1THE WEST PAKISTAN FAMILY COURTS ACT, 1964
(W.P. Act XXXV
of 1964)
[18 July 1964]
An
Act to make provision for the establishment of Family Courts.
Preamble.– WHEREAS it
is expedient to make provision for the establishment of Family Courts for the
expeditious settlement and disposal of disputes relating to marriage and family
affairs and for matters connected therewith;
It is
hereby enacted as follows:-
1. Short title, extent and commencement.– (1) This Act may be called the 2[* * *]
Family Courts Act, 1964.
(2) It
shall extend to whole of the 3[Pakistan ].
(3) It shall come into force in such area or
areas and on such date or dates as Government may, by notification in the
official Gazette, specify in this behalf.
4[(4) Nothing in this Act shall apply to any suit or any application
under the Guardians and Wards Act, 1890, pending for trial or hearing in any
Court immediately before the coming into force of this Act, and all such suits
and applications shall be heard and disposed of as if this Act was not in force.
(5) Any suit, or any application under the
Guardians and Wards Act, 1890, which was pending for trial or hearing in any
Court immediately before the coming into force of this Act, and which has been
dismissed solely on the ground that such suit or application is to be tried by
a Family Court established under this Act, shall, notwithstanding anything to
the contrary contained in any law, on petition made to it in that behalf by any
party to the suit or application, be tried and heard by such Court from the
stage at which such suit or application had reached at the time of its
dismissal.]
[1]For statement of objects and reasons see Gazette of West Pakistan
(Extraordinary), dated 6th April, 1964, pages 1153-P to 1155-W.
This Act was passed by the West Pakistan
Assembly on 30th June, 1964; assented to by the Governor of West Pakistan on
14th July, 1964; and, published in the West Pakistan Gazette (Extraordinary),
dated 18th July, 1964, pages 2427-34.
[2]Subs. By P.O.4 of 1975, for “the Province of West Pakistan
3Add. By W.P.Ord. X of 1996.
4Omitted by Act.X of 1996,s.2.
2. Definitions.–
1[(1)]
In this Act, unless the context otherwise requires, the following expressions
shall have the meanings hereby respectively assigned to them, that is to say–
(a) “Arbitration Council” and “Chairman” shall have the meanings
respectively assigned to them in the Muslim Family Laws Ordinance, 1961;
(b) “Family Court” means a
Court constituted under this Act;
(c) “Government” means 2[the Provincial Government];
(d) “party”
shall include any person whose presence as such is considered necessary for a
proper decision of the dispute and whom the Family Court adds as a party to
such dispute;
(e) “prescribed”
means prescribed by rules made under this Act.
1[(2) Words and expressions used in this Act but not herein defined, shall have the meanings respectively assigned to
them in the Code of Civil Procedure, 1908.]
3[3. Establishment of Family Courts.–
(1) Government shall establish one or more Family Courts in each District or at
such other place or places as it may deem necessary and appoint a Judge for
each of such Court:
Provided that at least one Family Court in
each District, shall be presided over by a woman Judge to be appointed within a
period of six months or within such period as the Federal Government may, on the request of Provincial Government, extend:
(2) A woman
Judge may be appointed for more than one District and in such cases the woman
Judge may sit for the disposal of cases at such place or places in either
District, as the Provincial Government may specify.
(3) Government shall, in consultation with
the High Court, appoint as many woman Judges as may be necessary for the
purposes of sub-section (1).]
4[4. Qualifications of Judge.– No person shall be appointed as a Judge of a Family
Court unless he is or has been 3[or is qualified to be appointed as]
a District Judge, an Additional District Judge, 5[a Civil Judge or a
Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat].
5. Jurisdiction.– 6[1] Subject
to the provisions of the Muslim Family Laws Ordinance, 1961, and the
Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive
jurisdiction to entertain, hear and adjudicate upon matters specified in 6[Part
I of the Schedule].
1Section 2 re-numbered as sub-section (1) of that
section and a new sub-section (2) added by W.P.Ord. X of 1966.
