In Pakistan, Family law is an area of the law that deals with family disputes and litigation such as Adoption, Guardianship, Divorce or Legal Separation, Polygamy, Child Custody and Maintenance of Child & Wife, Recovery of Dower and Dowry Articles, Inheritance Law i.e. Succession Cases, Letter of Administration, Gift, etc.
Overseas Pakistanis are sometimes at a grave disadvantage when it comes to their family disputes. The efficiency of our judicial system in securing the rights of overseas Pakistanis is not only of paramount importance for those overseas but efficient handling of their litigation and disputes is also an integral part of safeguarding their interest.
Family law in Pakistan underwent a fundamental change when the Family Courts Act, 1964 was enacted and family matters were entrusted to family courts instead of ordinary civil courts.
Since then, family courts have been administering family law to provide ‘better remedies’ to women and children.
The role of the family court in Pakistan in delivering justice and in safeguarding procedural rights of women and children as provided by the Family Laws.
Our team of family lawyers assists clients, especially overseas Pakistanis in order to resolve their family disputes.
Application of Civil Procedure Code is not stricto sensu, except section 10 & 11, applicable in the proceedings as section 17 of Family Courts Act 1964 specifically bar such application. However, a family court being a quasi judicial forum may draw and follow its own procedure which it thinks fit for the just decision of the case but such procedure must not be against any explicit provision of the law or principles of natural justice.
E-mail or other digital Communications as evidence in Family Courts:
The Honorable High Court held that provisions of Qanun-e-Shahadat, 1984 are not applicable to the proceedings before the Family Court but basic principles for recording evidence should be considered. The Family Court could adopt any procedure which is not expressly barred or prohibited by law.
Cross-examination is a litmus test of the truthfulness of the statement made by a witness on oath in examination-in-chief. Party conducting cross-examination could ask leading questions and confront the witness with previous statements whether same pertained to some other proceedings or event, subject to relevancy with the issue. E-mail or other digital communication of a witness may be treated as a previous statement and confronted during cross-examination.
E-mail was a form of documentary evidence and same could be admitted as evidence. Measures were to be taken to protect the integrity and authenticity of email by digital signature and encryption. Reliability of email or other electronically generated documents might be subject to attack but a party could not be restrained to present it in the Court as documentary evidence. If e-mails or other digital documents were generated or originated by a witness, the same could be confronted to him during his cross-examination. Party may confront the witness during cross-examination with all the digitally created and communicated
Sections 16 to 20 of Civil Procedure Code 1908, Section 17 of West Pakistan Family Courts Act 1964 and Rule 6 of West Pakistan Family Courts Rules 1965 deal with the Territorial Jurisdiction of the Family Courts in Pakistan. While considering the said provisions, the August Supreme Court of Pakistan held that “Family Court alone had exclusive jurisdiction to deal with all the matrimonial disputes, whatever their nature, irrespective of territorial jurisdiction, provided that the Family Court where the wife resides shall have the jurisdiction to entertain such suits/claims, within the local limits of which the wife ordinarily resides”
It is also held that the provisions of Ss.16 to 20, C.P.C. stood excluded from the proceedings before the Family Court, hence the question of its territorial jurisdiction would never arise, provided that the Family Court where the wife resides, shall have the exclusive jurisdiction over all such matters.
Section 25-A (2-B) of Family Courts Act 1964 deals with the transfer of cases from one Province to another by the Supreme Court. The Supreme Court of Pakistan may order the transfer of proceedings pending from one jurisdiction to another more particularly from one Province to another either at the motion of the parties or on its own motion without notice. However, in the latest judgement of the Honorable Lahore High Court declared that the Judge of the family court is not empowered to transfer pending execution petitions rather the High Court is empowered to transfer the cases.
It was held by the August Supreme Court of Pakistan in a case titled as “FARZANA RASOOL versus Dr. MUHAMMAD BASHIR” reported in 2011 SCMR 1361 that the Sections 5, 10 & 12 of West Pakistan Family Courts Act, 1964 requiring Family Court to make efforts to effect conciliation/compromise between spouses at pre-trial and post-trial stages. Such provisions being in consonance with the command of Allah Almighty described in Ayat No. 35 of Surah An – Nisa.
A bare reading of command of Allah Almighty as described in the said Surah, reveals that efforts are to be made by induction of one Hakam from the family of husband and one from the family of wife for ultimate reconciliation or compromise, so the family ties between the husband and wife remain intact. It is the spirit of the said verse of Surah An-Nisa that Ss. 10 and 12 of the West Pakistan Family Courts Act have been promulgated to give effect to the said Verse from Surah An-Nisa.
