreme Court to consider question. 1969 S C M R 145

Writ jurisdiction--Object of Family Courts. Act expeditious settlement of disputes relating to marriage and family affairs and connected matters-Orders of Family Court, not . otherwise appeal able under Act, cannot be permitted to be challenged ‘by invoking constitutional jurisdiction of High Court-Principle:-fragmentary decisions likely to delay administration of’ justice to be avoided - Orders of Family Court allowing mother, seeking to have,. custody of her minor son to be examined by a psychiatrist of her choice--Held, interlocutory in nature, neither likely to - cause any tangible damage nor capable of causing any loss or damage to petitioner nor threaten any valuable or personal . property or vested rights of petitioner -and hence cannot. be challenged by invoking extraordinary constitutional jurisdiction of High Court. 1983 C L C 2099 P L D. 19.78 Lab. 1459; 1979 C L C 199 ; P L D 1978 Lab. 488 and P L D 1975 S C 457 rel.

12.  Conclusion of trial.---(1) After the close of evidence of both sides, the Family Court shall make another effort to effect a compromise or reconciliation between the parties within a period not exceeding fifteen days.

(2)         If such compromise or reconciliation is not possible, the Family Court shall announce its judgment and give a decree.

Court Decisions

Nature, binding force and execution of Findings, any declaration/findings given by Family court on matrimonial matters and matters ancillary thereto were judgments in rem which would be binding on whole world—Unless and until decree of a competent court was set aside by adopting proper legal procedure, it would have overriding and super-imposing legal effect on all other documents including so-called Tamleek mutation because legally it occupied a very high pedestal as strong legal sanctity was attached to it—As parties in the present case had settled matter amicably through mutual consent and consent decree of Family court was passed thereon, there was no need for the plaintiff to execute the same—Need for execution of decree would arise when judgment-debtor open and publicly would refuse to abide by the Court decree, but when decree was passed o consent, no such eventuality would arise to execute the same. 2004 C L C 203

Recalling of order-Right of cross-examination of the respondent was closed by the Family Court and the order was recalled subsequently on application filed by the respondent-Validity-Such right of the parties was preserved under S.11(3) of the West Pakistan Family Courts Act, 1964--Right of cross-examination being a valuable right could not be lightly taken away and there was no express provision to close the right of a party to examine, re-examine or cross-examine a witness-Keeping in view the justice of the cause and object of its expeditious disposal, Family Court had inherent power to pass such order and recall such order-Judgment and decree could only be passed by the Family Court if the parties had failed to arrive at a compromise or reconciliation-Where right of cross-examination was closed the Family Court had ignored the provisions of S.12 of West Pakistan Family Courts Act, 1964-Order refusing the right of cross-examination was illegal and the same was rightly recalled by the Family Court-High Court in exercise of Constitutional jurisdiction declined to interfere with the order passed by the Family Court-Petition was dismissed in circumstances. 2001 Y L R 2415

Intra-Court Appeal--Compromise decree-Suit for maintenance was filed by wife/respondent, whereas suit for restitution of conjugal rights was filed by husband/appellant-Parties at post trial proceedings entered into compromise, and judgment and decree was passed by Trial Court in terms of said compromise--Husband/appellant assailed that judgment and decree before High Court by invoking Constitutional jurisdiction, on the ground that the statement of compromise recorded by the Trial Court was without oath-High Court dismissed the Constitutional petition--Intra-Court appeal-Where husband/appellant made a statement and agreed for disposal of the case on the basis of that compromise, he could not repudiate or resile therefrom-Compromise so arrived at and decree passed accordingly was just and fair--No error or justification was found to interfere with the judgment of High Court in Intra-Court Appeal. 1999 Y L R 1177 1992 SCMR 408 distinguished. PLD 1986 SC 542 and PLD 1987 SC 107 fol.

Decree in suit for maintenance against husband-Husband instead of filing appeal against such decree in terms of S. 14, filed application for setting aside ex parte decree which was dismissed-Husband’s appeal against decree for maintenance after dismissal of his application for setting aside decree in terms of S. 9, having been filed beyond period of thirty days from the date of impugned decree, was rightly dismissed by Appellate Court. especially when husband never moved any application for extension of the period of limitation in terms of R.22, West Pakistan Family Courts Rules, 1965.-1993 C L C 1880 1990 CLC 297; PLD 1977 Kar 469; 1991 MLD 1243; 1991 CLC 1142; 1990 CLC 1908; 1970 SCMR 251; PLD 1970 SC 196; PLD 1967 Pesh. 343; PLD 1961 Lah. 199; PLD 1969 SC 187; 1972 SCMR 131 and 1978 SCMR 335 ref.

Execution of decree - Family Court was empowered to direct that any money -to be paid under a decree passed by it might be enforced by the Family Court itself in any of the manners provided in the Act of 1964-Where A decree relates to payment of money, it could be recovered if Family Court so directed as arrears of land revenue.-P L D 1990 Lah. 71

Constitutional jurisdiction; exercise of--Finding of fact concurrently arrived at by two Courts below after considering entire evidence on record, held, could not be interfered with by High Court in exercise of constitutional jurisdiction when petitioner failed to point out any legal infirmity much less jurisdictional defects in judgments of Courts below.- 1988 C L C 1978

Reconciliation proceedings-Scope-Efforts for compromise and reconciliation is an obligation of the Presiding Officer of Family Court, who has to make an attempt at a pre-trial stage of proceedings and after the close of evidence of parties, to bring about reconciliation between the parties. Statement of compromise was not denied by appellant which had also been signed by his counsel-Such statement was accepted by respondent and judgment and decree was passed accordingly-Law does not require that even for a compromise statement ,should be made by a party on oath--Judgment and decree of the Court which otherwise was possessed of jurisdiction to pass such a judgment and decree could not result in nullifying such proceedings merely because statement was not made on oath. 1999 Y L R 1177

Object of providing Ss. 10 & 12 of Act to bring about reconciliation or compromise between spouses-Noncompliance of such provisions of law, in a case in which Court granted a decree for dissolution of marriage held, might be a serious irregularity in view of mandatory nature of said provisions but in a case in which Family Court had declined to grant a decree for dissolution of marriage, irregularity might not be so serious as to warrant to set aside judgment of Family Court in exercise of constitutional writ jurisdiction.

Contention that no effort was made by Family Court to bring about reconciliation or compromise at stage of pre-trial and after closing of evidence of parties No such plea was urged before Family Court and even otherwise record showed that efforts were made by Trial Court to bring about compromise settlement-Contention repelled. P L D 1986 Quetta 298

Post trial efforts for reconciliation, Court’s failure to make -Effect--Wife seeking dissolution of marriage had expressed in her evidence unequivocal determined disinclination for her husband and was not prepared to rejoin him--Children which could otherwise have served as a uniting factor also did not succeed to bring spouses together-Court after close of evidence had not made efforts for reconciliation between parties-Held, it was mere irregularity on part of Trial Court which could not affect decision of Court on merits. 1990CLC917

Pre-trial and post-trial proceedings--Omission to hold, plea of Petitioner failing to file copy of diary of Court proceedings in support of his plea but admitting in memo of appeal -the pre-trial reconciliation proceedings were conducted--As to post-trial proceedings, no such plea was taken by petitioner in lower Courts-Such fact having not been established, petitioner’s contention failed’. P L D 1989 Kar.78

Omission of post trial proceedings of reconciliation between parties. Husband was living abroad-Suit for dissolution of marriage filed by wife was decreed by Family Court without resorting to proceedings of post trial reconciliation as contemplated under S: 12(1) of West Pakistan Family Courts Act, 1964 Husband was living abroad since long and even the written statement was filed by him through attorney-Attempt for reconciliation as envisaged under S.12(1) of the Act would have been futile in circumstances-Where compromise or conciliation was not possible, Family Court under S. 12(2), West Pakistan Family Courts Act, 1964, was authorised to announce the judgment-No conclusion other than that arrived at by Family Court being possible.

1999 M L D 2192 1982 Law Notgs (Lahore) 668; PLD 1975 Lah. 1118; PLD 1986 Quetta 298; 1986 SCMR 1556 and 1990 CLC 917 ref.

Reconciliation proceedings:-- Marriage between the spouses was not consummated-Family Court after following the proper procedure for trial decreed the suit-Contention raised by the husband was that Family Court was supposed to constitute a Board for reconciliation between the spouses-Validity-Wife on attaining the age of puberty, exercised her right under the law and proper procedure was followed by the Family Court-Where on illegality or irregularity had been committed by the Family . Court, such judgment could not be interfered with in the Constitutional jurisdiction of High Court. 2000CLC 1116

Failure to record details of dialogue between the parties-Mention of the fact that post-trial and pre-trial reconciliation proceedings failed was enough and it was not necessary for Family Court to record details of dialogue and harsh words used by the parties during proceedings-Failure of such trials would indicate that all possible efforts to bring about reconciliation and to persuade the parties to live as spouses within the limits of Allah, culminated in failure. 2002 C L C 113

Dissolution of marriage on ground of Khula’--Prompt dower-Petitioner neither in his written statement nor in his statement before Family Court taking up position that if plea of Khula’ was allowed, amount of prompt dower should be refunded to him--Such claim, held, could not be pressed by petitioner for first time in constitutional jurisdiction in High Court--Petition for leave to appeal dismissed. 1987 S C M R 699

Reconciliation proceedings-- Failure to hold, effect of- Reconciliation proceedings or efforts at effecting compromise between parties, held, was not indispensable requirement in every suit to be resorted to without regard to nature of case and controversy involved therein--There could not be any question of such an effort being made between a woman and a man whom such woman did not acknowledge to be her husband--In a suit of jactitation of marriage, very nature of controversy would negate scope of reconciliation.

Appraisal of evidence being function of Trial and Appellate Courts and findings thereon, reached on basis of record, more particularly concurrent findings, held, were not open to be assailed even in second appeal which had not been provided in family cases, while constitutional jurisdiction being much more limited in its scope, could not be exercised in absence of any illegality in the process of reaching findings of fact or any other error of jurisdiction committed by Courts below. 1987 C L C 1705

Decree passed against petitioner for dower and maintenance challenged in Writ Petition but petition failed--Contention that Family Court had not complied with provisions of S.12, West Pakistan Family Courts Act, 1964, which required an attempt at reconciliation to be made at close of evidence--Family Court as well as High Court holding that in view of conduct of petitioner and behavior of parties there existed no possibility of reconciliation--View taken by Courts, held, could not be taken exception to 1986 S C M R 1556

12A  Cases to be disposed of within a specified period.---A Family Court shall dispose of a case, including a suit for dissolution of marriage, within a period of six months from the date of institution.

         Provided that where a case is not disposed of within six months either party shall have a right to make an application to the High Court for necessary direction as the High Court may deem fit.

Court Decisions

Object, purpose, scope and import of S. 13, West Pakistan Family Courts Act, 1964 - Powers of Family Court could not be restricted to recover the decretal amount only as arrears of land revenue in a money decree, but the wide power conferred on the Court in the matter of execution of the other decrees of Family Courts, is to be extended to money decrees also. On reading of section 13, West Pakistan Family Courts, Act, 1964, as a whole the proper construction would be that the legislature intended to confer wide power son the Court for enforcement of all the decrees including money decrees and that in addition to the generality of the powers conferred on the execution Court, the legislature has vested a discretion in the Court, to realise the decretal amount as arrears of land revenue which powers ordinarily were not available to Civil Courts or even to the Collector when money decree was to be executed by him under the Third Schedule to the Code, on transfer of decree to him.

It is not ipso facto that under the money decree granted by the Family Court, the sum recoverable was to be recovered as arrears of land revenue. The discretion could be exercised only when a decree related to the payment of money, the decretal amount was not paid within the time specified by the Court and the Court had directed recovery of such amount as arrears of land revenue.

Words “if the Court so directs” vest discretion in the Family Court to adopt the extremely coercive method for recovery of the decretal amount as arrears of land revenue. The above discretion cannot be limited to ancillary matters and such powers are always inherent in execution Court, like postponement of the recovery of decretal amount or granting further time for payment. Such authority, as was not inherent in execution Court, had been specifically provided for under subsections (3) and (5) of section 13 of Act XXXV of 1964 i.e. power to recover the decretal amount as arrears of land revenue or payment of decretal amount in installments.

The powers of the Family Court cannot be restricted to recover the decretal amount only as arrears of land revenue in money decrees, but the wide power conferred on the Court in the matter of execution of the other decrees of the Family Courts, was to be extended to money decrees also. P L D 1993 Lah. 159

Order of attachment and auction of property by the Family Court-Compliance of O.XX, R.54, C.P.C.-Necessity-Provisions of O.XXI, R.54, being not mandatory substantial compliance with the said provision is enough-Strict compliance with O.XXI, R.54, C.P.C. may not be insisted upon as S.13 of the West Pakistan Family Courts Act, 1964 provides for the execution of a decree passed by the Family Court and application of O.XXI, R.54,.C.P.C. has been excluded by S.17 of the said Act. 2002 S C M R 1950 PLD 1972 SC 337 and PLD 2001 SC 128 ref.

Plea of agreement to sell the property attached by the Family Court-No evidence was available on record to prove the genuineness and authenticity of the alleged agreement to sell the property in question-Sale-deed was allegedly executed after the attachment of property in dispute-Sale-deed, even if executed, was rightly found by all the Courts to be invalid-Leave to appeal against order of the Courts below was refused by the Supreme Court. 2002 S C M R 1950

Family Court while staying execution of decree directed petitioner to deposit Rs.1,000 per month as maintenance allowance of his wife and daughter till decision of his application for setting aside ex parte decree—Constitutional petition was disposed of with observation that such interim order could be challenged at the time of filing appeal against final decision of application for setting aside ex parte decree. 2002 CLC 959- PLD 1999 Lah. 33 ref.

Order of attachment and auction of property by the Family Court-Contention yeas that Executing Court had not satisfied the requirements of O.XXI, R.54, C.P.C. for attachment of property and had disregarded High Court (Lahore) Rules and Orders, Vo1.I, Chap. 12-H and that a sale-deed in. respect of the attached property had also been executed in favour of the petitioner-Validity-Nothing was brought on record to show any non-compliance of the provisions of O.XXI, R.54, C.P.C. or the High Court (Lahore) Rules and Orders-Petitioner failed to point out with any. particularity as to how the attachment of the property by the Family Court was vitiated-In the absence of any proof to the contrary presumption would be that all the legal formalities had been duly fulfilled by the Family Court in the process of attachment of the property-Petition for leave to appeal against the order of lower Courts was dismissed. 2002 S C M R 1950-AIR 1934 PC 217 ref.

Interim order-- Family Court while staying execution of decree directed petitioner to deposit Rs.1,000 per month as maintenance allowance of his wife and daughter till decision of his application for setting aside ex parte decree-Constitutional petition was disposed of with observation that such interim order could be challenged at the time of filing appeal against final decision of application for setting aside ex parte decree. 2002 C L C 959--PLD 1999 Lah. 33 ref.

Execution of decree-Family Court, jurisdiction of-Scope- Contention of the petitioner was ‘that Family Court after assessing the decretal amount as arrears of land revenue could not act as-.a Collector--Validity--West Pakistan Family Courts Act, 1964, being special law and Family Courts being Special Tribunals, the legislation has intended to circumvent the litigation between the parties as much, as possible--Section 13 of West Pakistan Family Courts Act vests Family Court with powers of executing Court for enforcement of decrees-If judgment debtor pays money or any property is delivered to decree-holder, Family Court under S.13(2) of West Pakistan Family. Courts Act, 1964, enters the fact of payment of delivery of property in the register, but if the decretal amount is not paid within the time specified by-the, Court, then the Family Court, has vast powers to assess, the decretal amount recoverable as arrears of land revenue and direct the same to be recovered under S.80 onward of West Pakistan. Land Revenue Act, 1967, by himself or may forward the warrants to the Collector to recover the same as arrears of land revenue-Family Court, therefore, could act as Collector. 2002 M L D 1758-PLD 1970 Pesh. 52 and 1986 CLC 2.381 ref.

Words “be recoverable as ‘arrears of land `revenue and on recovery shall be paid to the decree-holder” in -S.13; West .Pakistan Family Courts Act, 1964-Effect-Words so mentioned in S.13(3) of West Pakistan Family Courts Act, 1964 make the Court as Executing Court. 2002 M L D 1758 1991 CLC 1823 ref.

Execution of decree- Family Court and its powers--of procedure prescribed for execution-Decree is to be executed under S.13(4) of West Pakistan Family Courts Act, 1964, by the Court who has passed that decree-Executing Court is the family Court; which can direct the payment of money, assess the decretal amount to be paid as arrears of land revenue and adopt coercive measures as prescribed under, the provisions of S.80 and onward of West Pakistan Land Revenue Act, 1967, stop the proceedings, give time to the judgment-debtor to pa-and satisfy the decretal amount, and make the decree to be paid in such installments as it deems fit-Family Court as executing Court has vast powers.

Held Further that Family Court is a Civil Court and the decree of maintenance being a money decree, arrest and detention as prescribed under S.55, C.P.C. can be ordered by the Family Court.

Detention of judgment-debtor in civil prison for one year-Family Court sent the petitioner/judgment-debtor to civil prison for one year-On account of non-payment of decretal amount-Validity-Family Court being Executing Court was empowered under S.13 of West Pakistan Family Courts Act, 1964 to order for recovery of decretal amount otherwise than as arrears of land revenue-Petitioner could be detained for one year and the orders being passed within the ambit of S.13 of the West Pakistan Family Courts Act, 1964, were not open to challenge in the Constitutional jurisdiction-Petition was dismissed in limine.-2002 M L D 1758 1986 CLC 2381; 1991 CLC 1823; PLD 1970 Pesh. 52; 1986 CLC 2381 and PLD 1993 Kar. 159. ref.

West Pakistan Family Courts Act has only provided machinery regarding manner of recovery of decretal amount--Contention that omission of Court in not fixing time, would render decree of Family Court being not executable was not sustainable for the same did not relate to manner of execution-West Pakistan Family Courts Act, 1964 has only changed forum, altered method of trial and empowered Court to grant better remedies-West Pakistan Family Courts Act, 1964 has, thus, brought about only procedural changes and has not affected any substantive right. 1999CLC81 PLD 1970 Pesh. 52; 1987 CLC 1277; 1986 CLC 2381; 1984 CLC 890; 1983 CLC 3305; 1986 CLC 2381; 1989 CLC 1360; PLD 1993 Kar. 159; PLD 1984 SC 95 ref.

Plaintiff’s claim for recovery of ornaments was decreed in her favour-Both Courts below, however, fixed different amounts as market value of ornaments--Trial Court decreed plaintiff’s suit for the amount claimed by her in plaint while in appeal valuation was fixed according to market value shown in receipts placed on file-Such difference in valuation had not been judicially resolved--Provisions of S. 13, West Pakistan Family Courts Act, 1964, was not helpful in determining market value of ornaments (movable property) rather it was silent about determination of its value in case decree for delivery of such property was un-executable-Provision’ of O.XX, R. 10, C.P.C. would however, be applicable-Only question which remained for determination was the date relevant for such purpose i.e. date when cause of action arose, date on which suit was filed or date of decree-Plaintiff was found entitled to market value of specified weight-age of gold-No evidence was available on record about market rate of gold on the date of institution of suit-Supreme Court, however, instead of remanding case, setting aside judgments and decrees of Courts below to that extent and decreed plaintiff’s suit for the market value of ornaments (weightage whereof was specified) at its market rate on the date of institution of suit-Such amount would be determined by Executing Court after proper inquiry and recording evidence of parties. 1996SCMR1063 AIR 1945 Pesh. 5 rel.

Execution of decree—Revision petition against order of dismissal of appeal filed before Appellate court against order of transferee Executing Court—Maintainability—Special provisions of west Pakistan Family Courts Act, 1964 excluded the general provisions of Civil Procedure Code, 1908—High Court dismissed revision petition as being not maintainable. PLD 2003 Pesh. 63

Partial decree, execution of-Powers of Executing Court--Family suit were decreed in terms of compromise between the parties whereby the wife had agreed to live with the husband and in return the husband was to shift the dowry articles to the house where the spouses were to live together-Wife, refused to live with the husband, after disposal of the suits, and filed a suit for dissolution of marriage which was decreed by the Family Court and the decree was maintained by High Court-Wife initiated execution proceedings for the recovery of dowry articles-Husband raised objection to the maintainability of the proceedings on the ground that as the wife did not perform her part of agreement, therefore, the execution of compromise decree would be a partial execution- Family Court disallowed the objection, while the Appellate Court accepted the appeal and directed the Family Court to restore the suit for recovery of dowry articles-Validity-Execution of the decree in favour of the wife for the return of the dowry articles would amount to execution of a partial decree in her favour which was not just and proper as the Executing Court could not do the same, because the wife had released herself from performing her obligation on her side under the decree granted in favour of the husband-If the wife would be allowed to execute the decree, the same would amount on the part of Executing Court to go behind the decree which could not be done--Seeking partial execution of decree by a person without fulfilling his own obligation under the same decree disentitled the person from seeking the requisite relief-Order passed by the Appellate Court was not suffering from any illegality as the same was well-reasoned and did not call for any interference by High Court-Constitutional petition was dismissed in limine. 2002 C L C 1401 AIR 1956 SC 359 and AIR 1972 SC 726 ref.

Liability of surety-Suit for maintenance allowance having been decreed, decree-holder sought execution of said decree-House, of which judgment-debtor was owner up to one-third share, was put to auction for recovery of decretal amount as recovery of land revenue-Petitioner appeared as surety of judgment-debtor before Court Auctioneer and undertook to pay decretal amount to decree holder which undertaking was accepted on behalf of decree-holder--Petitioner/surety had subsequently, contended that he, not being a party to judgment and decree passed by Court, could not be held liable to pay the decretal amount -Validity-Decretal amount having been assessed as Land Revenue, provisions of S.80 of West Pakistan Land Revenue Act, 1967 were applicable and petitioner being surety having made himself bound to pay decretal amount, was responsible for payment of said amount. 2000 C L C 1648

Compromise on behalf of minors -Effect--Petitioners were minors when earlier execution petition was withdrawn cm basis of compromise-Family Court had acted on basis of statement made by minors’ mother who was acting as their next friend, without ascertaining whether such compromise was for the benefit of minors-Provisions of O. XXXII, R.7, Civil Procedure Code, 1908, though not strictly applicable to proceedings before Family Court, yet salutary principle contained therein, could not have been ignored by the Court-Order of compromise passed by Family Court and the statement made by mother of minors on their behalf could not be construed as rendering decree for maintenance itself as ineffective for all times to come--Petitioners in earlier execution petition had claimed maintenance for a specific period and on no principle withdrawal of that execution petition could be taken as a bar to maintainability of subsequent execution petition which related to subsequent period-Subsequent execution petition was thus competent-Fresh execution petition could competently be filed where after compromise, judgment-debtor had failed to maintain decree-holders i.e. minor children. 1991 M L D 1321 PLD 1974 Lah. 495 ref.

Essentials - Provision of S.13, West Pakistan Family Courts Act, 1964, having beneficial object behind it should be liberally construed and should be given widest operation without distorting what is conveyed by its phraseology and in so far as liberal construction necessarily flows from it and can be assigned to it without being presumptuous. P L D 1993 Lah. 159

Family Court had no lawful authority to issue warrants of arrest at the instance of decree holder - If wife had refused to join her husband in obedience to decree of restitution of conjugal rights against her she could be deprived of maintenance allowance--Where, however, coercive measures for implementing the order of restitution of conjugal rights have to be adopted then the movable and immovable property belonging to wife could be ordered to be attached - Order of warrant of arrest against wife for the implementation of order of restitution of conjugal tights was thus not warranted. P L D 1993 Quetta 1

Intra-Court Appeal--Compromise decree-Suit for maintenance was filed by wife/respondent, whereas suit for restitution of conjugal rights was filed by husband/appellant-Parties at post trial proceedings entered into compromise, and judgment and decree was passed by Trial Court in terms of said compromise--Husband/appellant assailed that judgment and decree before High Court by invoking Constitutional jurisdiction, on the ground that the statement of compromise recorded by the Trial Court was without oath-High Court dismissed the Constitutional petition--Intra-Court appeal-Where husband/ appellant made a statement and agreed for disposal of the case on the basis of that compromise, he could not repudiate or resile therefrom-Compromise so arrived at and decree passed accordingly was just and fair--No error or justification was found to interfere with the judgment of High Court in Intra-Court Appeal. 1999 Y L R 1177 1992 SCMR 408 distinguished. PLD 1986 SC 542 and PLD 1987 SC 107 fol.

