AJK Family Court Act, 1993

  1. S. 5 — jurisdiction — matters akin to specified in schedule — Held: considering the whole spirit and scheme of the Family Courts Act, 1993, and its preamble, the intention of the legislature is clear that the Family Courts have got powers to adjudicate matters connected with the matters specified in the schedule. Further held: application for enhancement of maintenance allowance is no bar in the way of execution of the decree already granted for maintenance allowance. Abdul Khaliq v. Sidra Khaliq & 3 others 2014 SCR 280 (I)
  2. — section 5, Schedule —jurisdiction of— whether, after snatching the gold ornaments by the husband, the Family Court has no jurisdiction to adjudicate upon the same and the judgment passed by the said Court is without jurisdiction?  Held: it may be stated that in AJ&K, the Family Courts have been established with a specific purpose and intent by the Government. The preamble of the AJ&K Family Courts Act, reveals that the Family Courts have been established for expeditious settlements and disposals of the disputes relating to the marriage and family affairs and all the matters connected therewith. Further held: The jurisdiction of the Family Courts has been extended with regard to all the matters listed in the schedule. Further held: The dower once fixed between the parties would remain as a dower and neither would it undergo any change, nor will it be transformed into civil liability, in case, the same is snatched or forcibly taken away by the husband from the wife. The dower, if paid to the wife and snatched by the husband, would automatically restore its liability to repay the same and the matter would be triable by the Family Court alone. Shahzed Rauf v. Shabana Yasmin 2017 SCR 1522 (D)  PLD 2006 Pesh. 189 & 2013 MLD 305, rel.
  3. — Section 5—dower—suit for recovery—jurisdiction of– dower once fixed between the spouses remains dower—even after its payment, if any dispute arises or the same is snatched by the husband, the Family Court alone has got jurisdiction. Muhammad Afzaal Versus Rashida & another 2021 SCR 186 (A)  2017 SCR 1522 ref.
  4. —Section 5—dowery—suit for recovery—proof of—wife established on record the dowery articles—husband denied— in ordinary course of life parents do prepare dowry articles for their daughters—in our country it would be a rare occasion if the daughter is sent without giving her dowry articles—in respect of the dowry articles the superior courts are consistent in their view and less burden is put on the shoulders of a wife to establish the claim of dowry articles, what to say of producing the receipts so collected and prepared. Muhammad Sagheer  Versus  Aneesha Shabir & another 2021 SCR 725  (A&B) 2017 SCMR 393 rel.
  5. —Sections 5 and 17—dowery—suit for recovery—proof of–husband objected that list of dowery articles is fabricated and nonsigned—Court observed that there is no legal requirement of documenting of dowry articles in Nikahnama—in our society, when the parents are making preparations of the marriages of their daughters, in normal course of life, they do not indulge in making lists or keep record of receipts—the wife was not obliged to prove her case in stricto sensu— Family Courts Act  is a special law which has been enacted for adjudication of matrimonial disputes expeditiously—the legislature, being appreciative of fact, specifically excluded the operation of the Qanun-e-Shahadat. Meharban Hussain Versus Zahida Kousar 2021 SCR 717 (A) 2008 SCMR 15 84, 2013 CLC 698 & 2016 SCR 1 ref.
  6. —Sections 5 & 17—dowery—suit for recovery—proof of—Qanun-e-Shahadat is not applicable to the proceedings before the Family Court—sole statement of wife is sufficient to prove her claim—she is not required to prove the case in the terms of requirements of Qanun-e-Shahadat by producing a certain number of witnesses in support of her claim along with recording of her own statement. Meharban Hussain Versus Zahida Kousar 2021 SCR 717 (B) 2012 MLD 756 rel.
  7. — section 7(2) — filing of list of witnesses — calling of witness, other than mentioned in list of witnesses — sole discretion of Court — Held: the parties may call any witness at any later stage but that is subject to the permission of Court. It is the sole discretion of the Court to permit for producing any additional witness, if the Court finds that this is necessary for the interest of justice. Afaq Razzaq v. Addl. District Judge Mirpur & another 2023 SCR 367 (A)
  8. —- section 7(2) — term “expedient” — defined — Held: In [section 7(2)] the term ‘expedient’ has been used. “Expedient” means that which is suitable and appropriate under the circumstances and which will serve the interests of justice. In a legal context, expedient is often used to refer to a course of action that is deemed to be necessary or appropriate, typically in order to expedite a particular legal process or to achieve a desired outcome. Afaq Razzaq v. Addl. District Judge Mirpur & another 2023 SCR 367 (B)
  9. —Section 8 —-service upon defendant—written statement— written statement has to be filed within fifteen days from the date of service of notice. Yousaf Malik  Versus Naheed Rehman & 3 others 2021 SCR 112 (B)
  10. —Sections 8 & 9—service upon defendants—procedure for—time for filing written statement—ex-parte proceedings–legislature prescribed time for filing the written statement from the date of service of notice—u/s 9(4), the defendants can only be proceeded ex-parte if he fails to file written statement with 15 days from the service of notice or appearance of the notice in the newspaper. Muhammad Rashid v.Nazia Kousar 2019 SCR 218 (A)
  11.  —Sections 8 & 9—Family Courts Procedure Rules, 1998–Rule 13—ex-parte proceedings—limitation for setting aside–sufficient cause—under the provisions of Family Courts Act, the application of the provisions of limitation Act is not excluded— Family Court conducted proceedings in violation of statutory provisions coupled with the fact that neither any acknowledgement receipt furnished nor notice published in the approved newspaper—these are sufficient reasons and facts attracting the provisions of Limitation Act justifying that the defendant was not in the knowledge of the proceedings, thus held: the limitation will start from the date of the knowledge of the decrees and can be considered as sufficient reasons for default in appearance. Muhammad Rashid v.Nazia Kousar 2019 SCR 218 (B & C)  
