Pre-trial proceedings
Pre-trial proceedings legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Section 10(3) of the Family Courts Act, 1964 imposes a legal obligation on the Family Courts to make a genuine attempt for reconciliation between the parties
Trial Court shall remain instrumental and make genuine efforts in resolving the dispute between the parties
In case if despite of genuine efforts, reconciliation fails, the Trial Court under proviso of section 10(4), without recording evidence is empowered to pass a decree of dissolution of marriage forthwith
At this juncture if the court observes that the wife without any reason is not willing to live with her husband, then under the said proviso the Court is left with no option, but to dissolve the marriage
Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation.
Term "date of hearing" has not been defined in the Family Courts Act, 1964 and Family Courts Rules, 1965, however, the term "date of hearing" would mean the date on which the cause proceeds ahead, a step taken in the proceedings
Term "reconciliation" is in fact a progress of suit when in presence of the parties even the suit can be disposed of on such terms and conditions as settled between them, therefore, the date fixed for reconciliation is a date of hearing and when this date is fixed in presence of the defendant or his counsel then on the next date of hearing, his non-appearance would be termed as deliberate or intentional unless proved otherwise.
Plea that the Quran and Ahadith of the Prophet (pbuh) stressed upon the importance of making compromise (sulah) between any conflicting parties in general; that Islam also gave much importance to family system, therefore, in light of Ayat 35 of Surah Al-Nisa of the Holy Quran, the process of reconciliation referred to in S.10(3) of the Family Courts Act, 1964 must be made mandatory upon the Family Courts
Held, that the Quran and Sunnah stressed upon reconciliation and compromise to be made between the spouses in case any unpleasant rift occurred between them to avoid divorce
Quran put a moral and religious duty upon the elders and family members of the parties to put efforts for making a compromise between the spouses in case any unpleasant rift occurred between them
Ayat 35 of Sura Al-Nisa of the Holy Quran explained the manner in which such reconciliation efforts may be made between the parties within the family
Ayat 35 of Sura Al-Nisa was directed for the family members and elders of the conflicting spouses for making compromise or doing efforts for reconciliation between them
Even otherwise the jurisprudence of Federal Shariat Court was clear on the issue that the authority given to Family Court for reconciliation or compromise at pre-trial proceedings under S.10 of the Family Courts Act, 1964 or after conclusion of trial under S.12 of the said Act, was adopted on the basis of Ayat 35 of Sura Al-Nisa of Holy Quran
Shariat petition challenging S.10(3) of the Family Courts Act, 1964 was dismissed accordingly.
Trial Court had afforded several opportunities to the defendant to appear for pre-trial reconciliation proceedings to reconcile the controversy but he failed to do so, therefore, the right of the petitioner was struck off
Validity
No specific provision existed in the Family Courts Act, 1964, for striking off the defence of the defendant, however, mentioning of a word "if any" in subsection (2) of S.10 of the Family Courts Act, 1964, clearly showed the intention of legislature that the Family Court was neither helpless nor supposed to act as a silent spectator towards the inaction of the defendant in filing of written statement or not appearing for pre-trial reconciliation and if need arose it could proceed to strike off the defence of the defendant
Trial Court had not committed any illegality or irregularity warranting interference by the High Court in exercise of its constitutional jurisdiction
Constitutional petition was dismissed, in circumstances.
Whenever an application is filed by plaintiff for dissolution of marriage upon failure of pre-trial reconciliation, the marriage is to be dissolved forthwith through a speaking and reasonable order
Dissolution cannot be withheld or refused merely upon pendency of other contesting issues between the parties qua recovery of payment of dower, maintenance or other ancillary matters, which could at best be adjudged after recording pro and contra evidence of the parties
Albiet, if the marriage tie is kept intact on account of other ancillary issues; then, it would be denial of the right so conferred upon the wife by the law, as the very purpose and object of S.10 of Family Courts Act, 1964, is to salvage the wife from hateful union and she should not be compelled in any circumstances to stay in the marriage contract against her will and consent; which would amount to keep the tie of marriage forcefully intact
Decree so passed shall be treated as a preliminary decree, which shall be merged into final decree after recording of pro and contra evidence of the parties.
