(W.P. 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][*
* *] Family Courts Act, 1964.
(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) 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][(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;
(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][(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.]
[8][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 Federal Government may, on
the request of Provincial Government, 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 Provincial 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)].
[9][4. Qualifications of Judge.— No person shall be appointed as a Judge of a
Family Court unless he is or has been
[10][or is qualified to be appointed as] a District
Judge, an Additional District Judge,
[11][a Civil Judge or a Qazi appointed under the
Dastur-ul-Amal Diwani, Riasat Kalat].
5. Jurisdiction.—
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 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
[12][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 [13][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:
Provided
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.
[14][(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.]
(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.
[15][8. Intimation
to defendants.— (1) When a plaint is presented to a Family Court, it—
(a) may fix a date ordinarily 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;
[16][(c) shall,
within three days of the presentation of the plaint, send to each defendant, by
registered post, acknowledgment due, 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) [Deleted by the West Pakistan Family Courts
(Punjab Amendment) Ordinance, 1971 (XXIV of 1971)].
(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, 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—
[Deleted by the West Pakistan Family
Courts (Punjab Amendment) Ordinance, 1971 (XXIV of 1971).]
[17][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 precis of
the evidence that each witness is expected
to give.
(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.
(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.
(6) In
any case in which a decree is passed ex
parte against a defendant under this Act, he may apply within reasonable
time of the passing thereof 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.]
10. Pre-trial
proceedings.—
[18][(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.
(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 a date for [19][recording]
of evidence.
11. Recording of evidence.— (1) On the date
fixed for
[20][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
or practicable for
such party to produce the witness.
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.]
[22][(3-A) 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.
(2) If such compromise or reconciliation is not
possible, the Family Court shall announce its judgement and give a decree.
[23][12-A. 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.]
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
[24][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, 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.—
[25][(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;
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, wilfully disobeys such summons, the Family Court may take
cognizance of such disobedience, and after giving such opportunity
to explain,
sentence him to a fine not exceeding one hundred 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
(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 two hundred.
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 Evidence Act, 1872, and the Code of Civil
Procedure,
1908, [28][except
sections 10 and 11,] shall not apply to proceedings before any Family Court.
(2) Sections 8 to 11 of the Oaths Act, 1872, shall
apply to all proceedings before the Family Courts.
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.
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
[29][fifteen] for any kind of suit.
20. Investment of powers of Magistrates on
Judges.— Government may invest any Judge of a Family Court with powers of Magistrate
First Class to
[30][make
order for maintenance] under section 488 of the Code of Criminal Procedure,
1898[31].
[32][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.]
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.
[33][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 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.
(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.
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.]
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]
1. Dissolution of marriage.
2. Dower.
3. Maintenance.
4. Restitution of
conjugal rights.
5. Custody of
children.
6. Guardianship.
[34][7. Jactitation of marriage.]
[35][8. Dowry.]