  12. — section 9 —limitation for filing written statement—15 days—ex-parte proceedings— respondent proceeded ex-parte while calculating period  for filing the written statement from the date of institution of suit— illegal—the statutory period of 15 days for filing written statement shall be calculated from the date when service is effected upon the defendant through prescribed manner—u/s 9—the written statement by defendant shall be filed within a period of 15 days from the date of service upon such defendant. Zaib-un-Nisa v. Mehbood Hussain Shah 2017 SCR 1644 (A)
  13. S. 9 — Entire documentary evidence which defendant wishes to produce must be filed with the written statement — Report of examiner was not attached — Held: It could not be brought under consideration — Finding of lower Courts based on it shall stand vacated. Sabir Hussain v. Shaheen Bibi and 7 others 1997 SCR 23 (A)
  14.  Section 9 — Entire documentary evidence which the defendant wants to produce before the Court is mandatory to be appended with the written statement. Bilal Shaheen v. Judge, Family Court & another 2016 SCR 1697 (A)
  15.  Section 9(B) — According to the provisions of section 9, after filing of the written statement, no room was left for the defendant to file the documents which were later on came into his knowledge. Bilal Shaheen v. Judge, Family Court & another 2016 SCR 1697 (B)
  16.  S. 10 — Family Courts Act — Directory or mandatory provision — The question whether a provision of law is mandatory or directory also has another aspect. Even if it be assumed that the provision for making an attempt for reconciliation at the pre-trial stage is directory and not mandatory it does not follow that its violation may always be condoned. The principle of law is that a mandatory provision must be obeyed strictly while a directory provision may not be obeyed strictly but it may be substantially complied with. Andleeb Sabir Butt v. Family Judge Bagh and another 1996 SCR 281 (G)
  17. S. 10 — Pre-trial proceedings — When the written statement is filed, the Court shall fix a date for pre-trial hearing of a case — The Court shall examine the plaint, written statement, the documents and if the Courts deems fit, it shall record statements of parties or their counsel — The Court shall ascertain the points at issue between the parties and attempt to effect compromise or reconciliation — If the parties fail to compromise or reconciliate the Court shall frame the issues and fix the date for recording evidence. Fozia Javed Qureshi v. Zulfiqar Ali & another 2011 SCR 371 (A)
  18. S. 10 (3) — Mandatory provision — The provisions contained in sub-section 10 of the AJK Family Courts Act 1993 for making an attempt to effect a compromise or reconciliation between the parties, if this be possible, is mandatory in nature which must be obeyed or fulfilled exactly and omission to do so would be fatal. Andleeb Sabir Butt v. Family Judge Bagh 1996 SCR 281 (B)
  19. Ss. 10 and 12 — Non-compliance of — Effect — Non compliance of sections 10 and 12 of the Family Courts Act is at the most an irregularity which does not nullify the judgment and decree of trial Court, especially when it is evident from the circumstances of the case that attempts for reconciliation, even if made would have been futile — Respondent No.2 and witnesses show that she was determined not to live with the appellant as his wife in view of her hatred for him — In case of ‘Khula’ the decree for dissolution on basis of ‘Khula’ passed only when the Court comes to the conclusion that it was no more possible for the spouses to live as husband and wife within the limits ordained by the God. The judgment and decree passed by the Family Court cannot be regarded to have been vitiated merely for non-compliance of section 10 of the Family Courts Act especially so when there is no allegation for non-compliance of section 12 of the Family Courts Act. Andleeb Sabir Butt v. Family Judge Bagh and another 1996 SCR 281 (A)  
  20. —Section 11 (2) —summoning of witnesses through process of Court—provision is mandatory in nature— if a party wants to summon a witness through the process of the Court, it shall intimate within 3 days of framing of issues—if the Court is satisfied that it is not possible for such party to produce the witness, then such witness may be summoned by the Court. Mohzim Ali Danish Versus Family Judge & another 2021 SCR 278 (A & B)
  21. S. 12(2) — AJ&K Family Courts Act has been enacted with the sole purpose of expeditious settlement and disposal of suits relating to marriage and family affairs — S.12(2) clearly provides that Family Court shall finally decide a case within a period of four months from the date of presentation of plaint. Syed Shujahat Hussain Kazmi v. Mst. Nazish kazmi 2007 SCR 438 (H)
  22. — section 12(2) — responsibility of Family Court — disposal of case within four months — Held: According to section 12(2), of Family Courts Act, 1993, the Family Court has to decide the case within a period of four months from the date of institution of the presentation of the plaint, whereas, the case has still not been decided despite the lapse of almost three years, therefore, the learned Family Court is directed to decide the matter pending before it, without any delay and not later than one month. Afaq Razzaq v. Addl. District Judge Mirpur & another 2023 SCR 367 (D)
  23. S. 13 — execution of decrees — u/s 13 — it has been provided that the Family Court shall pass a decree in such form and such manner, as may be prescribed.  It has been also provided that the decree shall be executed by the Family Court or by such other civil Court as the District Judge may direct by special or general order. Abdul Khaliq v. Sidra Khaliq & 3 others 2014 SCR 280 (B) PLJ 2013 SC (AJ&K) 38, rel.