Petitioner challenged order passed by Judge Family Court whereby suit filed by petitioner for restitution of conjugal rights was dismissed and the counter claim of khula preferred by defendant was entertained and she was granted khula in lieu of dower
Contention of petitioner was that opportunity of reconciliation was not provided by holding a proper pre-trial
Validity
Judge Family Court had observed that the matter was fixed for pre-trial proceedings on the date of passing impugned order but neither the petitioner nor his counsel appeared
No illegality or infirmity was found in the order of Trial Court and it was an indecorous plea that an opportunity of pre-trial was not provided to the petitioner
Petition was dismissed in limine.
Not mandatory for Family Court seized of the matter of effect compromise or reconciliation between the parties, rather, the same was subject to the facts of the case or if the Court deemed it necessary
Where the wife had recorded her statement before the Family Court stating that she had developed hatred for her husband, and was unwilling to join him due to his cruel attitude and denied any possibility of reconciliation, it was not mandatory for the Family Court to effect compromise between the parties before passing decree for khula.
Section 10 of Azad Jammu and Kashmir Family Courts Act, 1993 provides that when the written statement is filed, the court shall fix a date for pre-trial hearing of the case and issue a notice to parties for attending the court on the date which shall be fixed by the court and on the date fixed, the court shall examine the plaint, the written statement and documents and if the court deems fit, it shall record statements of parties or their counsel
Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties and if the parties fail to compromise or reconciliate the matter, then the court shall frame the issues and fix the date for recording evidence
Where parties fail to reach to a compromise or reconciliation, it is mandatory for the court to frame issues and fix a date for evidence of parties
Section 11 of Azad Jammu and Kashmir Family Courts Act, 1993 provides that when the evidence of plaintiff is concluded then the Family Court shall provide an opportunity to the other party for rebutting the same
Trial Court in the instance case failed to follow the procedure laid down in S. 10 and also failed to appreciate and even discuss the evidence of the witnesses of defendant
Appeal was accepted and the case was remanded to the Trial Court for decision afresh.
Object of West Pakistan Family Courts Act, 1964 is to make all efforts of compromise and speedily settle family disputes
Court after evidence under S.12 of West Pakistan Family Courts Act, 1964 and before passing judgment has to make one more effort for reconciliation as it is attempted at pre-trial stage
Emphasis on compromise both before trial and after trial reflects on the sensitivity of disputes between man and wife and its adverse effect on society.
Judge/Qazi empowered to pass decree for khula at pre-trial stage without approval of husband and without recording evidence
Repugnancy to Injunctions of Islam
Plea of petitioners that a Qazi/Judge before whom prayer for dissolution of marriage on basis of khula was made was not authorized to pass such decree in favour of wife if the husband was unwilling; that S.10(4) of Family Courts Act, 1964 was against Injunctions of Islam as it bound the Family Court to pass a decree (for khula) in case reconciliation failed at pre-trial stage without recording of evidence in respect of liking and disliking on the basis of which compromise between husband and wife was refused
Validity
Where the husband did not agree to accept compensation by his wife for purposes of khula and refused to release her from his marital tie and also declined to divorce her, question was what should be the course of action for the wife; would it be justified to leave such a wife in darkness who could not live happily or perform her marital obligations; should she be pushed back to her husband to remain tongue tied, tight-lipped, depressed, dejected, having a miserable survival throughout her whole life; should she be kept, at the mercy of her in laws, vulnerable to indecent immoral life; was such a situation morally justified on any standard; would not such a situation assigned to her defeat the very object of marital peace and tranquility; who would be considered responsible if she could not bear the mental agony in such state of affairs and put an end to her life by setting herself on fire or adopted any other method for committing suicide; who would stop her or what would prevent her from administering poison to her husband if she found herself entangled in a "holy dead lock"
Islam did not intend to force a wife to live a miserable life, in a hateful unhappy union, forever
If wife was unhappy and reconciliation failed, she should be entitled to get relief as this is what justice demanded
Courts were there to resolve the disputes that arose between the parties, and they could decide all type of matters including, admittedly, dissolution of marriage on certain grounds
In such circumstances it was not understandable as to why the courts would not be authorized to decide a case of khula, if a husband did not at all agree to divorce his wife and all reconciliatory efforts failed
No specific verse or authentic ahadith existed which provided a bar to the exercise of jurisdiction by a competent Qazi/judge to decree the case of khula agitated before him by a wife, after reconciliation failed (and husband refused to release her from marital tie by accepting compensation in lieu of khula)
Shariat petition was dismissed accordingly.
