Jurisdiction of Family Court

Petitioner/husband alleging the dower agreement between parties to be fake and forged while questioning the jurisdiction of family court to take cognizance of the matter

Jurisdiction of family court

Scope

The family courts, established under the Family Courts Act, 1964, are vested with special jurisdiction to entertain, try, and decide all matters specifically enumerated in the Schedule of the Act, which explicitly includes disputes pertaining to dower

It is also to be borne in mind that the family courts function outside the strict rigors of the C.P.C., and the technical requirements of the Qanun-e-Shahadat, 1984

The legislative intent behind this departure is to facilitate an inquisitorial and conciliatory procedure, keeping in view the sensitive nature of family disputes

For instance, Art. 79 of the Qanun-e-Shahadat, 1984 ordinarily requires production of at least two attesting witnesses to prove execution of documents creating future financial obligations; yet, by virtue of S. 17 of the Family Courts Act, 1964, such rigid formalities stand excluded in family disputes

Thus, in matters concerning dower, the family court is not shackled by technical evidentiary requirements but is empowered to adopt a more flexible approach to arrive at a just and equitable resolution within the familial context.

Briefly, respondent-mother instituted a suit before the family court seeking maintenance from her sons on the ground of dependency and lack of independent income

During pendency of the proceedings, the family court fixed interim maintenance and directed payment by the 14th of each month

Upon alleged non-payment, the family court struck off the defence under S.17-A of the Family Courts Act, 1964 while decreeing the suit and initiating coercive proceedings

The appeal against said orders was dismissed by the district court leading to the filing of the constitutional petition

Pivotal questions requiring determination before the High Court were as to "whether a parent could institute a suit for maintenance against children before the family court"?; and, "whether S.17A of the Family Courts Act, 1964 was applicable to maintenance claims filed by parents"?

Held: Claim of maintenance by dependent parents against their sons, being a family dispute rooted in familial obligations, squarely fell within the domain of "family affairs" and was, therefore, well within the jurisdiction of the family court

As statutory provisions did not expressly define the nature of relationship between the person claiming maintenance and the party against whom maintenance was sought; principles of Islamic law which were the primary source governing family relations had to be applied

Under Islamic jurisprudence, the obligation of sons to maintain their dependent parents squarely fell within the scope of maintenance

Family Court possessed jurisdiction to decide all ancillary issues necessary for complete and effective adjudication of disputes within its domain

The 'Schedule' to the Family Courts Act, 1964 was inclusive and had to be interpreted purposively to advance the true spirit and objective of the statute

A mother or father, if left dependent and without means, could competently invoke jurisdiction of the family court to seek maintenance from their sons

Section 17-A was not attracted to the present dispute wherein a mother had sought maintenance from her sons

However, the authority to pass a final decree for maintenance inherently included the power to grant interim relief pendente lite as an ancillary or necessary measure to prevent destitution during litigation, therefore, the family court was fully empowered to fix and direct the payment of interim maintenance during the pendency of a suit filed by any parent and enforce such judicial orders

Impugned orders of the courts below were set aside and the matter was remanded to the family court to decide the same afresh

Constitutional petition was allowed, in circumstances.

A mother, if left dependent and without sufficient means, may competently invoke the jurisdiction of the family court to seek maintenance from her sons.

Question before High Court was whether the provisions of Mental Health Ordinance, 2001, contradict and repeal the Family Courts Act, 1964, to take away jurisdiction of the Family Court qua custody of minors who are suffering from any mental disability and vest the same in the Court of Protection

Held; main crux of the Mental Health Ordinance, 2001, essentially relates to psychiatric facility and management of property of the mentally disabled persons and appointment of guardian under the Mental Health Ordinance, 2001

Dispute inter se parents of a minor for his or her custody and/or guardianship is manifestly not a subject matter of the Mental Health Ordinance, 2001, which falls within the exclusive domain of Family Court even when the minor suffers from any disability

Provisions of Mental Health Ordinance, 2001, do not contradict and repeal the provisions of S. 5 read with Entries Nos. 5 and 6 of Part I of the Schedule to the Family Courts Act, 1964 to take away jurisdiction of the Family Court in disputes amongst parents regarding guardianship and/or custody of minors who are suffering from any mental disability

Overriding effect of the Mental Health Ordinance, 2001, as provided in S. 60 thereof, is limited to cases of conflict.