  24. —Sections 13 (3) and 17—execution of money decree–mode for recovery—argument that Family Court in execution of money decree can only adopt the mode for recovery as mentioned in Land Revenue Act, held appears to be misconceived—u/s 13 (3), if the Court so directs, the decretal amount shall be recovered as arrears of land revenue which means that that the Family Court may direct the land revenue  authorities under Land Revenue Act to recover the amount as arrears of land but it does not prohibit the Court to adopt any  other mode—it is the discretion of the Family Court either to execute the decree itself or direct for recovery as arrears of land revenue— The phraseology used i.e. “if so directs” clearly indicates the intention of legislature— the family Court may adopt any other mode and the same may be according to the CPC—-as despite exclusion of the application of CPC the principles can be applied by the Family Court. Raja Muhammad Nazam Khan & others    v. Sessions Judge & others 2019 SCR 241 (A) 2016 SCR 1 rel
  25. S. 13(5) — Judge Family Court ordered the payment of amount in instalments — Shariat Court given reasons for making payment in instalments — Held: Instalments can be made keeping in view the over all circumstances of the case. Noreen Akhtar v. Liaquat H. 2004 SCR 143 (A)
  26. –Section 13(5) —maintenance—judgment-debtor— decretal amount—payment in instalments—according to ordinary law the judgment-debtor is bound to pay the same or the same can be recovered from his property—Held:in the family matters the legislature has authorized the Family Court under section 13(5) to fix the instalments as it deems fit. Shahzad Rauf vs Mst. Shahbana Yaseen 2018 SCR 908 (D)
  27. S. 14 — Appeal against interim orders — It is only a decision or a decree which had been made appealable to the Shariat Court — Intention of legislature while enacting the law has been given in preamble that the same was legislated for expeditious settlement and disposal of disputes relating to marriage and family affairs, to avoid protracted litigation no appeal or revision is provided against interim orders — Even certain decrees have not been made appealable before the Shariat Court. Nasim Bashir v. Abdul Jabbar 2003 SCR 536 (A)
  28. S. 14 — Phraseology employed in use of words ‘decision or decree’ in light of dictionary meaning approved by the wisdom of the learned Judges interlocutory matters which do not finally dispose of the cases are not appealable before Shariat Court. Nasim Bashir  v. Abdul Jabbar 2003 SCR 536 (D)
  29. U/s. 14 a decision or a decree passed by a Judge Family Court has been made appealable before the Shariat Court — An interlocutory order has not been appealable. Muhammad Ramzan v. RukhsanaKausar & another 2006 SCR 104 (B)
  30. Section 14 — Judgment, decree or order passed by Shariat Court under section 14 — PLA before Supreme Court — Conditions of its maintainability. Held: According to scheme of law the petition for leave to appeal before this Court is only competent if the Shariat Court passed a judgment, decree or order in appeal filed under section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993 and also with the condition if the case involves a substantial question of law of public importance. Muhammad Sarwar Sagar v. Mst. Raqia Shaheen 2011 SCR 224 (A)
  31. —Section 14—petition of leave to appeal before Supreme Court—leave can only be granted when there is question of law of public importance. Ali Asgher v. Naheed Akhter 2019 SCR 380 (A)   
  32. —Section 14—appeal—execution proceedings—executing Court by fixing the installments finally decided the application — the conclusion drawn by the High Court that the impugned order is interim in nature which is not appealable, is not correct as the Court through its order finally decided the issue and the order being conclusive in nature, was appealable. Muhammad Shabir Khan v. Mst. Bilqees Fatima & another 2020 SCR 515 (A) 2018 SCR 908 ref.
  33. —Section 14—appeal against decision or decree—execution proceedings — execution proceedings conclusively decided by order dated 3.3.2020—according to the nature of the decision, this final disposal of matter cannot be treated as interim order. Muhammad Arif  Versus Nasreen Akhtar & another 2021 SCR 645 (A) 2018 SCR 908 rel.
  34. —Section 14—appeal against decision or decree—decree for maintenance—execution proceedings—executing Court disposed off petition while fixing instalment—appeal before the High Court dismissed on the ground that appeal against interim order—not competent—under the statutory provisions right of appeal is provided both against the ‘decision or decree’ passed by the Family Court— execution applications were finally disposed of through consolidated decision—Held: according to nature of decision the Court was unable to concur with the opinion of the High Court that it is an interim order rather the applications have been conclusively decided, hence, this final disposal cannot be treated as an interim order. Shahzad Rauf vs Mst. Shahbana Yaseen 2018 SCR 908 (C) 1996 CLC 94, 2012 CLC 24 & PLD 2004 SC 219 ref.
  35. S. 14(2) — Whether violative of Fundamental Right No.15 which lays down that all State Subjects are equal and are entitled to equal protection of law — While accepting the appeal writ petition dismissed in limine was ordered to be admitted to decide the question of law of public importance. Muhammad Rafique Khan  v. Azad Govt. and 11 others 1997 SCR 20 (A)
  36. —Section 14 (2) — Under sub-section 2 of section 14, it is provided that an appeal shall lie from the decree passed by the  Family Court; (A) for dower not exceeding Rs.1000/-; (B) for maintenance of Rs.75 or less per month. Muhammad Ajmal Qureshi vs Nazia Bibi & others 2018 SCR 1179 (B)
  37. Ss. 14(2)(A) and S. 21-A — Appeal against the judgment and decree of the suit instituted after the establishment of the Family Courts Act, would be only competent to the Shariat Court if the cases fall within the ambit of the section 14 of the Family Courts Act and not otherwise. Had the legislature intended that section 14 would also be applicable to the pending appeals, it would have expressed such intention while enacting section 21-A, and it would have transferred only such appeals which the Shariat Court was competent to hear under section 14 of the Family Courts Act. The very fact that all the pending appeals  were transferred to the Shariat Court, is indicative of the fact that the  principles embodied in section 6 of the General Clauses Act was not departed from expressly or impliedly. Muhammad Hafiz Khan v. Mst. Sabiha Khanum 1995 SCR 316 (E)
  38. S. 14(5) — Leave to appeal is only permissible if the case involved a substantial question of law of public importance and not otherwise. Basharat Aziz v. Dil Jan and 10 others 1998 SCR 129 (A)
  39. S. 14(5) — Leave cannot be granted unless the public at large is interested in question of law. Muhammad Saeed v. Begum Noor 1998 SCR 133 (B)