Constitutional jurisdiction, exercise of- Suit for maintenance filed by wife and children was compromised and Trial Court passed judgment and decree accordingly-Statement of compromise recorded in Trial Court was without oath--Effect-Husband was obliged to pay maintenance to his wife and children-Fair and just solution of the matter and that too by a voluntary act of the parties, could not be made subject-matter of Constitutional jurisdiction. 1999 Y L R 1177

Jurisdiction-All decrees passed by Family Court were to be executed by it or by Such other Civil Court as District Court by special or general order might direct-Provisions of S.13(3), West Pakistan Family Courts Act 1964 have not ousted jurisdiction of Family Court to execute the decree.

Provisions of S.13(3), West Pakistan Family Courts Act, 1964 provide that if the decree related to payment of money, the decretal amount could be recovered as arrears of land revenue if the Court had so directed. This subsection is in the nature of enabling provisions and provides an additional procedure which can be adopted for enforcing the decree under a spec order of the Court directing the recovery as arrears of land revenue. It does not, however, in any manner affect the general provision in subsection (4) for execution of the decrees passed by the Family Court. If subsection (3) and subsection (4) are read together, the inevitable conclusion is that all decrees passed by the Family Court are to be executed by it or by such other Civil Court as the District Judge may be special or general order direct. In matters where the decree related to recovery of money an additional power was vested in Court to direct the recovery as arrears of land revenue. There was no warrant, however, for construing subsection (3) as ousting the jurisdiction of the Family Court to execute the decree.

Furthermore, even in cases where the decretal amount was directed to be recovered as arrears of land revenue, the execution petition had to be filed before the Family Court, which might forward the warrants to the Collector for recovering the money as arrears of land revenue. 1991CLC1823 P L D 1970 Pesh. 52 and 1986 C L C 2381 ref.P L D 1990 Lah. 71 rel.

Decree for maintenance--Family Court had jurisdiction to execute such decree-Objection that such decree could only be executed as arrears of land revenue by Collector was not proper or legal-Constitutional petition against execution of maintenance decree by Family Court was dismissed in circumstances. 1991 CLC 1823

Warrant of arrest, challenge to--Executing Court made all efforts to recover’ decretal amount before issuing warrants of arrest against judgment debtor--Judgment-debtor frustrated orders for attachment of his property, did not pay installments and did not even care to appear before the Court—Judgment debtor by his conduct forced Court to issue warrants of arrest against him--Court being competent to execute decree and recover decretal amount as arrears of land revenue, held, could issue warrants of arrest against judgment-debtor-Refusal of judgment-debtor to pay decretal amount had disentitled him to any assistance from High Court in exercise of its constitutional jurisdiction. 1989 M L D 955

Only if the Court so directs. A plain reading of-provisions of section 13, West Pakistan Family Courts Act, 1964, will firstly indicate that execution of a decree, in general, is to be done by either the Family Courts itself or by such other Civil Court as the District Judge may direct by special or general order. Secondly a distinction is made in the matters pertaining to .money decree inasmuch as at the first instance the executing Court is required to direct the judgment-debtor to pay the decretal amount within a specified time. If he fails in doing so, then there appear to be two courses open to, the executing Court. One, to follow the ‘ course of recovery of decretal amount as arrears of land revenue and in this regard it is required to issue a direction specifically in compliance with subsection (3) of section 13 of the Act. Or, it will adopt other means to effect the recovery of the decretal amount. Failure on the part of a decree-holder to make the payment of the decretal amount within the time specified by an executing Court shall not ipso facto make it obligatory on the Court to recover the same as arrears of land revenue but it is dependent upon its discretion and only if the Court so directs the recovery shall be resorted to as arrears of land revenue. It will be then that the mode prescribed by Chapter IX of the West Pakistan Land Revenue Act, 1967 shall be adopted for the purpose of realization of the decretal amount. 1989 C L C 1630

Mode of recovery- Proceedings before Family Court were in the nature of civil proceedings--Family Court itself or any other Civil Court designated by District Judge, specially or generally, were conferred with powers to execute a Family Court decree--In absence of any special mode prescribed for the, execution of a decree, executing Court would not be violating any provision of law, if it presses into service, or follows the procedure as provided in Civil Procedure Code, notwithstanding provisions of S.17 of West Pakistan Family Courts Act, 1964--Where Execution Curt in exercise of its discretion, refrains from issuing direction for the recovery of decretal amount as arrears of and revenue. it may follow the procedure as contained in Civil Procedure Code--Executing Court adopting procedure under OXXI, R.30 of C.P.C. for recovery of decretal amount thus committed no violation of law. Litigation between spouses-Husband’s attempt to deprive his wife of fruits of litigation, by invoking Constitutional jurisdiction--Effect--Constitutional jurisdiction of High Court cannot be exercised in aid of injustice or such inequitable acts of a person as to impede lawful course of justice--Constitutional jurisdiction of superior Courts were always meant to come in aid of justice and equity alone. 1989 C L C 1630

Decree for maintenance of minor children-Compromise between parties during execution proceedings--Subsequent execution application dismissed by Court on ground that parties having compromised same was not competent-Judgment of Court below being erroneous same was declared to be without lawful authority and of no legal effect. 1991 M L D 1321

Dissolution of marriage between spouses in terms of compromise between parties on basis of oath--Validity of dissolution of marriage on basis of oath challenged by husband--Where statement of parties recorded by Family Court was unambiguous i.e., petitioner accepted the offer and plaintiff /respondent took oath on Holy Qur’an, grant of decree on basis of such oath, held, would estop parties thereto, to challenge the decree based on contract reached between such parties--Constitutional petition against finding of Court based on contract of parties being devoid of merit was dismissed in circumstances. 1987 M L D 770 1974 .S C M R 224 and 1984 C L C 368 rel.

Decision of matter with regard to dower- Held, not within jurisdiction of Union Committee or Union Council-Revenue Authorities cannot proceed independently for recovering dower amount as arrears of land revenue without an order or decree of a competent Court or Authority-Order of Chairman, Arbitration Council passed for payment of dower amount-Held, cannot be sustained in law Order of Collector based upon such illegal order for recovery of dower amount as arrears of land revenue m absence of an order or decree by a competent Court-Held, illegal and without jurisdiction. P L D 1981 Lah. 232

13.  Endorsement on decrees.---(1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register.

(2)         If any money is paid or any property is delivered in the presence of any Family Court, in satisfaction of the decree, it shall enter the fact of payment or the delivery of property, as the case may be, in the aforesaid register.

(3)         Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, not exceeding thirty days, the same shall, if the Court so directs, be recovered as arrears of land-revenue and on recovery shall be paid to the decree-holder.

(4)         The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.

(5)         A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit.

Court Decisions

Object, purpose, scope and import of S. 13, West Pakistan Family Courts Act, 1964 - Powers of Family Court could not be restricted to recover the decretal amount only as arrears of land revenue in a money decree, but the wide power conferred on the Court in the matter of execution of the other decrees of Family Courts, is to be extended to money decrees also. On reading of section 13, West Pakistan Family Courts, Act, 1964, as a whole the proper construction would be that the legislature intended to confer wide power son the Court for enforcement of all the decrees including money decrees and that in addition to the generality of the powers conferred on the execution Court, the legislature has vested a discretion in the Court, to realise the decretal amount as arrears of land revenue which powers ordinarily were not available to Civil Courts or even to the Collector when money decree was to be executed by him under the Third Schedule to the Code, on transfer of decree to him.

It is not ipso facto that under the money decree granted by the Family Court, the sum recoverable was to be recovered as arrears of land revenue. The discretion could be exercised only when a decree related to the payment of money, the decretal amount was not paid within the time specified by the Court and the Court had directed recovery of such amount as arrears of land revenue.

Words “if the Court so directs” vest discretion in the Family Court to adopt the extremely coercive method for recovery of the decretal amount as arrears of land revenue. The above discretion cannot be limited to ancillary matters and such powers are always inherent in execution Court, like postponement of the recovery of decretal amount or granting further time for payment. Such authority, as was not inherent in execution Court, had been specifically provided for under subsections (3) and (5) of section 13 of Act XXXV of 1964 i.e. power to recover the decretal amount as arrears of land revenue or payment of decretal amount in installments.
The powers of the Family Court cannot be restricted to recover the decretal amount only as arrears of land revenue in money decrees, but the wide power conferred on the Court in the matter of execution of the other decrees of the Family Courts, was to be extended to money decrees also. P L D 1993 Lah. 159

Order of attachment and auction of property by the Family Court-Compliance of O.XX, R.54, C.P.C.-Necessity-Provisions of O.XXI, R.54, being not mandatory substantial compliance with the said provision is enough-Strict compliance with O.XXI, R.54, C.P.C. may not be insisted upon as S.13 of the West Pakistan Family Courts Act, 1964 provides for the execution of a decree passed by the Family Court and application of O.XXI, R.54,.C.P.C. has been excluded by S.17 of the said Act. 2002 S C M R 1950 PLD 1972 SC 337 and PLD 2001 SC 128 ref.

Plea of agreement to sell the property attached by the Family Court-No evidence was available on record to prove the genuineness and authenticity of the alleged agreement to sell the property in question-Sale-deed was allegedly executed after the attachment of property in dispute-Sale-deed, even if executed, was rightly found by all the Courts to be invalid-Leave to appeal against order of the Courts below was refused by the Supreme Court. 2002 S C M R 1950.

Family Court while staying execution of decree directed petitioner to deposit Rs.1,000 per month as maintenance allowance of his wife and daughter till decision of his application for setting aside ex parte decree—Constitutional petition was disposed of with observation that such interim order could be challenged at the time of filing appeal against final decision of application for setting aside ex parte decree. 2002 CLC 959- PLD 1999 Lah. 33 ref

Order of attachment and auction of property by the Family Court-Contention yeas that Executing Court had not satisfied the requirements of O.XXI, R.54, C.P.C. for attachment of property and had disregarded High Court (Lahore) Rules and Orders, Vo1.I, Chap. 12-H and that a sale-deed in. respect of the attached property had also been executed in favour of the petitioner-Validity-Nothing was brought on record to show any non-compliance of the provisions of O.XXI, R.54, C.P.C. or the High Court (Lahore) Rules and Orders-Petitioner failed to point out with any. particularity as to how the attachment of the property by the Family Court was vitiated-In the absence of any proof to the contrary presumption would be that all the legal formalities had been duly fulfilled by the Family Court in the process of attachment of the property-Petition for leave to appeal against the order of lower Courts was dismissed. 2002 S C M R 1950-AIR 1934 PC 217 ref.

Interim order-- Family Court while staying execution of decree directed petitioner to deposit Rs.1,000 per month as maintenance allowance of his wife and daughter till decision of his application for setting aside ex parte decree-Constitutional petition was disposed of with observation that such interim order could be challenged at the time of filing appeal against final decision of application for setting aside ex parte decree. 2002 C L C 959--PLD 1999 Lah. 33 ref.

Execution of decree-Family Court, jurisdiction of-Scope- Contention of the petitioner was ‘that Family Court after assessing the decretal amount as’ arrears of land revenue could not act as-.a Collector--Validity--West Pakistan Family Courts Act, 1964, being special law and Family Courts being Special Tribunals, the legislation has intended to circumvent the litigation between the parties as much, as possible--Section 13 of West Pakistan Family Courts Act vests Family Court with powers of executing Court for enforcement of decrees-If judgment debtor pays money or any property is delivered to decree-holder, Family Court under S.13(2) of West Pakistan Family. Courts Act, 1964, enters the fact of payment of delivery of property in the register, but if the decretal amount is not paid within the time specified by-the, Court, then the Family Court, has vast powers to assess, the decretal amount recoverable as arrears of land revenue and direct the same to be recovered under S.80 onward of West Pakistan. Land Revenue Act, 1967, by himself or may forward the warrants to the Collector to recover the same as arrears of land revenue-Family Court, therefore, could act as Collector. 2002 M L D 1758-PLD 1970 Pesh. 52 and 1986 CLC 2.381 ref.

Words “be recoverable as ‘arrears of land `revenue and on recovery shall be paid to the decree-holder” in -S.13; West .Pakistan Family Courts Act, 1964-Effect-Words so mentioned in S.13(3) of West Pakistan Family Courts Act, 1964 make the Court as Executing Court. 2002 M L D 1758 1991 CLC 1823 ref.

Execution of decree- Family Court and its powers--of procedure prescribed for execution-Decree is to be executed under S.13(4) of West Pakistan Family Courts Act, 1964, by the Court who has passed that decree-Executing Court is the family Court; which can direct the payment of money, assess the decretal amount to be paid as arrears of land revenue and adopt coercive measures as prescribed under, the provisions of S.80 and onward of West Pakistan Land Revenue Act, 1967, stop the proceedings, give time to the judgment-debtor to pa-and satisfy the decretal amount, and make the decree to be paid in such installments as it deems fit-Family Court as executing Court has vast powers.

Held Further that Family Court is a Civil Court and the decree of maintenance being a money decree, arrest and detention as prescribed under S.55, C.P.C. can be ordered by the Family Court.

Detention of judgment-debtor in civil prison for one year-Family Court sent the petitioner/judgment-debtor to civil prison for one year-On account of non-payment of decretal amount-Validity-Family Court being Executing Court was empowered under S.13 of West Pakistan Family Courts Act, 1964 to order for recovery of decretal amount otherwise than as arrears of land revenue-Petitioner could be detained for one year and the orders being passed within the ambit of S.13 of the West Pakistan Family Courts Act, 1964, were not open to challenge in the Constitutional jurisdiction-Petition was dismissed in limine.-2002 M L D 1758 1986 CLC 2381; 1991 CLC 1823; PLD 1970 Pesh. 52; 1986 CLC 2381 and PLD 1993 Kar. 159. ref.

West Pakistan Family Courts Act has only provided machinery regarding manner of recovery of decretal amount--Contention that omission of Court in not fixing time, would render decree of Family Court being not executable was not sustainable for the same did not relate to manner of execution-West Pakistan Family Courts Act, 1964 has only changed forum, altered method of trial and empowered Court to grant better remedies-West Pakistan Family Courts Act, 1964 has, thus, brought about only procedural changes and has not affected any substantive right. 1999CLC81 PLD 1970 Pesh. 52; 1987 CLC 1277; 1986 CLC 2381; 1984 CLC 890; 1983 CLC 3305; 1986 CLC 2381; 1989 CLC 1360; PLD 1993 Kar. 159; PLD 1984 SC 95 ref.

Plaintiff’s claim for recovery of ornaments was decreed in her favour-Both Courts below, however, fixed different amounts as market value of ornaments--Trial Court decreed plaintiff’s suit for the amount claimed by her in plaint while in appeal valuation was fixed according to market value shown in receipts placed on file-Such difference in valuation had not been judicially resolved--Provisions of S. 13, West Pakistan Family Courts Act, 1964, was not helpful in determining market value of ornaments (movable property) rather it was silent about determination of its value in case decree for delivery of such property was un-executable-Provision’ of O.XX, R. 10, C.P.C. would however, be applicable-Only question which remained for determination was the date relevant for such purpose i.e. date when cause of action arose, date on which suit was filed or date of decree-Plaintiff was found entitled to market value of specified weight-age of gold-No evidence was available on record about market rate of gold on the date of institution of suit-Supreme Court, however, instead of remanding case, setting aside judgments and decrees of Courts below to that extent and decreed plaintiff’s suit for the market value of ornaments (weightage whereof was specified) at its market rate on the date of institution of suit-Such amount would be determined by Executing Court after proper inquiry and recording evidence of parties. 1996SCMR1063 AIR 1945 Pesh. 5 rel.

Execution of decree—Revision petition against order of dismissal of appeal filed before Appellate court against order of transferee Executing Court—Maintainability—Special provisions of west Pakistan Family Courts Act, 1964 excluded the general provisions of Civil Procedure Code, 1908—High Court dismissed revision petition as being not maintainable. PLD 2003 Pesh. 63

Partial decree, execution of-Powers of Executing Court--Family suit were decreed in terms of compromise between the parties whereby the wife had agreed to live with the husband and in return the husband was to shift the dowry articles to the house where the spouses were to live together-Wife, refused to live with the husband, after disposal of the suits, and filed a suit for dissolution of marriage which was decreed by the Family Court and the decree was maintained by High Court-Wife initiated execution proceedings for the recovery of dowry articles-Husband raised objection to the maintainability of the proceedings on the ground that as the wife did not perform her part of agreement, therefore, the execution of compromise decree would be a partial execution- Family Court disallowed the objection, while the Appellate Court accepted the appeal and directed the Family Court to restore the suit for recovery of dowry articles-Validity-Execution of the decree in favour of the wife for the return of the dowry articles would amount to execution of a partial decree in her favour which was not just and proper as the Executing Court could not do the same, because the wife had released herself from performing her obligation on her side under the decree granted in favour of the husband-If the wife would be allowed to execute the decree, the same would amount on the part of Executing Court to go behind the decree which could not be done--Seeking partial execution of decree by a person without fulfilling his own obligation under the same decree disentitled the person from seeking the requisite relief-Order passed by the Appellate Court was not suffering from any illegality as the same was well-reasoned and did not call for any interference by High Court-Constitutional petition was dismissed in limine. 2002 C L C 1401 AIR 1956 SC 359 and AIR 1972 SC 726 ref.

Liability of surety-Suit for maintenance allowance having been decreed, decree-holder sought execution of said decree-House, of which judgment-debtor was owner up to one-third share, was put to auction for recovery of decretal amount as recovery of land revenue-Petitioner appeared as surety of judgment-debtor before Court Auctioneer and undertook to pay decretal amount to decree holder which undertaking was accepted on behalf of decree-holder--Petitioner/surety had subsequently, contended that he, not being a party to judgment and decree passed by Court, could not be held liable to pay the decretal amount -Validity-Decretal amount having been assessed as Land Revenue, provisions of S.80 of West Pakistan Land Revenue Act, 1967 were applicable and petitioner being surety having made himself bound to pay decretal amount, was responsible for payment of said amount. 2000 C L C 1648

Compromise on behalf of minors -Effect--Petitioners were minors when earlier execution petition was withdrawn cm basis of compromise-Family Court had acted on basis of statement made by minors’ mother who was acting as their next friend, without ascertaining whether such compromise was for the benefit of minors-Provisions of O. XXXII, R.7, Civil Procedure Code, 1908, though not strictly applicable to proceedings before Family Court, yet salutary principle contained therein, could not have been ignored by the Court-Order of compromise passed by Family Court and the statement made by mother of minors on their behalf could not be construed as rendering decree for maintenance itself as ineffective for all times to come--Petitioners in earlier execution petition had claimed maintenance for a specific period and on no principle withdrawal of that execution petition could be taken as a bar to maintainability of subsequent execution petition which related to subsequent period-Subsequent execution petition was thus competent-Fresh execution petition could competently be filed where after compromise, judgment-debtor had failed to maintain decree-holders i.e. minor children. 1991 M L D 1321 PLD 1974 Lah. 495 ref.

Essentials - Provision of S.13, West Pakistan Family Courts Act, 1964, having beneficial object behind it should be liberally construed and should be given widest operation without distorting what is conveyed by its phraseology and in so far as liberal construction necessarily flows from it and can be assigned to it without being presumptuous. P L D 1993 Lah. 159

Family Court had no lawful authority to issue warrants of arrest at the instance of decree holder - If wife had refused to join her husband in obedience to decree of restitution of conjugal rights against her she could be deprived of maintenance allowance--Where, however, coercive measures for implementing the order of restitution of conjugal rights have to be adopted then the movable and immovable property belonging to wife could be ordered to be attached - Order of warrant of arrest against wife for the implementation of order of restitution of conjugal tights was thus not warranted. P L D 1993 Quetta 1

Intra-Court Appeal--Compromise decree-Suit for maintenance was filed by wife/respondent, whereas suit for restitution of conjugal rights was filed by husband/appellant-Parties at post trial proceedings entered into compromise, and judgment and decree was passed by Trial Court in terms of said compromise--Husband/appellant assailed that judgment and decree before High Court by invoking Constitutional jurisdiction, on the ground that the statement of compromise recorded by the Trial Court was without oath-High Court dismissed the Constitutional petition--Intra-Court appeal-Where husband/ appellant made a statement and agreed for disposal of the case on the basis of that compromise, he could not repudiate or resile therefrom-Compromise so arrived at and decree passed accordingly was just and fair--No error or justification was found to interfere with the judgment of High Court in Intra-Court Appeal. 1999 Y L R 1177 1992 SCMR 408 distinguished. PLD 1986 SC 542 and PLD 1987 SC 107 fol.

Constitutional jurisdiction, exercise of- Suit for maintenance filed by wife and children was compromised and Trial Court passed judgment and decree accordingly-Statement of compromise recorded in Trial Court was without oath--Effect-Husband was obliged to pay maintenance to his wife and children-Fair and just solution of the matter and that too by a voluntary act of the parties, could not be made subject-matter of Constitutional jurisdiction. 1999 Y L R 1177

Jurisdiction-All decrees passed by Family Court were to be executed by it or by Such other Civil Court as District Court by special or general order might direct-Provisions of S.13(3), West Pakistan Family Courts Act 1964 have not ousted jurisdiction of Family Court to execute the decree.

Provisions of S.13(3), West Pakistan Family Courts Act, 1964 provide that if the decree related to payment of money, the decretal amount could be recovered as arrears of land revenue if the Court had so directed. This subsection is in the nature of enabling provisions and provides an additional procedure which can be adopted for enforcing the decree under a spec order of the Court directing the recovery as arrears of land revenue. It does not, however, in any manner affect the general provision in subsection (4) for execution of the decrees passed by the Family Court. If subsection (3) and subsection (4) are read together, the inevitable conclusion is that all decrees passed by the Family Court are to be executed by it or by such other Civil Court as the District Judge may be special or general order direct. In matters where the decree related to recovery of money an additional power was vested in Court to direct the recovery as arrears of land revenue. There was no warrant, however, for construing subsection (3) as ousting the jurisdiction of the Family Court to execute the decree.

Furthermore, even in cases where the decretal amount was directed to be recovered as arrears of land revenue, the execution petition had to be filed before the Family Court, which might forward the warrants to the Collector for recovering the money as arrears of land revenue. 1991 CLC 1823 P L D 1970 Pesh. 52 and 1986 C L C 2381 ref.P L D 1990 Lah. 71 rel.

Decree for maintenance--Family Court had jurisdiction to execute such decree-Objection that such decree could only be executed as arrears of land revenue by Collector was not proper or legal-Constitutional petition against execution of maintenance decree by Family Court was dismissed in circumstances. 1991CLC1823

Warrant of arrest, challenge to--Executing Court made all efforts to recover’ decretal amount before issuing warrants of arrest against judgment debtor--Judgment-debtor frustrated orders for attachment of his property, did not pay installments and did not even care to appear before the Court—Judgment debtor by his conduct forced Court to issue warrants of arrest against him--Court being competent to execute decree and recover decretal amount as arrears of land revenue, held, could issue warrants of arrest against judgment-debtor-Refusal of judgment-debtor to pay decretal amount had disentitled him to any assistance from High Court in exercise of its constitutional jurisdiction. 1989 M L D 955

Only if the Court so directs. A plain reading of-provisions of section 13, West Pakistan Family Courts Act, 1,)64, will firstly indicate that execution of a decree, in general, is to be done by either the Family Courts itself or by such other Civil Court as the District Judge may direct by special or general order. Secondly a distinction is made in the matters pertaining to .money decree inasmuch as at the first instance the executing Court is required to direct the judgment-debtor to pay the decretal amount within a specified time. If he fails in doing so, then there appear to be two courses open to, the executing Court. One, to follow the ‘ course of recovery of decretal amount as arrears of land revenue and in this regard it is required to issue a direction specifically in compliance with subsection (3) of section 13 of the Act. Or, it will adopt other means to effect the recovery of the decretal amount. Failure on the part of a decree-holder to make the payment of the decretal amount within the time specified by an executing Court shall not ipso facto make it obligatory on the Court to recover the same as arrears of land revenue but it is dependent upon its discretion and only if the Court so directs the recovery shall be resorted to as arrears of land revenue. It will be then that the mode prescribed by Chapter IX of the West Pakistan Land Revenue Act, 1967 shall be adopted for the purpose of realization of the decretal amount. 1989 C L C 1630

Mode of recovery- Proceedings before Family Court were in the nature of civil proceedings--Family Court itself or any other Civil Court designated by District Judge, specially or generally, were conferred with powers to execute a Family Court decree--In absence of any special mode prescribed for the, execution of a decree, executing Court would not be violating any provision of law, if it presses into service, or follows the procedure as provided in Civil Procedure Code, notwithstanding provisions of S.17 of West Pakistan Family Courts Act, 1964--Where Execution Curt in exercise of its discretion, refrains from issuing direction for the recovery of decretal amount as arrears of and revenue. It may follow the procedure as contained in Civil Procedure Code--Executing Court adopting procedure under OXXI, R.30 of C.P.C. for recovery of decretal amount thus committed no violation of law. Litigation between spouses-Husband’s attempt to deprive his wife of fruits of litigation, by invoking Constitutional jurisdiction--Effect--Constitutional jurisdiction of High Court cannot be exercised in aid of injustice or such inequitable acts of a person as to impede lawful course of justice--Constitutional jurisdiction of superior Courts were always meant to come in aid of justice and equity alone. 1989 C L C 1630

Decree for maintenance of minor children-Compromise between parties during execution proceedings--Subsequent execution application dismissed by Court on ground that parties having compromised same was not competent-Judgment of Court below being erroneous same was declared to be without lawful authority and of no legal effect. 1991 M L D 1321

Dissolution of marriage between spouses in terms of compromise between parties on basis of oath--Validity of dissolution of marriage on basis of oath challenged by husband--Where statement of parties recorded by Family Court was unambiguous i.e., petitioner accepted the offer and plaintiff /respondent took oath on Holy Qur’an, grant of decree on basis of such oath, held, would estop parties thereto, to challenge the decree based on contract reached between such parties--Constitutional petition against finding of Court based on contract of parties being devoid of merit was dismissed in circumstances. 1987 M L D 770 1974 .S C M R 224 and 1984 C L C 368 rel.