No doubt Ss. 32 & 33 of the Mental Health Ordinance, 2001, vest authority in the Court of Protection for the appointment of guardian of a mentally disordered person who is incapable of taking care of himself or the manager of his property when he is incapable of managing his property, however, judicial proceedings in that regard are governed by the provisions of Ss. 29 to 31

Requirements of possession of property by the person alleged to be mentally disordered and consent in writing of the Advocate General Punjab prescribed in S. 29 are mandatory prerequisites for judicial proceedings qua appointment of guardian and/or manager under the Mental Health Ordinance, 2001, whereas none of that is required for the assumption and exercise of jurisdiction by the Family Court under the Family Courts Act, 1964, since no minor can be left without a guardian and custodian.

As per S. 5 read with S. 20 of the Family Courts Act, 1964, it is only the Family Court that can decide any matter relating to terms and conditions of Nikahnama and fate of a permission letter to contract second marriage touches the condition whether it is genuine or otherwise.

Suit of the respondent/wife for dissolution of marriage, recovery of maintenance and dowry articles was partially decreed by the Trial Court and appeal of the petitioner/husband was dismissed

Maintainability

Admittedly, respondent/wife and the petitioner/husband had moved to a foreign country to reside there only after a couple of months of their marriage where the minors were born

Since their marriage, respondent/wife and her husband/ respondent along with the minors visited Pakistan only two to three times

Minors were foreign citizens by birth who were admittedly residing there

Nothing was produced in evidence to establish intentions of the respondents to reside in Pakistan

Income of the petitioner/husband was accruing in foreign country where admittedly he was working and all expenses for the maintenance of respondents were to be incurred in the country where they were residing

Not only the parties were residing in the foreign country but the cause of action for their maintenance also apparently arose there upon which the courts of that foreign country could exercise jurisdiction

Suit for the recovery of maintenance of respondents was not maintainable before the Family Court at Pakistan

Courts below had manifestly acted in disregard of R. 6 of Family Courts Rules, 1965, while deciding the relevant issue in negative i.e. against the petitioner/husband and in favour of the respondents

Impugned judgments and decree of maintenance passed by the courts below were set aside and suit for the maintenance of respondents was dismissed for lack of jurisdiction

Petition was allowed, in circumstances.

Family Court is a quasi-judicial forum which can draw and follow its own procedure provided such procedure is not against the principles of fair hearing and trial.

Intention of legislature reflective from S. 20 of the Family Courts Act, 1964, is to hold all family affairs under an umbrella so that sanctity of family affairs and dignity of spouses should be saved from public exposure in ordinary Courts

Word "exclusive" used in S. 5 of the Family Courts Act, 1964, makes it vividly clear that no other Court can assume jurisdiction in respect of provisions of Muslim Family Laws Ordinance, 1961, except the Court constituted under the Family Courts Act, 1964

Only Family Court can assume jurisdiction in some offences of P.P.C. as mentioned in Part II of the Schedule, if committed against the spouses

Reason being that under S.20, Family Courts Act was authorized to act as Magistrate of First Class under the Code of Criminal Procedure

Article 175(2) of the Constitution in clear terms provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law

Offence under S. 6(5) of Muslim Family Laws Ordinance, 1961, would be tried by Family Court constituted under Family Courts Act, 1964.

Law requires hearing and adjudication of cases upon merits and parties should be granted reasonable opportunity of hearing and to produce their evidence

However, if the case is adjourned for pre-trial proceedings on several occasions without any sufficient cause, the aims and objects in promulgating the Family Courts Act, 1964, will be rendered futile

Family Court has to regulate its proceedings under the provisions of the Act and in doing so it has to proceed on the premise that every procedure is permissible unless a clear prohibition is found in the law.