  40. S. 14(5) — It has been provided that an appeal to Supreme Court of AJK from the judgment, decree or order of Shariat Court shall lie only if the Supreme Court be satisfied that the case involves a substantial question of law of public importance. Mushtaq Hussain Khan v. Hafeeza Aziz and 3 others 2001 SCR 331 (B)
  41. S. 14(5) — The judgment of the Shariat Court shall be final and appeal shall lie against it unless there be a question of public importance — The Shariat Court took a lenient view in the matter and reduced the instalment — No question of public importance involved — Leave to appeal refused. Muhammad Khaliq Khan v. Ulfat Jan 2002 SCR 74 (A)
  42. S. 5, Sched. & S. 14 — Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R. 13 — Limitation Act (IX of 1908), S. 5 — Suit for recovery of dower amount and maintenance allowance — Ex parte decree — Application for setting aside ex parte decree — Condonation of delay — Scope — Limitation — Defendant (husband) having failed to appear before the Trial Court, ex parte proceedings were ordered against him and after recording evidence, ex parte decree was passed in favour of the plaintiff (wife) — Application for condonation of delay in filing application, which under rule 13 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, was 30 days, was filed after 3-1/2 months, which was time barred — Azad Jammu and Kashmir Family Courts Act, 1993, was a special law, which had provided limitation under the Rules and there was no concept of condonation of delay under R.13 of the said Rules — In presence of clear provisions in the special law, the provisions of S.5 of the Limitation Act, 1908, were not applicable to the proceedings before the Family Court — Application for condonation of delay being time-barred, was rightly dismissed, in circumstances. Naveed Farid v. Raheela Razzaq  2012 SCR 341
  43. S. 5, Sched. & S. 14(1) — Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42 — Suit for dissolution of marriage — Application for production of list of witnesses — Plaintiff who filed suit for dissolution of marriage against defendant also appended a list of witnesses — Plaintiff who could not produce witnesses mentioned in the list, filed another list of witnesses, which was finally allowed and the Trial Court recorded statements of said witnesses and only the statement of plaintiff was yet to be recorded in the suit — Said order of Family Court allowing the second list was challenged by the defendant in the Shariat Court through an appeal — Shariat Court accepted the appeal and set aside the order of Family Court — Contention of counsel for the plaintiff was that impugned order of Family Court being interlocutory order and not a final judgment, appeal filed by the defendant before Shariat Court, was liable to be dismissed, because no appeal lay against an interlocutory order — Contention of counsel for defendant was that order passed by the Family Court was final order and appeal before Supreme Court was competent — Validity — Application filed by the plaintiff for allowing her to produce some other witnesses was accepted by the Family Court; and that order was an interlocutory order and could not be a final judgment — Appeal against said order was not maintainable before the Shariat Court — Under provisions of S.14(1) of Azad Jammu and Kashmir Family Courts Act, 1993, only decision or decree of Family Court was appealable before the Shariat Court — Findings of Shariat Court that application filed by the plaintiff before the Family Court was a review application; and that Family Court had no jurisdiction to certain such application, was contrary to record — Application filed by the plaintiff for summoning witnesses, was not a review application, but was an application for production of witnesses — After acceptance of said application, statements of witnesses summoned, had already been recorded by the Trial Court — After said development, whole subsequent practice had become futile and academic; even on merit — Judgment of Shariat Court, was set aside by Supreme Court in circumstances. Firdos Bakhat v. Javed Khan through Attorney and another 2012 SCR 205 2004 MLD 510; 2005 SCR 309; 2006 SCR 104; PLD 1990 Lah. 38 and PLJ 1979 Lah. 514(sic) ref.   Mst. Naseem Bashir v. Abdul Jabbar 2004 MLD 510; Mst. Shehnaz Bibi and 2 others v. Munawar Din 2005 SCR 409 and Muhammad Ramzan v. Rukhsana Kausar and others 2006 SCR 104 rel.
  44. Section 14 (5) — PLA before Supreme Court in matrimonial disputes — there must be a legal question of public importance involved in the matter — leave cannot be granted in routine. M. Khurshid v. Ghulab Jan 2016 SCR 447 (B) PLD 2004 SC (AJ&K) 17 & 2001 SCR 331 rel.
  45. —section 14(5) —appeal—competency of—the High Court dismissed the appeal being filed against interlocutory order–suit disposed of by the Family Court on ground of alleged compromise while same was at stage of framing of issues—the appellant denied the compromise—Held: when the Trial Court fixed the instalments and ordered the file be consigned to the record then the order comes within purview of final order. Judgment of the High Court set aside and remanded for deciding afresh. Umar Farooq v. Noreen Akhter  2019 SCR 77 (A) 
  46. —Section 14 (5) —Right of appeal before the Supreme Court— in order to achieve the objects of the Family Courts Act, 1993, u/s 14(5), appeal before this Court is provided only when the Court is satisfied that the case involves substantial question of public importance for grant of leave to appeal. These restrictions are in the public interest and have been imposed in order to save women and children from agony of frivolous and fruitless litigation. Muhammad Ajmal Qureshi vs Nazia Bibi & others 2018 SCR 1179 (C) —Section 14 (5) —repealing of—Held: that the provision of section 14 (5) of the Act, 1993, have not been repealed expressly or impliedly and are still holding the field, therefore, filing of PLA in the family matters in light of section 14 (5) will remain continued. Muhammad Ajmal Qureshi vs Nazia Bibi & others 2018 SCR 1179 (H)
  47. — Section 14 (5) — appeal by leave — an appeal to this Court from judgment, decree/order of High Court shall lie only when Supreme Court being satisfied, that the case involves the substantial question of law of public importance, grants leave — question of law of public importance is a question which affects and has its repercussions on the public at large. Muhammad Afzal Khan vs Amreen Gul 2024 SCR 271 (B) 1998 SCR 129, PLD 2004 SC(AIK) 17
  48. Section 14(5) — appeal by leave before Supreme Court – only permissible if Court is satisfied that the case involves a substantial question of law of public importance & not otherwise — – question of law of public importance is a question affects and has its repercussions on the public at large. Adeeb Sadiq vs Shazia Bibi 2024 SCR  298 (C) 2017 SCR 999 ref.
