07/02/2022
Complete law and procedure in Family Court Regarding Khula, Maintenance, Dower, custody of children.
Institution of suits.– 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][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:
plaint for dissolution of marriage may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children.
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.
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.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 giving reasons of relevancy of these documents to the claim in the plaint
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.
When a plaint is presented to a Family Court, it shall:
fix a date which shall not be more than fifteen days for the appearance of the defendant;within two days of the presentation of the plaint, sent a notice or summons of the suit to a defendant through a process serving agency of the Family Court, registered post acknowledgment due, electronically or through courier, together with a copy of the plaint, a copy of the schedule referred to in subsection (2) of section 7 and copies of the documents and a list of documents referred to in subsection (3) of section 7; and direct that the notice or summons issued under clause (b) also be served through affixation and shall simultaneously issue a proclamation in a newspaper.
While issuing the notice or summons to a defendant, the Family Court shall require the defendant to submit a written statement
On the date fixed under section 8, the defendant shall appear before the Family Court and file the written statement, a list of witnesses and gist of evidence, and in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date.
A defendant husband may, where no earlier suit for restitution of conjugal rights is pending, claim for a decree of restitution of conjugal rights in his written statement to a suit for dissolution of marriage or maintenance, which shall be deemed as a plaint and no separate suit shall lie for it.
A defendant wife may, in the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including khula which shall be deemed as a plaint and no separate suit shall lie for it: Provided that the proviso to sub-section (4) of Section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of khula.
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.
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 giving reasons of relevancy of these documents to the defence in the written statement
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.
If the defendant fails to appear on the date fixed by the Family Court for his appearance, then–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;
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.If the defendant fails to submit the written statement on or before the date under subsection (1), the defence of the defendant shall stand struck off and the Family Court shall decide the case under the law.
In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within thirty days of the service of notice under sub-section (7) of the passing of the decree 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.The notice of passing of the ex-parte decree referred to in sub-section (6) shall be sent to the defendant by the Family Court together with a certified copy of the decree within three days of the passing of the decree, through process server or by registered post, acknowledgement due, or through courier service or any other mode or manner as it may deem fit.
Service of notice and its accompaniment in the manner provided in sub-section (7) shall be deemed to be due service of the notice and decree on the defendant.]
When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case 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.
The Family Court may, at the pre-trial stage, ascertain the precise points of controversy between the parties and attempt to effect compromise between the parties.Subject to subsection (5), if compromise is not possible between the parties, the Family Court may, if necessary, frame precise points of controversy and record evidence of the parties.
In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband.
Subject to subsection (5), in the decree for dissolution of marriage, the Family Court shall direct the husband to pay whole or part of the outstanding deferred dower to the wife.
On the date fixed for recording of the evidence] the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.
The Family Court shall record or cause to be recorded, the substance of the statement of a witness or may record or cause to be recorded, the statement of a witness through audio or video recording.
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.
The witnesses shall give their evidence in their own words: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.
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.
The Family Court may permit the evidence of any witness to be given by means of an affidavit but if the Court deems fit it may call such witness for the purpose of examination in accordance with sub-section (3).
After the close of evidence of both sides, the Family Court shall make another effort to effect a compromise or reconciliation between the parties within a period not exceeding fifteen days
If such compromise or reconciliation is not possible, the Family Court shall announce its judgement and give a decree.
The Family Court shall dispose of a case, including a suit for dissolution of marriage, within a period of six months from the date of institution:where a case is not disposed of within six months, either party shall have a right to make an application to the High Court for necessary direction as the High Court may deem fit.
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 regis 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 the delivery of property, as the case may be, in the aforesaid register.
Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court not exceeding thirty days 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.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.
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.
A decision given or a decree passed by a Family Court shall be appealable–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 to the District Court, in any other case.
No appeal shall lie from a decree passed by Family Court–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;for dower or dowry not exceeding rupees one hundred thousand for maintenance of rupees five thousand or less per month.
No appeal or revision shall lie against an interim order passed by a Family Court.
The appellate Court referred to in sub-section (1) shall dispose of the appeal within a period of four months
Regards.
FaraN S Afridi
Advocate High Court...
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