Family and Matrimonial Dispute in Pakistan

A woman of Pakistani origin woman living in Austria had matrimonial dispute with her husband, who is living in Ireland. The husband first deserted her and subsequently get into second marriage. Now the woman in Austria engaged our law-firm for legal remedies. She filed a suit for recovery of maintenance and dowry articles etc against her husband in Pakistan. The court issued notice to the husband for appearance in court. She also plans to take legal action against her husband in Ireland.

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..::Islamic Thoughts Regarding Marriage.

Islam recognizes value of sex and advocates marriage. Islam does not believe in celibacy.

The Prophet of Islam has said,

Marriage is my Sunnah (that is a recommended action of the Prophet) and whoever does not

follow my Sunnah is not my true follower” (Ibn Haiah, Babun Nikah).

Allah has commanded the Muslims to marry:

“And marry those among you who are single…. “(24: 33).

In Islam, marriage is essentially a contract. However, the distinction between sacred and

secular was never explicit in Islam. Any action or transaction in Islam has religious

implications. It is not quite accurate, therefore, to designate marriage in Islam simply as a

secular contract. The appropriate designation of marriage could be a ‘Divine Institution’.

For a valid marriage, the following conditions must be satisfied:

·  There must be a clear proposal.

·  There must be a clear acceptance.

·  There must be at least two competent witnesses. This is necessary to exclude illicit sex

and to safeguard legitimacy of progeny. It is recommended that marriage should be

widely publicized.

·  There must be a marriage gift, little or more, by the bridegroom to the bride.

Dowry or marriage gift by bridegroom to the bride is a symbolic expression of the groom’s

cognizance of the economic responsibilities of marriage and of his readiness to assume all

such responsibilities subsequent to marriage. Dowry is not any price paid either to wife or

family of the wife. The general principle is that dowry should be estimated according to the

circumstances with emphasis on moderation. The Prophet (p.b.u.h.) is reported to have said

that the most blessed marriage is that which is least costly and most easy.

It is permissible for a Muslim man to see the woman to whom he intends to propose marriage

before taking further steps so that he can enter into the marriage with full knowledge. This has

been permitted in Islam to avoid future misunderstanding. The Prophet (p.b.u.h.) has said:

“When one of you asks for woman in marriage, if he is able to look at what will induce him to

marry her; he should do so” (narrated in the book of tradition of Abu Daud).

However; it is not permitted in Islam for a man to be alone with a woman in the name of

selection of spouse.

It is the girl’s right to make a decision concerning her marriage and her father or guardian has

no right to over-ride her objections or ignore her wishes. The Prophet (peace be upon him)

has said:

“A woman who has been previously married has more right concerning her person than her

guardian and a virgin’s consent must be asked about herself, her consent being her silence”

(narrated in the books of tradition of Bukhari and Muslim).

It is permanently prohibited for a Muslim to marry a woman of the following categories:

1. father’s wife, whether divorced or widowed,

2. the mother including grand mothers,

3. the daughter including grand daughters,

4. the sisters including half and step sisters,

5. the paternal aunt, whether real, half or step sister of the aunt,

6. the maternal aunt, whether real, half or step sister of father;

7. the brother’s daughter and

8. the sister’s daughter.

These restrictions have been imposed by Allah in His wisdom to increase trust among close

relations by prohibiting incestuous relations, increase love and affection among close

relations, expand family ties beyond close circle etc.

In Islam marriage is also prohibited with foster mother who has suckled him during the period

of weaning and with foster sisters, foster aunt and foster nieces.

Islam has also prohibited marriage with mother in law, the step daughter; the daughter in law.

Islam has also forbidden to have two sisters as co-wives.

It is also prohibited to marry a woman who is a Mushrik, that is who worships idols or

associates other deities with Allah. Allah says in His book, the Quran:

“And do not marry Mushrik women until they believe” (2:221).

It is however lawful for Muslim men to marry chaste women (that is women of virtue and

character) from among the Jews and the Christians. Allah says in His book:

“(And lawful to you in marriage) are chaste women from those who were given the scripture

before you” (5 : 5).

“It is not permissible for Muslim women to marry non-Muslim men” (2 : 221 and 60:10).

Allah has been more kind to the woman and has not put on her extra stress and probable

difficulties in living with a husband of another faith.

Islam has allowed man to marry more than one (not exceeding four) women but has put

serious restrictions on this. It requires his ability to maintain more than one wife, equality

among the wives etc. It is for this reason that very few Muslim men marry more than one

woman. Islam has allowed this to man to curb illicit sex. Illicit sex is a very degenerating thing

for humanity and leads to debasement of women through prostitution. Islam has totally

rejected prostitution.

Islamic law regarding marriage is easy, practical, rational and in keeping with human nature.