Decision of matter with regard to dower- Held, not within jurisdiction of Union Committee or Union Council-Revenue Authorities cannot proceed independently for recovering dower amount as arrears of land revenue without an order or decree of a competent Court or Authority-Order of Chairman, Arbitration Council passed for payment of dower amount-Held, cannot be sustained in law Order of Collector based upon such illegal order for recovery of dower amount as arrears of land revenue m absence of an order or decree by a competent Court-Held, illegal and without jurisdiction. P L D 1981 Lah. 232

14.  Appeal.---(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable:---

(a)         to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and

(b)         to the District Court, in any other case.

(2)         No appeal shall lie from a decree by a Family Court:---

(a)      for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages’ Act, 1939;

(b)      for dower or dowry not exceeding rupees thirty thousand;

(c)       for maintenance of rupees one thousand or less per month.

(3)         No appeal or revision shall lie against an interim order passed by a Family Court.

(4)         The appellate Court referred to in sub-section (1), shall dispose of the appeal within a period of four months.

Court Decisions

Appeal:-- Now by virtue of amendment in Sub. Sec 2. by the family courts (Amendment) ordinance 2002 , No appeal shall lie from a decree of Family Court, for maintenance of rupees one thousand or less per month. Nor an appeal or revision shall lie against and interim order passed by a Family Court.

Right of Appeal—Bar or abridgement of right of appeal as contained in S.14(2)(c) of West Pakistan Family Courts Act, 1964, would apply to the judgment-debtor and not to the decree-holder as the Legislature had thought it fit not to provide an appeal against a decree for a meager amount—If the Family Court had awarded maintenance allowance for Rs.500 p.m. or less the wife or the minor children were entitled to file an appeal before the higher Court—Interpretation of S.14(2)(c) of the Act to the effect that bar of right of right of appeal was also applicable to decree-holders (wife and minor) would entail injustice, hardship and anomaly and such interpretation would defeat the purpose of the Act for which it was enacted. Family Courts Act, 1964 nature and purpose of—Provisions of West Pakistan Family Courts Act, 1964 were of a beneficial nature which had enlarged the scope of jurisdiction of Family Courts and also vested the Court with power of giving substantial relief to wife and children with a right of appeal. 2002 MLD 784

Dissolution of marriage on the basis of Khula’--No right of appeal in such case having been provided under the provisions of S.14(2) of West Pakistan Family Courts Act, 1964, Constitutional jurisdiction could not take place of appellate jurisdiction. 2001 C L C 507

Appeal, maintainability of-Suit filed by plaintiff for maintenance for herself as well as for her minor daughter was decreed by Trial Court and Appellate Court, in appeal, partly accepted appeal and maintenance allowance granted to plaintiff was set aside whereas maintenance granted to minor daughter was maintained-Validity-No appeal under S.14(2)(c) of West Pakistan Family Courts Act, 1964 was maintainable against maintenance of Rs.500 or less per month-Maintenance allowance in case having been granted to plaintiff at rate of Rs.500 per month, judgment and decree passed by Trial Court was not appeal able -Appellate Court being not competent to entertain appeal, order passed by it was coram non judice and was of no legal effect. 2002 M L D 1526

Constitutional.-petition-Maintainability- Trial Court decreed suit and granted maintenance for minors at the rate of Rs.700 per month each-Defendant/petitioner had filed Constitutional petition against judgment and decree of the Trial Court--Maintainability of petition was challenged by respondent-Validity-Had the maintenance allowance of each minor been fixed up to Rs.500 p.m. the appeal under S.14 of West Pakistan Family Courts Act, 1964 could not be filed and the only remedy was to challenge the said order by way of filing Constitutional petition-If the maintenance allowance of each minor was fixed at the rate of Rs.700 per month, only recourse available to defendant/petitioner was first to go to the District Judge by filing appeal and thereafter he could approach the High Court if he had felt aggrieved of the decision of Appellate Court-Defendant/petitioner having not resorted to the legal recourse, Constitutional petition was dismissed being not maintainable. 2002 L C 270-2001 MLD 310 ref

New plea-Petitioner raised a plea which was not raised before the Appellate Court-Effect-Ground not agitated before the Appellate Court could not be raised in the Constitutional petition. 2002 C L C 1396

Appeal-Jurisdiction of High Court-Scope-Appeal against judgment of Family Court lies before District Court except in case where the Family Court is presided over by a District Judge or Additional District Judge-Appeal preferred before High Court against judgment of Family Judge was not maintainable in circumstances. 2002 C L C 1378

Limitation-Scope-Family Court is not a Civil Court stricto senso, therefore, provisions of Art. 182, Limitation Act, 1908 cannot be pressed into service-Reliance has to be placed on the residuary Article i.e. Art.181 of Limitation Act, 1908 for execution of decree passed by Family Court-Limitation for execution of such decree is thus three years when the right to apply accrues. P L D 2001 S C 128

Suit for recovery of dower was decreed in favour of wife on 24-10-1979 and execution of the decree was filed on 10-11-1996-Husband raised objection to the execution of decree being time-barred-Family Court overruled the objection but the Lower Appellate Court allowed the appeal and accepted the objection-High Court in exercise of Constitutional jurisdiction set aside the order passed by the Lower Appellate Court-Validity-Postponement of recovery of dower for any consideration during subsistence of marriage would not deprive the wife from execution of the decree being barred by time-No sooner proceedings of execution were launched that date would be treated as denial by husband to satisfy the liability of prompt dower and under the provisions of Art. 181, Limitation Act execution proceedings would be considered within time--Supreme Court declined interference with the judgment passed by High Court whereby objection to the maintainability of execution proceedings was rejected-Leave 2o appeal was refused. P L D 2001 SC 128

Deficiency in court-fee-Suit for recovery of dowery articles by wife having been decreed, husband filed appeal against same which was dismissed on the ground that he had failed to make up deficiency in court-fee as per direction of the Appellate Court-Contention of husband was that suit for recovery of dowery being included in Sched. of West Pakistan Family Courts Act, 1964, no court-fee was required to be paid and court-fee of R.15 having been affixed on plaint as well as on memo. of appeal no further court-fee was required on memo. of appeal-Plaint was rightly stamped according to S.19 of West Pakistan Family Courts Act, 1964 and provisions of S.7(ii) of Court Fees Act, 1870, which were applicable to the plaint regarding maintenance and annuities etc. were not applicable to appeal arising out of decree passed by Family Court and court-fee on memo. of appeal was to be paid according to the value of subject-matter of appeal determined on date of decree-Amount payable under decree which was subject-matter of appeal, exceeded Rs.25,000, court-fee was to be paid on decretal amount which was subject-matter of appeal-Husband having failed to make up deficiency in court-fee as per direction of the Court his appeal was rightly dismissed-Husband had prayed that if he was granted time to make up deficiency in court-fee, he would make up the deficiency--Respondent having no objection if opportunity was granted to petitioner for making up deficiency in court-fee and his appeal be decided on merits, order dismissing appeal was set aside and appeal before Appellate Court was deemed to be pending and husband was ordered to make up deficiency in specified period and to decide appeal on merits. 2001 C L C 54-PLD 1996 Lah. 436 ref.

Dismissal of appeal being time-barred:-- Time requisite under S.12(2), Limitation Act, 1908 would mean time spent in obtaining copies and would include both days on which application for copy was made and the day of which copy was supplied-Order of Family Court was passed on 2-1-1996--Application for grant of certified copies was made on 30-1-1996 which- were ready for delivery on 4-2-1996 though the same were received by petitioner on 6-2-1996-Time requisite for obtaining copies would have to be excluded while computing period of limitation-Even if it was assumed that time requisite would be the time between date on which copy was applied for and when same was ready for delivery, petitioner was entitled to exclusion of 6 days which were spent upon obtaining copies-Appeal was instituted on 7-2-1996, which was 36th day, therefore, same could not be deemed to be barred by time-Appellate Court acted in excess of jurisdiction in dismissing appeal being barred by time--Judgment and decree of Appellate Court was declared to be without lawful authority and of no legal effect-Appeal would be deemed to be pending before Appellate Court for decision afresh on merits. 1998 C L C 263 AIR 1939 Nag. 150 and 1987 CLC 664 rel.

Appeal against judgment and decree of Trial Court-Petitioner (wife) filed suit for maintenance for herself and for her son whereas (husband) filed suit for restitution of conjugal rights-Trial Court decreed the suit of the wife but in appeal allowance of son was maintained but that of wife was refused-Suit of husband for restitution of conjugal rights was also decreed-Judgment of Appellate Court was challenged by wife in Constitutional petition contending that Appellate Court below having not appreciated evidence on record properly, High Court could embark upon appraisal of evidence brought on record-Validity-Evidence could be appraised by Appellate Court only and not by High Court in exercise of its Constitutional jurisdiction-Petitioner having failed to point out any irregularity or jurisdictional defect in judgment passed by Appellate Court below,, finding of fact recorded by it, could not be interfered with by High Court in exercise of its Constitutional jurisdiction. 2001 C L C 338

Suit for maintenance-Appeal-Court fee payable--Plaintiff in her suit claimed maintenance at the rate of Rs. 2, 000 per month but the Trial Court granted maintenance at the rate of Rs.1,000 per month-Appellate Court, on appeal, instead of considering the rate of maintenance as granted by the Trial Court, directed the appellant to make up deficiency of court fee on memorandum of appeal on the basis of the subject-matter of the suit which was Rs. 2, 000 per month and the appellant paid the required court fee and the Appellate Court directed the appellant to pay maintenance at the rate of Rs.800 per month too the plaintiff till she attained majority--Court-fee on the memo of appeal against order of maintenance, would be on the subject-matter in dispute in appeal and not on the subject-matter in dispute of claim in suit filed by the plaintiff-- Appellant could be refunded court fee after deducting the court fee on the subject-matter in dispute in appeal which was Rs.1,000 per month as was granted by the Trial Court and was appealed against. 2001 Y R 2560 1995 SCMR 1720; PLD 1991 Lah. 51; 1992 MLD 1657 and PLD 1996 Lah. 436 ref.

Quantum of maintenance allowance Petitioner/husband against whom decree for maintenance was passed concurrently by Courts below had assailed quantum of maintenance allowance without contesting judgment and decree on merits-Courts below on basis of evidence on record determined quantum of maintenance allowance payable to respondent wife and minor son. who were not properly maintained by the petitioner-Concurrent findings of fact based, on unrebutted evidence on record could not. be disturbed by High Court in exercise of its Constitutional jurisdiction when such judgments were not suffering from any misreading or non-reading of evidence. 2000 C L C 1823

Appeal against judgments and decree of Family Court-Court-fee payable-Family Court granted decree for maintenance at the rate of rupees one thousand per month in favour of plaintiff-wife including past maintenance as well--Appellate Court, on appeal against judgment and decree of Family Court, directed appellant/husband to affix court-fee on memorandum of appeal under S. 7(2) of Court Fees Act, 1876, within specified period-Appellant husband having failed to pay court-fee his appeal was dismissed-Validity--Court-fee of rupee one was to be affixed on plaint before Family Court under S.19 of West Pakistan Family Courts Act, 1964. in North-West Frontier Province-Section 19 of the said Act had specifically mentioned word “plaint” which would be deemed to have excluded memorandum of appeal--Memorandum of appeal, in circumstances, would be liable to be affixed ad valorem court-fee on subject-matter of dispute as provided by S.7 of Court Fees Act, 1870-Mode of valuation for purpose of court-fee on memorandum of appeal would be ten times the value of maintenance granted for a period of one year-Value for purpose of court-fee in the case amounted to Rs.1,20,000-Appellant/petitioner having failed to affix a required court-fee within specified period, this appeal was rightly dismissed by Appellate Court below. 2000 C L C 1680- 1987 SCMR 1161 ref.

Constitutional petition-Maintainability-Alternate remedy- Impugned judgment and decree of Family Court not challenged in appeal under S. 14 (c) of West Pakistan Family Courts Act, 1964-Constitutional petition was, not maintainable. 1999 M L D 3437

No second appeal had been provided in the West Pakistan Family Courts Act, 1964-Such decree or decision, however, could be challenged in Constitutional petition-Interlocutory order or orders which did not finally decide the subject-matter in dispute; an order which did not suffer from any illegality, mala fide or was not in excess of jurisdiction or in lack of exercise of jurisdiction or was not based on misreading, misconstruing or discarding of the evidence and material on record could not be challenged in Constitutional petition. 1999 C L C 1544 PLD 1982 Lah. 281; PLD 1975 Lah. 1118 and 1991 MLD 1097 ref.

Order of payment of dower to wife passed by High Court in its Constitutional jurisdiction-- Review of judgment of High Court--Maintainability-Applicability of provisions of Civil Procedure Code, 1908-Application of provisions of C.P.C. to the proceedings under West Pakistan Family Courts Act, 1964 were barred with the exceptions of Ss. 10 & 11, C.P.C.-Purpose of Legislature was to shorten and delimit the further proceedings as regards second appeal, revision etc., therefore, the provisions of review were not applicable to the proceedings to Appellate Courts and even to Courts having supervisory Constitutional jurisdiction. 1999 Y L R 882 1983 CLC 2365 and PLD 1965 SC 55 rel.

Constitutional petition-Appeal against order of Family Court-Dismissal of appeal being time-barred-Validity-Time requisite under S.12(2), Limitation Act, 1908 would mean time spent in obtaining copies and would include both days on which application for copy was made and the day of which copy was supplied-Order of Family Court was passed on 2-1-1996--Application for grant of certified copies was made on 30-1-1996 which- were ready for delivery on 4-2-1996 though the same were received by petitioner on 6-2-1996-Time requisite for obtaining copies would have to be excluded while computing period of limitation-Even if it was assumed that time requisite would be the time between date on which copy was applied for and when same was ready for delivery, petitioner was entitled to exclusion of 6 days which were spent upon obtaining copies-Appeal was instituted on 7-2-1996, which was 36th day, therefore, same could not be deemed to be barred by time-Appellate Court acted in excess of jurisdiction in dismissing appeal being barred by time--Judgment and decree of Appellate Court was declared to be without lawful authority and of no legal effect-Appeal would be deemed to be pending before Appellate Court for decision afresh on merits. 1998 C L C 263 AIR 1939 Nag. 150 and 1987 CLC 664 rel.

Constitutional petition--Maintainability-Dissolution of marriage on ground of Khula’ on payment of specified amount as Zar-e-Khula’- Appellate Court modified such findings to the effect that plaintiff would only forego her claim for dower money-Plaintiff petitioner felt aggrieved only of that portion of judgment whereby she had to forego her dower amount-Judgment of First Appellate Court had been assailed by petitioner (plaintiff) in High Court only on the ground that under S.14, West Pakistan Family Courts Act, 1964, no appeal was competent-Such plea of plaintiff had no force-Decision of Family Court on question of Zar-e-Khula’ was subject to appeal under S.14, West Pakistan Family Courts Act, 1964--Constitutional petition was not maintainable in circumstances. 1998 M L D 365 1989 MLD 311 and 1991 CLC 1328 rel.

“Decision” --Meaning, scope and import of word “decision” explained and illustrated.

“Decision” obviously means judicial application of mind regarding a dispute between the parties. It necessarily involves a dispute, actual or potential. It also means the findings of the Courts on the facts. The dismissal of the suit for non-prosecution was not covered by the word “decision”. Dismissal of the suit of the petitioner by the Judge, Family Court for non-prosecution did not amount to “decision” and, thus, not appeal able under section 14 of the Family Courts Act. 1998 M L D 850

Provisions of Family Courts Act, 1964, do not postulate to carry every case to High Court, it rather intends to reduce further litigation-Family Court is not a Court subordinate to High Court-Provision of S. 17, West Pakistan Family Courts Act, 1964 bars application of C.P.C. to family matters-High Court, while exercising its extraordinary jurisdiction to interfere in interlocutory order passed by Family Court has to remain more cautious and judge from all corners whether any challenge made by party can be undone by way of appeal-Interlocutory order passed by Family Court whereby it declined to reject plaint suffered from no infirmity so as to warrant interference in Constitutional jurisdiction of High Court. 1996 M L D 1997
Reappraisal of evidence-- Court of appeal, held, could competently reverse findings even on issues of facts by reappraising evidence led at trial--High Court, however, in exercise of its extraordinary jurisdiction, could not reappraise evidence once appraised by Court/Tribunal of competent jurisdiction. 1985 M L D 1250

15.  Power of the Family Court to summon witnesses.---(1) A Family Court may issue summons to any person to appear and give evidence, or to produce or cause the production of any document:---

Provided that:---

(b)         no person who is exempted from personal appearance in a Court under sub-section (1) of section 133 of the Code of Civil Procedure, 1908, shall be required to appear in person;

(c)          a Family Court may refuse to issue summons or to enforce a summons already issued against a witness when, in the opinion of Court, the attendance of the witness cannot be procured without such delay, expense or inconvenience as in the circumstances would be unreasonable.

(2)         If any person to whom a Family Court has issued summons to appear and give evidence or to cause the production of any document before it, willfully disobeys such summons, Family Court may take cognizance of such disobedience, and after giving such person an opportunity to explain, sentence him to a fine not exceeding one thousand rupees.

Court Decisions

Evidence of special attorney on behalf of plaintiff:-- Constitutional petition against interlocutory order of trial Court-Maintainability-Object of West Pakistan Family Courts Act, 1964, was to provide speedy method to settle family disputes by relaxing rigidity of technicalities of law in procedural matter-Verb object of West Pakistan Family Courts Act, 1964 would be defeated if orders of interlocutory nature were allowed to be challenged in extraordinary Constitutional jurisdiction of High Court under Art.199 of the Constitution--Main object of West Pakistan Family Courts Act, 1964 was to provide real and intrinsic inquisitional jurisdiction by introducing special procedure to settle family cases quickly and effectively-Any procedure, though not clearly provided could be adopted during trial before Family Court to meet any unforeseen eventuality provided same was not in conflict with universal norms of justice-Delegation of authority by plaintiff to her father as her special attorney to give evidence on her behalf was not contrary either to general norms of law or to special procedure provided in Family Courts Act, 1964-Judge of Family Court on the contrary, was invested with powers to summon any person to appear and give evidence in case-No exception could be taken to interlocutory order of Family Court whereby it had allowed special attorney of plaintiff to give evidence on her behalf-Constitutional petition against-such interlocutory order being not competent was dismissed in circumstances. 1997CLC52

Examination of witness--Petitioner husband taking defence that dower money was paid to father of his wife--Petitioner stating neither in writ petition nor during hearing that he would examine himself as a witness or any other witness--Petitioner prayed before Trial Court for summoning father of wife to give evidence as a witness who had since expired--Remand of case, even otherwise, not likely to serve any useful purpose--Story set up by husband that he had paid up dower not believable--Interference with impugned order declined. 1987 C L C 362 P L D 1972 S C 27 and P L D 1959 Pesh. 81 ref.

Object of Family Courts. Act expeditious settlement of disputes relating to marriage and family affairs and connected matters-Orders of Family Court, not otherwise appeal able under Act, cannot be permitted to be challenged ‘by invoking constitutional jurisdiction of High Court-Principle:-fragmentary decisions likely to delay administration of’ justice to be avoided - Orders of Family Court allowing mother, seeking to have custody of her minor son to be examined by a psychiatrist of her choice--Held, interlocutory in nature, neither likely to - cause any tangible damage nor capable of causing any loss or damage to petitioner nor threaten any valuable or personal property or vested rights of petitioner -and hence cannot be challenged by invoking extraordinary constitutional jurisdiction of High Court. 1983 C L C 2099 P L D. 19.78 Lab. 1459; 1979 C L C 199 ; P L D 1978 Lab. 488 and P L D 1975 S C 457 rel.

16.  Contempt of Family Court.---A person shall be guilty of contempt of the Family Court if he, without lawful excuse:---

(b)         offers any insult to the Family Court; or

(c)          causes an interruption in the work of the Family Court; or

(bb)     misbehaves with any person in the Court premises or uses abusive language, threats or uses physical force or intimidates in any form; or

(d)         refuses to answer any question put by the Family Court, which he is bound to answer; or

(e)          refuses to take oath to state the truth or to sign any statement made by him in the Family Court,

and the Family Court may forthwith try such person for such contempt and sentence him to a fine not exceeding rupees two thousand.

Court Decisions

Decretal amount of maintenance-Power of Family Court to realise such amount-Powers of Family Courts under Ss. 13 & 20, West Pakistan Family Courts Act, 1964, were not restricted to recover decretal amount of maintenance only as arrears of land revenue but were exercisable as Civil Court executing money decree and also under 5.488, Criminal Procedure Code, 1898. P L D 1997 Lah. 680-PLD 1993 Kar. 159 rel.

17.  Provision of Evidence Act and Code of Civil Procedure not to apply.---(1) Save as otherwise expressly provided by or under this Act, the provisions of the Qanun-e-Shahadat, 1984 (P. O. No. 10 of 1984) and the Code of Civil Procedure, 1908, except sections 10 and 11, shall not apply to proceeding before any Family Court in respect of Part I of Schedule.

(2)         Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Court.

Court Decisions

Procedure:-- Revision petition against order of dismissal of appeal filed before Appellate court against order of transferee Executing Court—Maintainability—Special provisions of west Pakistan Family Courts Act, 1964 excluded the general provisions of Civil Procedure Code, 1908—High Court dismissed revision petition as being not maintainable.

Family Court to regulate its own proceedings, where circumstances so demand, in order to prevent course of justice being deflected from its true path. PLD 2003 Pesh. 63

Proceedings before Family Court-- provisions of Civil Procedure Code, 1908, and Qanun-e-Shahadat, 1984-Applicability-Said provisions do not apply to proceedings before Family Court. Petitioner raised a plea which was not raised before the Appellate Court-Effect-Ground not agitated before the Appellate Court could not be raised in the Constitutional petition. 2002 C L C 1396

Qanun-e-Shahdat, 1984, after its promulgation would be applicable to proceedings before Tribunal/Family Court-Evidence Act, 1872, however, was not applicable before Tribunal/Family Court-According to Qanun-e-Shahadat, 1984, in case of conflict between oral and written evidence, latter would be preferred-Where written evidence on record particularly written undertaking by father of children stated that he would pay specified amount as maintenance to minor children, had not been taken note of by Courts below, Courts would be deemed to have gone outside jurisdiction and orders passed by them would not be valid and in accordance with law and were liable to be quashed. P L D 1997 Kar. 399-PLD 1992 Kar. 46. rel.

Compliance of O.XX, R.54, C.P.C.-Necessity-Provisions of O.XXI, R.54, being not mandatory substantial compliance with the said provision is enough-Strict compliance with O.XXI, R.54, C.P.C. may not be insisted upon as S.13 of the West Pakistan Family Courts Act, 1964 provides for the execution of a decree passed by the Family Court and application of O.XXI, R.54,.C.P.C. has been excluded by S.17 of the said Act. 2002 S C M R 1950 PLD 1972 SC 337 and PLD 2001 SC 128 ref.