2Subs. by P.O.4 of 1975, for “the Government of West Pakistan ”.
3Subs. and ins. by Act XXI of 1994,ss. 2& 3.
4Subs.ibid.
5Subs. by W.P.Act I of 1969, for “ a Civil Judge”.
6Amended by Ord.55 of 02,s.2.
1[(2)
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act
V of 1898), the Family Court shall have jurisdiction to try
the offences specified in Part II of the Schedule, where one of the spouses is
victim of an offence committed by the other.
(3) The High
Court may with the approval of the Government, amend the Schedule so as to
alter, delete or add any entry thereto.]
6.
Place of sittings.– Subject to any general or
special orders of Government in this behalf a Family Court shall hold its
sittings at such place or places within 2[the District or area for
which it is established] as may be specified by the District Judge.
7.
Institution of suits.– (1) 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 3[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:
4[Provided that a 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:]
Provided 4[further] that 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.
5[(3) (i) 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.
(ii) 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 4[giving reasons of relevancy of these documents to the
claim in the plaint.]
(4) 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.
[8. Intimation to defendant.– (1) When a plaint is
presented to a Family Court, it shall:
1Amended
by Ord. 55 of 02,s.2.
2Subs.
By W.P. Ord. X of 1966, for “the Districts”.
3Ins. ibid.
4Ins,
added and subs. by Ord.55 of 02,ss. 3-4.
5Subs.
by W.P. Act I of 1969.
(a) 1[shall]fix
a date 1[* * *] of not more than thirty days for the appearance of
the defendant;
(b) shall
issue summons to the defendant to appear on a date specified therein;
2[(c) shall,
within three days of the presentation of the plaint, send to each defendant, by
registered post, acknowledgment due, 1[or by courier service or by
both] a notice of the suit, together with a copy of the plaint, a copy of the
Schedule referred to in sub-section (2) of section 7 and copies of the
documents and a list of documents referred to in sub-section (3) of the said
section].
(2)
Every summons issued under clause (b) of sub-section (1) shall be
accompanied by a copy of the plaint, a copy of the Schedule referred to in
sub-section (2) of section 7, and copies of the documents and list of documents
referred to in sub-section (3) of the said section.
(3) [Deleted by Pb. Ord. XXIV of
XXIV of 1971].
(4) Service of the plaint and its
accompaniments in the manner provided in clause (b) or clause (c) of
sub-section (1) shall be deemed to be due service of the plaint upon the
defendant.
(5) Every notice and its
accompaniments under clause (c) of sub-section (1) shall be served at the expense
of the plaintiff. The postal charges for such service shall be deposited by the
plaintiff at the time of filing the plaint.
(6) Summons issued under clause
(b) of sub-section (1) shall be served in the manner provided in the Code of
Civil Procedure, 1908, Order V, Rules 9, 10, 11, 16, 17, 18, 19, 3[20],
21, 23, 24, 26, 27, 28 and 29. The cost of such summons shall be assessed and
paid as for summons issued under the Code of Civil Procedure, 1908.
Explanation— [Deleted by Pb. Ord. XXIV of 1971.]
4[9.
Written statement.— (1) On the date fixed-under clause (a) of sub-section
(1) of section 8, the plaintiff and the defendant shall appear before the
Family Court and the defendant shall file his written statement, and attach
therewith a list of his witnesses alongwith a precis of the evidence that each witness is expected to
give.
1Ins,
added and subs. by Ord.55 of 02,ss. 3-4.
2Subs. by Pb Ord. XXIV of 1971.
3Ins. and subs. by Ord. 55 of 02, ss. 4-5.
4Subs. by Act I of 1969.
1[(la)
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.
(1b) 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.]
(2) 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.
(3) 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 1[giving
reasons of relevancy of these documents to the deffence in the written
statement].
(4) 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.
(5) If the defendant fails to appear on the date
fixed by the Family Court for his appearance, then—
(a) 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; and
(b) 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.
1Ins. and subs. by Ord. 55 of 02, ss. 4-5.