Provision of S.10 of West Pakistan Family Courts Act, 1964 were fully in consonance with Muslim Law.
Petitioner impugned S.10 and proviso thereto, of the West Pakistan Family Courts Act, 1964 on the ground that the same was against Injunctions of Islam
Contention of the petitioner was inter alia that Khula' could not be granted at the initial stage of the proceedings; that the proviso to S.10 overrode the main section, and that there was ambiguity in S.10 of the Act with regard to pre-trial and post-trial reconciliation
Validity
Proviso contained in S.10 of the West Pakistan Family Courts Act, 1964 empowered the Family Court to pass a decree for dissolution of marriage forthwith upon failure of reconciliation and further provided that the wife shall be ordered to return the Haq Mahr received by her
Muslim woman had been given the right in Islam to get herself released from the bond of marriage if she felt, due to any reasons, that she could not live with her husband within the limits prescribed by Allah and in such an event she had the right to seek "Khula" by foregoing the Haq Mehr received by her
Wife could also pronounce Talaq to herself on behalf of the husband, provided such right and authority had been given to her by the husband at the time of the Nikkah, and Khula' could be granted only by the Family Court having jurisdiction in the matter
High Court held that there was nothing in the proviso to S.10 of the West Pakistan Family Courts Act, 1964 that was contrary to the Injunctions of Islam, and also that proviso did not have an overriding effect but in fact supported and complemented S.10
Decree for dissolution of marriage was passed under S.10 either when the defendant/husband did not file his written statement and there was no pre-trial hearing, or when the reconciliation failed at the pre-trial stage, and also after the filing of written statement, consideration of pleadings, framing of issues and recording of evidence
No ambiguity, therefore, existed in S.10 of the Act with regard to pre-trial and post-trial reconciliation between the parties in case of Khula'
Contentions of the petitioner were therefore, without force
Constitutional petition was dismissed, in circumstances.
"Pre-trial proceedings", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124939654
Precedents & Case Laws citing "Pre-trial proceedings"
2017 C L C 1718
Mst. MUNEEZA WAQAR through Attorney — Petitioner Versus CIVIL AND FAMILY JUDGE AT KARACHI EAST and another — Respondents
Court: Sindh2017 Y L R Note 402
ASHRAF ALI — Petitioner Versus 1ST FAMILY JUDGE, NOUSHAHRO FEROZE and 2 others — Respondents
Court: Sindh (Sukkur Bench)P L D 2022 Federal Shariat Court 9
HAMMAD HUSSAIN and another — Petitioners Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and another — Respondents
Court: High CourtP L D 2022 Federal Shariat Court 21
HAMMAD HUSSAIN and another — Petitioners Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and another — Respondents
Court: High CourtP L D 2006 Karachi 272
ABDUL SATTAR — Applicant Versus Mst. KALSOOM — Respondent
Court: High Court2013 C L C 762
ARIF NAWAZ — Petitioner Versus Mst. RABIA and another — Respondents
Court: Sindh1997 C L C 142
NOREEN‑REHMAN‑‑‑Appellant Versus Raja JAVED AKHTAR‑‑‑Respondent
Court: Shariat Court (AJ&K)2020 Y L R 2523
MUHAMMAD TUFAIL — Petitioner Versus Mst. SAMIYA and another — Respondents
Court: Sindh2020 C L C Note 49
MUHAMMAD ASIF QAYYUM — Appellant Versus FOZIA SHAHEEN — Respondent
Court: High Court (AJ&K)2002 Y L R 2699
MUHAMMAD KHALID SIDDIQUI‑‑‑Petitioner Versus Mst. SAMINA YASMIN and another‑‑‑Respondents
Court: Lahore