  49. S. 5, Sched., Ss. 14 & 17 — Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42 — Suit for dissolution of marriage, maintenance allowance along with expenditure for birth of a child — Trial Court decreed the suit, but Shariat Court, on appeal, set aside the judgment and decree of the Trial Court and dismissed the suit and the plaintiff had filed appeal to Supreme Court — Validity — Wife could claim past maintenance up to six years — When a woman surrendered herself into the custody of her husband, it was incumbent upon him to support her with food, clothing and lodging, as such was the precept in Holy Quran — According to the Islamic Injunctions, it was the obligation of the husband to maintain his wife till she disobeyed him without any good cause — Maintenance was an obligation, which was one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances — Obligation of husband to maintain his wife had been derived from Verse No.232 of Sura Al-baqara in the Holy Quran — Maintenance to the wife was not an exgratia grant, but husband was obliged to maintain his wife — Husband being father of the child born to his wife, was required to under the law, not only to provide food and shelter to family, but also take care of other genuine needs of the family — Grant of delivery expenses to wife, was part of maintenance — Shariat Court had failed to determine the real controversy involved in the case; and instead of deciding the  case on merits, after reappraisal of evidence on the record, decided the same by holding that suit filed by the plaintiff was not maintainable — Judgment and decree passed by the Trial Court, were well reasoned and were based on cogent reasons — Trial Court had rightly appreciated the evidence in its true perspective — No misreading or non-reading of evidence, was found in the judgment passed by the Trial Court — Judgment and decree passed by Shariat Court, being not maintainable, were set aside, and judgment and decree passed by the Trial Court, were restored by the Supreme Court, in circumstances. Mst. Iqra v. Abuzar 2012 SCR 284 (A, B, C, D, E & G)
  50. S. 17 — It is clearly stated in this section that in the proceedings before the Family Court the application of C.P.C. and Qanoon-e-Shahadat shall be excluded — This bar is express and unambiguous — Thus it becomes clear that the proceedings before any Family Court shall be free from the shackles of technicalities as provided in the C.P.C. Muhammad Ramzan v. Mst. Rukhsana Bi 1996 SCR 265 (A)
  51. S. 17 — It is sufficient to say that the laws which have been specifically excluded from operation under section 17 are the provisions of Qanoon -e-Shahadat and the Code of Civil Procedure, not the Limitation Act. Zahida Parveen v. Masood Khan 2008 SCR 159 (B)
  52. Section 17 although provides that CPC is not applicable before the Family Court but the general principles of procedure are applicable. Held: If a party wants to add something in a suit pending in a Family Court it is at liberty to file an application for amendment. Fozia Javed Qureshi v. Zulfiqar Ali & another 2011 SCR 371 (B)
  53. S. 17 — application of the provisions of C.P.C. — Held; the provisions of the Civil Procedure Code, 1908 are not applicable to proceeding under Family Courts Act, 1993. Abdul Khaliq v. Sidra Khaliq & 3 others 2014 SCR 280 (A)
  54. S. 5, Sched. & S. 17 — Civil Procedure Code (V of 1908), S. 11 — Suit for recovery of maintenance charges — Filing new suit on same cause of action after dismissal of earlier suit — Res judicata, principle of — Applicability — Scope — Question was raised as to whether after dismissal of fresh suit for the recovery of maintenance charges, new suit on the same cause of action was maintainable — Validity — Trial Court had taken care of that aspect of the case and had rightly found that under S.17 of Azad Jammu and Kashmir Family Courts Act, 1993, Code of Civil Procedure being not applicable in the matter, filing of subsequent suit after dismissal of first suit, was not hit by the principle of res judicata — Civil Procedure Code, 1908 though was not applicable in the Family matters, but in the absence of any specific provision, the general principle of C.P.C., were attracted; and if there was a continuous wrong and new cause of action accrued, on the basis of new cause of action, new suit could be filed at any time. Mst.Iqra v. Abuzar 2012 SCR 284 (F)
  55. Section 17 — Provisions of Qanoon-e-Shahadat and CPC are no applicable to the proceedings before Family Court. The purpose of exclusion is that the family matters be disposed of expeditiously — No specific procedure for proceedings before the Family Court has been laid down in the Act but held: the guidance may be had from Civil Procedure Code in such like proceedings to meet the ends of justice.  Saleem Akbar Kayani v. Dr. Rehana Mansha Kayani & 4 others 2016 SCR 1 (D) 2011 SCR 371, PLJ 2013 SC (AJ&K) 29 & 2013 PSC 633 ref.
  56. —Limitation Act, 1908—-Section 18—-applicability of—argument that limitation starts running from the date of judgment and decree—held, misconceived—the provisions of section 18 are not excluded from the proceeding before the Family Court rather the same are applicable— if a particular case is covered by section 18 based on fraud and a party successfully proves that he was precluded from filing application, appeal, suit by means of fraud being kept away from the knowledge of such right, the Court can consider that what is effect of such fraud on application, appeal or suit. Syed Mehar Ali Shah vs Syeda Nudrat Bibi & others 2018 SCR 9 (B) 2013 SCR 85 rel.
  57. S. 20 — The procedure prescribed for the Family Courts is more akin to procedure followed by the Civil Courts rather than the Criminal Courts. — The Legislature has specifically laid down that the Government may invest a Family Court with the powers of Magistrate First Class to try cases under section 488 Cr.P.C. meaning thereby that while dealing with the case of ‘maintenance’  under section 488 Cr. P.C. the Family Court shall act as a Magistrate or for that matter a Criminal Court rather than a Civil Court — Therefore, the provisions contained in section 20 read with item 3 of the Schedule imply that the cases under section 488 Cr.P.C. be decided by the Family Court in exercise of Magisterial powers with which it may be invested and not otherwise. Mst. Zareena v. Nisar Hussain 1996 SCR 82 (A)