Family Court-Powers of-In absence of any express provision, the Family Court can dismiss a suit for non prosecution, restore same, pass an order for ex parte proceedings and recall it, allow amendment of pleadings, take additional evidence, appoint a Commission for site inspection etc. -In each case the dominant consideration must be a fair and impartial trial, ascertainment of truth and expeditious disposal of the case. 2001 Y L R 2415

Recovery of maintenance-Suit decreed by Senior Civil Judge and appeal decided by District Judge-Validity-If the Family Court was not presided over by the District Judge, under S.14 of West Pakistan Family Courts Act, 1964, the decision given or decree passed by Family Court was appeal able to District Judge-Judgment and decree was passed by Senior Civil Judge and appeal was heard by District Judge both the Courts below thus had lawful authority to pass judgments and decrees respectively. 2002 C L C 1748

High Court does not enjoy any supervisory jurisdiction under S.115, C.P.C. on the proceedings under West Pakistan Family Courts Act, 1964. 2002 C L C 1838

Provisions of S.48, C.P.C.-Applicability--Except Ss. 10 & 11, C.P.C. no other provision of the Code was applicable to the proceedings before Family Court as provided under S.17, West Pakistan Family Courts Act, 1964-Provisions of S.48, C.P.C., therefore, could not be pressed into service in the proceedings under the West Pakistan Family Courts Act, 1964. P L D 2001 S. C 128

Striking off defence:-- Defence of defendant was struck off for non-filing of his written statement -Validity-Provisions of West Pakistan Family Courts Act, 1964 or rules framed thereunder having nowhere authorised Family Court to strike off defence of defendant on non-filing of his written statement, order striking off defence of defendant was declared to be illegal by the High Court. 2001 C L C 567 1990 ALD 180 and PLD 1989 Lah. 69 ref.

Applicability of Civil Procedure Code, 1908-Family Court was competent to adopt its own procedure-Provisions of Civil Procedure Code, 1908 were not applicable in stricto senso in proceedings under West Pakistan Family Courts Act, 1964. 2001 MLD 52 1991 CLC 81 ref.

No specific mode to file such application having been’ prescribed under the West Pakistan Family Courts Act, 1964, or the Rules framed thereunder-Family Court is free to entertain application without verification or even without supporting affidavit -To decide such application the Family Court may proceed to record evidence of the parties and may call upon a party to submit affidavit to substantiate his claim or may otherwise accept the application to secure .the ends of justice. 2001 Y L R 2415

Principles of Civil Procedure Code, would, however, be attracted specially when there was no conflict between provisions of Civil Procedure Code, 1908 and provisions of Family Courts Act, 1964. 1999 CLC 81 PLD 1967 SC 402 rel. PLD 1975 Lah. 7; PLD 1989 SC 532; 1993 SCMR 363; PLD 1981 SC 522 and PLD 1981 SC 246 ref.

Object- Provisions of C. P. C. are not applicable in stricto senso in proceedings before Family Court-Special provisions of West Pakistan Family Courts Act, 1964 exclude the general provisions of C.P.C.-Family Court is competent to regulate its own proceedings as West Pakistan Family Courts Act, 1964, does not make provisions for every conceivable eventuality and unforeseen circumstances. 2000 Y L R 1482

By making the said provisions inapplicable to the proceedings before the Family Court the law maker intended to give greater freedom to Family Courts and release them from the cobweb of procedural technicalities embodied in Qanun-e-Shahadat, 1984 and C. P. C.

Where a matter or situation is not governed by express provision of the law or the rules framed thereunder, the Family Court is free to evolve its own procedure and pass any suitable order for expeditious and just decision of the case.-2001 Y L R 2415 1983 CLC 3305; 1984 CLC 890 and 1985 CLC 1015 ref.

Such bar is imposed for expeditious settlement and disposal of disputes relating to family affairs-Family Court, however, has inherent powers to pass orders to avoid multiplicity of cases between the parties. 2000 C L C 1208-PLD 1982 Pesh. 151 ref.

Finding of Lower Appellate Court after proper appreciation of evidence on record--Validity-Family Court was competent to follow its own procedure-Lower Appellate Court was justified to give its own finding after proper appreciation of evidence on record. 2000 M L D 1301-PLD 1965 SC 434; 1993 CLC 109 and 1999 CLC 81 ref.

Withdrawal of earlier suit- Bar to filing of fresh suit--Validity-Provisions of C. P. C. and Qanun-e-Shahadat, 1984-Applicability-Rigours of C. P. C. and Qanun-e-Shahadat, 1984 are not applicable to the proceedings, except to the extent provided in S.17, West Pakistan Family Courts Act, 1964-Withdrawal of suit does not constitute bar to the filing of afresh suit. 2000 Y L R 2046

Settlement of matrimonial affairs between spouses-Procedure in family suits is made more easier by deviation from procedure of Civil Procedure Code, 1908. 1999CLC514

Application of provisions of C.P.C. to the proceedings under West Pakistan Family Courts Act, 1964 were barred with the exceptions of Ss. 10 & 11, C.P.C.-Purpose of Legislature was to shorten and delimit the further proceedings as regards second appeal, revision etc., therefore, the provisions of review were not applicable to the proceedings to Appellate Courts and even to Courts having supervisory Constitutional jurisdiction. 1999 Y L R 882-1983 CLC 2365 and PLD 1965 SC 55 rel.

“Case decided “--Interlocutory order-Not “case decided”--Interlocutory order whereby objection regarding appeal being time-barred, was overruled, could not be said to be a ‘case decided’ within the meaning of S.115, C.P.C., which even otherwise stood excluded by virtue of S.17, West Pakistan Family Courts, Act, 1964-Petition for revision being incompetent was dismissed. 1999 Y L R 2653

Constitutional petition-Wife’s suits for dissolution of marriage, for recovery of dower money and for recovery of maintenance were dismissed while suit for jactitation or marriage filed by husband was decreed-Appellate Court affirmed decrees’ a and judgments of Courts below--Validity-Family Court’s judgment as affirmed by Appellate Court was composite judgment and consolidated issues, were framed on pleadings of parties-Appellate Court was bound to see whether provisions of O.VII, R.11, C.P.C. did apply to Family Court; whether Family Court had to decide ail matters involved in suits alongwith factum of marriage being regular or irregular after careful scrutiny of evidence-Appellate Court did not apply its mind to facts of the case-Family Court erroneously applied provisions of ONII, R.11, C.P.C. to family suits which were not available under law-Appellate Court without appreciating question of law had affirmed judgment of Family Court, therefore, both judgments were set aside being without lawful authority, jurisdiction and justification-Case was remanded by High Court for decision afresh on merits. P L D 1997 Lah. 413 1991 SCMR 520; 1973 SCMR 127 and 1994 CLC 1180 ref.

Interlocutory orders West Pakistan Family Courts Act, 1964 is a special law and Code of Civil Procedure, 1908 does not apply to proceedings under the said Act except its Ss. 10 & 11-Interlocutory orders passed under West Pakistan Family Courts Act thus cannot be challenged in Constitutional jurisdiction of High Court.-P L D 1997 Lah. 431

Decretal amount of maintenance-Power of Family Court to realise such amount-Powers of Family Courts under Ss. 13 & 20, West Pakistan Family Courts Act, 1964, were not restricted to recover decretal amount of maintenance only as arrears of land revenue but were exercisable as Civil Court executing money decree and also under 5.488, Criminal Procedure Code, 1898. P L D 1997 Lah. 680

Constitutional petition-Two rival applications for custody of minor daughter; one by the mother and the other by the father--Mother’s application was allowed while father’s application for custody of minor was dismissed-Father having not examined himself in support of his assertions, his side was closed-Father did not challenge main order of custody of minor which had been given to his wife but submitted application under O.IX, R.13, C.P.C. which was dismissed-Provisions of C.P.C. except Ss.10 & 11, thereof, were not applicable to Family Court-Course adopted by husband in not challenging main order and challenging interlocutory order instead, was ill-advised and misconceived-Constitutional petition against order in question, was without merit and was dismissed as not maintainable. 1997 M L D 1026

Provisions of Qanun-e-Shahadat - Applicability to proceedings under West Pakistan Family Courts Act, 1964 - Bar contained in S.17, West Pakistan Family Courts Act, 1964, excluding applicability of provisions of Evidence Act, 1872, not applicable to provisions of Qanun-e-Shahadat , 1984 - Qanun-e-Shahadat, 1984, being later in time than Family Courts Act, 1964, and of an overriding character, any provision in tile Act Of 1964, which directly comes into conflict with anything enjoined in Qanun-e-Shahadat would make way, at least to the extent of inconsistency - Provisions of Arts.102 & 103, Qanun-e-Shahadat would thus be applicable to proceedings under West Pakistan Family Courts Act, 1964. The Qanun-E-Shahadat , 1984, pursuant to Article 1(2) thereof, has been made applicable to all judicial proceedings in or before any Court, including a Court martial, a Tribunal or other Authority exercising judicial or ‘quasi-judicial powers or jurisdiction except those in arbitrations. “Court”, under the Qanun-e-Shahadat per Article 2(l)(a), includes all Judges and Magistrates, and all persons, except arbitrators, legally -authorized to take evidence. It is, however, manifest that the West Pakistan Family Courts Act, 1964, in section (in 11 thereof, lays down its own procedure for recording of evidence and in its section 17, except when expressly provided in such Act, categorically excludes the applicability of the Evidence Act, 1872 and the Code of Civil Procedure, 1908. Still, the Oanun-e-Shahadat , 1984, being a subsequent legislation could not be anticipated in the 1964 promulgation and the postulates of that statute, being later in time than the Family Courts Act, 1964, and of and overriding character, should reflect on the bar in the enactment last mentioned. Qanun-e Shahdat , 1984, largely and, often enough even verbatim re-enacted the Evidence Act, 1872, which it repealed and which was expressly excluded from the proceedings in Family Courts. In law, the Qanun-e-Shahadat and the Evidence Act is independent and distinct statutes and exclusion or ouster of one could not be equated with that of the other: The Oanun-e-Shahadat, remaining unaffected by the bar in section 17 of the Family Courts Act, 1964, any provision in the Act of 1964, which directly comes in conflict with anything enjoined in the Oanun-e-Shahadat would make way, at least to the extent of inconsistency. Because the 1964 Act is a provincial enactment, as regards the constitutional mandate for the Federal Legislature on the topic the subjects occur in the Concurrent Legislative List of the Fourth Schedule to the Constitution at items Nos. 4 and 5 as “Evidence and Oath; recognition of laws, Public Acts and judicial proceedings” and “Marriage and divorce; infants and minors; adoption, respectively, implying that the Federal as well as the Provincial Legislatures can suitably legislate on the subjects. The legislative competence, as well, is thus out of the way. The Qanun-c-Shahdat, 1984, resultantly, supersedes all or any postulates in the Family Courts Act, 1964, as be found running contrary to its mandates.-P L D 1992 Kar. 46

Court’s duty - No recording of evidence - Effect - On filing suit by plaintiff wife, defendant husband failed to file written statement despite several opportunities were afforded to him, whereupon Family Court decreed suit without recording any evidence - Held, although provisions of Civil Procedure Code were not applicable to the case, Faini1v Court could not decree suit without recording evidence merely on failure of defendant to file written statement.-1991 C L C 1268 1991 A L D 180 ref.

Proceedings before Family Court were in the nature of civil proceedings--Family Court itself or any other Civil Court designated by District Judge, specially or generally, were conferred with powers to execute a Family Court decree--In absence of any special mode prescribed for the, execution of a decree, executing Court would not be violating any provision of law, if it presses into service, or follows the procedure as provided in Civil Procedure Code, notwithstanding provisions of S.17 of West Pakistan Family Courts Act, 1964--Where Execution Curt in exercise of its discretion, refrains from issuing direction for the recovery of decretal amount as arrears of and revenue. It may follow the procedure as contained in Civil Procedure Code--Executing Court adopting procedure under OXXI, R.30 of C.P.C. for recovery of decretal amount thus committed no violation of law. 1989 C L C 1630

Maintenance--Contention of husband that since future maintenance was not claimed by (wife and children) in appeal, Appellate Court could not grant such relief on its own--Plaint revealed that wife categorically prayed for past as well as for future maintenance which escaped notice of Trial Court--Wife, held, should not be made to suffer for such omission of the Court especially when Civil Procedure Code has specifically been rendered inapplicable to proceedings before Family Court--No statutory bar of prohibition or fetter on powers of Family Court exists to grant maintenance allowance to minors if they were otherwise entitled in its loco parentus capacity--Denial of maintenance to minors of their legal claim or mere technicalities would be inequitable. 1989 M L D 1362

Principle of res judicata, applicability of-Dismissal of previous suit for dissolution of marriage on ground of Khula’ would not bar subsequent suit by wife filed on same ground of Khula’ based on independent cause of action. 1989 M L D 5007

Principle of restitution is inherent in the exercise of judicial authority so that status quo ante can be required to be restored-Though provisions of Civil Procedure Code, 1908 do not apply to the family cases, the principles thereof, to the extent, that they are based on equity and good conscience, would apply. 1988 C L C 665

Dissenting view taken in appeal below was on the basis of record and in lawful exercise of appellate power; was amply supported by record and no jurisdictional error was found therein--Interference in revision declined. Principle of restitution is inherent in the exercise of judicial authority so that status quo ante can be required to be restored-Though provisions of Civil Procedure Code, 1908 do not apply to the family cases, the principles thereof, to the extent, that they are based on equity and good conscience, would apply.

Dissenting view taken in appeal below was on the basis of record and in lawful exercise of appellate power; was amply supported by record and no jurisdictional error was found therein--Interference in revision declined. 1988 C L C 665

Revisional jurisdiction in guardianship cases--Competency of--All provisions of procedure given in Guardians and Wards Act would apply to cases of guardianship matters before a Family Court--Revisional jurisdiction in such matters could competently be invoked. 1988 C L C 2196 P L D 1975 Lah334 ref

Evidence--Appreciation of--To deprive a mother of the custody of her own children on account of defect in her character being a very serious matter, Courts were required to critically examine the evidence produced against her to see if she was so depraved that she could not be trusted to look after her own children. 1988 C L C 2196

Family suit--Plaintiff given repeated adjournments for production of evidence but failing to produce same--Evidence of plaintiff closed--Effect of provision of O.XVII, R.3, C.P.C. on proceedings before family Court--Although penal provisions of O.XVII, R.3, C.P.C. could not be extended while dealing with a suit under Family Courts Act, yet a suitor, held, would not be entitled to have as many dates for production of evidence as he wished--Logic and principle of natural justice demanded that there should be an end to accommodation shown by a Family Court to a party for production of evidence--Law being not in favour of indolent, High Court refused to interfere with decision of lower Courts in exercise of constitutional jurisdiction. 1986 M L D 1686-P L D 1982 Lah. 281 ref.

Appeal Single appeal filed against consolidated judgment in two cases—Appeal dismissed on merits and on such technical ground--Order impugned in Constitutional petition--Case remanded for decision afresh on ground that Courts below had misdirected themselves in exercising jurisdiction possessed by them--Order of remand challenged--Provisions of Civil Procedure Code other than Ss. 10 and 11 being inapplicable to proceedings, technical objection of filing a single appeal against consolidated judgment, when it was manifestly directed against decision in both, not to stand in way of adjudication--Trial Court to record its own finding afresh after adverting to sources indicated in impugned judgment--Leave to appeal refused. 1985 S C M R 959

Revision before High Court against order granting custody of children by Guardian Judge--Competency of--Guardian judge granting custody of children--Order impugned--Plea that no revision lay against order of Additional District Judge to High Court in such proceedings, repelled on strength of a decision of Lahore High Court which had been disapproved by Supreme Court--Submission prima facie being correct, leave to appeal granted. 1985 S C M R 1504-P L D 1975 Lah. 334 and P L D 1981 S C 454 ref.

Revision under S. 115, C. P. C. before High Court-Orders of interlocutory nature by Family Court, held, not subject to revisional jurisdiction of High Court as set out in S. 115, C. P. C.-View in P L D 1975 Lab. 334, held, not a valid view-[ P L D 1975 Lab. 334 and P L D 1969 Lab. 834 dissented from]. P L D 1984 Lah. 332 P L D 1970 Lab. 641; P L D 1969 Lab. 834 and P L D 1977 Lab. 911 ref. P L D 1975 Lab. 334 and P L D 1969 Lab. 834 dissented from. P L D 197.5 Kar. 448; P L D 1972 Kar. 410 and P L D 1975 Kar. 448 approved. P L D 1.981 S C 454 fol. P L D 1977 Lab. 911 distinguished.1983 C L C 183 mentioned.

Khula’, plea of-Recurring cause of action and cannot be hit by principle of res judicata-Wife can again and again take up plea of Khula’--Wife taking plea of Khula` in previous suit can take that plea in subsequent suits.

Even if wife had taken up the plea of Khula` in the previous suits, she was still not debarred from taking up that plea again in the subsequent suit for dissolution of marriage as she could at any time develop hatred against her husband and bring on record circumstances making it impossible for the spouses to live within the limits of Allah. The plea of Khula` was, therefore, a recurring cause of action and in no circumstances could it be hit by the principle of res judicata as adopted in section 17 of the Family Courts Act. A wife can again and again take up the plea of Khula` as she could develop hatred or dislike against her husband every time under different circumstances and if she is successful in establishing and satisfying the conscience of the Court that she has firmly decided not to live with the husband, the marriage has to be dissolved on the basis of Khula` and the question of res judicata cannot be a bar. P L D 1983 Lah. 442

Res Judicata Family Court decreeing second suit for dissolution of marriage holding that principle of res judicata not applicable-View, held, not correct-While admitting writ petition operation of impugned decree suspended restraining lady from remarrying-Such order not served upon lady who contracting second marriage giving birth to a child and gone out of country-Writ petition dismissed in circumstances of case. 1983 C L C 2799

17A. Interim order for maintenance.---[78][The family court:---

(a)         in a suit for maintenance of children, shall immediately after filing of the written statement pass interim order for maintenance; and

(b)         in any other suit for maintenance, may at any stage of the proceedings pass an interim order for maintenance,

whereunder the payment shall be made by the fourteenth of each month in advance, failing which the Court shall strike off the defence and decree the suit.]

17B.  Power of the Court to issue Commission.---Subject to such conditions and limitations as may be prescribed, the Court may issue a Commission to,---

(c)          examine any person;

(d)         make at local investigation; and

(e)          inspect any property or document.

18.  Appearance through agents.---If a person required under this Act to appear before a Family Court, otherwise than as a witness, is a pardanashin lady, the Family Court may permit her to be represented by a duly authorized agent.

Court Decisions

Appearance through agent-Non-appearance of plaintiff in witness-box- Defendant raised an objection that the plaintiff did not appear herself in the suit but had produced her father as special attorney in the Family Court-Validity-Appearance through agent was legally permissible under S.18 of West Pakistan Family Courts Act, 1964--Family Court had rightly not drawn adverse inference due to nonappearance of the plaintiff in the witness-box in support of her claim. 2002 C L C 1396

Non-appearance of plaintiff--Defendant raised an objection that the plaintiff did not appear herself in the suit but had produced her father as special attorney in the Family Court-Validity-Appearance through agent was legally permissible under S.18 of West Pakistan Family Courts Act, 1964-Family Court had rightly not drawn adverse inference from non-appearance of the plaintiff in the witness-box in support of her claim. 2002 C L C 1748

Suit for dissolution of marriage - Petitioner (lady) who was a citizen of India visited Pakistan to see her sisters and other relatives at Lahore; solemnized Nikah with respondent but no Rukhsati took place as her visa expired and she had to leave Pakistan - Respondent was to make arrangements for her passport and other necessary papers for Pakistan nationality - Petitioner lady later on came to know that respondent was an addict and had a bad reputation. in the society and had committed forgery in his Identity Card and, therefore, her an immigration papers could not be prepared - Respondent filed a suit for restitution of conjugal rights and after coming to know about the said suit, petitioner through the general power of attorney duly attested by the High Commission of Pakistan in India filed a suit for dissolution of marriage before the Family Court-General power of attorney executed by the petitioner disclosed that the said attorney was fully authorised and empowered to represent the petitioner in all matters, acts, cases pending or running in any Court of law, whenever and wherever her presence/attendance was deemed necessary under law - Family Court rejected the petitioner’s suit for dissolution of marriage holding that suit could not be entertained on the basis of such general power of attorney which did not speak that the said attorney had been assigned the power to institute the suit for dissolution of marriage in the Family Court - Validity--Held, words “any Court” mentioned in the power of attorney were sufficient to include the Family Court as well - Order of Family Court refusing to entertain suit of the petitioner being nullity in the eye of law, called for interference in the exercise of extraordinary jurisdiction of High Court - High Court set aside the order and remanded the case back to be decided on merits after giving an opportunity of hearing to both the parties by the Family Court - Family Court was also directed to decide the matter within three months of the receipt of the judgment of. High Court. P L D 1996 Lah. 394

Appearance in Family-Court through agent-Effect-Provision of S. 18, West Pakistan Family Courts Act, 1964 being enabling provision, empowered Court to dispense with legal requirement as to appearance of any person and enable such person to be represented through authorised agent-Provision of S.18 of the Act, therefore, would be attracted only if person was required by any provision of Family Courts Act to appear before the Court, which, however, could permit Pardanashin lady (plaintiff) to appear through duly authorised agent-Use of word “person” instead of “party” in S.18 of the Act, could not be stretched to include plaintiff-Order of Appellate Forum in allowing female plaintiff (Pardanashin) through specially constituted attorney to appear in Court was not open to interference in circumstances. 1998 C L C 1011-PLD 1979 Lah. 217 ref.

Defendant against whom suit for payment of dower amount had been filed did not himself appear in Court to deny execution of document wherein dower amount had been agreed to be paid to wife-Defendant was the only person who ought to have appeared before Trial Court and denied execution of agreement in question-Denial of execution of agreement by his agent was of no consequence, for he was not one of witnesses to document and had, thus, no knowledge of execution of the same-Provision of S. 18, West Pakistan Family Courts Act, 1964, relating to appearance of Pardanashin ladies did not apply to defendant-Denial of execution of agreement by agent of defendant was not rightly relied upon by Trial Court which had justifiably found that execution of agreement was proved by marginal witnesses. 1998 C L C 1036

Suit for dissolution of marriage or any suit pending in the Family Court can be represented through an agent - Provisions of S. 18, West Pakistan Family Courts Act, 1964 do not take away the right of a counsel to appear and act for and on behalf of his client; such right is duly recognised by S. 22, Legal Practitioners and Bar Councils Act, 1973. A suit for dissolution of marriage or any suit pending in the Family Court can be represented through an agent under section 18 of the West Pakistan Family Courts Act, 1964. Provisions contained in section 18 of the West Pakistan Family Courts Act do not take away the right of a counsel to appear an ‘ d act for and on behalf of his client. Such a right is duly recognized by section 22 of the Legal Practitioners and Bar Councils Act, 1973. There is no bar for a lady to be represented through general attorney unless and until her presence is required and directed by the Family Court. The lady had rightly filed a suit before the Judge, Family Court through her agent where a suit for restitution of conjugal rights against her was pending adjudication and this was the only possible means by which she could escape from the conflict of judgments of two Courts. P L D 1996 Lah.394

Appearance of parties through counsel--Although S.18 of Act XXXV of 1964 is in respect of Pardanashin ladies to appear through their agents but that in no -way could operate in derogation of a party’s right to appear through Attorney or Advocate--Provisions of S.18 of the Act would not operate as a bar to prevent a counsel from acting on behalf of his client as provided S.22, Legal Practitioners and Bar Councils Act, 1973. 1987 M L D 492- 1981 S C M R 395 rel.

Ex parte proceedings, due to non-appearance of petitioner at ‘pre-trial hearing--Effect--Where petitioner was being represented by counsel, Family Court was not justified in proceeding ex parte against him, as, such course was, neither permitted by law nor by circumstances of case ---- Statement filed by attorney on behalf of petitioner at pre-trial hearing should be accepted as sufficient and Family Court was required to proceed with the trial in accordance with law i.e. framing of issues and recording of evidence--Ex parte procedure adopted by Family Court being illegal would result in vitiating all subsequent proceedings including judgment and decree.- 1987 M L D 492 P L D 1975 Lah.380, 1979 C L C 647 and 1981 C L C 243 ref.

Personal attendance- Defendant appearing before Family Court at outset submitting his written statement and also remaining present when date fixed for reconciliation - Held, fulfilled his obligations under provisions of Act-Insistence on personal attendance of defendant necessarily leading to delay conclusion of suit and such conclusion already considerably delayed, petition praying for forcing personal attendance of defendant dismissed. Representation through counsel or agent-Held: Provisions of S. 18, Act XXXV of 1964-Do not take away right of counsel to appear, and act for and on behalf of his client.-Such right recognized by S. 22, Act XXXV of 1973. 1981 S C M R 395 P L D 1979 Lab. 217 approved

19.  Court Fees.---Notwithstanding anything contained in the Court Fees Act, 1870 (VII of 1870), the court fee to be paid on any plaint or memorandum of appeal shall be rupees fifteen for any kind of suit or appeal under this Act.