Humanity can only benefit by following these regulations in true spirit.

..::FAMILY LAWS and Judicial Proctection in Pakistan

The term “Family Law” encompass all such laws, which relate to marriage, divorce, maintenance, custody of children. Currently the following Family Laws are in existence in Pakistan:

a. The Divorce Act, 1869 (IV of 1869)

b. Parsi Marriage and Divorce Act, 1936

c. Guardians and Wards Act (VIII of 1890)

d. The Child Marriage Restraint Act, 1929

e. Dissolution of Muslim Marriages Act, 1939

f. Muslim Family Laws Ordinance, 1961

g. Family Courts Act, 1964

h. Dowry and Bridal Gifts (Restriction) Act, 1976

i. West Pakistan Muslim Personal Law (Shariat) Application Act, 1962

While the Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936 pertain to Christian and Parsis respectively, the other laws cater to Muslims exclusively except the Guardians and Wards Act, 1890 which applies to all persons. Today, I shall confine my self to Muslim Family laws as very frankly speaking I do not have much experience of Family Law applicable to Christians and Parsis and I daresay that there is not much occasion to comment on these laws as there is hardly any litigation vis-à-vis the same.

Marriage as recognized in the Muslim faith is a civil contract that legalizes the relationship between a man and a woman and creates rights and obligations amongst themselves. Essentially, a marriage is solemnized when a man offers to marry a woman and she accepts, the consideration being the dower amount. This is regulated by the Muslim Family Laws, 1961, which prescribes the form of the marriage contract (nikahnama) which contains the details of the bride and bridegroom, the fact that both of them have agreed to marry each other and the amount of dower payable to the wife as consideration. A very important column in the nikahnama is column 18, which pertains to whether rights of divorce have been given by the husband to the wife, also known as ‘Tallaq-e-Tafveez’. I shall advert to this very important aspect later on.

The marriage is to be registered with the Nikah Registrar who has been licensed to perform such function by the Union Council. As provided under Islamic Law, the marriage is to be witnessed by two male witnesses. A very important provision is Section 6 of the Act, which provides that no man shall during the subsistence of an existing marriage contract another marriage except with the previous permission, in writing, of the Arbitration Council. However, in practical terms this provision is hardly adhered to by the male population of this Country, who are desirous of contracting a second marriage during the subsistence of an earlier marriage.

As regards divorce, Section 7 of the Muslim Family Law Ordinance, 1961 recognizes that a man may divorce his wife in any of the modes recognized by Islam. Normally, this is done by the husband thrice uttering the words “I divorce you”, in the presence of the wife and witnesses, where after notice has to be given to the Chairman of the Union Council in writing and a copy supplied to the wife. Thereafter, the Chairman constitutes an arbitration council for the purposes of bringing about reconciliation between the parties. Where no reconciliation is forthcoming between the parties, divorce becomes effective upon expiry of a period of 90 days of receipt of the notice by the Chairman.

Section 8 of the Ordinance provides that where the right of divorce has been delegated to the wife by the husband or where the parties wish to dissolve the marriage otherwise than through divorce i.e. by mutual consent (also known as ‘Mubaarat’), in such circumstances again the provisions of Section 7 would apply, mutatis mutandis. In this regard, it would be seen that normally the Nikah Registrar’s oppose the right of divorce being given by the husband to the wife as being un-Islamic even though the husband is willing to do so. The result is that in most Nikahnamas column 18 is displayed in the negative as the groom in convinced of the un-Islamic nature of such right. Such practice is to be discouraged as not only is this right in consonance with the principles of Islamic Law but otherwise desirable as it enables a wife to divorce her husband without resorting to the Family Court which is a time-consuming and expensive procedure.

Where the wife seeks to obtain a divorce from her husband, but such a right has not being delegated to her, she has no option but to launch proceedings before the Family Court, through a suit. She may either seek divorce by means of ‘Khula’ whereby she has to remit the dower amount if it has not been paid by the husband or return the same if received. In the alternative, she may elect to proceed under the Dissolution of Muslims Marriage Act, 1939 which specifies the grounds on which divorce can be sought by the wife, such as adultery, non-maintenance, cruelty, abandonment etc., to be proved by her.

As this is a cumbersome and protracted exercise, most women in the country normally seek divorce through ‘Khula’ which is simpler and more practical whereby the wife offers to remit the dower amount if not received or to pay it back if so received by her from the husband. In this regard, under Section 10 of the West Pakistan Family Courts Act, the Court is mandated to reconcile the parties once they enter the appearance. However, the proviso to the section stipulates that where this is not forthcoming in a case seeking divorce through ‘Khula’, a decree dissolving the marriage is to be passed forthwith and at the same time the dower amount is to be restored to the husband.