(6) In any case in which a decree is passed ex parte against a defendant under this
Act, he may apply within 1[thirty days of the service of notice
under sub-section(7) of the passing of the decree] reasonable time of the
passing thereof 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.]
1[(7) 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.
(8) 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.]
10.
Pre-trial proceedings.— 2[(1)
When the written statement is filed, the Court shall fix an early date for a
pre-trial hearing of the case.]
(2)
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.
(3)
At the pre-trial, the Court shall ascertain the points at issue between
the parties and attempt to effect a compromise or reconciliation between the
parties, if this be possible.
(4)
If no compromise or reconciliation is possible the Court shall frame the
issues in the case and fix a date for 3[recording] of evidence [:]4
4[“ Provided that
notwithstanding any decision or judgement of any court or tribunal, the Family
Court in a suit for dissolution of marriage, if reconciliation fails, shall
pass decree for dissolution of marriage forthwith and shall also restore to the
husband the Haq Mehr received by the wife in consideration of marriage at the
time of marriage.]
1Subs and added by Ord.55 of 02,s.5.
2Subs. by W.P. Act I of 1969.
3Subs. by W.P. Act.I of 1969, for “the hearing of”.
4Subs and added by Ord. 55 of 02,ss. 6-7.
11. Recording of evidence.–
(1) On the date fixed for 1[recording of the evidence] the
Family Court shall examine the witnesses produced by the parties in such order
as it deems fit.
(2) 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.
2[(3) The witnesses shall give their evidence in
their own words:
Provided
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.]
3[(3A) 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.]
(4) The
Family Court may permit the evidence of any witness to be given by means of an
affidavit:
Provided that if the Court deems fit it may call such witness for
the purpose of examination in accordance with sub-section (3).
12.
Conclusion of trial.– (1) After the close of
evidence of both sides, the Family Court shall make another effort to effect a
compromise or reconciliation between the parties 4[within
a period not exceeding fifteen days].
(2) If
such compromise or reconciliation is not possible, the Family Court shall
announce its judgement and give a decree.
______________________________________________________________________________________________________________
1Subs. ibid,
for “the hearing of the evidence”.
2Subs. by
W.P. Act I of 1969.
3Add. Ibid.
4Subs and
added by Ord. 55 of 02, ss. 6-7.
1[12A. Cases to be disposed of within a specified period.– 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:
Provided
that 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.]
13. Enforcement of decrees.– (1) 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 register.
(2) 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 2[or] the
delivery of property, as the case may be, in the aforesaid register.
(3) Where a decree relates to the payment of
money and the decretal amount is not paid within time
specified by the Court 1[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.
(4) The
decree shall be executed by the Court, passing it or by such other Civil Court
(5) 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.
14. Appeals.– 3[(1) Notwithstanding anything
provided in any other law for the time being in force, a decision given or a
decree passed by a Family Court shall be appealable–
(a) 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
(b) to
the District Court, in any other case.]
(2) No appeal shall lie from a decree passed
by Family Court–
(a) 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;
1Subs. and ins. by Ord. 55 of 02, ss.8-9.
2Subs., for the word “and”, by W.P. Ord.X of 1966.
3Subs. ibid.
(b) for
dower 1[or
dowry] not exceeding rupees 1[thirty thousand];
(c) for
maintenance of rupees 1[one thousand] or less per month.
1[(3) No appeal or revision shall lie against an interim
order passed by a Family
Court.
(4)
The appellate Court referred to in sub-section (1)
shall dispose of the appeal within a period of four months.]
15.
Power of Family Court to summon witnesses.— (1) A Family Court may
issue summons to any person to appear and give evidence, or to produce or cause
the production of any document:
Provided that—
(a) no person who is exempt from personal
appearance in a Court under sub-section (1) of section 133 of the Code of Civil
Procedure, 1908, shall be required to appear in person;
(b) a Family Court may refuse to summon a witness
or to enforce a summons already issued against a witness when, in the opinion
of the Court, the attendance of the witness cannot be procured without such
delay, expense or inconvenience as in the circumstances would be unreasonable.
