Family Court Matters & Procedures

 

1) Family Court Matters:

1.1) Family Courts Jurisdiction:

The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeal in family cases usually lies to district court where civil judge exercise the power of family judge and in other case where family court is presided by district judge then appeal would lie to high court.  Appeals from the Family Courts lie with the High Court only. In some areas, where it is only Family Court but in most areas Civil Judge Courts have been granted the powers of Family Court Judges.The family courts are established to handle matters of below mentioned nature; Child Custody, Divorce, and Maintenance.

Laws in Pakistan to deal with Family maters

  • Guardians and Wards Act 1890
  • Child Marriage Restraint Act 1929
  • Dissolution of Muslim Marriages Act 1939
  • Muslim Family Law Ordinance 1961
  • (West Pakistan) Muslim Personal Law (Shariat) Application Act 1962
  • (West Pakistan) Family Courts Act 1964
  • Offence of Zina (Enforcement of Hudood) Ordinance 1979
  • Law of Evidence (Qanun-e-Shahadat) Order 1984
  • Enforcement of Sharia Act 1991
  • Dowry and Bridal Gifts (Restriction) Act 1976
  • Prohibition (Enforcement of Hudood) Order 1979
  • Offence of Qazf (Enforcement of Hudood ) Order 1979
  • Execution of Punishment of Whipping Ordinance 1979

 

Divorce/ Talaq by the Husband and Manner

Under Muslim Family Law Ordinance limited reforms have also been introduced in relation to talaq. Under MFLO a divorcing husband shall, as soon as possible after talaq has been pronounced, in whatever form, give a notice in writing to the chairman of the Union Council. The chairman must then supply a copy of the notice of talaq to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within thirty days of receipt of the notice of talaq, the chairman must constitute an Arbitration Council in order to take steps to bring about reconciliation between the husband and the wife. If and when such attempts to negotiate reconciliation fail, a talaq that is not revoked in the meantime, either expressly or implicitly takes effect after the expiry of ninety days from the day on which the notice of repudiation was first delivered to the chairman. If, however, the wife is pregnant at the time of the pronouncement of talaq, the talaq does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later.

Failure to notify, in the above stated manner, invalidated Talaq until the late 1970s and early 1980s, but introduction of the Zina Ordinance allowed scope for abuse as repudiated wives were left open to charges of zina if their husbands had not followed the MFLO’s notification procedure. Since early 1980s, the practice of the Courts in Pakistan is that they validate a Talaq despite a failure to notify as provided under the MFLO.

 

Judicial divorce or Khula

Judicial khula may also be granted without the husband’s consent if the wife is willing to forgo her financial rights. Grounds on which a woman may seek khula include (Dissolution of Muslim Marriages Act 1939):

  • Desertion by husband for four years,
  • Failure to maintain for two years
  • Husband contracting a polygamous marriage in contravention of established legal procedures,
  • Husband’s imprisonment for seven years,
  • Husband’s failure to perform marital obligations for three years,
  • Husband’s continued impotence from the time of the marriage,
  • Husband’s insanity for two years or his serious illness,
  • Wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated),
  • Husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives), and
  • Any other ground recognized as valid for the dissolution of marriage under Muslim law.

 

1.2) Maintenance:

As per Muslim Family Law Ordinance, 1961 Section 9

  • If any husband fails to maintain his wife adequately or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.
  • A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate (to the Collector) concerned and his decision shall be final and shall not be called in question in any Court:
  • (Provided that the Commissioner of a Division may, on an application made in this behalf and for reasons to be recorded, transfer an application, for revision of the certificate from a Collector to any other Collector, or to a Director, Local Government, or to an Additional Commissioner in his Division.)
  • Any amount payable under sub-section (1) or (2), if not paid in due time, shall be recoverable as arrears of land revenue.

 

1.3) Child Custody

The issue of custody mostly arises in divorce separation or other possible legal proceedings where children are involved. Determining as to where the child is to live

  • Forms of Custody
  • legal custody and

 

Physical custody:

  • It determines where the child will be living.
  • It’s a form of Legal custody that covers the decision making and responsibility regarding the child’s basic needs for example health, education and welfare.
  • In cases wherein the sole legal custody has been granted then that parent can make all decisions relating to the children without consulting the other parent.
  • But joint legal custody is also given, whereby decision making stands with both the parents jointly. Herein this form of custody the one parent may have the custody but decision could only be made with consultation of both.
  • Sole physical custody means the child will live with one parent and will visit the other parent on and off. On the other hand is true joint physical custody where the parents have equal time with the children.

 

Legal Protection

  • The constitution of Pakistan article 35: The Article states that the state shall protect the marriage, the family, the mother and the child. Further laws which are implemented in Pakistan for child protection and child custody are the family law and ordinance act.

 

Family Law and Ordinance Act

  • Section 12 delivers law for temporary custody
  • Section 25 of the family law and ordinance act delivers law for permanent custody.

 

The shariah law also known as the Islamic law.