PUNJAB AMENDMENT

Act XIV of 1973

Amendment of West Pakistan Family Courts’ Act, 1964. In the West Pakistan Family Courts’ Act, 1964, in its application to the Province of the Punjab in section 19, for the words “rupee one”, the words “rupees fifteen” shall be substituted.

Court Decisions

Latest Position -- By Virtue of Latest Amendment in this Act, as Sec. 19 has been Substituted by the family courts (Amendment) ordinance (LV of 2002) , dt. 1st October, 2002-Notwithstanding anything to the contrary contained in the Court-Fee Act, 1872, the court-fees to be paid on any plaint or memorandum of appeal shall be Rupees Fifteen for any kind of suit or appeal under this Act. So in all proceedings under this Act, the Court fee- Payable on all types of Suits, Applications, Appeals etc. Shall be only 15 Rupees.

Court Fees--Maintenance decree--Amount of Court fee payable on memo of appeal--Question for determination—Omission of memorandum of appeal in Section 19 read with Section 7 of Court Fees Act Schedule I of Article I is significant because both plaint and memo of appeal are included in Art I of Schedule I of Article I is significant because both plaint and memo of appeal are included in Art I of Schedule I of Court Fees Act as attracting ad valorem Court fees-Express mention of one implies exclusion of other—Legislature intended to exclude from purview of Section 19 of Family Court Act memorandum of appeal and confined concession with regard to payment of Court fees only on plaint--Memo of appeal to be filed before District Court falls under Art I of Schedule I of Court Fees Act and Court fees in such cases is payable ad Valorem on subject matter of dispute--Both U/S 2 of Punjab Act of 1983 and Schedule I, Item No. I of Court Fees Act, it is value of subject matter which determines of amount of Court fee--Held: Court fee which is leviable or to be paid by petitioner is not on subject matter and claim of suit but subject matter of appeal in such suit regarding right of maintenance, rate of maintenance and amount decreed. PLJ 2002 Lah. 193-1987 SCMR 1161; NLR 1991 Civil 513; 1992 MLD 1657; PLD 1996 Lah. 436 and 1995 SCMR 1720. ref.

Deficiency in court-fee-Suit for recovery of dowery articles by wife having been decreed, husband filed appeal against same which was dismissed on the ground that he had failed to make up deficiency in court-fee as per direction of the Appellate Court-Contention of husband was that suit for recovery of dowery being included in Sched. of West Pakistan Family Courts Act, 1964, no court-fee was required to be paid and court-fee of R.15 having been affixed on plaint as well as on memo. of appeal no further court-fee was required on memo. of appeal-Plaint was rightly stamped according to S.19 of West Pakistan Family Courts Act, 1964 and provisions of S.7(ii) of Court Fees Act, 1870, which were applicable to the plaint regarding maintenance and annuities etc. were not applicable to appeal arising out of decree passed by Family Court and court-fee on memo. of appeal was to be paid according to the value of subject-matter of appeal determined on date of decree-Amount payable under decree which was subject-matter of appeal, exceeded Rs.25,000, court-fee was to be paid on decretal amount which was subject-matter of appeal-Husband having failed to make up deficiency in court-fee as per direction of the Court his appeal was rightly dismissed-Husband had prayed that if he was granted time to make up deficiency in court-fee, he would make up the deficiency--Respondent having no objection if opportunity was granted to petitioner for making up deficiency in court-fee and his appeal be decided on merits, order dismissing appeal was set aside and appeal before Appellate Court was deemed to be pending and husband was ordered to make up deficiency in specified period and to decide appeal on merits: 2001 C L C 54-PLD 1996 Lah. 436 ref.

Appeal-Court fee payable--Plaintiff in her suit claimed maintenance at the rate of Rs. 2, 000 per month but the Trial Court granted maintenance at the rate of Rs.1,000 per month-Appellate Court, on appeal, instead of considering the rate of maintenance as granted by the Trial Court, directed the appellant to make up deficiency of court fee on memorandum of appeal on the basis of the subject-matter of the suit which was Rs. 2, 000 per month and the appellant paid the required court fee and the Appellate Court directed the appellant to pay maintenance at the rate of Rs.800 per month too the plaintiff till she attained majority--Court-fee on the memo of appeal against order of maintenance, would be on the subject-matter in dispute in appeal and not on the subject-matter in dispute of claim in suit filed by the plaintiff-- Appellant could be refunded court fee after deducting the court fee on the subject-matter in dispute in appeal which was Rs.1,000 per month as was granted by the Trial Court and was appealed against. 2001 Y R 2560-1995 SCMR 1720; 1987 SCMR 1161; PLD 1991 Lah. 51; 1992 MLD 1657 and PLD 1996 Lah. 436 ref.

Family Court granted decree for maintenance at the rate of rupees one thousand per month in favour of plaintiff-wife including past maintenance as well--Appellate Court, on appeal against judgment and decree of Family Court, directed appellant/husband to affix court-fee on memorandum of appeal under S_7(2) of Court Fees Act, 1876, within specified period-Appellant husband having failed to pay court-fee his appeal was dismissed-Validity--Court-fee of rupee one was to be affixed on plaint before Family Court under S.19 of West Pakistan Family Courts Act, 1964. in North-West Frontier Province-Section ~19 of the said Act had specifically mentioned word “plaint” which would be deemed to have excluded memorandum of appeal--Memorandum of appeal, in circumstances, would be liable to be affixed ad valorem court-fee on subject-matter of dispute as provided by S.7 of Court Fees Act, 1870-Mode of valuation for purpose of court-fee on memorandum of appeal would be ten times the value of maintenance granted for a period of one year-Value for purpose of court-fee in the case amounted to Rs.1,20,000-Appellant/petitioner having failed to affix a required court-fee within specified period, this appeal was rightly dismissed by Appellate Court below. 2000 C L C 1680 1987 SCMR 1161 ref.

Decretal amount of maintenance-Power of Family Court to realise such amount-Powers of Family Courts under Ss. 13 & 20, West Pakistan Family Courts Act, 1964, were not restricted to recover decretal amount of maintenance only as arrears of land revenue but were exercisable as Civil Court executing money decree and also under 5.488, Criminal Procedure Code, 1898.-P L D 1997 Lah. 680 PLD 1993 Kar. 159 rel.

Court-fee payable on suits for maintenance - Fixed court-fee of Rs. 15 would be payable on plaint in suits for maintenance under S. 19, West Pakistan Family Court., Act, 1964 irrespective of the value of the suit; payment of court-fee would, however, be exempted when relief claimed falls within purview of S.2, Punjab Court Fees (Abolition) Ordinance, 1983 i.e. when relief claimed does not exceed Rs.25,000.-P L D 1996 Lah. 436-1995 SCMR 1720 rel.

Provisions of S.7(ii), Court Fees Act, 1870, are applicable to plaints regarding maintenance and annuities etc. but the same would not be applicable to appeals arising out of decrees in maintenance suit - Court-fee on memo. of appeal arising out of decree for maintenance granted by Family Court is, however, to be paid according to the value of . subject-matter of appeal - Impugned amount under the decree, which -was determinable on the date of decree, would be the value of subject matter of appeal-’--Where subject-matter of appeal did not exceed Rs.25,000 no court-fee would be payable on memo. of appeal in view of overriding provisions -of Punjab Court Fees (Abolition) Ordinance, 1983 - Where value of subject matter of appeal would exceed Rs.25,000 the court-fee was to be paid in accordance with item I of Sched. I, Court Fees Act, 1870, at the rate of 7-1/2 per cent. of the value of subject-matter, subject to the maximum of Rs. 15,000. P L D 1996 Lah 436

Decretal amount relating to arrears of maintenance being Rs.7,200, court-fee payable for purpose of appeal would be computed in terms of S.7(i), (ii) Court Fees Act, 1870, which would be amount of (Rs.7,200) as arrears plus ten times the amount payable annually i.e., Rs.72,000-Amount of court-fee payable on total amount would be computed under Art.l, Sched. I, Court Fees Act, 1870-Petitioner was bound to deposit requisite court-fee in said terms on memorandum of appeal. 1995 C L C 312 1987 SCMR 1161 1992 CLC 2270 rel. and PLD 1991 Lah. 51 distinguished.

Requisite court-fee in appeal-Non-payment of court-fee on direction of Appellate Court on memorandum of appeal--Effect-Court-fee to be paid on any plaint filed before Family Court would be Rs.15--Such concession, however, was confined only to plaint and it does not extend to appeal-On memorandum of appeal, court-fee ad valorem has to be affixed-Amount on which court-fee was payable on appeal would be computed in terms of S. 7 (i) & (ii), Court Fees Act, 1870 and its Sched 1, Art.l-Appellate Court had rightly directed petitioner to fix requisite court-fee on memorandum of appeal by specified date-Petitioner neither made up deficiency in court-fee nor showed sufficient cause for not doing the same--Court was justified to dismiss petitioner’s appeal for non-payment of court-fee within time fixed by it-Even on merits amount of maintenance fixed by Family Court was neither excessive nor unjust on account of prevalent inflation and high cost of living-Liability of father and husband for maintenance allowance to his son and wife being unquestionable could not be allowed to be avoided-Judgment and decree of Family Court was affirmed in circumstances. 1995 C L C 1418- 1992 CLC 2270 PLD .1993 Lah. 521; 1987 SCMR 1161 and 1995 CLC 312 rel.

Appeal filed with deficit court-fee-Appellant having failed to make good deficiency in court-fee even on extended date appeal was rightly dismissed on that ground.-1993 M L D 711
Provision of S.2, Punjab Court Fees (Abolition) Ordinance, 1983 provides that no court-fee is chargeable in respect of any civil case, the value of the subject matter of which, does not exceed Rs.25,000. This concession according to the explanation is available at all stages of the case and before all Courts.

The appeal is a continuation of the suit and is a stage in the same case. The question as to whether the Family Court is a Court also does not present any difficulty. Section 3 of the Punjab Family Courts Act, 1964 empowers the Government to establish Family Courts and to appoint a Judge for each of such Courts. It is thus obvious that the Family Court is a Court and matter falling within its jurisdiction is entrusted to it in its capacity as a Court and not as a persona designata. In view of section 2 of Ordinance X of 1983, no court-fee was payable on the memorandum of appeal filed by the petitioner and the appeal could not be dismissed for failure to make up the deficiency in court-fee. P L D 1991 Lah. 51 1987 SCMR 1161 ref. PLD 1968 Lah. 987; PLD 1970 SC 1; 1987 SCMR 1161; PLD 1978 Lah. 716 and PLD 1983 Lah. 383 ref.

Computation of court-fee-Maxim: Ex-pressio uninus esr exclusio alrerius (express mention of one excludes other)-Legislature having expressly mentioned “plaint” for purpose of court-fee of rupee one in S. 19 of Act XXXV of 1964, “memorandum of appeal”, held, necessarily intended to be excluded from purview of such provision-Memo. of appeal to, be filed before District Judge under Act XXXV of 1964-Held further, falls under Art. I of Sched. I of Court Fees Act, 1870, and liable to bear court-fee according to value of subject-matter in dispute. P L D 1978 Lah. 716 P L D 1968 Lah. 478 ref.

Subject-matter in dispute being plaintiff’s right to get maintenance and corresponding liability of defendant to pay the same, such subject-matter was to be assessed and computed in accordance with express terms of S. 7(ii), Court Fees Act, 1870.-1991 M L D 210 1987 S C M R 1161; AIR 1927 Oudh 623; AIR 1920 All. 40; AIR 1934 Lah. 150(1); AIR 1953 All. 442; AIR 1961 Pb. 11; PLD 1968 Lah. 987 and PLD 1978 Lah. 716 rel. Plaint in suit for maintenance--Court-fee payable on such plaint, and on memorandum of appeal--Effect of S.19 of West Pakistan Family Courts Act on court-fee to be payable on plaint stated.

Ordinarily, a plaint in a suit for maintenance falls under section 7(i) and (ii), Court Fees Act and attracts ad valorem court-fee on the amount claimed to be computed in accordance with Article 1, Schedule I of the Court Fees Act. But, section 19 of the West Pakistan Family Courts Act, 1964 alters the law in this respect and enacts that notwithstanding anything to the contrary contained in the Court Fees Act, 1870, the court-fee to be paid on any plaint filed before a Family Court shall be Re. 1. The concession with regard to reduction in the court-fee is restricted to a ‘plaint’. The omission of ‘memorandum of appeal’ in this section is significant, particularly, as both a plaint and a memorandum of appeal are included in Article 1, Schedule I of the Court Fees Act, as attracting ad valorem court-fees. On the principle of expression ‘unius est exclusio alterius’ (the express mention of one implies the exclusion of the other), it is clear that the Legislature intended to exclude from the purview of section 19 of the said Act, the ‘memorandum of appeal’. The concession with regard to payment of court-fees on a ‘plaint’ filed before a Family Court, which has been granted to a petitioner, who is generally a married woman, seeking to enforce her family rights, is not to apply to a memorandum of appeal. 1987 S C M R 1161-PLD 1978 Lah. 716 ref.

20.  Family Court to exercise the powers of the Judicial Magistrate.---A Family Court shall have and exercise all the powers of a Judicial Magistrate of the First Class under the Code of Criminal Procedure, 1898 (Act V of 1898).

Notification dated 5th April, 1966 is as under:---

No. Integ. 10/31/64 I. In exercise of the powers conferred by section 20 of the West Pakistan Family Courts’ Act, 1964 (XXXV of 1964), the Governor of West Pakistan is pleased to invest all Judges of the Family Courts with powers of magistrates of First class to make orders for maintenance under section 488 of the Code of Criminal Procedure, 1898 (V of 1898).

Court Decisions

Application for maintenance purporting to be made under S. 488, Criminal Procedure Code (V of 1898)-Competency of Judge Family Court to pass order on-Application for grant of maintenance filed under S. 488, Cr. P. C.-Parties Christian-Judge Family Court granting maintenance-On appeal decree set aside by District Judge holding that West Pakistan Family Courts Act, 1964 governs Muslims only-District Judge reviewing his own order suo motu and restoring appeal observing that West Pakistan Family Courts Act, 1964 was applicable to non-Muslims as well-Successor of District Judge dismissing appeal on merits-Held, Judge Family Court competent to pass order on application purporting to .be made under section 488, Cr. P. C.-Held further, District Judge not competent to review his own order passed earlier in appeal which attained finality even though defective and illegal.-1983 C L C 2365 P L D 1965 S C 55 P L D 1978 Kar. 336 and P L D 1969 S C 187 ref.

Payment by instilments-Security furnished for payment of such instilments-Held, not in nature of continuing guarantee and, therefore, cannot be revoked-Principle laid down in Ss. 129 & 130, Contract Act, although not attracted to such security, can be applied in appropriate case.. 1983 C L C 356-P L D 1958 Kar. 393 ref.

Orders for maintenance in terms of S. 488, Criminal Procedure Code 1898-Power of Judge Family Court to award-Deletion of S. 488, Criminal Procedure Code from the Statute Book--Effect-Irrespective of deletion of S. 488, Cr.P.C. by Law Reforms Ordinance, 1972, a Judge Family Court can make order for maintenance under S. 20, West Pakistan Family Courts Act, 1964, in like manner as a Magistrate First Class could make order under deleted S. 488, Criminal Procedure Code. 1993 C L C 1880-PLD 1967 Pesh. 343 rel.

Effect of Ss. 5 & 20 of Act upon provisions of 488, Cr. P. C.-To give exclusive jurisdiction to Family Courts without diminishing or curtailing rights already possessed by a litigant with regard to scheduled, matters Section 488, Cr. P. C. having become redundant, Family Court possesses exclusive jurisdiction to entertain, hear and adjudicate upon matter relating to maintenance-Application under S. 488, Cr. P. C. for maintenance-Held, can no more be entertained or decided by a Magistrate. P L D 1981 La.761 P L D 1969 S C 187 rel.P L D 1978 Lah. 696; P L D 1977 Kar. 469 and P L J 1978 Kar. 404 ref.

Jurisdiction-Petitioner filing application for future and Past maintenance against husband before a Family Court-Judge, Family Court, throughout from very beginning consciously treating application as a suit under S. 5 of Act XXXV of 1964 read with Item 3 of Schedule. and ad as an application under S. 488, Co. P. C.-Court, notwithstanding mention of a wrong provision of law in heading of application entitled to entertain it under correct provision of law and within a jurisdiction available to him- Misdescription of Court in formal heading and ending parts of judgment due to inadvertent mistake committed by staff of Court- Inconsequential-Trial Judge, held entertained application as a suit under general law in his capacity as Family Court and not under S. 488, Cr. P. C. as a Magistrate or civil Court and his judgment not vitiated for lack of jurisdiction .P L D 1978 Lah. 696 P L D 1960 S C 307 and 1973 S C M R 62 ref.

Power of Family Court to realise such amount-Powers of Family Courts under Ss. 13 & 20, West Pakistan Family Courts Act, 1964, were not restricted to recover decretal amount of maintenance only as arrears of land revenue but were exercisable as Civil Court executing money decree and also under 5.488, Criminal Procedure Code, 1898. P L D 1997 Lah. 680 PLD 1993 Kar. 159 rel.

Jurisdiction and power of Family Court to grant-Family Court had jurisdiction and power to direct husband to pay past maintenance allowance to wife and also to child-Husband’s claim that he had been sending maintenance allowance to wife and child was not proved on record for husband’s failure to produce best evidence in shape of money order, coupons etc.-No error of fact or law appearing in. judgment and decree of Trial Court, same were affirmed in circumstances. 1997 C L C 1291

Jurisdiction to order maintenance-Jurisdiction of Judge Family Court to make order for maintenance given to him before deletion of S. 488, Cr.P.C. from the Statute Book, remained intact even after deletion of S. 488, Criminal Procedure Code, 1898, by Law Reforms Ordinance, 1972, 1993 C L C 1880 PLD 1969 SC 187; 344; 1972 SCMR 131 and 1990 CLC 297 ref.

Decree became final--Challenged in Constitutional jurisdiction--Pleas that petitioner husband being Qadiani his marriage with Muslim woman was void and he was not liable to maintain respondent-wife, a Muslim lady, and Family Court had no jurisdiction, repelled, firstly, because this objection was taken for first time before High Court and secondly because petitioner had earlier described himself as Sunni Muslim by faith--Supreme Court agreeing that in writ jurisdiction petitioner could not be allowed to raise completely new point for first time before High Court, refused leave to appeal. 1986 S C M R 1621-1968 S C M R 804 ref.

Scope and object of Chapter XXXVI of Code entitled “of Maintenance of Wives and Children”-Held, sought to be achieved by Legislature by providing a statutory right independent of a right which a person may have under his personal law or under contract-Maintenance, a statutory right of quasi-civil nature made enforceable through .coercive machinery of criminal law in order to cut short usual delays of civil procedure-Intent of law cannot be defeated merely because instead of Magistrate such powers now to be exercised by Judge Family Court-Application for restoration of application for setting aside ex parte order of maintenance made more than four years after dismissal of such application and twelve years after order of maintenance-Held, cannot be entertained-Submission of such applications amounts to gross abuse of process of Court Failure of Judge, Family Court, to notice such situation and to curb abuse of process of Court deprecated-Order of Judge Family Court entertaining such applications by assuming jurisdiction not vested in him-Held, without lawful authority and of no legal effect-Civil Procedure Code (V of 1908), O. IX read with S. 151-Limitation Act (IX of 1908), Arts. 164. & 181. P L D 1982 Lah. 755 I L R 16 Bom 269 A I R 1949 Bom. 36 ; A I R 1953 All. 720 and A I R 1959 All. 767 ref. Din Muhammad v. Abdul Aziz P L D 1967 Lah. 657 and P L D 1971 Kar. 182 distinguished.

Minor children-Maintenance-Father, regardless of his financial position, held, bound to maintain his minor children. 1982 C L C 1295-P L-D 1958 Lab. 596 fol.

21.  Provisions of Muslim Family Laws Ordinance to be application.---(1) Nothing in this Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961, or the rules framed thereunder and the provisions of section 7, 8, 9 and 10 of the said Ordinance shall be applicable to any decree for the dissolution of marriage solemnized under the Muslim Law, maintenance or dower, by a Family Court.

(2)         When a Family Court passes a decree for the dissolution of a marriage solemnized under the Muslim Law, the Court shall send by registered post, within seven days of passing such decree, a certified copy of the same to the appropriate Chairman referred to in section 7 of the Muslim Family Laws Ordinance, 1961, and upon receipt of such copy, the Chairman shall proceed as if he had received an intimation of talaq, required to be given under the said Ordinance.

(3)         Notwithstanding anything to the contrary in any other law, decree for dissolution of a marriage solemnized under the Muslim Law shall:---

(b)         not be effective until the expiration of ninety days from the day on which a copy thereof has been sent under sub-section (2) to the Chairman; and

(c)          be of no effect if within the period specified in clause (a) reconciliation has been effected between the parties in accordance with provisions of the Muslim Family Laws Ordinance, 1961.

Court Decisions

Notice of dissolution of marriage-Presumption--Defendant’s plea that requisite notice of decree of dissolution was not sent to Chairman concerned and that plaintiff had married during subsistence of iddat period-In absence of pleading or proof to the contrary, inference and presumption of law would be that all judicial and official acts had been performed regularly-Such presumption having not been rebutted would be deemed to apply viz., that Family Court had duly forwarded the decree of dissolution of marriage to Chairman concerned, where it attained conclusiveness by eflux of time prescribed. 1991 M L D 403

Certificate of effectiveness of divorce-Husband had given consent for issuance of such certificate-Such certificate having not been challenged before Competent Authority had attained finality. 1999CLC514

Decree for dissolution of marriage-Family Court was under obligation to send by registered post within seven days of passing such decree, a certified copy of the same to appropriate Chairman whereupon Chairman would proceed as if he had received intimation of Talaq required to be given under Ordinance VIII of 1961-Period of ninety days after which decree would be effective would start from the date the certified copy was sent to the Chairman by Court-In case of dissolution of a marriage through Family Court such decree was a substitute for pronouncement of divorce. 1991 M L D 1250

Decree from Family Court as to dissolution of marriage--Duty of Chairman elaborated. After receipt of the intimation from the Family Court as to the grant of the decree for dissolution of marriage, what the Chairman has to do is to treat such decree as if he had received an intimation of “Talaq” under the Muslim Family Laws Ordinance And to further conduct all necessary proceedings in this behalf. The divorce becomes affective after the expiration of 90 days unless there is reconciliation between the parties within the said period. 1986 C L C 1722

Effectiveness-Decree for dissolution of marriage solemnized under Muslim Family Laws Ordinance, 1961, would not be effective until expiration of ninety days from the day on which copy thereof had been sent to the Chairman and would be rendered of no effect if within the period specified reconciliation, had been effected between the parties in accordance with the provisions of Muslim Family Laws Ordinance, 1961.