(2)
If any person to whom a Family Court has issued summons to appear and
give evidence or to cause the production of any document before it, wilfully disobeys such summons,
the Family Court may take cognizance of such disobedience, and after giving
such opportunity to explain, sentence him to a fine not exceeding one 1[thousand]
rupees.
16.
Contempt of Family Courts.— A person shall be guilty of contempt of
the Family Court if he without lawful excuse—
(a) offers any insult to the Family Court; or
(b) causes an interruption in the work of the
Family Court; or
1[(bb) misbehaves with
any person in the Court premises or uses abusive language; threats or uses
physical force or intimidates in any form; or]
(c) refuses to answer any question put by the
Family Court, which he is bound to answer; or
(d) refuses to take oath to state
the truth or to sign any statement made by him in the Family Court;
1Ins.,
subs., and added by Ord. 55 of 02, ss. 10-13.
and the Family
Court may forthwith try such person for such contempt and sentence him to a
fine not exceeding rupees 1[two thousand].
17. Provisions of Evidence Act and Code of Civil
Procedure not to apply.— (1) Save as otherwise expressly provided by or
under this Act, the provisions of the 1[Qanun-e-Shahdat, 1984 (P.O.
No. 10 of 1984)], and the Code of Civil Procedure, 1908, 2[except sections 10 and 11,]
shall not apply to proceedings before any Family Court 1[in respect
of Part 1 of Schedule].
(2) Sections 8 to 11 of the Oaths
Act, 1872, shall apply to all proceedings before the Family Courts.
3[17A. Interim order for maintenance.__ At any
stage of proceeding in a suit for maintenance, the Family court may pass an
interim order for maintenance, whereunder the payment shall be made by the
fourteenth of each month, failing which the Court may strike off the defence of
the defendant and decree the suit.
17B. Power of the
Court to issue Commission.– Subject to
such conditions and limitations as may be prescribed, the Court may issue a
Commission to,-
(a) examine any person;
(b) make a local investigation;
and
(c) inspect any property or
document.]
18. Appearance
through agents.– If a person required under this
Act to appear before a Family Court, otherwise than as a witness, is a pardah nashin lady,
the Family Court may permit her to be represented by a duly authorised
agent.
3[19.
Court fee.– Notwithstanding
anything contained in the Court Fees Act, 1870 (VII of 1870), the Court fee to
be paid on any plaint or memorandum of appeal shall be rupees fifteen for any
kind of suit or appeal under this Act.]
3[20. Family Court to exercise the powers of the Judicial Magistrate.__ A Family
Court shall hav3 and exercise all the powers of a Judicial Magistrate of the
First Class under the Code of Criminal Procedure, 1898 (Act V of 1898).”.
1Ins., subs., and added by Ord. 55 of 02, ss. 10-13.
2Ins. by W.P. Ord. XV of
1967.
3Ins. and subs. by Ord. 55 of 02, ss.14-17.
1[21. Provisions of
Muslim Family Laws Ordinance, 1961 not affected.— Nothing in this Act shall
be deemed to affect any of the provisions of Muslims Family Laws Ordinance,
1961, or the rules made thereunder.]
2[21A.
Interim order pending suit.– The Family Court
may pass an interim order to preserve and protect any property in dispute in a
suit .and any other property of a party to the suit, the preservation of which
is considered necessary for satisfaction of the decree, if and when passed.]
22. Bar on the issue of injunctions by Family
Court.— A Family Court shall not have the power to issue an injunction to,
or stay any proceedings pending before, a Chairman or an Arbitration Council.
23. Validity of marriages registered under the
Muslim Family Laws Ordinance, 1961, not to be questioned by Family Courts.—
A Family Court shall not question the validity of any marriage registered in
accordance with the provisions of the Muslim Family Laws Ordinance, 1961, nor
shall any evidence in regard thereto be admissible before such Court.