No Mufti or Qazi except the court empowered under the Azad Jammu and Kashmir Family Courts Act, 1993, has jurisdiction to entertain any proceedings or declare the Nikah of the spouses to be illegal.

Parties were husband and wife inter se and suit for dissolution of marriage filed by wife/respondent was dismissed as withdrawn by Family Court

On application under S.12(2), C.P.C. filed by wife/respondent Family Court and Lower Appellate Court set aside the order on the plea of fraud and misrepresentation and marriage was dissolved

Plea raised by husband/petitioner was that Family Court did not have jurisdiction to set aside order under S.12(2), C.P.C.

Validity

If power of Court was there and Court had got jurisdiction to undo a fraudulent order obtained, then all such irrational technicalities and formalities should not deprive a real and genuine litigant

Contents of application and prayer of litigant were to determine fate of a suit, an appeal or a petition

Substantial justice must be done, granted and showered upon genuine litigant, leaving aside all formal and minor technicalities hindering path of justice

No jurisdiction error, legal infirmity and illegality existed in order passed by Courts below, rather vested jurisdiction was judiciously and aptly exercised

High Court declined to interfere in concurrent orders passed by two Courts below

Constitutional petition was dismissed in circumstances.

Guidelines for Family Court to adjudicate in case where husband claims invalidity of nikkah on ground of alleged problematic gender characteristics of wife

Inference to be drawn on refusal of party to undergo medical examination

Scope

Petitioner / husband impugned order of Family Court, whereby his application for medical examination of his wife, in order to determine gender characteristics of his wife was dismissed

Contention of husband, inter alia, was that his wife had no feminine characteristics and their marriage was not valid and therefore, respondent wife was not entitled to any benefits of dower and maintenance

Validity

Respondent wife of petitioner did have Fundamental Right to privacy however such right was not absolute and sufficient material must be before Family Court to justify an order for compulsory medical examination

Family Court was competent to direct a party to undergo medical examination but such power was subject to certain conditions and if concerned person refused to comply with a direction for medical examination, then Family Court could not compel such a person and could only draw an inference from such refusal as may be appropriate on facts and circumstances of a cases

Family Court was also obliged to consider whether there was an explanation for such lack of cooperation

Family Court in such a case should specifically put non-cooperating party on notice regarding consequences of its conduct and warn against any adverse inference that may be drawn by such refusal to undergo medical examination

In Islamic jurisprudence, Khunsa Wadhih (whose gender had been established) could contract a valid marriage with opposite sex but Khunsa Mushkil (where gender was problematic/intractable) was prohibited from marrying any one

In the present case, if medical examination of respondent wife revealed that she lacked feminineness, it would have bearing on marriage between parties and impact rights and obligations arising therefrom, including the claim for recovery of dower and alimony

Petitioner lived with respondent wife for eight months and had not divorced her to-date which gave rise to presumption that marriage between parties was valid

Said presumption was, however, rebuttable by strong and weighty evidence, which could be oral or documentary

Petitioner had raised question of gender of respondent, which allegation was denied by respondent, and as such matter went to the root of the case, and was therefore incumbent upon Family Court to frame an issue in such respect and require petitioner to produce evidence

Petitioner could have moved application for medical examination of respondent only after getting evidence recorded and bringing material which could persuade Family Court that an order for medical examination was absolutely necessary and petitioner's application at present stage was therefore premature

High court set aside impugned order and held that petitioner's application for medical examination should be kept pending for time being and that Family Court should frame an issue regarding respondent's gender and should pass an order for medical examination only after parties recorded evidence and only if same was unavoidable and absolutely necessary

High Court further held that respondent shall not be forced for medical examination and upon her refusal, Family Court could only draw an inference as may be just and proper

Constitutional petition was disposed of, accordingly.