It is generally said that “it is better to have no house than to have a broken one” i.e., all efforts should be made that spouses even if separated are brought to re-union. Principle of bringing about compromise between the spouses for their union/reunion is to be applied even in ancillary matters, like dispute between husband and “wife in respect of dower, dowry, maintenance and all other allied matters under consideration before the court.
The Preamble of the West Pakistan Family Courts Act speaks of settlement of disputes and disposal of matters relating to marriage and family affairs. So, the Preamble has its two parts; one “settlement of disputes” and the other “disposal of the matter”. The word “settlement” used in the Preamble appears to be more akin and in consonance with sections 10 and 12 of the Act, which provides that the Family Court shall take steps at pre and post trial stages to bring about compromise or settlement/reconciliation between the parties The second part of the Preamble relates to “disposal of disputes”, which would mean that if settlement fails, then the dispute shall be disposed of on merits.
Undertaking given by a party in the court of law has to be given sanctity, because on the one hand there is a legal estoppel, and on the other moral and ethical against it. Retraction from such undertaking cannot be allowed, because the same would result in distrust of the public litigants in the judiciary and would tarnish the sacred image of the Judicial Officers before whom once a consent is given by making a statement on oath and later on withdrawn, therefore, it would become a mockery of law and facts. If such practice is allowed to prevail and is ignored by the courts, it cannot add to the trust of public litigants in the judiciary and judicial system, but would reflect on lack of trust in the judiciary, which cannot be permitted, because sanctity of the judicial proceedings has to be preserved at any cost.
It was further held by the Honorable Lahore High Court that personal appearance of a wife in pre-trial conciliation proceedings as provided by Section 10(3) of West Pakistan
Family Courts Act, 1964 for being directory in nature neither requires personal appearance of wife nor such appearance is mandatory. Court under Section 18 of the said Act could dispense with the legal requirement of personal appearance of Pardanashin lady and allow her to be represented in such proceedings through her authorized agent.
Our Law Firm provides the services of Family Dispute Resolution.
Family Dispute Resolution, or FDR, is the legal term for services such as mediation that help people to sort out their disputes.
It can help you to agree on matters relating to property, money, and your children.
Our job is to assist you in discussing the issues and to work through your options to reach an agreement.
Before we start, we assess whether your matter is suitable for FDR and tell you about the process, your rights and obligations and the fees to be charged.
Everything said in a Family Dispute Resolution process is confidential and nothing can be used in the court, except the exceptional circumstances.
Both parties must attend the mediation process by their physical or virtual representation and, if there are no objections, you can also have a support person.
The Family Dispute Resolution practitioner will check that everyone understands what is being said and agreed upon.
In case if the dispute resolution process does not resolve your matter, the FDR practitioner can suggest other avenues to help you resolve the issues, such as family litigation.
If you can reach agreement, you should be aware that changes to your children’s care arrangements can affect your entitlements to family assistance and income support payments, and to child support.
If you reach agreement on arrangements for your children, you can put together a parenting plan. It must be dated and signed by both parties.
If you don’t attend FDR, or you do attend but do not make a genuine effort to reach an agreement, it can affect your court hearing and you may also be ordered to pay the other person’s legal costs.
After FDR you will be given a certificate proving that you have attended FDR to file your application to the Court.
You need this certificate even if you already have orders in relation to the children and want them changed.
Your FDR certificate will say either:
• the other party did not attend
• both attended and made a real effort to settle the dispute
• both attended but one or both of you did not make a real effort to settle the dispute
• your case is not appropriate for FDR, or
• the FDR practitioner decided it was inappropriate to continue after starting the process.
It can include procedures to change arrangements and resolve any disagreements in future and can be renegotiated at any time.
● West Pakistan Family Courts Act 1964
● West Pakistan Family Courts Rules 1965
● Muslim Family Laws Ordinance, 1961
● Muhammadan Law by D.F. Mullah
● Guardians and Wards Act, 1890
● Child Marriage Restraint Act, 1929
● Dissolution of Muslim Marriages Act, 1939
● West Pakistan Muslim Personal Law (Shariat) Application Act, 1962
● Protection of Parents Ordinance, 2021
● Law of Evidence (Qanun-e-Shahadat) Order, 1984
● Dowry and Bridal Gifts (Restriction) Act, 1976
● Dowry and Bridal Gifts (Restriction) Rules, 1976
● Guardian & Wards Act, 1890
● Christian Marriage Act, 1872
● The Hindu Marriage Act, 2017
● Punjab Protection of Women from Violence Act, 2016
● The Foreign Marriages Act, 1903
Our research and strategies enhanced our expertise in the following areas of family division:
● Child Adoption
● Child Custody
● Divorce or Legal Separation
● Child & Wife Maintenance
● Recovery of Dower and Dowry Articles
● Domestic violence
● Inheritance matters
● Succession matters
● Letter of Administration
● Gift and Revocation