  58. S. 5 — jurisdiction — matters akin to specified in schedule — Held: considering the whole spirit and scheme of the Family Courts Act, 1993, and its preamble, the intention of the legislature is clear that the Family Courts have got powers to adjudicate matters connected with the matters specified in the schedule. Further held: application for enhancement of maintenance allowance is no bar in the way of execution of the decree already granted for maintenance allowance. Abdul Khaliq v. Sidra Khaliq & 3 others 2014 SCR 280 (I)
  59. S. 20 — vide notification dated 28th June, 1994, issued under section 20 of The AJ&K Family Courts Act, 1993, the Govt. has vested in the Judge, Family Court with the powers of Magistrate Ist Class for the territorial jurisdiction of the concerned District. Held: without the powers like incorporated in section 489, Cr.P.C., the investment of powers become fruitless. Abdul Khaliq v. Sidra Khaliq & 3 others 2014 SCR 280 (F)
  60. Ss. 5 & 21 — When purpose of Family Courts Act is considered — It clears that the suit for dower is also to be heard by Family Court — S. 21 provides that Family Court shall be deemed to be the District Judge for the purpose of Guardian and Wards Act. Muhammad Ashfaq v. Mst. Aqsa & 3 others 2009 SCR 167 (C)
  61. S. 21 — The Family Court shall be deemed to be the District Court for the purpose of Guardians and Wards Act — It further provides that despite coming into force of the Family Courts Act, the provisions of Guardians and Wards Act shall apply — In the Guardians and Wards Act no definite procedure has been provided relating to the applications for the appointment of guardians and restoration of the custody of the minors. M. Ramzan v. Mst. Rukhsana Bi 1996 SCR 265 (B)
  62. S. 21-A — The appeals transferred to the Shariat Court by virtue of this section 21-A have to be decided in light of the law which was applicable when the decree or order appealed from was recorded. Muhammad Hafiz Khan v. Mst. Sabiha Khanum 1995 SCR 316 (F)
  63. S. 21-A — pending appeals at the time of enforcement of the Family Courts Act 1994, would not be affected and the same are to be decide by the Shariat Court under the provisions of the Code of Civil procedure and the provisions of the dissolution of Muslim Marriages Act, 1939, irrespective of the fact that right of appeal has been curtailed by virtue of section 14 of the Family Courts Act. Muhammad Hafiz Khan v. Mst. Sabiha Khanum 1995 SCR 316 (C)   
  64. Section 21-B — PLA against order of Shariat Court before Supreme Court — Its maintainability. Held: the petition for leave to appeal against an order of the Shariat Court passed under section 21-B of the Family Courts Act, 1993 is not competent. Muhammad Sarwar Sagar  v. Mst. Raqia Shaheen 2011 SCR 224 (B)
  65. Enacted for establishment of Family Courts for settlement and disposal of disputes relating to marriage and family affairs — In exercise of powers conferred by Section 22, rules have been framed — A combined reading of Act and rules provides for settlement of disputes relating to marriage and family affairs — In the Act or rules the Family Courts or any appellate Court has not been entrusted with powers to grant the dower with reference to means of the husband and the status of the wife — If a marriage is a contract dower is the consideration and it is debt which has to be paid by husband to wife. Zeeshan Butt v. Jamila Shafi 2007 SCR 187 (C)
  66. Trial before the Family Court has been kept free from the detailed procedure of a civil suit and the provisions of ‘Qanoon-e-Shadat’ and the C.P.C. has been excluded. The result is that wide powers have been given to the Family Courts for dissolution of marriage after a shortened procedure which can be termed as summary in nature — It will defeat the ends of justice if lenient view is taken of the violation of the short-steps which the Family Court is required to take in a case of dissolution — For that reason it is necessary that the provisions of the Family Courts Act may be construed strictly. Andleeb Sabir Butt v. Family Judge Bagh and another 1996 SCR 281 (E)
  67. The provision for attempt of compromise and reconciliation between the parties is a mandatory provision which must be fulfilled before taking any further proceedings in the case. Law is firmly settled that if a mandatory provision in the exercise of discretion or jurisdiction by a Court or Tribunal is not fulfilled then the entire proceedings which follow become illegal and suffer for want of jurisdiction. Andleeb Sabir Butt v. Family Judge Bagh and another 1996 SCR 281 (F)
  68. A law point raised in writ petition dismissed in limine cannot be decided by this Court because of the fact that the view point of the other party is not on record. M. Rafique Khan v. Azad Govt. and 11 others 1997 SCR 20 (B)
  69. A matrimonial dispute between two parties can hardly be called a question of law of public importance — The question of law of public importance is only that question which affects and has its repercussions on the public at large. Mushtaq Hussain Khan v. Hafeeza Aziz and 3 others 2001 SCR 331 (C)
  70. Past maintenance — Can be granted by the Family Court — In view of fact that there is no specific article providing limitation for filing suits for maintenance, the resort can be had to the residuary Article 120 of the Limitation Act which prescribes six years as limitation — Past maintenance of six years can be granted and beyond that the claim would be barred by limitation. Zaibun v. Mehrban 2004 SCR 108 (A) 1990 CLC 934 rel.
  71. The provisions of C.P.C. and Evidence Act are not applicable in the proceedings conducted under the provisions of Family Courts Act, 1993 — However, inherent powers are available to the Courts which are invoked when any situation is not covered by express provision of law and the Courts feel that justice is to be done — The Courts in exercise of inherent powers in such exceptional circumstances allow the parties such relief which in their opinion would meet the ends of justice — In suitable cases where no codified law is available Courts have got inherent competence to determine how proceedings should be conducted. Robeena Fazil v. Yasin Khan 2005 SCR 37 (B)
  72. No appeal is competent against an interim order — To avoid protracted litigation, no appeal or revision is provided against an interim order. Mst. Shahnaz Bibi & 2 others v. Munawar Din 2005 SCR 409 (A) 2003 SCR 536 rel.