Where immoveable property is claimed as dower, Family Court has exclusive jurisdiction in such matter.

Family Court decreed the suit for possession of a house mentioned in column No. 17 of Nikahnama but Appellate Court dismissed the same

Validity

Entry in column No. 17 of Nikahnama would amount to a promise which was enforceable through Court of plenary jurisdiction

Suit filed before Family Court on the basis of such promise/commitment was not maintainable being out of ambit of Schedule of S. 5 of Family Courts Act, 1964

Impugned judgment passed by the Appellate Court was based on proper appreciation of evidence

No jurisdictional error had been pointed out in the impugned judgment passed by the Appellate Court

Constitutional petition was dismissed, in circumstances. [Paras. 8 & 9 of the judgment]

Exclusion of Civil Procedure Code, 1908 envisaged in section 17 of Family Courts Act, 1964 is not applicable to the execution proceedings

Execution proceedings shall be regulated and proceeded with through O. XXI, C.P.C.

Exclusion is only meant for matters in respect of the Part I of the Schedule of Family Courts Act, 1964.

Petitioner (ex-husband) contended that respondent/ plaintiff did not ordinarily reside at the address shown in her plaint and Family Court had not complied with the provisions of Muslim Family Laws Ordinance, 1961 in granting decree of khulla to the respondent

Validity

Deliberate use of the phrase 'ordinarily resides' in proviso clause of R. 6 of the Family Courts Rules, 1965 was an exception confined to the 'wife' alone

Ordinarily residence must not require proof as would be for permanent residence, such was keeping in view the agony of woman who, on being ousted by husband, sometimes did not find shelter in the house of her parents

Right to claim 'khula' as well 'dower' were absolute rights of 'wife' which legally could not be resisted if the 'wife' persisted to such claim

Such entitlement, was not subject to a proof of permanent or long residence but a claim of stay of few days even would be enough for the wife to file a suit for dissolution of marriage or dower only

Claim of 'ordinarily resides' would not require proof of the standard which normally was necessary for a disputed fact but a claim on oath shouldered by independent support would be sufficient

Record revealed that claim of wife regarding her ordinary residence was backed by an inquiry (physical verification from neighbors) made by the commissioner appointed by the Family Court on the application of the petitioner, which was rightly taken as sufficient proof to take cognizance into the matter

Temporary, even one day, residence, was sufficient to seek relief of Khulla and said proposition of law had taken status of stare decisis, hence the petitioner's objections over Khulla with regard to jurisdiction was not maintainable

Compliance of Ss. 7 & 8 of Muslim Family laws Ordinance, 1961, was up to the Trial Court and the same was a formality

Decree of khulla having already been granted, there was no option to deprive the respondent from her right which was her choice under the law

No illegality or infirmity having been noticed in the impugned order passed by Family Court, constitutional petition was dismissed accordingly.

Father contended that he was only bound to provide maintenance allowance till marriage of daughter which did not include wedding expenditures of the daughter

Mother's contention was that Family Court had rightly passed the order and that interim order could not be challenged in constitutional jurisdiction of High Court

Validity

Important feature of the present case was as to whether "maintenance" of a daughter included the "marriage expenditures"

Father was bound to maintain a daughter until her marriage and ,in a situation , adult son was to be maintained on the ground of disability

"Maintenance" included food, raiment, and lodging but such definition was neither conclusive nor exhaustive and undoubtedly had wider connotation which was to be given an extended meaning

Marriage of a daughter was not a simple affair and it would be highly unfair to burden the mother alone for such heavy responsibility to bear the expenditures incurred on the marriage of a daughter

Like, the status of Wali had not been conferred either upon father or mother and was left open to the court to determine and give status of Wali to a person to secure welfare of minor, however, giving of such status had direct nexus with the concept of protector

Section 5 read with Sched. of the Family Courts Act, 1964 empowered the Family Court to exercise its jurisdiction with regard to maintenance

Family Court had rightly accepted the application of plaintiff to allow amendment in pleadings with regard to marriage expenses as it would not alter the complexion of the suit

Section 14(3) of Family Courts Act, 1964 provided that no appeal or revision would lie against interim order passed by Family Court which could not be bypassed by bringing under attack such interim order in constitutional jurisdiction of High Court

Constitutional petition was dismissed accordingly.

