Development Of Family Laws In Pakistan

DEVELOPMENT OF FAMILY LAWS IN PAKISTAN DEVELOPMENT OF FAMILY LAWS IN PAKISTAN [Speech by Mr. Justice Mukhtar Ahmed Junejo. on 17th August. 1997 at Wollongong Australia in the Conference of Judges of the Family Court.] [A brief survey of emphasizing the need to appoint a Commission to stud), causes of marriage break‑up and suggest remedial measures to save children from its ill‑effects] By Mr. Justice (R) Mukhtar Ahmed Junejo Hon'ble Mr. Justice Alastair Nicholson, Chief Justice Family Court of Australia, Hon'ble Judges, Family Courts of Australia, Honorable Justices of the countries other than Australia, learned jurists, excellencies, ladies and gentlemen! It is a proud privilege for me to attend this august gathering of Judges of Superior Courts, eminent jurists and people of learning at Wollongong, Australia. Sir, I come from Pakistan, a country of over 120 millions, situated in South East Asia, which attained its independence fifty years ago on 14th August, 1947, under the dynamic leadership of a great jurist, a political activist and a great fighter for the cause of downtrodden and less fortunate people of the then undivided India, namely, Muhammad Ali Jinnah, who was himself a Bar‑at‑Law from Lincon's Inn, Before our independence, we were governed by Britishers, They codified the law of crimes and criminal procedure, but allowed personal law of the subjects to operate. Thus, in the domain of personal faw, the Muslims were governed by Anglo‑Muhammadan Law, Hindus by Hindu Law and other persons by their own religious laws. Later on necessity arose to codify some of the personal laws. In 1939 the Muslim Law relating to dissolution of Muslim marriages was consolidated, codified and named as Dissolution of Muslim Marriages Act. A host of other enactments governing the family matters including the questions relating to custody of minor children, came into being through legislation. Initially the forum for adjudication of the family matters till 1964 was the normal "Civil Court". In 1964 Family Courts Act was passed, making provision for the establishment of Family Courts, for the expeditious settlement and disposal of disputes relating to marriages and family matters or matters connected therewith. The Family Courts, set up under the Family Courts Act, 1964, are functioning since then effectively. The Judges presiding over these Courts are drawn from the judiciary and a special procedure is provided for trial of family suits in the Family Courts. One unique feature introduced by the Family Courts Act is pre‑trial proceedings, where parties have to appear in person before the Family Court. The Family Court during the pre‑trial proceedings was not only to ascertain the points at issue between the parties, but has to make an attempt for effecting compromise or reconciliation between the parties. These provisions are mandatory for a Family Court. It is only in case of no possibility of a compromise or reconciliation, that the Family Court has to proceed further in the matter and record evidence of the parties. Another unique feature introduced by the same Act is that after close of the parties evidence, the Family Court has to make another effort to bring about a compromise or reconciliation between the parties. This is also mandatory for the Family Court. If such compromise/reconciliation is not possible, then alone the Family Court can pronounce a judgment to be followed by a decree. Every decision of a Family Court is appealable to the higher forum, except the decision dissolving a marriage unless such dissolution is on the ground of disposal of wife's property by the husband or his disallowing her to exercises her legal rights over the same. Likewise there is no appeal for dower not exceeding Rs.1,000, or for maintenance of the wife when maintenance allowance is fixed at Rs.25 per month or less. These are some of the achievements made in the field of Family Laws in my country. I don't claim that our system is so perfect that it does not admit of any improvement. However, we have set the ball rolling. With the passage of time some more changes in the law relating to family laws may take place. But so far as the Muslim Law is concerned, it has laid down the rights and liabilities of the marriage spouses as well as the law relating to custody of the minor children. There has been no necessity to bring about any change in the fundamental laws given to us 1400 years back by the religion of Islam. Although for determining the question relating to custody of minor children, it has been laid down in the Muhammadan Law that a boy shall remain in the custody of his mother till he reaches the age of seven years and a girl shall remain in custody of her mother till she attains puberty or the age of sixteen years, and that a father must be regarded as natural guardian of his children so long' they are minor, yet the paramount consideration in determining custody of the minor children has always been the welfare of the minor. This consideration is warranted not only by the Muhammadan Law but by the case‑law which has developed over the years. This august Conference of learned Judges and jurists can consider the ways and means of accelerating disposal of the Family Cases. It can also undertake an indepth study of the causes for break‑up of the marriages and suggest ways and means to put stop to break‑up of nuptial ties. Yet another important issue which I would like to highlight and which requires immediate attention of the participants of this Conference is, about the condition of the minor children whose parents have separated. In such situation the children of the marriage spouses are the worst sufferers. Next issue requiring consideration is, child delinquency and use of drugs amongst the children, due to the influence of the drug mafia and due to lack of preventive measures by their parents more particularly by the parents who have separated from each other. I avail of this opportunity to put forth an important proposal about formation of a Commission to consider the points raised above and to study the laws governing the family disputes in the civilized world and to make comparative study of the leading religions and social norms of the world and to, evolve a common course by picking up good points. This would benefit the homo‑Sapiens in their affairs, and the posterity. MR. JUSTICE JAVED IQBAL, CHIEF JUSTICE, HIGH COURT OF BALOCHISTAN Mr. Justice Javed Iqbal was born on lst August, 1946. He took his primary' education at Islamia High School, Quetta; did Matric from Sandeman High School, Quetta; B.A. from Government College, Quetta; M.A. (Political Science) and L.L.B. from Punjab University; Master of International Law (Australia); Certificate in Management Development (Australia). Qualified Islamic Fiqh and Shariah Course from Islamic University of Islamabad and attended Second Advanced Course in N.I.P.A. (.1987‑88). Mr. Justice Javed Iqbal was Public Prosecutor and Government Pleader (1971‑72); and Section Officer, Law Department, Government of Balochistan (1973‑77); Deputy Secretary, Law Department, Government of Balochistan (1977‑81); Officiating Secretary Law, Government of Balochistan (1982); Honorary Lecturer, University Law College, Quetta; Appointed District and Sessions Judge in 1982. He was appointed as Member N.I.R.C. in the year 1988, but due to personal reasons could not join the post. He was also appointed Judicial Member, Income‑tax Appellate Tribunal, but the Government of Balochistan did not relieve him. He remained as District and Sessions Judge; Special Judge, Anti‑Corruption; Registrar High Court of Balochistan; Special Judge Customs and Special Court (Offences in Respect of Banks). Mr. Justice Javed Iqbal was elevated as Additional Judge in the year 1993 in High Court of Balochistan and was confirmed in 1995. Mr. Justice Javed Iqbal has been elevated as Chief Justice of High Court of Balochistan on 4‑2‑2000.