  73. Dismissal of suit in default — Family Court or the Shariat Court can dismiss a suit in default of appearance — Under the inherent powers the same can be restored if sufficient cause is proved — Commission or omission are the part of human life — A party may satisfy the Court that there are circumstances beyond its control — The petitioners are unnecessarily prolonging the litigation so that payment of dower amount and maintenance allowance to respondent be delayed — PLA dismissed. Rafique Hussain & another v. Zarina Bibi & 4 others 2006 SCR 388 (A)
  74. Preamble — The purpose of enacting Family Courts Act to expedite settlement and disposal of matrimonial disputes to avoid protracted litigation. Muhammad Ramzan v. RukhsanaKausar & another 2006 SCR 104 (A)
  75. The Courts must contemplate in cases that once a like eventuality occurs or arises, it must rush to conclude the trial — So that wife may opt for her future course as she likes and the Courts should not prolong proceedings till a point of time when even a favourable decree may become useless and futile for wife. Syed Shujahat Hussain Kazmi v. Mst. Nazish kazmi 2007 SCR 438 (G)
  76. The cases involving family matters including dissolution of marriage be decided within the period provided by the Act and technicalities must be avoided as far as possible and any delaying tactics be discouraged. Syed Shujahat Hussain Kazmi v. Mst. Nazish kazmi 2007 SCR 438 (K)
  77. Family Courts Act or rules do not authorise the Court to reduce the amount of dower on the ground that husband is not possessed of the means to fulfil the obligation and that under Muslim Law the entire amount of dower has to be paid by the husband to his wife — Husband is bound to pay the Mahr or dower specified and fixed at the time of marriage. Zeeshan Butt v. Jamila Shafi 2007 SCR 187 (F)
  78. Payment of dower amount and maintenance allowance to minor sons and daughters — Objection to payment of the amount — The petitioner is a low paid employee in Army — Not in a position to pay Rs. 28,400/- per month — The learned counsel for respondents contended that poverty is no ground and it is the basic responsibility of the petitioner to provide maintenance to his wife and children — Leave to appeal granted to consider the points involved — Stay order was also issued. Rafique Hussain v. Mst. Zareena Bibi 2008 SCR 268 (A)
  79. Framing of issues — Contention that issues have not properly been framed by trial Court as postulated by C.P.C., rejected — Held: That the parties must be vigilant at the time of framing of issues — Where the parties are alive to the disputed points — Reframing or non-framing of issues would be immaterial. Muhammad Ashfaq v. Mst. Aqsa & 3 others 2009 SCR 167 (D)
  80. The suit for recovery of dower is cognizable by the Family Court under Family Court Act — Which provides adjudication of all the cases by Family Courts in respect of disputes relating to merit and family affairs and for matters connected therewith. M. Ashfaq v. Mst. Aqsa  2009 SCR 167 (B)
  81. Dissolution of Muslim Marriages Act, 1939 — Decree for dissolution of marriage — Ground of khula — Pleadings and evidence — Respondent alleged that she had developed hatred against defendant-petitioner — She sought a decree for jactitation of marriage and in alternate dissolution of marriage on ground of Khula — Trial Court after analyzing evidence of both parties, concluded that plaintiff-respondent and defendant-petitioner could not live as husband and wife within limits ordained by Almighty Allah, therefore, it passed decree for dissolution of marriage on basis of Khula which was upheld by Shariat Court — In plaint, she categorically alleged that due to violent behaviour and aggressive attitude of defendant, she had developed hatred towards him and in Court statement she categorically stated that her nikah was not performed with petitioner, and she did not want to live with him — Held: Plaintiff-respondent was not ready to live with defendant-petitioner as his wife — When a woman approaches the Court for dissolution of marriage on ground of Khula that she cannot live with the husband as his lawfully wedded wife within the limits ordained by Almighty Allah, it is enjoined upon the Court to grant a decree for dissolution of marriage on the ground of Khula — No substantial question of public importance was involved in instant petition for leave to appeal, the same was dismissed by Supreme Court. DISSOLUTION OF MARRIAGE — (Khula) [Plaintiff-respondent was not ready to live with defendant-petitioner at any cost. Decree for dissolution of marriage on basis of khula was correctly passed].  Tariq Mahmood v. Azra Bi and 16 others  2013 SCR 108 (B)
  82. Suit for recovery of maintenance charge to minor children — Agreement — At time of contracting second marriage, appellant-defendant executed an agreement that he would pay Rs.5000/- p.m. as maintenance charges to plaintiffs/minors — Impugned judgment/decree — It was contended that appellant-defendant had no means to pay such a heavy amount of Rs.5000/- to woman because he had two other wives and he had to bear the expenses of those and children from other wives — Non-framing of issue — Pleadings and evidence — Appellant himself appeared as his own witness and admitted in statement that he had stopped paying expenses which were settled at Rs. 5000/- p.m. — In cross-examination, it was suggested to appellant whether all plaintiffs were students and they refused to receive less maintenance charges amounting to Rs.2500/- and Rs.3500/- in reply appellant admitted the fact — Further held, both the parties were vigilant regarding real issue in controversy that plaintiffs could not maintain themselves within amount of Rs. 5000/- p.m. and they demanded for enhancement of maintenance charges — All the PWs stated so — Defendant-appellant had also not produced any evidence in rebuttal or disproving the fact that expenses of plaintiffs-respondents were less than Rs.5000/- p.m. to three minors in equal proportion of Rs. 1666/- p.m. to each of the minor-respondents  — Even such a meager amount was not sufficient to meet expenses of a minor student — Civil appeal was dismissed by Supreme Court. MAINTENANCE TO MINORS — (Agreement) [Appellant-defendant made an agreement at the time of divorce to the former wife that he would pay Rs.5000/-p.m. to the minor children of maintenance which he was bound to pay. Supreme Court dismissed appeal]. Khalid Mehmood (Raja) v. Shahzad Khalid and 4 others 2013 SCR 128
  83. Dowry suit — Issues — Family Court decreed suit of plaintiff/respondent on ground that the plaintiff was entitled to recovery of  dowry articles and in alternate she was entitled to mentioned price of dowry items — Appeal there against was dismissed by Shariat Court — Evasive denial — Appellant/defendant admitted that dowry items were given to plaintiff by her parents — Defendant disputed the list on ground that some items, which were not given to her by her parents, were included in the list — Held: Appellant/defendant had not specifically mentioned which items in the list were given to plaintiff — Evasive denial cannot be termed as denial — Appellant failed to point out any misreading or non-reading of evidence on record — Civil appeal dismissed. DOWRY LIST — (Evasive denial) [Appellant/defendant had not specifically mentioned which items in the list were not given to plaintiff/respondent. Supreme Court dismissed appeal]. Maqsood Ahmed v. Faiza Riaz 2013 SCR 1119 (C)
  84. Jurisdiction — determination of — Objection regarding jurisdiction of Family Court — according to the oral as well as the documentary evidence i.e. Nikahnama, the contract of marriage entered between the parties at Muzaffarabad, dower was fixed at Muzaffarabad and the respondent, wife is residing at Muzaffarabad, thus held: the Family Court, Muzaffarabad is competent to entertain and hear the suit under the Family Courts Act. Objection repelled. Abdul Ghafoor v. Kiran Mukhtar Awan & another 2014 SCR 1494 (C)
  85. Amendment — for providing of a provision like section 489, Cr.P.C. in the Family Courts Act, 1993 is necessary — it is the duty of the Legislature to enact/amend the law in the public interest, especially for safeguard of the rights of weak and suppressed classes like minor children and women.  Providing of a provision like section 489, Cr.P.C. in the Family Courts Act, 1993 is necessary to meet the ends of justice. Abdul Khaliq v. Sidra Khaliq & others 2014 SCR 280 (E) Suit for recovery of dower — jurisdiction — once the dower is paid and subsequently it is snatched by the husband, the wife cannot file a suit under the Family Courts Act, 1993, for recovery of dower and the Family Court has got no jurisdiction to entertain the suit. Muhammad Sajid v. Mst. Sajida Rasheed & another 2016 SCR 1284  (B) 2006 SCR 190 and Benazir alias Yasmeen v/s Khalil Ahmed & others (Civil Appeal No.258/2014, decided on 26 .3. 2015) rel.