Family Court decreed the suits allowing maintenance to both wife and minor with annual increase, along with recovery of property gifted by husband

Appellate court dismissed the appeals of parties except disallowing annual increase in maintenance of minor and enhancing maintenance of the wife

Contentions raised by husband were that wife, having been divorced, was not entitled to any maintenance, and that the property gifted to wife could only be claimed through civil suit

Validity

Suit for recovery of dower as well as personal property and belongings of wife came within domain of Family Court under Schedule Part I of Family Courts Act, 1964

Property gifted to wife had come within definition of "personal property and belongings of wife"

Husband and his father had admitted to have the property gifted to wife and entered the description of khasra numbers in Nikkah Nama, which was sufficient to negate their contention that Family Court was not competent to decree the suit

Husband had alleged to have divorced the wife in presence of witnesses in Jirga meeting, but he failed to mention date of divorce and holding of said Jirga, but the wife had admitted that matter of divorce had been put before Mufti Sahib who had given Fatwa that divorce had taken place, which was sufficient to establish Talaq between parties

Talaq could be announced orally and could be in written form, but when husband had taken specific stance then it was his duty to prove the same

Date of sending of notice to Chairman of union council could not be proved

Date of pronouncement of Talaq could be taken when written statement had been filed

Wife was entitled to maintenance till completion of Iddat period

No illegality, irregularity, misreading and non-reading of evidence could be pointed out

Constitutional petition was dismissed in circumstances.

Family Court had exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in Part-1 of the Schedule of West Pakistan Family Courts Act, 1964 which would include dissolution of marriage.

Plaintiff's claim on basis of column No.16 of Nikahnama regarding recovery of amount in case of divorce could not be granted to her by Family Court, for which she could file appropriate remedy before court of competent jurisdiction.

Ordains of Almighty Allah as revealed in the Holy Quran and as practised by the Holy Prophet) (PBUH) manifested the complete code of life to enable order lives in the individual and collective sphere in accordance with the teachings of Islam

Words "fa mate o hunna" meaning "to provide" and "fa anfiqo", meaning "to spend" used in the verses of the Holy Quran revealed the commands of Allah to a Muslim husband rendering him under an obligation to maintain his divorced wife during period of "iddat" as per Injunctions of Islam; which may be a one time provision or in shape of affordable instalments during period of "iddat"

Intent and spirit of commands of Allah was to provide for maintenance to a divorced wife during period of "iddat" for the simple reasons that as per Injunctions of Islam; a divorced woman could not remarry during the period of "iddat"

Commands of Allah therefore, created a right of maintenance in favour of a divorced wife and an obligation upon a husband to maintain her during period of "iddat"

Such right, in Pakistan was enforceable by the Family Court which had exclusive jurisdiction under the West Pakistan Family Courts Act, 1964.

Properties were given to the wife at the time of marriage of parties but suit for recovery of same was not maintainable before the Family Court

Wife was required to file ordinary civil suit for recovery of such properties

Judgments and decrees of both the courts below were set aside to the extent of recovery of properties mentioned in Col. No.17 of Nikahnama whereas remaining judgments and decree were maintained

Wife would be at liberty to seek recovery of properties mentioned in Col. No.17 of Nikahnama by filing ordinary civil suit

Constitutional petition was accepted in circumstances.

Landed property mentioned in the Nikah Nama was given to the wife in lieu of dower and same was incorporated in column No. 16 of Nikah Nama

Said property had become personal property of the wife

Said matter was in exclusive jurisdiction of Family Court

Findings of Appellate Court were contrary to the facts and law

Judgment of Appellate Court was set aside and that of Family Court was restored

Constitutional petition was accepted in circumstances.