The proviso to section 10 of the East Pakistan Family Courts Act was added vide Ordinance LV of 2002, on 01.10.2002, in order to expedite the process as previously the matter was to be fixed for evidence once the husband had filed the written statement and pre-trial proceedings filed. However, as the proviso stands today, it is assumed that the husband had paid the dower amount to the wife, and where this is disputed by her the court would have no option but to record evidence in order to resolve such dispute, which in turn would entail full-fledged proceedings and the delays which come with the same.

It is suggested that in order to avoid this, where the receipt of dower by the wife is disputed, she should be directed by the Court to deposit the same in court or give security upon which a decree for dissolution of marriage be passed. Thereafter, another suit can be filed by the wife for recovery of such amount. It is, therefore, suggested that necessary amendments be made in section 10 of the West Pakistan Family Courts Act in line with the foregoing.

In this regard, it is to be noted that as per section 5 of the Dowry and Bridal Gifts (Restriction) Act, 1976, all gifts given to the wife either before or after the marriage by the husband vest permanently in her and hence do not form part of the dower amount and consequently are not to be returned to him when the wife seeks ‘Khula’.

Insofar as maintenance, the return of dowry articles and custody of children is concerned, the second proviso to Section 7 (2) of the Act allows the wife to incorporate all foregoing claims in one suit along with the one for dissolution of marriage. This proviso has again been introduced in 2002 vide the Ordinance aforementioned in order to consolidate family matters and expedite them. Indeed Section 12-A of the Act mandates the Family Court to dispose of all family cases within a period of six months from the date of institution. Finally, it may be noted that the Guardian and Wards Act, 1890 contains procedural as well as substantive provisions relating to the custody of minors, the cardinal principle being the welfare of the minors.

Generally speaking although the Family Court Act provides for the expeditious disposal of family matters and the substantive law gives protection to family, women and children in terms of maintenance etc., the Act is not exhaustive and the substantive law is not sufficient to meet all situations. We still need to legislate regarding domestic violence and issues relating thereto, such as provisions for rehabilitation and shelter.

By: Sharmin Osmany

..::Divorce/Talaq Law and Procedure in Pakistan

Under traditional Islamic law a bare Talaq/Divorce is deemed to have taken place when the husband pronounces three times ‘I divorce thee’ in the presence of witnesses. . Such a pronouncement has the effect of dissolving the marriage instantly. The wife need not be present when the husband divorces his wife. Sometime the wife because of lack of governing law or as matter of fate just accepts the situation and no regards is paid to the proceedings that must be followed.

However, the Muslim Family Law Ordinance 1961 (MFLO) sets out formal requirements for the recognition of full Talaq/divorces. The provisions of section 7 of the MFLO deals with Talaq/Divorce are as follows:

Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.

Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to 5000 rupees or with both.

Save as provided in subsection (5) Talaq unless revoked earlier, expressly, or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

If the wife is pregnant at the time of Talaq is pronounced, Talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, which ever be later, end.

Nothing shall debar a wife whose marriage has been terminated by Talalq effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.“

According to the legislation for a valid divorce section 7 of the MFLO imposes three important requirements, Inamul Islam v Hussain Bano PLD 1976 Lahore 1466, namely:

Pronouncement of Talaq

In accordance with Muslim Law – whereby the husband declares three times “I divorce thee” in the presence of witnesses.

Service of the notice on the Chairman

In accordance with section 7(1) the husband must serve a copy of the notice that he has divorced his wife to the Chairman.

The Supreme Court held in Ali Nawaz Gardezi v Lt. Col Muhammad Yusuf PLD 1963 SC 51 that where the husband did not give notice of the talaq to the Chairman he would deemed to have revoked the talaq which was pronounced by the husband.

In Mst Ghulam Fatima v Abdul Qayyum and others PLD 1981 SC 460 the Supreme Court held that “ the talaq had not become effective but stood revoked as no notice under subsection (1) of Section 7 was given by Muhammad Sadiq”

Service of a copy of the notice on the wife.

It is mandatory that the husband serves a copy of the notice of talaq which he serves on the Chairman. In Inamul Islam v Hussain Bano PLD 1976 Lahore 1466 the husband’s contention that sending a copy of the notice of talaq to wife under section 7(1) was not mandatory was rejected. The Court held that service of a copy of the notice to the wife was mandatory requirement and was essential to make talaq effective.

The above was confirmed in Ghualm Nabi v Farruk Latif 1986 SCMR 1350 by the Supreme Court that failure to send a copy of talaq to wife would make the talaq ineffective. The parties had married on 21st June 1982 and the husband had divorce her on 13th July 1982. The Chairman had issued notices; the parties had appeared before him and he recorded their statement on 28th July 1982.  The husband counsel had submitted before the Supreme Court that the wife’s appearance before the Chairman should be deemed to be due and sufficient service of notice of talaq to the wife under the provision of law. The Supreme Court held that the husband had not complied with the requirement of service of notice on the wife.