  • Under shariah, a child’s custody is with the mother initially until she remarries, at marriage she looses the right to custody
  • However the period of female custody ends once the child reaches a certain age of custodial transfer or the age of puberty and
  • The boys’ custody ends when he’s able to feed and clothe after that it is up to the boy to choose his custodian.
  • In the time when the mother has the custody of the child it is important that the father has access to the children. The financial support of any children both during marriage and after divorce rests solely with the father. This is the children’s right upon their father, and courts have the power to enforce child support payments, if necessary. Who so ever has the right to custody is under an obligation to bring up the child under Islamic laws to ensure the child’s upbringing.

 

2) Family Court Procedures:

Filing of Suit An aggrieved may file a suit before the judge family court regarding:

1. Dissolution of marriage

2. Recovery of dower amount

3. Recovery of maintenance allowance (wife and children)

4. Custody of children

5. Jactitation of marriage

6. Recovery of dowry articled Guardian ship

7. Recovery of personal belongings of wife

8. Restitution of conjugal rights

 

The complete set of facts must reduce into writing in a form of plain and annexed all the relevant documents in support of claim and file the same in the office of clerk of court for preliminary scrutiny. The clerk of court will ascertain the facts regarding the jurisdiction of the court and the affixation of the court fee on the plaint and put up the file before the judge family court concern.

Please be informed that all the documents which are empower of the aggrieved person must produce in the court at the time of filing of suit otherwise the same will not be allowed by the court at later stage. Similarly the list of documents and the witnesses must attach with the plaint otherwise the same will be dealt as mentioned before.

When the judge family court entertained the suit and proceed into the matter it may fix a date for appearance of the defendant or other party ordinarily not more than 30 days and now a days in routine the courts used all modes of service like issuance of summon/notices, registered letter, currier service, proclamation etc. together with a copy of plaint and documents annexed. On the very first day of hearing in order to effective service upon the other party. However, it can be possible that the judge family court refused to entertain the matter because of the any reason like jurisdiction, non-affixation of court fee etc.

If the judge family court refuse to entertain the suit and announced the final order on this behalf the aggrieved person may file an appeal before the district judge against the said order, if the judge family court proceed into the matter will issue the notice as mentioned in above last past paragraph and on the day when the defendant appeared in the court with a fix a date for filing of written statement/reply by the defendant and on the date fix so, the defendant shall file his written statement and attach the list of witnesses in support of his version and shall produce the copy of documents in his possession or power upon which he intends to rely.

If it is proved that the summons duly served and the defendant intentionally feels to appear before the judge family court the court may proceed in his absence to decide the matter on the basis of evidence produce by the aggrieved person in support of his claim. However, the court may restore the right of defendant to defend the suit on merit on showing good cause for non-appearance by the defendant.

If the case is for recovery of maintenance allowance, if for wife shall fix and interim maintenance allowance in absence of suit for restitution of conjugal rights while in the cases of recovery of maintenance allowance for children the court shall fix an interim maintenance for each child keeping in view the financial position of husband or father as the case be.

 

Pre-trail Procedure

On filing of suit by the aggrieved person and subsequent reply thereof by the other party the court shall examine the claims admitted and denied by the parties. And shall also try to affect a compromise or reconciliation amongst the party if this be possible. This is stage which can be a result of alternate dispute settlement issues. However, if no compromise or reconciliation is possible the court shall frame the issues for recording of evidence.

If the case is for dissolution of marriage on the basis of “khula” the court shall pass a decree for dissolution of marriage on the said basis on failure of compromise or reconciliation without framing issue subject to the restoration of “hukmeher to the husband as zar-e-khula. However in rest of cases falls within the jurisdiction of the family court shall frame an issue to record evidence.

 

Evidence

One may call any witness through court if within 3 days of framing of issue he intimates the court to desire slow and the court is satisfied that it is not possible for such party to produce the witness. On the date fixed for recording of evidence the court shall examine the witnesses produced by the parties however the court may permit the evidence by filing the affidavit of deponent in this behalf. Every witness shall be subject to cross examine by the other party in order to ascertain the reality.

 

Judgment or order and decree

On conclusion of evidence the court shall again fix a date to effect a compromise or reconciliation amongst the parties and if the same is not possible the court shall announce the judgment and a decree.

 

Execution of Decree

On conclusion of evidence the court shall again fix a date to effect a compromise or reconciliation amongst the parties and if the same is not possible the court shall announce the judgment and a decree.

 

Appeal

Any person aggrieved from any final decision given by the court or a decree granted so may file an appeal before the district judge within 30 days of pronouncement of judgment or order and decree. However, no appeal shall lie for dissolution of marriage, for dower not proceeding Rs. 15,000/- and for maintenance of Rs. 1,000/- or less per month.

The appellant must show the grounds on the basis of which he filed an appeal along with the order or judgment against which the appeal is preferred. The district judge on receiving of grounds of appeal may reject the same at preliminary stage if no solid reasoning is mentioned by the appellant to change alter set a side or reverse the judgment order and decree. However, if the district judge deems appropriate to proceed into the matter he shall issue the notice to the respondent for appearance on the date fix so.

After hearing both the parties the district judge shall decide the appeal on merit and he may upheld the judgment order or decree of the judge family court or may reverse or alter the same.

No second appeal shall lie against the order or judgment pronounce by the district judge however, the constitutional remedy by filing a writ petition before the honorable High Court will always be open against the said order judgment and decree.

The decree passed by the district judge shall be executed in the manner already discussed.

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