Restructuring of Family Court's Trial Procedure---Suggestions

RESTRUCTURING OF FAMILY COURT'S RESTRUCTURING OF FAMILY COURT'S TRIAL PROCEDURE---SUGGESTIONS By Alia Anwar, Additional District and Sessions Judge (Sindh) Marriage is a sacred relation and its importance can be gauged from the fact that Allah, the Almighty, has shown His great displeasure upon its termination, although He has allowed the believers such termination under certain circumstances. Marital relation is the first human to human relation of this world. Since it is a man-made relation, it is fragile and not durable. People enter this relation with three words and likewise are relieved of it with three words. There are a number of relations in this world which connect people to each other on the basis of some tangible bonding. Parents love their children for being their own offspring. Brothers and sisters being siblings love each other out of natural affection on this account. Bonding of relation between husband and wife is based on two basic ingredients, i.e. trust and respect. Although, this relation is not based upon blood relation but it is the bases of blood relation. Wisdom behind giving great respect to this relation is the responsibilities burdened upon the spouses. Mother's lap has always been said to be first school of a child. If a woman is not mentally relaxed or has been subjected to any sort of discomfort. she would not be able to concentrate on child's need/ upbringing. Children do not act what they are taught by parents, but they follow what they see their parents doing. Advising a child not to steal anything will be useless, if he sees his parents stealing. Likewise, you cannot restrain your child from smoking if any of the parents smokes in his/her presence. Parents are always a role model for children. To provide an ideal atmosphere to children, spouses are required to maintain cordial, rather peaceful relationship between them. Difference of opinion is a healthy sign, but it becomes harmful when it is made an issue of ego. This situation mostly leads to filing of a family suit. Experience has shown that most of the family cases are ego based, and parties go beyond limits to their satisfy ego. In such exercise, a child suffers for no fault on his part and he becomes victim at the hands of his own parents. Family plays an important role in every society. Any sort of disturbance or imbalance in the family creates great problems, which resultantly, directly or indirectly affect the society. Difference of opinion between spouses is natural, if it is resolved at family level (due to intervention of elders, etc.) and it leaves less adverse effect rather than the dispute which reaches the court. At this stage it is very difficult for the court to lessen/control their temperaments, because both possess some reason (logical/illogical) to contradict the other, but the offspring gets victimized for no reason/fault on his/ her part. Minor is left with no option except to accompany one parent, throwing away his/ her basic right to enjoy both parents together. Furthermore, when these litigations reach the Court, it puts more adverse effect upon minor's personality, especially in cases relating to custody of minors. Study has proved that any experience faced by a person in his initial five years of life remains long-lasting. It also leaves its impact (good/ bad) upon child's personality. State is assigned with the responsibility to make policies to secure legal, moral and fundamental rights of its citizens. In Pakistan, a number of Civil and Criminal courts are established to resolve disputes amongst citizens, however, some special courts are also established keeping in view the sensitivity of the issues, such as; Anti-Terrorism Court, Anti-Corruption Court, Narcotics Control Court, Banking Court, Custom Court and the Family Court. All these courts are known as Special Courts. The presiding officers of all the special courts i.e. Anti-Terrorist Court, Anti-Corruption Court, Narcotics Control Court, Banking Court, Custom Court is required to be a District Judge. Amongst all these special courts, Family Court is the most important court but unfortunately its charge has been assigned to a Civil Judge, who is mostly inexperienced on many counts. It is pertinent to mention here that our neighboring country, India, emphasis much more care and attention while appointing a judge for the Family Court. Section 4 of the Indian Family Courts Act, 1984 deals with the procedure for Appointment of Judges of the Family Courts and its subsections (3) and (4) read as under; (3) A person shall not be qualified for appointment as a Judge unless he- a. has for at least seven years held a Judicial office in India or the office of a member of a tribunal or any post under the Union or a State requiring special knowledge of law; or b. has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or c. Possesses such other qualification as the Central Government may, with the concurrence of the Chief Justice of India. prescribe. (4) In selecting persons for appointment as Judges- a. every endeavor shall be made to ensure that persons committed to the need to protect and preserve that institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counseling are selected; and b. preference shall be