  86. —recovery of dower—if any dispute arises in respect of the property given in lieu of dower—Held: that the dower once fixed between the spouses remains dower and even after its payment, if any dispute arises or the same is snatched by the husband, the Family Court alone has got jurisdiction to entertain and decide the matter. The suit before the Family Court for recovery of the dower will also be competent against any person, who has stood as a guarantor for the payment of the dower, however, we may clarify that if any dispute arises in respect of the property given in lieu of the dower, with any person other than the husband or the guarantor, then, of course, the case would be decided by the civil Court. The view taken by this Court in the case titled Benazir vs. Khalil Ahmed & 2 others (Civil Appeal No.285/2014, decided on 26.3.2015), so far it runs counter to the view taken in the case in hand, is hereby overruled. Shahzed Rauf  v. Shabana Yasmin 2017 SCR 1522 (E)
  87. —Applicability of CPC or Qanoon-e-Shahadat Order— in the family matters—Held:that the applicability of CPC or Qanoon-e-Shahadat Order has been specifically excluded in the family matters. Only general principle of Evidence Act as well as C. P.C can be looked into by the Family Court for resolving the controversial matters. Jameel Ahmed vs Sobia Bashir 2018 SCR 1239 (A)
  88. —Family & Civil Courts—procedure for conducting proceedings—declaratory suit—plaint returned—filed before family Court—proceedings before civil Court are governed by CPC and Qanun-e-Shahadat— Family Court is creation of special law and proceedings before it are conducted under special procedure excluding the CPC and Qanun-e-Shahadat—Held: According to spirit of law when there are two different procedures and two different Courts in that case the proceedings conducted before the earlier forum cannot be made part of the proceedings of later Court. Saleem Ahmed &others vs Judge Family Court & others 2018 SCR 860 (A)
  89. —the family Court being possessed with the discretion as to manners of the executions would not be violating any provision of law by pressing in to service provisions of CPC. Raja Muhammad Nazam Khan & others v. Sessions Judge & others 2019 SCR 241 (B)  PLD 1989 Kar. 28 ref
  90. —Family Courts—jurisdiction of— if the dispute regarding payment of the dower is between husband and the wife, then no other Court except Family Court can entertain the suit and even on the basis of entries made in the Nikannama, the decree of  possession can be awarded by the Family Court. Syed Iqbal Shah v. Syeda Tahira Bibi & others 2019 SCR 295 (B)  2017 SCR 1522, 1997 SCMR 1122 & 2011 SCMR 1591 rel
  91. —Family Courts—jurisdiction of—if the controversy regarding payment of the dower in respect of any property arises between spouse and the third party, then Civil Court is an appropriate forum for determination of the matter. Syed Iqbal Shah v. Syeda Tahira Bibi & others 2019 SCR 295 (C) 
  92. —appeal—order of the Family Court, impugned in appeal whether final or interlocutory—application for execution of decree passed in Pakistan—objection raised that the Family Court, Rawalakot, has got no jurisdiction to execute the said decree—the Family Court finally decided that it has jurisdiction to execute decree—On appeal the High Court held that the order impugned is interim in nature and there is no provision of appeal or revision in the Family Courts Act, 1993, to challenge an interim order. Held: we do not concur with the findings recorded by the High Court as the claim of the appellant was that the Family Court Rawalakot has got no jurisdiction to execute the decree passed by the Family Court East-Islamabad and the Court through its order finally decided this issue, thus, the order being conclusive in nature was challengeable through appeal. Khizar Hayat v. Mrs. Samina Nazir & 4 others 2020 SCR 194 (A) 2018 SCR 908 rel.
  93.  —modification of decree by the High Court—decree cannot be modified on apprehension of decree holder—-decree passed by the Family Court, in suit for recovery of dowry articles–Decree modified to the effect that the  respondent is entitled to get the amount of the dowry articles according to the market value, instead of dowry articles—Contention: that the dowry articles have been damaged—On Court’s query the Counsel for respondent could not satisfy the Court—Held: Decree cannot be modified on mere apprehension of decree holder—Executing Court has powers to execute the decree in letter and spirit—in case of occurrence of such eventuality, the same may brought into notice of executing Court—Order of the High Court quashed—The learned counsel for the appellant submitted that the appellant is ready to handover the dowry articles in compliance of the decree passed by the trial Court; even otherwise, the decree is yet to be executed by the trial Court and if such situation arises during execution then the respondent may bring the same to the notice of the Court. As the executing Court has to execute the decree in letter and spirit; therefore, at this stage there is no need to alter/modify the decree mere on the apprehension of the decree-holder. Thus, in such state of affairs, instead of recovery of dowry articles, the order for making the payment of the dowry articles according to market value passed by the High Court appears to be uncalled for; hence, the same is hereby quashed. Mushtaq Ahmed v. Nasreen Akhtar 2020 SCR 241 (A)
  94.  —recovery of dower—jurisdiction of Family Court to entertain the suit—contention was that recovery of dower is a civil liability and the Family Court had no jurisdiction to entertain the suit—Held, is devoid of any force. A full Bench of this Court has observed in Shahzad Rouf’s case (2017 SCR 1522) that once dower is fixed and even in the case of taking back the ornaments or amount, the suit can be filed before the Family Court. Sehrish Javed v. Imran Khan & 5 others 2020 SCR 378 (B).
  95.  —recovery of dower—jurisdiction of Family Court—Held: the question of filing of the suit may arise when claim is not against the husband or a guarantor rather third party is involved. Sehrish Javed v. Imran Khan & 5 others 2020 SCR 378 (C).
  96. —See Jactitation of Marriage Ayaz Hussain & another V. State & 10 others 2020 SCR 775 (D)
  97. —Preamble— purpose of enactment is expeditious settlement and disposal of matrimonial disputes and to avoid the protracted litigation between the parties. Yousaf Malik  Versus Naheed Rehman & 3 others 2021 SCR 112 (A)
error: Content is protected !!