In light of the Ghualm Nabi v Farruk Latif 1986 SCMR 1350 it is mandatory that the husband should supply a copy of notice to wife and husband can not rely on the notice sent, under section 7(4), by the Chairman informing the parties of formation of an Arbitration Council even if the wife attends any hearing in response to the notice from the Chairman.

From the above it is clear that if these conditions were not satisfied the talaq would not become effective even after ninety days.

The Proceeding Rules relating to divorce etc are set out in the West Pakistan Rules under the Muslim Family Laws Ordinance 1961[Gazette of West Pakistan Extraordinary 20th July 1961].

The union Council which shall have jurisdiction in the matter for the purposes of  MFLO 1961 Section 2 (d) shall be as follows, namely

“3(b)

In the case of notice of talaq under subsection 1 of the section 7, it shall be Union Council of the Union or Town in which the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement of talaq

Provided that if at the time of pronouncement of talaq such a wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be –

in case such wife was at any time residing with the person pronouncing the talaq in any part of West Pakistan, the Union Council of the Union or Town where such wife so last resided with such a person; and

in any other case, Union Case of the Union or Town where the person pronouncing the talaq is permanently residing in West Pakistan

3A

Where the whereabouts of the wife who is to be supplied a copy of the notice of talaq under sub-section (1) of the Section 7 of the Ordinance, are not known to the husband and cannot, with due diligence, be ascertained by him, he may, if so permitted by the Chairman, give notice of the talaq to the wife through her father mother adult brother or adult sister or if there whereabouts are not known to the husband or cannot with due diligence, be ascertained by him he may with the permission of the Chairman., serve notice of talaq on her by publication in the locality where he last resided with the wife

..::Marriage and Divorce Laws in Pakistan

THE 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 [* * *] Family Courts Act, 1964. (2)  It extends to the whole of 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)    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.]

2.   Definitions. (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 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. (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.  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.  Qualifications of Judge. No person shall be appointed as a Judge of a Family Court unless he is or has been [10][or is qualified to be appointed as] a District Judge, an Additional District Judge, a Civil Judge or a Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat].

5.   Jurisdiction. 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 the Schedule.

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 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 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: Provided 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. (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)  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 defendants. (1) When a plaint is presented to a Family Court, it— (a)  may fix a date ordinarily 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; (c)  shall, within three days of the presentation of the plaint, send to each defendant, by registered post, acknowledgment due, 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 the West Pakistan Family Courts (Punjab Amendment) Ordinance, 1971 (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, 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 the West Pakistan Family Courts (Punjab Amendment) Ordinance, 1971 (XXIV of 1971).]

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. (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. (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. (6)  In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within 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.]

10.    Pre-trial proceedings. (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 recording of evidence.

11.    Recording of evidence. (1) 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. (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. (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-A)  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. (2)  If such compromise or reconciliation is not possible, the Family Court shall announce its judgement and give a decree.

12-A. Certain cases to be disposed of within a specified period. Notwithstanding anything contained hereinbefore, a suit for dissolution of marriage shall finally be disposed of within a period of four months from its institution: Provided that where an appeal lies against the dissolution of marriage, such appeal shall be disposed of within four months.]

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 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, 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 as the District Judge may, by special or general order, direct. (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. (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; (b)  for dower not exceeding rupees fifteen thousand]; (c)  for maintenance of rupees five hundred or less per month.

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 hundred 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 (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; and the Family Court may forthwith try such person for such contempt and sentence him to a fine not exceeding rupees two hundred.

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 Evidence Act, 1872, and the Code of Civil Procedure, 1908, except sections 10 and 11,] shall not apply to proceedings before any Family Court. (2)  Sections 8 to 11 of the Oaths Act, 1872, shall apply to all proceedings before the Family Courts.

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.

19.    Court fees. Notwithstanding anything to the contrary contained in the Court Fees Act, 1872, the court fees to be paid on any plaint filed before a Family Court shall be rupee fifteen for any kind of suit.

20.    Investment of powers of Magistrates on Judges. Government may invest any Judge of a Family Court with powers of Magistrate First Class to make order for maintenance] under section 488 of the Code of Criminal Procedure, 1898.

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.

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.

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— (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. (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.]

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.      Dissolution of marriage. 2.      Dower. 3.      Maintenance. 4.      Restitution of conjugal rights. 5.      Custody of children. 6.      Guardianship. 7.      Jactitation of marriage. 8.     Dowry.