Provisions of Civil Procedure Code, 1908 and Qanun-e-Shahdat, 1984 although were not applicable to family matters stricto senso; but the Family Court was always competent to grant relief keeping in view circumstances of each case

Family Court was competent to grant such relief, which though was not claimed, but which was in its view just and proper for the disposal of the case.

Respondent/husband after dissolution of marriage on the basis of khula filed suit seeking decree for recovery of gold ornaments/bridal gifts

Trial Court dismissed the suit for recovery being not maintainable before Family Court

Appellate Court accepted the appeal of respondent/husband and remanded the case to Family Court for decision afresh on merits

Contention of the petitioner was that Appellate Court erred in observing that Family Court has jurisdiction to try a suit for recovery of "bridal gifts" as restoration of dower to the husband

Validity

Subject-matter of the suit of respondent/husband could safely be termed as "bridal gifts"

Claim pertaining to recovery of "bridal gifts/personal property" of wife fell within the jurisdiction of Family Court, therefore, the suit for recovery of "bridal gifts" filed by husband was competent before Family Court

Constitutional petition was dismissed.

Contention of petitioner-husband was that he had 3 wives and 9 children and it was difficult for him to pay the maintenance allowance along with annual increase to the minor and there was no provision of law in West Pakistan Family Courts Act, 1964 which permitted the Family Court to grant annual increase in the maintenance allowance payable to the minors

Validity

Family Court established under the West Pakistan Family Courts Act, 1964 had the jurisdiction to grant the maintenance allowance to the minor children

Grant of annual increase was not mentioned in the relevant provision of law, but it was equally correct that in the entire provision of law there was no restriction against the powers of Family Court to grant the annual increase in the maintenance allowance

Under the Constitution the right to life was the fundamental right of every citizen of Pakistan

Family Court while deciding the question of payment of maintenance allowance to minor had to keep in mind the fundamental right of the minor "right of life"

Father was duty bound to provide the maintenance to the male and female children for a specific period i.e. till the age of majority and the marriage of the female child

Minor could approach the court for enhancement of maintenance allowance as per his/her reasonable growing need but in such case every year the minor had to approach the court for the ascertainment of his/her expenses and till that time the court decided the issue, that would be too late

While granting the annual increase the court was bound to consider the financial status of the father and the reasonable requirement of the minor

Annual increase should be just and reasonable backed by cogent reasons

Appellate Court had reduced the annual increase which was reasonable in the circumstances

Constitutional petition was dismissed.

Wife (petitioner) had claimed an amount on basis of an alleged "iqrarnama" executed by husband in favour of wife for an amount to be payable to her by the husband in case of certain commissions or omissions by husband

Said claim of wife was denied by Appellate Court

Contention of wife was that said document (iqrarnama) was not objected to by the husband and as such her claim had been proved

Wife further contended that Family Court could adjudicate on her claim since the same fell within the scope of "personal belongings or property of wife" was given in the Schedule to section 5 of the West Pakistan Family Courts Act, 1964

Validity

Document which was exhibited in evidence, must not be a proved document and question of jurisdiction as to the admissibility of claim and nature of document was also to be seen by the court

Commitment or undertakings in the said document/iqrarnama could not attain the status of personal belongings or property of a wife and thus adjudication on basis of such document would fall outside the scope of the jurisdiction of the Family Court

Claim of wife to such extent was rightly denied by Appellate Court

Constitutional petition was dismissed.

Family Court had to regulate its own proceedings in accordance with provisions of the West Pakistan Family Courts Act, 1964 and in doing so, it had to proceed on the premise that every procedure was permissible unless a clear prohibition for the same was found in law, meaning thereby that the Family Court could exercise its own powers but was not debarred to follow the principles of the Civil Procedure Code, 1908 coupled with the facts of a case.