Taking up dissolutions of marriages under the Family Courts Act, 1964, subsection (3) of section 21 thereof expressly provides that, notwithstanding anything to the contrary contained in any other law, a decree for dissolution of marriage solemnized under the Muslim Law would not be effective until the expiration of 90 days from the date on which a copy thereof had been sent under section 21 (2) to the Chairman and be of no effect if within the period specified a reconciliation had been effected between the parties in accordance With the provisions of the Muslim Family Laws Ordinance, 1961. While room for reconciliation was left open in the foregoing provisions, manifestly, the express. or implied revocation of TALAQ, as envisioned in section 7 (3) of the Ordinance, is a provision applicable to TALAQS, as such, alone and not to dissolutions of marriages by a Family Court and one of the parties to the marriage, by resorting to a one-sided act, could not nullify a lawful decree of dissolution. Such, however, much the same way as above adverted, could be overtaken on the basis of a mutual or bilateral arrangement between the spouses: All references to “Mutuality” in this discourse, had been made deliberately, for even where the dissolution had emanated from or initiated by a wife, she also could not by herself decide to return, the husband always having and retaining the power of TALAQ. Once, therefore, a marriage was dissolved by a Court of law competently and due notice was “sent” or “delivered”, unless and only when the spouses make up and reconcile the dissolution would become irrevocably effective on the expiry of 90 days from the date the requisite notice under section 7 (3) of the Ordinance was “delivered” or under section, 21 of the Act was “sent”. The efforts towards conciliation have always been held to be persuasive and not compulsive. Besides, while a good deal of solemnity would attach to these efforts, the same have yet been found to be directory rather than mandatory. 1991 M L D 403

Dissolution of marriage under the Family Courts Act, 1964, once having attained finality, cannot be revoked except upon reconciliation of the spouses and that, non-service of notice of such a decree does not make it ineffective, the question that is to be addressed is as to what would be the effect of a woman remarrying before the expiry of the statutory period of notice, prescribed as a condition for the conclusiveness of a dissolution 4ecreP. It would appear that revocation of such a decree, being dependent on mutuality of the parties, service of notice of the decree, in terms of section 21 of the Family Courts Act or sections 7 and 8 of the Muslim Family Laws Ordinance, as applicable, would essentially be in the nature of a procedural or technical requirement and once that notice is shown to have been “sent”/”delivered” or presumed to have been “sent”/”delivered”, as relevant, the wife, for all practical purposes, may, at her option, be considered to be virtually in the state of Iddat. The situation can logically be compared and even equated with the co-extensiveness of the period requisite for divorce in the way of Talaq Ahsan and Talaq Hasan and that of Iddat, each, substantially, involving three lunar months and running concurrently. Contingencies in the nature of pregnancy are not likely to be confronted in these situations but if that be so at all the period involved would stand extended PRO TANTO though that too may be limited to the Punjab for section 21 of the Family Courts Act, as it stands in other parts of Pakistan, does not envisage such a development. On this premises and this analogy, a woman, holding a decree of dissolution and upon service of the applicable notice, re-marrying, can aptly be described as’ a woman re-marrying during her Iddat. Inter alia, no different incidents should follow upon service of the required notice in cases of dissolution by way of Tafweez, Khayar-ul-Balooch, Mubara’at and Khnla (with consent and out of Court); in the first two modes the wife alone having the option to revoke and in the last two revocation being dependent on mutuality. Re-marriage during Iddat, is only irregular and not void and becomes valid (Sahih) or regularized upon the expiry of the Iddat period. The off springs of such marriage are legitimate. Still, the English word “irregular” applied to such marriages is not properly reflective of the connotations carried in the idea for which the Arabic version of “Fasid” alone is apposite, which can only be a degree short of “void” or “Batil”. The foregoing deductions would apply only to cases where the husband does not have reserved in himself the power to revoke the severence of the martial tie. Further, even in the events above covered, it is not only to be hoped but expected that the spouse concerned would revile the sanctity of Iddat, if at all, only in compelling circumstances, as a last resort and never otherwise. 1991 M L D 403 PLD 1975 Lah.1118 and PLD 1967 SC 97 ref.

Chairman of Union Council cannot go behind decree granted by Family Court--Chairman, after dissolution of marriage by Family Court, has to proceed in accordance with provisions of S.21 of the Act of 1964--Chairman is not expected to adjudicate upon liability of wife to return benefits to husband and in case of failure of reconciliation proceedings cannot treat decree as ineffective on rights of the parties.-1986 L C 1722 P L D 1959 Lah. 566; P L D 1973 B J 36 and P L D 1984 S C 329 distinguished.

Relation of parties became strained--Suit for dissolution of marriage under Khula’ by wife decreed--Manner in which husband endeavored to drag wife in litigation indicating that he was interested more in wrecking vengeance on her than to seek a matrimonial union--Grant of relief under writ jurisdiction, being essentially discretionary, High Court refused to exercise such discretion in favour of petitioner (husband) in circumstances. 1986 C L C 1722

Divorce (among Christians)-Applicability of Act XXXV of 1964-Jurisdiction-Divorce Act, 1869-A complete Coda applicable to person professing Christian religion-Application of Act-Not to be curtailed without its direct or indirect but unambiguous amendment - Divorce Act, 1869, additionally, a Central Act and Act, XXXV of 1964 being a Provincial Act, such latter Act inherently incapable of excluding application of former Central Act by virtue of Art. 134 of Constitution (1962)-West Pakistan Family Courts Act, 1964, held, not applicable to Christians.- P L D 1978 Kar. 336 P L D 1969 S C 187 ; (1886) 31 Ch. D 607 P L D 1970 Kar. P L D 1970 Lah. 195 and N. S. Bindra’s Interpretation of Statutes, p. 783 ref.

Requirement of sending to Chairman a certified copy .of decree within 7 days of its passing by registered post-Directory-Word “shall” prefixed before words “send by registered post” in S. 7(4) of West Pakistan Family Courts Act, 1964Mandatory-Copy of decree not sent to appropriate Chairman within 7 days-Decree, nonetheless, not ineffective.

The decree was not sent within 7 days as required by subsection (2) of section 21 of the Family Courts Act. However, subsection (2) of section 21 of the Act provides that “the Court shall send by registered post within 7 days of passing of such decree, a certified copy of the same to the appropriate Chairman referred to in section 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy, the Chairman shall proceed as if he had received an intimation of talaq required to be given under the said Ordinance.” Section 21 of the Act read as a whole makes it clear that the intention of the Legislature appears to be that the copy of such a decree should be sent invariably so that the provision of subsection (4) of section 7 of the Ordinance should be complied with. The word “shall” prefixed before the words “send by registered post” makes that intention clear and it is mandatory in that context. However, the requirement relative to the time within which it has to be sent is directory, for no consequence is provided if the copy of such a decree is not sent within 7 days. Therefore, nothing will turn on the delay in sending the certified copy, for under subsection (3) of section 7 of the Ordinance, it is in fact the date on which the copy is received by the Chairman that will be material in computing the period of 90 days. Even under subsection (3) of section 21 of the Act it is the date on which the copy is sent to the Chairman. This provision has to be read subject to subsection (4) of section 7 of the Ordinance as this provision has been made applicable to a decree for the dissolution of marriage by subsection (1) of section 21 of the Act. It could not, therefore, be said that the decree became ineffective if its copy had not been sent within 7 days, for the date that is relevant is that on which it is received and 90 days have to be computed from that date.-P L D 1971 Kar 118

Maintenance-Muslim Family Laws Ordinance, 1961 to have overriding or in any case supplemental effect to provisions of any other statute on question of maintenance.
Withdrawal of suit for maintenance from Family Court before filing of application under provisions of Muslim Family Laws Ordinance--Effect. There was no impediment in the way of wife in making an application under section 9(1) of the Muslim Family Laws Ordinance, 1961 as she could make such an application for allowing maintenance to her in addition to seeking any other legal remedy available to her for the purpose. The entitlement of a wife to avail of the remedy under section 9(1), Muslim Family Laws Ordinance, 1961 has been given further protection by sections 5 and 21 of the West Pakistan Family Courts Act, 1964. Section 5 of the West Pakistan Family Courts Act, 1964 subjects the exclusive jurisdiction of Family Courts regarding matters specified in the Schedule, item 3 of which is maintenance, to provisions of Muslim Family Laws Ordinance, 1961. Again section 21 of the West Pakistan Family Courts Act, 1964 provides that nothing contained in the Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961 or the Rules framed thereunder. The withdrawal of the suit for maintenance by wife from the Family Court before filing of the application by her before forum specified by Muslim Family Laws: Ordinance would, therefore, not render the latter application as incompetent or for that matter be an estoppel against wife from claiming the maintenance. 1991 M L D 112

21A. Interim order pending suit.---The Family Court may pass an interim order to preserve and protect any property in dispute in a suit and any other property of a party to the suit, the preservation of which is considered necessary for satisfaction of the decree, if and when passed.

PUNJAB AMENDMENT

Act XXIV of 1971

Substitution of section 21 of W. P. Act XXXV of 1961.---In the said act, for section 21, the following section shall be substituted:---

21. Provisions of Muslim Family Laws Ordinance, 1961 not affected.---Nothing in this Act shall be deemed to affect any of the provisions of Muslim Family Laws Ordinance, 1961, or the rules made thereunder.

22.  Bar on the issue of injunctions by Family Court.---A Family Court shall not have the power to issue an injunction to, or stay any proceedings before, Chairman or an Arbitration Council.

23.  Validity of marriage registered under the Muslim Family Laws Ordinance, 1961, not be questioned by Family Courts.---A Family Court shall not question the validity of any marriage registered in accordance with the provision of the Muslim Family Laws Ordinance, 1961, not shall any evidence in regard thereto be admissible before the said Court.

Court Decisions

Registered Marriage - Challenge to:-- Validity of marriage registered under Muslim Family Laws Ordinance, 1961, would not be questioned by Family Court nor any evidence in regard thereto would be admissible before the said Court--If marriage was questioned on ground of fraud or misrepresentation, remedy would not be available with the Family Court, but with the Court of general jurisdiction-Legislature had provided that four copies of Nikahnama should be prepared, one was to be kept by Registrar of Nikah, second one to be sent to concerned Municipal Corporation, Municipal Committee or Union Council as the case may be, third copy was to be supplied to bride and fourth one to the bridegroom, to verify that entries in Nikahnama were according to the terms of marriage settled between the parties. P L D 2000 Lah. 355

Nikahnama as evidence of transfer of property in lieu of dower--Transfer of property in lieu of dower made at the time of ‘Nikah’ took effect as a gift -Nikahnama being a public document was admissible in evidence per se as evidence of the transfer of property in lieu of dower-No misreading or non-reading of evidence by both the Courts below while recording their respective judgments was found-Constitutional petition was , dismissed in circumstances. P L D 2000 Lah. 236- 1994 SCMR 1978 fol. PLD 1973 Pesh. 63; PLD 1975 Pesh. 12 and PLD 1976 BJ 37 ref.

Nikahnama whether a public document -Nikah Registrar’s duty and system of remuneration make him a public officer’ and “Nikahnama” a public document-Certified copy of “Nikahnama” can be produced in evidence and in absence of rebuttal would hold the ground. 1994 S C M R 1978

Nikah performed during age of minority of girl-Dissolution of marriage-Husband entered into Nikah with wife when she was a minor of 4/5 years of age-On attaining puberty wife denounced and repudiated her Nikah--.Suit for dissolution of marriage on the basis of Khula’ was also filed by the wife-Family Court dismissed suit, whereas same was decreed by lower Appellate Court--Contention in Constitutional petition filed by husband was that marriage registered under Muslim Family Laws Ordinance, 1961, could not be questioned in view of S.23 of West Pakistan Family Courts Act, 1964-Validity-Nikahnama was not proved by husband as the same was prepared during minority of wife and as such she had not affixed her thumb on the same-Such a marriage and its registration even if purported to be under Muslim Family Laws Ordinance, 1961, could not truly in law be treated as in accordance with the provisions thereof, where the same ii-as the result of fraud, misrepresentation, forgery and the like infirmities - Nikkah performed during age of minority of wife, could be legitimately repudiated on attaining puberty and in such-like situations, S.23, West Pakistan Family Courts Act, 1964, was no bar-No fault or illegality in the approach and judgment of lower Appellate Court was found as the same was based on correct appreciation of evidence on record and law applicable-Petition was dismissed accordingly. 1999 Y L R 425

Leave to appeal was granted to consider the contentions that High Court based its decision on the assumption that suit for dower was decreed while in fact same was dismissed; and that in view of S. 23, West Pakistan Family Courts Act, 1964, Family Court could not question registered Nikahnama. 1994 S C M R 1978

Bar of jurisdiction of Family . Court-Effect-Family Court has jurisdiction to entertain and adjudicate upon a suit filed for jactitation of marriage-Provision of S.23, West Pakistan Family Courts Act, 1964, has placed embargo on the jurisdiction of Family Courts only in cases where there .was no dispute about the existence of marriage and marriage was otherwise assumed to be valid-Section 23, West Pakistan Family Courts Act, 1964, was, thus, not applicable in those cases where marriage was challenged on the basis of fraud, forgery, misrepresentation etc. and suit for jactitation of marriage was filed by either party in Family Court. P L D 1994 Kar. 46

Validity of marriage registered under Muslim Family Laws Ordinance, 1961-Validity of such marriage could not be questioned by a Family Court, nor would any evidence in regard thereto, be admissible before such Court-Party to the marriage, however, was not prevented from leading evidence to show that a marriage did not in fact take place as alleged or that fraud had been perpetrated against the party or that his/her signature on the alleged Nikahnama was also forged. 1992CLC42 1979 CLC 462; 1981 CLC 1097 and PLD 1984 SC 95 rel.

Dispute relating to false marriage-Jurisdiction-Dispute relating to false marriage lay wholly within the jurisdiction of Family Court--Section 23, West Pakistan Family Courts Act, 1964, was not a bar to such suit. 1991 C L C 1787 P L D 1974 Lah. 78; 1979 C L C 462 and. 1981 C L C 1097 rel.

Constitutional jurisdiction, exercise of--Courts below after careful and through appraisal of all material brought on record, concurrently came to conclusion that marriage of wife was validly solemnized and husband had died and dower amount as claimed by wife was fixed--Both Courts below also came to the conclusion that Nikahnama was not a forged document--Petitioners challenging validity of Nikah and dower amount; having not been able to show that findings recorded by Courts below suffered from any legal flaw or infirmity, such concurrent findings, held, were immune from scrutiny m Constitutional jurisdiction of High Court. 1989 M LD 36091979 CLC 462 ref.

Provisions of S. 23 does not either prohibit or preclude a party to prove his correct age and on its basis to claim relief from the Court--Marriage entered into by a female who had not yet attained puberty, was no marriage at all in the eyes of law and was, therefore, void--On the finding that female was minor and had not attained puberty at the time of her marriage, she could legitimately repudiate the contract of marriage after attaining puberty--Such remedy is not barred by S. 23. 1988 C L C 113

Marriage--Minor female--Rukhsati did not take place and marriage was not consummated--Contract of marriage when female was minor was a void contract--Minor female even if given in marriage by her mother who was competent to do so, minor was still entitled to repudiate her marriage in exercise of her right of option of puberty. 1988 C L C 113

Res judicata In previous suit filed by husband for restitution of conjugal rights question of validity of marriage, which was registered in accordance with Muslim Family Laws Ordinance, 1961, not gone into by Family Court who expressed inability to assume jurisdiction in view of bar imposed by S. 23, Family Courts Act, 1964-Issue whether Nikahnama produced by husband a forged document was, therefore, not ‘finally decided’-Wife thereafter brought a suit for jactitation of marriage-Provisions of S. 11, Civil Procedure Code 1908, held, were not attracted on issue of validity of marriage and it was not open for husband who accepted judgment in previous litigation to question jurisdiction of Family Court to determine plea of wife. that documents in support of Nikahnama were forged in circumstances.-P L D 1985 Lah. 613-1979 C L C 462 ref.

Jactitation of marriage-jurisdiction- Dispute relating to a false marriage-Held, To be decided by Family Court and jurisdiction of civil Court in such matter barred-Denial of power to Judge of Family Court to examine validity of marriage-Tanta mounts to frustrating object of Family Courts Act, 1964-Petitioner leading evidence showing marriage of respondent being not duly registered and Nikahnama being forged-Allegation could be examined in suit for jactitation of marriage and S. 23 no bar to such suit.-1981 C L C 1097 P L D 1974 Lah. 78 ; 1979 C L C 462 and P.L D 1974 Lah. 78 ref.

Section 23 assumes validity of marriage in all other respects, but does not prevent party to show marriage having not taken place or fraud having been perpetuated or signature on Nikahnama being forged--Marriage otherwise void, held, cannot be beyond challenge in Family Court merely because of its being solemnized in accordance with S. 5 of Muslim Family Laws Ordinance, 1961. 1979 C L C 462

24.  Family Courts to inform Union Councils of cases not registered under the Muslim Family Laws Ordinance, 1961.---If in any proceedings before a Family Court, it is brought to the notice of the Court, that a marriage solemnized under the Muslim Family Laws Ordinance, 1961, has not been registered in accordance with the provisions of the said Ordinance and the rules framed thereunder, the Court shall communicate such facts in writing to the Union Council for the area where the marriage was solemnized.

25.  Family Court deemed to be a District Court for the purposes of Guardians’ and Wards’ Act, 1890.---A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act.

Court Decisions

Scope-Where application under S.25 of Guardians and Wards Act, 1890, is brought before the Family Court, the Court in dealing with the matter has to follow the procedure prescribed in Guardians and Wards Act, 1890. 2001 S C M R 2000

Section 25, held, prescribes procedure of Guardians and Wards Act, 1890 to be followed by Guardian Judge and not procedure contained in such Act-Mode of trial prescribed in Act XXXV of 1964-Contains sweeping departures from mode of trial in suits under Civil Procedure Code, 1908-Provisions of Act XXXV of 1964 regulating trial of guardianship cases-To be followed by Family Courts-Obligation imposed by S. 25 of Act XXXV of 1964 to follow procedure prescribed in Guardians and Wards Act, 1890-An obligation imposed on Courts and not regulative of rights of parties after Family Courts became functus officio.-P L D 1981 S C454

Word “Procedure”-Meaning-Intention of Legislature would be defeated if ordinary meanings of word “procedure” are enlarged so as to include `provisions relating to appeal-View in Parveen v. Muhammad Ashar P L D 1975 Lab. 334, held, not a valid view.- P L D 1984 Lah. 332 P L D 1981 S C 454 fol.

Custody of minor-Forum of appeal-For appeal against judgments and order of Family Court in such matters, the provisions of West Pakistan Family Courts Act, 1964, and the rules framed thereunder are to be looked into--Provisions of Guardians and Wards Act, 1890 are applicable only to the extent of following the procedure for the trial of such matters and not as regards substantial right of appeal. 2001 S C M R 2000

Custody of children and guardianship-Revision under S. 115, C. P. C. before High Court Family Court, while exercising jurisdiction created by Guardians and Wards Act, 890 continues to retain its identity as such and such proceedings before Family Court are proceedings within meaning of S. 17(1), Family Courts Act, 1964 Orders passed by Family Court in course of proceedings under Guardians and Wards Act, 1890, held, not amenable to revisional jurisdiction of High Court under S. ,115, C. P. C.-View in Parveen v. Muhammad Ashar P L D 1975 Lab. 334 held, not a valid view-[ P L D 1975 Lab. 33 and P L D 1969 Lab. 834 dissented from]. P L D 1984 Lah. 332 P L D 1981 S C 454 fol.P L D 1975 Lab. 334 and P L D 1969 Lab. 834 dissented from. P L D 1975 Lab. 448; P L D 1972 Kar. 410 and P L D 1975 Kar. 448 approved P L D 1977 Lab. 911 distinguished. P L D 1970 Lab. 641; P L D 1969 Lab. 834 and P L D 1977 Lab. 911 ref. 1983 C L C 183 mentioned.

Revisional jurisdiction of High Court against finding of guardianship cases--No revisional jurisdiction available to be exercised by High Court against the judgments passed by the District Judges whether in the appellate or original jurisdiction in guardianship cases or cases under Family Courts Act.-1988 C L C 1 P L D 1971 Lah. 875; P L D 1972 Kar. 410; P L D 1986 SC 14 and P L D 1981 SC.454 rel.

Revision petition--Petitioner, despite a period of more than two months having elapsed ever since, had not submitted to the direction contained in the appellate order-Petitioner, apart from the fact that he had thereby exposed himself to the liability of being proceeded against for disobedience of a lawful order passed by the Appellate Court had also rendered himself disentitled to the exercise of discretion in his favour by a Court of law in circumstances. Revision is not maintainable against order of the Family Court. 1988 C L C 665 P L D 1971 Lah. 875, P L D 1972 Kar. 410; P L D 1981 SC 454 and P L D 1986 SC 14 ref.

Custody of minor--Suit for custody of minor must be instituted in Court of District Judge who can transfer case to an Additional District Judge or Civil Judge having jurisdiction under r. 5, West Pakistan Family Courts Rules, Application for custody of minor entertained directly by Family Court/Civil Judge and order passed thereon--Order, held, without lawful authority--Suit filed under S. 25 of Guardians and Wards Act, 1890 deemed to have been presented before District Judge for deciding question of custody of minors in accordance with law1985 C L C 1343 P L D 1969 Lah. 834 and P L D 1972 Kar. 410 ref.

Appeal in guardianship matters-District Judge empowered under Rules framed under Act XXXV of 1964 to transfer guardianship cases to civil Judges-Civil Judge when acting as Guardian Judge, appeal against his order as per cl. (b) of subsection (i) of S. 14, held, lies to District Court and not to High Court P L D 1981 S. C 454 P L D 1972 Kar. 410 and P L D 1973 Kar. 503 approved. P L D 1969 Lab. 834 ; P L D 1972 Pesh. 1 ; P L D 1975 Lab. 334 and P L D 1977 Lab. 911 not approved. P L D 1967 S C 402 ; P L D 1957 S C (Ind.) 448 and P L D 1964 S C 520 distinguished.

Territorial jurisdiction, determination of-Provisions of West Pakistan Family Courts Act, 1964, has overriding effect and question of territorial jurisdiction is to be decided under its provisions and rules framed thereunder-Provisions of Guardians and Wards Act, 1890, has no relevancy in deciding territorial jurisdiction in the matter relating to custody of minor.
Provisions of West Pakistan Family Courts Act, 1964, has the overriding effect insofar as the matters included in Sched.-Family Court was- the forum which has to be approached in respect of matters relating to custody of minor being one listed item’ in the Sched attached to West Pakistan Family Courts Act, 1964. 2001 S C M R 2000-- PLD 1981 SC 454; PLD 1969 SC 187 and PLD 1986 SC 14 ref.

Transfer of cases.-Provisions of S. 25. Act XXXV of 1964 read with provisions of S. 9, Act VIII of 1890. held, do not enlarge scope of S. 25-A so as to enable High Court to transfer a case from one Court to another and confer jurisdictions against S. 9, Guardians and Wards Act, 1890. 1980 C L C 865-P L D 1971 Kar. 897 ; P L D 1970 Lah. 52 and P L D 1978 Lah. 518 distinguished.

Parties, imp-leading of -Wife on being divorced by husband applying to Family, Court for custody of her minor sons living with father-Husband s ‘attendance before Family Court not secured--Petitioner (uncle of minors) applying for being impleaded as a party to proceeding--Parents of minors being alive and minors not in petitioner’s custody. Family Court, held, rightly rejected petitioner’s prayer --No question of law, far less of any public importance, being involved, petition dismissed. 1976 S C M R 261

Guardian, appointment of-Court’s powers and duties in appointment of guardian or custody of minors-In nature of parental jurisdiction-Main question to be considered by Court-Welfare of minor--Court could consider personal law of minor but paramount consideration minor’s welfare and protection of his interests-No case under Guardians and Wards Act, 1890, regarding custody or guardianship of minor could be decided merely by consent of parties or on compromise-Pre-trial hearing to induce parties to effect a compromise on such matters not only unnecessary but even undesirable Mere technicalities of procedure-Cannot affect decision of Guardian Judge based on broad principles in interests of minor. P L D 1976 Kar.506

Family Court dealing with applications for custody of minor-Word “procedure” in S. 25Remedy by way of “revision” cannot be equated with “appeal” or “procedure”-Distinction between appeal and revision and connotation of word “procedure” - Case-law discussed - Revisional jurisdiction under S. 115, C. P. C. does not confer any substantive right-It’s a matter between higher and lower Court and the right to move higher Court in revision is merely a privilege granted to party - Word “procedure” in S. 25 of Act XXXV of 1964 does not exclude an appeal from its ambit-All provisions of procedure given in Guardians and Wards Act will apply to cases of guardianship matters before a Family Court-Litigant can invoke provisions of S. 115.-P L D 1975 Lah. 334 P L D 1972 Kar. 410 dissented from. P L D 1971 Kar. 118; P L D 1969 Lah. 834; A I R 1931 Nag. 17; P L D 1960 Lah. 57; P L D 1967 Lah. 836; P L D 1963 S C 147; P L D 1964 S C 410; Blackstone on Elements of Law, 1889 Edn., p. 21; A I R 1950 S C 174; A I R 1951 S C 253 ; Salmond on Jurisprudence, 12th Edn., p. 461; P L D 1969 S C 187; P L D 1965 S C 681; P L D 1967 S C 259; A I R 1938 Mad. 688 and (1876) 1 Ch. D 48ref.

Application wader S. 7, Guardians and Wards Act, filed before District Judge acting as Family Court under West Pakistan Family Courts Act, 1964--Appeal against order passed in, lies under provisions of S. 14 of Act XXXV of 1964 read with r. 22 of West Pakistan Family Courts Rules, 1965 and not under S. 47 of Act VIII of 1890-Period of limitation for appeal from order of Guardian Judge acting as Family Court under Family Courts Act--30 days and not 90 days. P L D 1973 Kar. 503 P L D 1969 Lah. 834; P L D 1972 Pesh. 1; P L D 1967 S C 402 and P L t) 1967 Lah. 977 ref.P L D 1972 Kar. 410 ref.