24. Family Courts to inform Union Councils of
cases not registered under the Muslim Family Laws Ordinance, 1961.— If in
any proceedings before a Family Court it is brought to the notice of the Court
that a marriage solemnized under the Muslim Law after the coming into force of
the Muslim Family Laws Ordinance, 1961, has not been registered in accordance
with the provisions of the said Ordinance and the rules framed thereunder, the
Court shall communicate such fact in writing to the Union Council for the area
where the marriage was solemnized.
25. Family Court deemed to be a District Court
for purposes of Guardians and Wards Act, 1890.—A Family Court shall be
deemed to be a District Court for the purposes of the Guardians and Wards Act,
1890, and notwithstanding anything contained in this Act, shall, in dealing
with matters specified in that Act, follow the procedure prescribed in that
Act.
3[25-A. Transfer of cases.— (1) Notwithstanding
anything contained in any law the High Court may, either on the application of
any party or of its own accord, by an order in writing—
1Subs. ibid.
2Ins. and subs. by Ord. 55 of 02, ss.14-17.
3Add. By Pb Ord. XXIV of 1971.
(a) transfer
any suit or proceeding under this Act from one Family Court to another Family
Court in the same district or from a
Family Court of one district to a Family Court of another district; and
(b) transfer
any appeal or proceeding under this Act, from the District Court of one
district to the District Court of another district.
(2) A District Court may, either on the
application of any party or of its own accord, by an order in writing, transfer
any suit or proceeding under this Act from one Family Court to another Family
Court in a district or to itself and dispose it of as a Family Court.
1[(2a) Where a Family Court remains vacant or the presiding officer
remains on leave or absent for any reason, except due to vacations, for more
than thirty days a District Court may, either on the application of any party
or of its own accord, by order in writing, transfer any suit or proceeding from
such Family Court
to another Family
Court in a District or to itself and disposed it of as a Family Court.
(2b) On the application of any of the parties and after notice
to. the parties and after hearing such of them as desire to be heard, or of its
own motion without such notice, the Supreme Court may at any stage transfer any
suit, appeal or other proceedings under this Act pending before a Court in one
Province to a Court in another Province, competent to try or dispose of the
same.]
(3) Any Court to which a suit, appeal or
proceeding is transferred under the preceding sub-sections, shall,
notwithstanding anything contained in this Act, have the jurisdiction to
dispose it of in the manner as if it were instituted or filed before it:
Provided that on the transfer of a suit, it
shall not be necessary to commence the proceedings before the succeeding Judge
de novo unless the Judge, for reasons to be recorded in writing directs
otherwise.
25-B. Stay of proceedings by the High Court and
District Courts.— Any suit, appeal or proceeding under this Act, may be
stayed—
(a) by the District Court, if the suit or
proceeding is pending before a Family Court within its jurisdiction; and
(b) by the High Court, in the case of any suit,
appeal or proceeding.[:]1
1[Provided that the stay
application shall be finally decided by the District Court or the High Court, as
the case may be, within thirty days failing which the interim stay order shall
cease to be operative.]
1Ins., subs.
and added by Ord. 55 of 02, ss.18-19.
26. Power to make rules.— (1)
Government may, by notification in the official Gazette, make rules to carry
into effect the provisions of this Act.
(2)
Without prejudice to the generality of the provisions contained in
sub-section (1), the rules so made may, among other matters, provide for the
procedure, which shall not be inconsistent with the provisions of this Act, to
be followed by the Family Courts.
SCHEDULE
[see SECTION 5]
1[Part I]
1. Dissolution of marriage
[including Khula]1.
2. Dower.
3. Maintenance.
4. Restitution of conjugal
rights.
5. Custody of children 1[and
the visitation rights of parents to meet them].
6. Guardianship.
2[7. Jactitation of
marriage.]
3[8. Dowry.]
1[9. The personal property and belongings of a
wife and a child living with his mother.
Part II
Offences and aid
and abetment thereof under Section 337A (i), 337F (i),341, 342, 343, 344, 345, 346,
352 and 509 of the Pakistan Penal Code (Act XLV of l860)]
_____
1Ins. and added by Ord. 55 of 02, s.20.
2Add. by W.P. Act I of 1969.
3Added by Act VII of 1997, s.2.
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