given to women. In Pakistan, in most of the cases, the presiding officer of a Family Court is a new comer, who can hardly handle the most sensitive matters between the parties. Ultimately, the bad relations turn to worse. On the contrary, if the presiding officer of the Family Court is a seasoned person, such as an Additional Sessions Judge or a District Judge, he/she would deal with such cases in a much better way than a Civil Judge does. Most of the Civil Judges lack experience of marital relations or even the issues relating to children. In these circumstances, handing over such sensitive issues (family cases) is itself harmful. Sections 5 and 6 of the Indian Family Courts Act, 1984 are also beneficial for the marital institution and they read as under; 5. Association of social welfare agencies, etc.- The State Government may, in consultation with the High Court, provide, by rules, for the association, in such manner and for such purposes and subject to such conditions as may be specified in the rules, with a Family Court of- a. institutions or organizations engaged in social welfare or the representatives thereof; b. persons professionally engaged in promoting the welfare of the family; c. persons working in the field of social welfare; and d. any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act. 6. Counselors, officers and other employees of Family Courts.- (1) The State Government shall, in consultation with the High Court, determine the number and categories of counselors, officers and other employees required to assist a Family Court in the discharge of its function and provide the Family Court with such counselors, officers and other employees as it may think fit. (2) The terms and conditions of association of the counselors and the terms and conditions of service of the officers and other employees, referred to in subsection (1), shall be such as may be specified by rules made by the State. In Pakistan, our Family Judges are not qualified/professional counselors to deal with the matrimonial issues tactfully and they do not even have any option to call for any professional counselor to facilitate the spouses to sort out their issues. Resultantly, we do not get positive results as we can get so. It is well settled that destruction of a marital relation affects the society directly and by making few amendments in Family Courts Act we can get better result. There is a separate Statute for all the Special Courts, assigned with vast powers to meet the ends of justice. Special Courts have been specifically exempted from following the provisions of Code of Civil Procedure, and the reason for assignment of such unlimited jurisdiction to the Family Courts is to exempt the parties from all procedural restrictions. In 1984 CLC 890 it has been held that "Family Court although a forum of limited jurisdiction yet Court has to regulate its own proceedings as West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances." Keeping in view sensitivity of family matters, frequent quarrels between parties during ward's meeting and to coup up with such situation, I introduced the idea of establishment of Meeting Hall, so that ward and deprived parent meet each other in a peaceful atmosphere. In this regard we succeeded to establish "Guardian and Ward Meeting Hall" in District East. Such effort has been appreciated by Hon'ble the Chief Justice, Sindh High Court. None of the meetings are allowed to take place inside the court room in District East. All Guardian and Ward cases filed in the District are assigned with a registration number along with the schedule of meeting to enjoy peaceful meeting in the Guardian and Ward Meeting Hall. Record of each meeting is maintained, which helps learned Guardian Judge while passing final order. SUGGESTIONS 1. Being a special court, the Family Court should be presided over by a District and Sessions Judge or an Additional District and Sessions Judge. 2. There are Registrars in all the Special Courts to deal with service and miscellaneous compliance issues. However the Family Judge deals with each case from its initial stage of service, which consumes much time as service of summons and notices takes a long time to be held good. If Registrars, of Civil Judge cadre, are posted in Family Courts for service, miscellaneous compliance and other administrative affairs. the Family Judge would be having much time to concentrate on trial and it would give a better and speedy output. 3. Our Judges are not professional Counselors, if some professional counselors are provided to the Family Judges during pretrial proceedings; there would be more chances for reconciliation between parties. 4. Establishment of our Family Court in City Court premises is not healthy, either for litigants or the children. It should be shifted to a place away from crowded and polluted atmosphere of city court. There should be a separate place, preferably a bungalow with garden/playground, where children coming for meeting may enjoy good time. 5. During such meeting hours, the other parent may also be provided a counseling Session, which may also lead to a chance of reconciliation between parties to reach a decision, suitable to parties. Appearance of minors/wards in court premises like criminals is not suitable even for their mental health.