Appeal “Notwithstanding anything provided in any other law” in S. 14 and “notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act” occurring in S. 25-Whether in a guardianship proceeding, under Family Courts Act, 1964, an aggrieved litigant has the right of appeal and revision contained in Guardians and Wards Act, 1890-Word “procedure” in S. 25 of Act XXXV of 1964-Does not include “right of appeal”-Appeal against decree or decision of Family Court (under Guardians and Wards Act) when its Presiding Officer is not District Judge or a Judge of equivalent rank-Lies to District Court and not to High Court Guardians and Wards Act (VIII of 1890), Ss. 25 & 47-Civil Procedure Code (V of 1908), S. 115-[Muhammad Ismail v. Fazal Ahmad P L D 1969 Lah. 834 and Juma Khan v. Gul Feroshah P L D 1972 Pesb. 1 dissented from].
On the basis of section 25 of the West Pakistan Family Courts Act, 1964 it was argued that a litigant aggrieved by the order of a Family Court, in the guardianship matters, had the right of appeal and revision prescribed under the Guardians and Wards Act, 1890. On the other hand it was urged that the provisions for challenging .orders of the Family Court were exhaustively set out in section 14 of the West Pakistan Family Courts Act, 1964 which was an overriding section and that section 25 of the 1964Act merely attracted to the Family Court the procedure of the Guardians and Wards Act, 1890. The matter was referred to a Full Bench and the questions formulated for decision were:---

(i) Whether in a decision by the Family Court, under the Guardians and Wards Act, where the Presiding Officer is not a District Judge or one of equivalent rank, does an appeal lie at all and if so to which forum?

(ii) Whether the Family Court under the West Pakistan Family Courts Act, 1964 is a Court under the supervisory jurisdiction of the High Court under section 115, C. P. C. 7
Held: It is true that section 25 of the West Pakistan Family Courts Act, 1964 expressly refers to the Guardians and Wards Act, 1890, but it is significant that the opening words of section 14 of the Family Courts Act, 1964 read: “Notwithstanding anything provided in any other law for the time being in force.” The clear effect of these words is to exclude any provisions of the Guardians and Wards Act which may be contrary to section 14. Even otherwise section 25 merely prescribes that a Family Court shall be deemed to be a District Court. But a deeming clause creates a legal fiction and has to be construed strictly. therefore as the Legislature has only enacted that the Family Court is deemed to be a District Court, it means that it Is not a District Court, but that merely for the purpose specified in the section it would have the it atus and powers of a District Court. Additionally the right of appeal against an order of a Court cannot possibly be described as the status and powers of that Court. There fore the deeming provision in section 25 of the said Act, cannot possibly lead to the conclusion that it confers on a litigant aggrieved by a judgment of a Family Court the rights of appeal and revision contained in the Guardians and Wards Act. Merely because a Family Court is deemed to be a District Court, an order passed by it cannot be treated as an order of the District Court nor does it become appeal able to High Court.

Now, although section 25 is an overriding provision, it relates only to procedure. The view that procedure does not include a right of appeal “does not admit of doubt.” It is now too late in the day even to argue that the word “procedure” can include the right of appeal, which is a substantive right. Aright of appeal is a creature of the statute, and as the language of section 14 of the Family Courts Act is plain beyond any doubt the Courts have to give effect to it. The meaning of the word “procedure” cannot be altered nor is it necessary to do so because there is no lacuna in section 14. As guardianship disputes fall under subsection (1) of the section, it is clear that the Legislature has conferred in plain and unambiguous language a right of appeal against every decree and decision of Family Court whoever be the presiding officer of that Court. In the result, Muhammad lvwail’s case P L D 1969 Lab. 834 has not been correctly decided and should not be followed.

An appeal against a decree or decision of a Family Court under the Guardians and Wards Act, when its presiding Judge is not a District Judge or a Judge of equivalent rank, therefore, lies to the District Court and not to the High Court.

As section 17 of the Family Courts Act, 1964 has prescribed that the previsions of the Civil Procedure Code, except sections 10 and 11 shall not apply to Family Courts, the litigant cannot invoke section 115 of the Civil Procedure Code and a revision under section 115 is not maintainable. P L D 1972 Kar. 401 P L D 1969 Lab. 834; and P L D 1972 Pesh. 1 dissented from. P L D 1970 Kar. 33; P L D 1971 Kar. 118 ref. P L D 1969 S C 187; P L D 1967 S C 402 and P L D 1968 Lab. 987 distinguished.

Powers of judge, Family Court to regulate its own proceedings, where circumstances so demand, in order to prevent course of justice being deflected from its true path—PLD 2003 Pesh. 63

Procedure Senior Civil Judge (Judge Family Court) hearing and trying suit under S. 25, Guardians and Wards Act, 1890 Procedure adopted would be one under Guardians and Wards Act-Order making or refusing to make order for return of a ward to custody of his guardian-Appeal able to High Court under S. 47(c), Guardians and Wards Act, 1890. Senior Civil Judge while hearing and trying suit under S. 25, Guardians and Wards Act, 1890 description himself as Senior Civil Judge and not as Judge Family Court-Mis-description or non-description, held, did not affect his jurisdiction. P L D 1972 Pesh. 1-P L D 1967 Lah. 977 and P L D 1969 Lah. 834 ref.

Forum of appeal-- Section 5 of the West Pakistan Family Courts Act of 1964 confers exclusive jurisdiction on the Family Court to adjudicate upon matters specified in the Schedule of which item No. 5 refers to the custody of children. This provision has been made subject to the provisions contained in the Muslim Family Laws Ordinance of 1961 and the Conciliation Courts Ordinance of 1961. Section 25 of the West Pakistan Family Courts Act, 1964 confers on the Family Court the status of a District Court for the purpose of Guardians and Wards Act and further provides that while dealing with these matters the same procedure as prescribed under the Guardians and Wards Act shall be followed. Section 47 of the Guardians and Wards Act catalogues orders made by a Court which are all appealable to the High Court, of which claw; (c) refers to an order made under section 25.

The Family Court as constituted under the West Pakistan Family Courts Act of 1964 having exclusive jurisdiction to deal, inter alga, with custody of children is not a district Court in terms of the definition as laid down in section 4(4), Guardians and Wards Act and section 2(4), C. P. C. except that the deeming provision contained in section 25 of the West Pakistan Family Courts Act, 1964 has conferred that status on it while dealing with cases under the Guardians and Wards Act.

Since under section 25 of the West Pakistan Family Courts Act, 1964 the Family Court has to be equated with a District Court for the purposes of cases under the Guardians and Wards Act, it appears that sub-clause (b) of subsection (1) of section 14 would be straightway excluded inasmuch as the order passed by the Family Court in a case of this kind would be only in its capacity as a District Court and no Court can hear an appeal against its own order or from that of a concurrent jurisdiction. Likewise, clause (a) would also be inapplicable inasmuch is it would be invoked only in a case where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and of the status of a District Judge or an Additional District Judge. It appears than where a Civil Judge, 1st Class, functions as a Family Court while dealing with a case relating to the custody or guardianship, of a minor, the rank and status of an Addl. District Judge must be conferred on him, by means of a notification in order to make his order appeal able under clause (a) of subsection (1) of section 14.

The rider attached to the provision contained in section 14 opening with the expression “notwithstanding anything provided in any other law for the time being in force”, makes it abundantly clear that all other provisions relating to appeals contained in other relevant laws, including those of section 47 of the Guardians and Wards Act would be excluded from operation. But this provision has been subjected to a further limitation by the words “and notwithstanding anything contained in this Act” as occurring in section 25 of the West Pakistan Family Courts Act, 1964. Ordinarily the word “procedure” connotes details of the mode of trial to be adopted in a particular Court and would not include the provisions relating to appeal, but in view of the expression “in dealing with the matters specified in that Act, follow the procedure prescribed in that Act” coupled with the inevitable consequence that the order in question would not be governed by any of the provisions contained in section 14 so as to make it appealable, it is clear that the only proper interpretation that can be placed on sections 14 and 25 of the Act read together is that for the purposes of appeal, against an order of the Administrative Civil Judge functioning as Family Court holding a party entitled to custody of minors, section 47 of the Guardians and Wards Act would be applicable and accordingly an appeal would be competent to the High Court. P L D 1969 Lah. 834 P L D 1967 S C 402 distinguished.

Expression “a Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890”-Does not mean that District Court is Family Court-Provision purposes to mean that Family Courts have to follow procedure laid down in Guardians and Wards Act like a District Court-Guardians and Wards Act (VIII of 1890), S. 10.-P L D 1968 Kar.650

PUNJAB AMENDMENT

After section 25 of the said Act this following new section should be added.

25A. Transfer of Cases.---Notwithstanding anything contained in any Law, the [79][Supreme] Court [80][as per clause (a) and the High Court as per clauses (b) and (c)]] may either on the application of any party or of its own accord, by an Order in writing:---

[81][(a)     transfer any suit or proceeding under this Act from the Family Court of one Province to the Family Court of another Province;]

(b)         transfer any suit or proceedings under this Act from one Family Court to another Family Court in the same district or from a Family Court to one district to a Family Court of another district; and

(c)          transfer any appeal or proceeding under this Act, from the District Court of one district to the District Court of another district.

(2)         A district Court may, either on the application of any party or of its own accord, by an Order in writing, transfer any suit or proceeding under this Act from one Family Court to another Family Court in a district or to itself and dispose it of as a Family Court.

(2a)   Where a Family Court remains vacant or the presiding officer remains on leave or absent for any reason, except due to vacations, for more than thirty days, a District Court may, either on the application of any party or of its own accord, by order in writing, transfer any suit or proceeding from such Family Court to another Family Court in a District or to itself and dispose it of as a Family Court.

(2b)   On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the Supreme Court may at any stage transfer any suit, appeal or other proceedings under this Act pending before a Court in one Province to a Court in another Province, competent to try or dispose of the same.

(3)         Any Court to which a suit, appeal on proceeding is transferred under the preceding sub-sections, shall notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it;

Provided that on the transfer of a suit, it shall not be necessary to commence the proceedings before the succeeding Judge de novo unless the Judge, for reasons to be recorded in writing directs otherwise.

N. W. F. P. AMENDMENT

Act XVIII of 1996

Addition of section 25-A to W. P. Act XXXV of 1964

25-A.   Transfer of cases.---(1) Notwithstanding anything contained in any law, the High Court may, either on the application of any party or of its own accord, by an order in writing:---

(a)   transfer any suit or proceedings under this Act from a District Court in one District to a District Court in another district.

(b)   transfer any appeal or other proceeding under this Act from the District Court of one district to the District Court of another district.

(2)   A District Judge, within the district of the jurisdiction, may, either on the application of the party or of his own accord, by an order in writing transfer any suit or other proceeding under this Act from one Family Court to another Family Court.

(3)   Any Court to which a suit, appeal or other proceeding is transferred under the preceding sub-section, shall, notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it:---

Provided that on the transfer, it shall not be necessary to commence the proceeding before the succeeding Judge de novo unless the Judge, for reasons to be recorded in writing directs otherwise.

Sindh AMENDMENT

Act II of 1997

Insertion of section 25-A in the Pakistan Family Courts’ Act, 1964

25-A.   Transfer of cases.---(1) Notwithstanding anything contained in any law, the High Court may, either on the application of any party or of its own accord, by an order in writing:---

(a)   transfer any suit or other proceedings under this Act from one Family Court to another Family Court in the same District or from a Family Court of one District to a Family Court of another district; and

(b)   transfer any appeal or other proceedings under this Act from the District Court of one district to a District Court in another district.

(2)   Any Court to which a suit, appeal or proceedings is transferred under the preceding sub-section, shall, notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it:---

Provided that on the transfer, of a suit it shall not be necessary to commence the proceedings before the succeeding Judge de novo unless the Judge, for reasons to be recorded in writing, directs otherwise.

Court Decisions

Transfer of family suit from a Court subordinate to one High Court to a Court subordinate to another High Court—Jurisdiction to transfer such-like cases would vest in Supreme Court, because High Court could order the transfer of family cases, when both the Courts were located within its own territorial jurisdiction—Provisions of S. 23(3). C.P.C. would not be applicable, Civil Procedure Code, 1908 being a Federal Law and West Pakistan Family Courts Act, 1964, a Provincial Law. PLD 1995 Lah. 198 dissented from. PLD 2002 Pesh. 30

Wife filed suit for dissolution of marriage against her husband in Court at place ‘L’ whereas husband filed suit for restitution of conjugal rights in Court at place ‘F’-Wife sought transfer of case filed against her in Court ‘F’ to Court at place `L’ where her suit was pending adjudication urging female convenience and to avoid contradictory judgment-Contentions urged by wife were well based duly borne out from the appendices and also remained uncontroversial--Suit was transferred from Court at place ‘F’ to Court at place ‘L’ for adjudication. 2002 M L D 1428

Suit for dissolution of marriage filed by petitioner/wife was pending at place “M” whereas suit for restitution of conjugal rights filed by the respondent/husband was pending at place “V”-Petitioner/wife sought transfer of suit pending at place “V” to place “M “--Validity-Case of the petitioner/wife was prior in time and both the suits related to same “Nikah “-Factor of apprehension of mischief by the petitioner/wife was in favour of her contention-Effect-In deciding the application for transfer of cases it was the convenience of the parties to be looked into and in such applications the deciding factor was the convenience of the female-Suit filed by the respondent/husband was transferred to place “M” in circumstances.-1999 Y L R 757

Applicant lady had sought transfer of suit filed against her by respondent in Court at place ‘R’ to Court at place ‘C’ where her suit for recovery of dowry articles was pending against the respondent and respondent had sought transfer of case of the lady in Court at place ‘R’ where his case against the lady was pending-Lady was a permanent resident of place ‘C’ and marriage between her and the respondent was also solemnized there--Preference would be given to the convenience of the female/applicant and not to respondent who had not given any convincing reasons for transfer of lady’s suit in Court at place ‘R’--Both suits involved the same dispute with counter-versions-Suit filed by the respondent in Court at place ‘R’ was ordered to be transferred in Court at place ‘C’ in circumstances. 2001 Y L R 2834

Suit for restitution of conjugal rights filed by husband against wife in Family Court at place “S” was sought to be transferred in Family Court at place “F” where suit for dissolution of marriage filed by wife against husband was pending-Husband having no objection to transfer of his suit, as prayed for by wife suit was transferred accordingly and in view of fear of life at place “F” as entertained by husband, direction was given to police to give protection to husband when he would go to place “F” to appear in the Court. 1999CLC 1819

Wife’s suit for dissolution of marriage pending adjudication at “BWN”-Husband’s suit ‘against wife for restitution of conjugal rights was pending adjudication in Family Court at “FSA”-Wife’s application for transfer of suit filed against her by her husband on the ground that she apprehended harm at the hands of her husband and in support of such plea she had placed on record affidavit to that effect while there was no counter affidavit on behalf of husband-Wife, prima facie, appeared to be justified in invoking jurisdiction of Family Court at a place of her residence-High Court while deciding transfer application did not give definite opinion regarding question of jurisdiction-Such question could be properly resolved after recording evidence-Husband at his option could raise question of jurisdiction before Court concerned-If and where question in that regard was raised before Family Court it would be decided by that Court without being influenced by anything said by the High Court herein-Husband’s suit for restitution of conjugal rights was thus, transferred from the Court of Family Court “FSA” to the Family Court at “BWN” which was seized of wife’s suit for dissolution of marriage. 1997 M L D 2603

Petitioner wife seeking transfer of suit for restitution of conjugal rights pending in Court at place ‘ N’ in Court at place ‘ L’ where her suit for dissolution of marriage was pending, had contended that she was ordinarily residing at place ‘ L’ where she had filed suit for dissolution of marriage-Copy of Nikahnama placed on record clearly showed that parties were married at place ‘N’ and it had also been proved that petitioner wife was also putting up at place ‘N’ and that suit for dissolution of marriage was filed by her at place ‘ L’ simply to procure ex parte decree-Court in exercise of its suo Motu powers vested in it under S. 25-A of West Pakistan Family Courts Act, 1964, withdrew suit for dissolution of marriage pending in Court at place ‘L’ and transferred same to Court at place ‘N’ where same would be heard and decided alongwith suit for restitution of conjugal rights filed by respondent husband: 1996 C L C 632-PLD 1976 Kar. 978 and PLD 1981 Lah. 134 ref.

Courts competent to entertain guardian matters-Notifications issued by High Court in terms of S.4-A(1), Guardians and Wards Act, 1890 and under High Court Rules and Orders-Combined effect-High Court in exercise of powers under S.4-A(1), Guardians and Wards Act, 1890, had authorised District Judges to transfer proceedings under Guardians and Wards Act, 1890 to Civil Judges First Class and they could not nominate Civil Judge at sub-divisional level or otherwise to act as Guardian Judges-Only three sets of Courts (Senior Civil Judge, Civil Judge First Class specifically nominated by High Court and Civil Judges 1st Class empowered by District Judges) could legally hear and decide guardian matters and none else. P L D 1997 Lah. 541

Transfer application-Place of residence of wife, question of-Suit for dissolution of marriage was filed by wife at place ‘B’ while that of restitution of conjugal rights filed by husband was pending at place ‘M’--Both the parties were residents of place ‘M’ but suit filed by wife at place ‘B’ was with the object to harass the husband-Due to ill-will of the husband with some other inhabitants of place ‘B’ and due to certain litigation which took place between his elders and people of the Ilaqa, husband was not able to prosecute the suit filed by the wife at place ‘B’ and she was likely to get ex parte decree-Effect-Apprehension of husband with regard to obtaining of ex parte decree by wife was genuine-Where pretext excavated by wife for institution of the suit in a Court other than the one within whose jurisdiction she resided, was baseless, her suit was transferred from place ‘B’ to place ‘M’ where suit for restitution of conjugal rights was pending., P L D 2000 Pesh. 70 1996 CLC 632 ref.

Suit of dissolution of marriage of wife was pending at place “G”-Husband filed suit for restitution of conjugal rights at place “D”-Husband had refused to accept notice of transfer application, and thus, was proceeded ex parte-Both the suits were consolidated at place “G”. 1999 C L C 1913

Convenience of female was to be preferred while making choice of forum for trial of family suits-Suit of respondent for restitution of conjugal rights was transferred to the Court where suit of petitioner for dissolution of marriage was pending to avoid contradictory decisions by different forums for trial of suits. 1999 C L C 1825

Suit for dissolution of marriage and rival suit for restitution of conjugal rights-Wife filed suit for dissolution of marriage against the husband at place “B” whereas husband filed suit for restitution of conjugal rights at place “D”--Wife had sought transfer of suit filed against her at place “D” to place “B” where her suit for dissolution of marriage was pending against the respondent-Applicant was a Pardah-observing lady and could not prosecute her case at place “D “-Keeping in view the inconvenience of applicant, suit filed against her in Court at place “D “ was ordered to be transferred to Court at place “B” where her suit for dissolution of marriage was pending. 2000 Y L R 2624

Territorial jurisdiction-Matters enumerated in Schedule to West Pakistan Family Courts Act, 1944-Residence of female, determines territorial jurisdiction of a Court to adjudicate upon such matters mentioned in Schedule-Suit of male for restitution of conjugal rights was, thus, transferred to the Court where suit of female for dissolution of marriage was pending:- 1999 C L C 1863

Application for transfer of case by wife-Territorial jurisdiction--Residence of female would determine territorial jurisdiction of a Court to adjudicate upon matters mentioned in Sched.-Suits of husband were transferred within the territorial jurisdiction of residence of female and where her suit was already pending in the Family Court. 1999 M L D 3401

Transfer of suit to (N.W.F.P.) from Civil Court/Family Court (Sindh)—Schedule to West Pakistan Family Courts Act, 1964 did not include marriage gifts to be the subject-matter of dispute with reference to S.5 of the said Act—Suit at (Sindh) had to be a civil suit and in case it was so, the jurisdiction to transfer it under S. 23(3), C.P.C. would vest in Sindh High Court. PLD 2002 Pesh. 30

Transfer of guardian petitions were pending in Family Court-Court wherein such guardian petitions were pending, Presiding Officers of same had not been nominated to perform functions of Guardian Judge, therefore, cases under Guardians and Wards Act could not be entertained by that Court/Judge-High Court in exercise of suo motu jurisdiction withdrew specified cases and transferred those cases to Guardian Judge. P L D 1997 Lah. 541

S. 25-A-Soldiers (Litigation) Act (IV of 1925), S.3 (b) (iv)-Transfer of suit-Suit for restitution of conjugal rights filed by husband against his wife in Court at place ‘ L’ was sought to be transferred by wife in Court at place ‘ V’ where her suit for dissolution of marriage was pending against her husband on ground of her being female and apprehending danger to her life and modesty at the hands of her husband if she pursued be case at place ‘L: and to avoid conflicting judgment and also on the ground that marriage was’ solemnized at place ‘ V’ where she was presently residing-Application for transfer of suit was contested by husband on the ground that he was a soldier on duty in the Airport Security Force and being presently posted at place ‘ L’ it would be difficult for him to pursue his suit for restitution of conjugal rights at place ‘ V’-Husband had also heavily relied -on S. 3(b)(iv) of Soldiers (Litigation) Act, 1925 to contend that he was precluded from obtaining leave of absence to attend Court at place ‘ V’ being serving under special conditions-Contentions of husband were devoid of force as it was for the prescribed Authority to form an opinion whether a person serving under certain conditions would preclude him from obtaining leave of absence to enable him to attend a Court as a party to any proceedings-Suit for restitution of conjugal rights filed by husband, was interlinked with the suit for dissolution of marriage filed by wife and in order to avoid conflicting judgments, interest of justice demanded that both the suits should be heard and disposed of together by one Court-Husband who was pursuing case for dissolution of marriage against him at place ‘ V’ through his counsel, was also represented by a counsel in his suit for restitution of conjugal rights-here fact that husband was a soldier, was not sufficient ground for declining to transfer suit from Court at palce ‘ L’ to Court at place ‘ V’-Wife’s suit for dissolution of marriage was prior in time that of restitution of conjugal rights filed by husband arid law also leaned in favour of females in such cases--Suit for restitution of conjugal rights pending in Court at place ‘ L’ , thus was withdrawn from that Court and transferred to the Court at place ‘ V’ . 1996 C L C 634

Transfer of family suit, from a Court subordinate to one High Court to a Court subordinate to another High Court -Provision of S. 25-A, West Pakistan Family Courts Act, 1964, was not applicable to such cases, especially so, when it was a Provincial Statute. P L D 1995 Lah. 198 PLD 1981 Lah. 215 rel.

Suit sought to be transferred by wife pending in Court at `K’--Wife’s suit for recovery of maintenance pending in Court at ‘L’-Wife had expressed apprehension of suffering physical harm in case she had to go `K’ to defend the suit--Suit deserved to be tried in one Court to avoid possibilities of conflict on their decisions as common questions of law and fact were likely to arise--Convenience of a lady litigant being the only determining factor in such cases, suits of parties should be decided by Court at `L’--Husbands suit was, therefore, withdrawn from Court at ‘K’ and entrusted to Court at `L’, where wife’s suit was pending.-1989 M L D 949

Transfer of case--Wife’s suit for dissolution of marriage pending in Court at L while respondent’s suit for restitution of conjugal rights pending in Court at F--Transfer of suit of husband from Court at to Court at L sought on the grounds that wife’s suit was earlier in time, husband’s suit was only a counterblast intended to cause harassment to wife, marriage of parties was performed at place and that common questions of law and fact were likely to be involved in both suits--Husband being ex paste, contentions raised by wife remained unrebutted--Contentions wile otherwise having force and finding support from precedent case-law--Suit for restitution of conjugal rights filed by husband in Court at F withdrawn and entrusted to Court at L for trial together. 1989 M L D 1359

Wife filed suits for recovery of dower debt and maintenance at L and husband filed suit against wife for restitution of conjugal rights at D--Wife wanted to have husband’s suit transferred to L--Husband was already contesting suits filed by wife--Suits filed by wife at L were earlier in time and she being a lady, it was inconvenient for her to travel to D to defend suit filed by husband against her--Interest of justice required that suit filed by husband be, tried and disposed of by same Court to avoid possibility of conflicting judgments-Application of wife allowed and suit of husband filed at D ordered to be transferred to L. 1989 M L D 1370

Compromise--Husband filed one suit for restitution of conjugal rights and another for custody of minor while wife instituted suit for maintenance--Parties, however, mutually agreed that husband would withdraw his suits and wife agreed to withdraw her suit for maintenance- Husband further agreed to pay a certain amount for maintenance including past arrears--Consent order passed accordingly. 1989 M L D 1473

Suit for recovery of dower money filed by wife pending at S--Husband prayed for transfer of suit from S to R--Wife was born at R, married at R and her parents were also residing at R--Filing of suit by wife at S was based on mala fides--Court satisfied that it would be conducive to administration of justice that suit of wife pending at S be tried at R--Order passed accordingly.-1989 M L D 1473 PLD 1985 Lah. 115 rel.

Husband instituted suit for restitution of conjugal rights and application for his appointment as guardian of minor girl against wife prior in time in Court at place `K’, whereas wife subsequently instituted suit for dissolution of marriage against husband in Court at place `F’--Parties submitted at the Bar that when there was no possibility of parties composing their differences, in order to avoid unnecessary prolonged litigation, cases inter parties may be disposed of in such a manner that wife’s suit for dissolution of marriage may be decreed, suit of husband for restitution of conjugal rights would consequently fail and be dismissed--As regards application of husband for appointment of guardian of minor girl, wife submitted that she was ready to give up her claim for custody of minor girl who could remain with her father--Court in interest of administration of justice and parties gave effect to agreement of parties accordingly and disposed of transfer application.-1989 M L D 1531

Wife’s suit for dissolution of marriage filed at place ‘L’ was earlier in time than husband’s suit for restitution of conjugal rights filed at place `G’--Wife was Pardanashin lady and it would be difficult for her to go to place `G’ to defend herself there, whereas husband would suffer no extra inconvenience in that as he would have to come to place `L’ to defend himself--Wife apprehended danger to her life if she was made to go to place `G’--Such suits between same parties were required to be tried at one and same place-Appropriate place for adjudication of such cases would be the place; when; wife had instituted suit-=Husband’s suit for restitution of conjugal rights filed at place `G’ was transferred to place `L’ where wife’s suit for dissolution of marriage was pending. 1989 M L D 1551

Transfer of matrimonial suit from subordinate Court of one High Court to the subordinate Court of another High Court--Appropriate legislation suitably amending Art. 186-A, Constitution of Pakistan (1973), conferring jurisdiction upon Supreme Court to transfer a case, appeal or other proceedings from one of the said subordinate Court to another or alternatively making arrangement like to the one reflected in 5.527, Cr.P.C. desired by the High Court. P L D 1987 Lah. 331

Husband’s suit for restitution of conjugal rights against wife was pending in Court at place `G’, whereas wife’s suits for dissolution 4 marriage, recovery of dower money and recovery of maintenance allowance for her and for her minor child, were pending in Court at place `F’--Nikah between parties admittedly took place in jurisdiction of Court of place `G’ where parents of wife owned a house and resided--Wife filing suits at place `F’ instead of at place `G’ simply stated that she was completed to leave house of her parents on account of threats given to her by husband who wanted to take her away forcibly, she had taken refuge in house of her relatives at place `F’, without disclosing as to who were those relatives--Institution of suits by wile at place `F instead of place ‘G’, held, lacked bona, fides as no party could be allowed to choose forum in such manner as to cause inconvenience to the other party--Wife, held, could very well look after prosecution of case at place `G’ because her father’s house was there, where she could conveniently live and attend Court and in the interest of justice it was necessary that all the suits be tried by one and same Court to avoid any possibility of conflict in judgments—Suits filed by wife in Court at place ‘F’ were thus ordered to be transferred to Court at place `G’.-1989 M L D1977

S.25-A--Transfer of suit--Petitioner (wife) filing suits for recovery of dower, maintenance and articles of dowry against respondent (husband) m Court at place `L’ sought transfer of suit for restitution of conjugal rights filed by respondent (husband) against her in Court at place `W’--Petitioner contended that marriage of parties was performed at place `L’; that petitioner was a pardah nasheen lady with a suckling child about nine months old and also took ground of inconvenience--Suit for restitution of conjugal ‘rights filed by respondent (husband) against petitioner (wife) at place `W’ was ordered to be transferred to Court at place `L’. 1989 M L D 3652

Prayer of wife to transfer case filed by her husband for restitution of conjugal rights to her place of residence--Parties very old and wife would get facility of travel and husband shall also not have to incur unreasonable expenditure if transfer petition accepted-Request, held, appearing genuine--Transfer of case ordered. 1988 C L C 1647

Suits filed by wife for dissolution of marriage and for recovery of dowry prior in time than suit filed by husband for restitution of conjugal rights--Applicant being a woman suffering from a handicap—Court where wife’s suit filed seized of matter and suit filed by husband could more conveniently be tried by such Court--Suit filed by husband ordered to be transferred to Court where suit filed by wife pending. 1988 M L D 1693

Custody of minor-Application for-Transfer of-Requirements-Powers under S. 25-A, West Pakistan Family Courts Ordinance, held, could be exercised unfettered by any restrictive consideration flowing from S. 9 of Guardians and Wards Act Power of transfer of case would not be restricted to cases where transferee Court was possessed of jurisdiction to deal therewith- 1980 C L C 865 dissented from. P L D 1987 Lah. 34

Territorial jurisdiction of High Court- Family Court--”Family Court” referred in S.25-A cannot be Family Courts not subordinate to the High Court which is approached for transfer of a case .from one Family Court to another--High Court cannot exercise power of transfer of case in relation to a subordinate Court which is not subject to the jurisdiction of the High Court. P L D 987 Lah. 331 1968 P Cr. L J 1675 ref.

Justification--Nothing available on record to show that respondent husband was infirm person who would feel inconvenience to attend Court at place ‘M’ where petitioner wife’s suit for dissolution of marriage was pending against him--Keeping in view dominant factor of convenience of female party, suit for restitution of conjugal rights filed by husband against wife at place ‘K.A’ was ordered to be transferred to Court at place ‘M’ where wife’s suit for dissolution of marriage was pending against husband. 1987 C L C 590

Suit for dissolution of marriage filed prior in time by petitioner wife at place ‘G’ was dismissed for non-prosecution and wife filed fresh suit--Respondent husband filed suit for restitution of conjugal rights against wife at place ‘D’--Petitioner wife pleading danger to her life and inconvenience on her going to defend suit for restitution of conjugal rights at place ‘D’--Suit for restitution of conjugal rights pending against wife at place ‘D’ was transferred to place ‘G’ where wife’s suit for dissolution of marriage was pending. 1987 C L C 656

25-B.   Stay of proceedings by the High Court and District Courts.---Any suit, appeal or proceeding under this Act, may be stayed:---

(a)   by the District Court, if the suit or proceeding is pending before a Family Court within its jurisdiction; and

(b)   by the High Court, in the case of any suit, appeal or proceeding;

Provided that the stay application shall be finally decided by the District Court or the High Court, as the case may be, within thirty days failing which the interim stay order shall cease to be operative.

26.  Power to make rules.---(1) Government may, by notification in the official Gazette, make rules to carry into effect the provisions of this Act.

(2)         Without prejudice to the generality of the provisions contained in sub-section (1) the rules so made may, among other matters, provide for the procedure, which shall not be inconsistent with the provisions of this Act, to be followed by the Family Courts.

Court Decisions

Interpretation of statutes:- Statute (Limitation Act.) having provided no time limitation for making application for setting aside an ex parte decree passed by Family Court but R .13, West Pakistan Family Courts Rules, 1965 prescribing limitation period of 30 days--Rule 13 therefore was ultra vires.

The statute provided no time limitation for making application for setting aside an ex parte decree passed by a Family Court. This is not a case where the statute is silent with regard to the period of limitation for making an application of this nature, but a positive provision has been made permitting the making of such application “within reasonable time of the passing” of the ex parte decree. The question is whether in the face of such statutory provisions, the rule-making authority could frame a rule in any way limiting the period of limitation to a fixed period. The rule-making power has been vested in the Government under section 26 of the Family Courts Act for making rules to carry into effect the provisions of the Act. When the Act itself provides for making the application within reasonable time, apparently fixing a period of limitation for general application to all cases, it cannot be in consonance with the provisions of the Act and cannot be said to carry into effect the provisions of the Act. The reason is that the question of what constitutes reasonable time would obviously depend upon the facts of each particular case and it will not be possible to lay down a rule of thumb that in all cases the fixed period of 30 days would be reasonable time. Subsection (2) of section 26 clearly expresses the legislative intent that the rules made thereunder shall not be inconsistent with the provisions of the Act The subordinate power of framing rules granted by the statute cannot be exercised to override the express provisions of the statute. Clearly, therefore, rule 13 is ultra vires the power of the rule-making authority. 1988 S C M R 747 PLD 1965 SC 68 ref.

SCHEDULE

(See Section 5)

[Part I]

1.      Dissolution of marriage including Khula.

2.      Dower.

3.      Maintenance.

4.      Restitution of Conjugal rights.

5.      Custody of children and the visitation rights of parents to meet them.

6.      Guardianship.

7.      Jactitation of marriage.

8.      Dowry.

9.      Personal property and belongings of a wife.

Court Decisions

Suit for recovery of dowry articles—Defendant can opt either to deliver such articles or pay value thereof. PLD 2004 Lah. 249

Change of forum—Suit for recovery of dowry articles was filed by wife in Civil court, prior to amendment in West Pakistan Family courts Act, 1964—After the amendment, such recovery was included in the Schedule of the West Pakistan Family Courts Act, 1964, and the suit was decreed by family Court in favour of wife—Judgment and decree passed by Family Court was maintained by Appellate court as well as by High court—Plea raised by husband was that Family court had no jurisdiction over the matter as the same was filed before Civil Court—Validity—By the change of forum, nobody would have a vested right to a particular forum to try his lis—Change of forum was a procedural matter and the same operated retrospectively—Supreme court declined to interfere with the judgments and decrees passed by the courts below—Leave to appeal was refused. 2004 S C M R 412

Decree for maintenance of wife and children with effect from 1992, passed on 15-11-1995—Execution of decree failed and petitioner (husband) was sent to civil prison and later was released on bail but further opportunity given to him proved futile and bail was cancelled and he was again arrested—petitioner approached the High Court in its Constitutional jurisdiction and he was allowed interim bail subject to furnishing bail bond in the sum of Rs. 50,000 with a surety; order of granting bail was, however, in the background of the compromise made before the High Court that if released on bail he shall be discharging his liability under the decree—Petitioner informed the High Court that if released on bail he shall be discharging his liability under the decree—Petitioner informed the High Court that he well be getting his G.P. Fund shortly which he shall be depositing before the executing Court and further that he shall be paying his debts under the decree in instalments as he was not in a position to a pay the same in lump sum- Held, regarding his prayer that the decretal amount be received through instalments, he may repeat the prayer before the executing Court, who may review the same pragmatically and keeping in view the economic condition of the petitioner—Petitioner, having undertaken to pay the gratuity amount which he would receive within a period of six weeks from the date of present judgment, it was considered to be proper to extend his interim bail until 14th of December, 2002—If the petitioner made part payment, he would earn the sympathy of the executing Court for extending to him such concession for discharging his liabilities as are proper but if he failed, then he would be at the mercy of the executing Court as the present order of the High Court extending his interim bail shall abate. PLD 2003 Lah. 51

Legitimacy of minor—suit for recovery of maintenance for minor girl filed by wife was resisted by husband alleging that minor girl being not his legitimate daughter, he was not responsible for her maintenance allowance—Minor girl was born in 7th month of the marriage—Minor girl born during the said wedlock, was not illegitimate, but was lawful child of the parties—Whenever wife was charged with adultery, husband would be required to substantiate his accusation of adultery by producing four witnesses, but if no evidence except himself was available, husband would take Oath or Lain—If wife also, took Oath, no chances of retraction of charge of adultery would remain with husband and he could be punished if he would retract and retraction would amount to acknowledgement by husband—Child who was born within sim months of a valid wedlock was a legitimate child under Islamic law—Minor girl born 7th month of wedlock was lawful child of husband especially when birth entry of minor girl was got registered by the husband—Husband was rightly held responsible to pay maintenance allowance to minor girl in circumstances. PLD 2003 Lah. 264

Dissolution of marriage on ground of Khula on the basis that wife had been made victim of cruelty and that she had developed hatred against her husband and that she could not live in matrimonial bondage with him—Factum of cruelty stood proved from evidence of wife and witnesses of both wife and even of the husband—Basis of Khula’ though was the return of consideration of benefit already received by the wife, but khula’ could also be granted to wife on the basis of facts and circumstances showing that matrimonial union of spouses could not remain within the limits ordained by Allah—Whenever court would home to the conclusion after looking into evidence that factum of cruelty had been proved, then Court would gibe a release to wife from matrimonial ties—Evidence on record, in the present case, had proved that downer amount, though was paid by the husband to wife at the time of Nikah, but same was immediately taken back from her—Family Court having dissolved marriage on basis of Khula’ suit fro restitution of conjugal rights filed by defendant husband against plaintiff wife was rightly considered as infructuous – Omission of Family Court to give finding in suit for restitution of conjugal right filed by husband, would not affect merits of case of wife for dissolution of marriage on ground of Khula. PLD 2003 Lah. 260

[Part II]

Offences and aid and abetment thereof under sections 337-A(i), 337-F(i), 341, 342, 343, 344, 345, 346, 352 and 509 of the Pakistan Penal Code (Act XLV of 1860)



[1][1]For statement of objects and reasons see Gazette of West Pakistan (Extraordinary), dated 6th April, 1964, pages 1153-P to 1155-W.

           This Act was passed by the West Pakistan Assembly on 30th June, 1964; assented to by the Governor of West Pakistan on 14th July, 1964; and, published in the West Pakistan Gazette (Extraordinary), dated 18th July, 1964, pages 2427-34.

[2][2]The words “West Pakistan” omitted by the Family Court (Amendment) Act, 1996 (Federal Act X of 1996).

[3][3]Substituted by the Family Courts (Amendment) Act 2015 (XI of 2015) for the following:

“(2) It extends to the whole of [Pakistan].”

The word “Pakistan” was earlier substituted by the Federal Adaptation of Laws Order, 1975 (P.O. 4 of 1975), for “the Province of West Pakistan except the Tribal Areas”.

[4][4]Added by the West Pakistan Family Courts (Amendment) Ordinance, 1966 (X of 1966).

[5][5]Section 2 re-numbered as sub-section (1) of that section by the West Pakistan Family Courts (Amendment) Ordinance, 1966 (X of 1966).

[6][6]Substituted by the Family Courts (Amendment) Act 2015 (XI of 2015) for the following:

“(c) “Government means [the Provincial Government].”

The words “the Provincial Government” were earlier substituted by the Federal Adaptation of Laws Order, 1975 (P.O. 4 of 1975), for “the Government of West Pakistan”.

[7][7]Substituted for the full-stop by the Family Courts (Amendment) Act 2015 (XI of 2015).

[8][8]Inserted by the Family Courts (Amendment) Act 2015 (XI of 2015).

[9][9]New sub-section (2) added by the West Pakistan Family Courts (Amendment) Ordinance, 1966 (X of 1966).

[10][10]Substituted by the West Pakistan Family Courts (Amendment) Act, 1994 (Federal Act XXI of 1994).

[11][11]Substituted by the Family Courts (Amendment) Act 2015 (XI of 2015) for “Federal Government may, on the request of Provincial Government, extend”.

[12][12]The word “Provincial” omitted by the Family Courts (Amendment) Act 2015 (XI of 2015).

[13][13]Substituted by the West Pakistan Family Courts (Amendment) Ordinance, 1966 (X of 1966).

[14][14]Inserted by the West Pakistan Family Courts (Amendment) Act, 1994 (Federal Act XXI of 1994).

[15][15]Substituted by the West Pakistan Family Courts (Amendment) Act, 1969 (I of 1969), for “a Civil Judge”.

[16][16]Section 5 re-numbered as sub-section (1) by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[17][17]Substituted for “the Schedule” by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[18][18]New sub-section (2) added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[19][19]The following sub-section (3) was added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002) and substituted by the Family Courts (Amendment) Act 2015 (XI of 2015):

“(3) The High Court may, with the approval of the Government, amend the Schedule so as to alter, delete or add any entry thereto.”

[20][20]Substituted by the West Pakistan Family Courts (Amendment) Ordinance, 1966 (X of 1966), for “the Districts”.

[21][21]Inserted by the West Pakistan Family Courts (Amendment) Ordinance, 1966 (X of 1966).

[22][22]Inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[23][23]Inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[24][24]Substituted by the West Pakistan Family Courts (Amendment) Act, 1969 (I of 1969).

[25][25]Added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[26][26]The following section 8, having been previously substituted by the West Pakistan Family Courts (Amendment) Act, 1969 (I of 1969), and successively been amended by various enactments, was substituted by the Family Courts (Amendment) Act 2015 (XI of 2015):

“8. Intimation to defendants.– (1) When a plaint is presented to a Family Court, it–

                (a)  [shall] fix a date [* *] of not more than thirty days for the appearance of the defendant;

                (b)  shall issue summons to the defendant to appear on a date specified therein;

               [(c)  shall, within three days of the presentation of the plaint, send to each defendant, by registered post, acknowledgment due, [or by courier service or by both] a notice of the suit, together with a copy of the plaint, a copy of the Schedule referred to in sub-section (2) of section 7 and copies of the documents and a list of documents referred to in sub-section (3) of the said section].

(2)       Every summons issued under clause (b) of sub-section (1) shall be accompanied by a copy of the plaint, a copy of the Schedule referred to in sub-section (2) of section 7, and copies of the documents and list of documents referred to in sub-section (3) of the said section.

          [(3) * * ** * * *]

          (4)     Service of the plaint and its accompaniments in the manner provided in clause (b) or clause (c) of sub-section (1) shall be deemed to be due service of the plaint upon the defendant.

          (5)     Every notice and its accompaniments under clause (c) of sub-section (1) shall be served at the expense of the plaintiff. The postal charges for such service shall be deposited by the plaintiff at the time of filing the plaint.

          (6)     Summons issued under clause (b) of sub-section (1) shall be served in the manner provided in the Code of Civil Procedure, 1908, Order V, Rules 9, 10, 11, 16, 17, 18, 19, [20,] 21, 23, 24, 26, 27, 28 and 29. The cost of such summons shall be assessed and paid as for summons issued under the Code of Civil Procedure, 1908.

  Explanation– [* * * *]”

[27][27]Substituted by the West Pakistan Family Courts (Punjab Amendment) Ordinance, 1971 (XXIV of 1971).

[28][28]Substituted by the Family Courts (Amendment) Act 2015 (XI of 2015) for the following:

(1) On the date fixed-under clause (a) of sub-section (1) of section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement, and attach therewith a list of his witnesses alongwith a precis of the evidence that each witness is expected to give.

[29][29]New subsections (1a) and (1b) inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[30][30]Added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[31][31]Inserted by the Family Courts (Amendment) Act 2015 (XI of 2015).

[32][32]Substituted for the words “reasonable time of the passing thereof” by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[33][33]New sub-sections (7) and (8) added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[34] Probably word is “send”. Web Site Administrator.

[35][34]Substituted by the West Pakistan Family Courts (Amendment) Act, 1969 (I of 1969).

[36][35]Substituted by the Family Courts (Amendment) Act 2015 (XI of 2015) for the following:

“(3)     At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.”

[37][36]Substituted by the Family Courts (Amendment) Act 2015 (XI of 2015) for the following:

“(4)     If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording of evidence:

Provided that notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.

[38][37]New sub-section (5) inserted by the Family Courts (Amendment) Act 2015 (XI of 2015).

[39][38]New sub-section (6) inserted by the Family Courts (Amendment) Act 2015 (XI of 2015).

[40][39]Substituted by the West Pakistan Family Courts (Amendment) Act, 1969 (I of 1969), for “the hearing of the evidence”.

[41][40]New sub-section (1A) inserted by the Family Courts (Amendment) Act 2015 (XI of 2015).

[42][41]Substituted by the West Pakistan Family Courts (Amendment) Act, 1969 (I of 1969).

[43][42]Added by the West Pakistan Family Courts (Amendment) Act, 1969 (I of 1969).

[44][43]Added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[45][44]The following section 12A was added by the Family Courts (Amendment) Act, 1996 (Federal Act X of 1996) and substituted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002):

“12A. Certain cases to be disposed of within a specified period.– Notwithstanding anything contained hereinbefore, a suit for dissolution of marriage shall finally be disposed of within a period of four months from its institution:

  Provided that where an appeal lies against the dissolution of marriage, such appeal shall be disposed of within four months.”

[46][45]Substituted, for the word “and”, by the West Pakistan Family Courts (Amendment) Ordinance, 1966 (X of 1966).

[47][46]Inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[48][47]Substituted by the West Pakistan Family Courts (Amendment) Ordinance, 1966 (X of 1966).

[49][48]Inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[50][49]Substituted previously by the Family Courts (Amendment) Ordinance 2002 (LV of 2002) for “fifteen thousand” and then by the Family Courts (Amendment) Act 2015 (XI of 2015) for “thirty thousand”.

[51][50]Substituted previously by the Family Courts (Amendment) Ordinance 2002 (LV of 2002) for “five hundred” and then by the Family Courts (Amendment) Act 2015 (XI of 2015) for “one thousand”.

[52][51]New sub-sections (3) and (4) added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[53][52]Substituted for “not exceeding one thousand” by the Family Courts (Amendment) Act 2015 (XI of 2015).

[54][53]Inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[55][54]Substituted for the word “two hundred” by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[56][55]Substituted for “Evidence Act, 1872” by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[57][56]Inserted by the West Pakistan Family Courts (Amendment) Act, 1967 (XV of 1967).

[58][57]Added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[59][58]The following new section 17A was inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002) and substituted by the Family Courts (Amendment) Act 2015 (XI of 2015):

“17A. Interim order for maintenance. At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit.”

[60][59]New section added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[61][60]Substituted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002) for the following:

“19.    Court fees.– Notwithstanding anything to the contrary contained in the Court Fees Act, 1872, the court fees to be paid on any plaint filed before a Family Court shall be rupee [fifteen] for any kind of suit.”

The word in crotchets was earlier substituted by the Punjab Finance Act, 1973 (XIV of 1973), for “one”.

[62][61] Section 20 substituted by the Family Courts (Amendment) Act 2015 (XI of 2015).

 At the time of first substitution by the Family Courts (Amendment) Ordinance 2002 (LV of 2002), the original section 20 read as under:

“20.    Investment of powers of Magistrates on Judges.– Government may invest any Judge of a Family Court with powers of Magistrate First Class to [make order for maintenance] under section 488 of the Code of Criminal Procedure, 1898.”

[Note: The words in crotchets had been substituted by the Punjab Finance Act, 1973 (XIV of 1973), for “to hear the case”.]

 After substitution by the Family Courts (Amendment) Ordinance 2002 (LV of 2002), section 20 read as under:

“20. Family Court to exercise the powers of the Judicial Magistrate. A Family Court shall have and exercise all the powers of a Judicial Magistrate of the First Class under the Code of Criminal Procedure, 1898 (Act V of 1898).”

[63][62]Substituted by the West Pakistan Family Courts (Punjab Amendment) Ordinance, 1971 (XXIV of 1971).

[64][63]New section inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[65][64]New section inserted by the Family Courts (Amendment) Act 2015 (XI of 2015).

[66][65]Added by the West Pakistan Family Courts (Punjab Amendment) Ordinance, 1971 (XXIV of 1971).

[67][66]New sub-sections (2a) and (2b) inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[68][67]Added by the West Pakistan Family Courts (Punjab Amendment) Ordinance, 1971 (XXIV of 1971).

[69][68]Substituted for the full-stop by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[70][69]Added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[71][70]Inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[72][71]Inserted by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[73][72]Added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[74][73]Added by the West Pakistan Family Courts (Amendment) Act, 1969 (I of 1969).

[75][74]Added by the Family Courts (Amendment) Act, 1997 (Federal Act VII of 1997).

  Note: This amendment shall not effect pending cases (section 3 ibid).

[76][75]The following new entry 9 was added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002) and substituted by the Family Courts (Amendment) Act 2015 (XI of 2015):

“9.   Personal property and belongings of a wife.”

[77][76]Added by the Family Courts (Amendment) Ordinance 2002 (LV of 2002).

[78] Replaced by section 2 of the Family Courts’ (Amendment) Act, 2008 (40 of 2008).

[79] Replaced the word “High” by section 2 of the Family Courts’ (Amendment) Act, 2008 (23 of 2008).

[80] Added by section 2 of the Family Courts’ (Amendment) Act, 2008 (23 of 2008).

[81] Added by section 2 of the Family Courts’ (Amendment) Act, 2008 (23 of 2008) and the then exiting clauses (a) and (b) are renamed as clauses (b) and (c).

The West Pakistan Family Courts’ Rules, 1965

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