Law & Advocacy

The Family Courts (Amendment) Act 2015 (AA of 2015) amends the Family Courts Act 1964, Act XXXV. These changes speed up the litigation, reducing the time period in which a defendant may file his reply. Failure to file reply during this time period will result in the closing of the defendant’s right of defence, and the family court will decide the case in favour of the woman according to law. A crucial change allows women to keep up to 50% of the dower in the case of Khula, where before she was bound to return/leave the dower.

The following sections have been amended:

Section 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 [Part I of the Schedule].

To “Part I of the Schedule” specified in subsection (1) have been added “9. The personal property and belongings of a wife and a child living with his mother” and “10. Any other matter arising out of the Nikahnama”, extending the jurisdiction of the family courts.

Section 8, Intimation to defendant

(1) When a plaint is presented to a Family Court, it–

(a) [shall] fix a date [* *] 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, [or by courier service or by both] a notice of the suit, together with a copy of the plaint, a copy of the Schedule referred to in sub-section (2) of section 7 and copies of the documents and a list of documents referred to in sub-section (3) of the said section.

In clause (a) of subsection (1), “thirty days” has been changed to “fifteen days”. In (c), “three days” has been changed to “two days” and allowance for email communication has been added.

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Section 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.

Subsection (1) has been changed, and now specifies that “in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date.”

Moreover, (5A) has been added after subsection (5):

If the defendant fails to submit the written statement on or before the date under subsection (1), the defence of the defendant shall stand struck off and the Family Court shall decide the case under the law.

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Section 10, Pre-trial proceedings.

(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:

Provided that notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.

“Reconciliation” has been removed in subsections (3) and (4), leaving only “compromise” in the description of pre-trial proceedings.

(5) and (6) have been added to specify the proceedings after the Court decrees for the end of marriage, mentioning that in case of khula, the Court “may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband”, and that the Court shall “direct the husband to pay whole or part of the outstanding deferred dower to the wife.”

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Section 11, Recording of evidence.

(1) On the date fixed for [39][recording of the evidence] the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.

(1A) has been added after subsection (1), allowing for the use of audio-video recordings as evidence: The Family Court shall record or cause to be recorded, the substance of the statement of a witness or may record or cause to be recorded, the statement of a witness through audio or video recording.

Section 14, Appeals

(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 [or dowry] not exceeding rupees thirty thousand;

(c) for maintenance of rupees one thousand or less per month.

The fines of “thirty thousand” and “one thousand” rupees mentioned in clauses (b) and (c) of subsection (2) have been replaced by fines of “one hundred thousand” and “five thousand” rupees respectively. Accordingly, in Section 15, Power of Family Court to summon witnesses, the words “not exceeding one thousand” have been replaced with “five thousand”.

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Section 17-A, Interim order for maintenance.

At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit.”

This has been replaced with “17A. Suit for maintenance”, in which the word “may” has been replaced with “shall”, and specifies that the interim maintenance will be fixed on the date of the first appearance of the defendant. It further states that the Court may “may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant”.

In case of failure to pay the maintenance by the fourteen of each month, “the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.”

Furthermore, the Family Court may “fix an amount of maintenance higher than the amount prayed for in the plaint” and “prescribe the annual increase in the maintenance”. If the Court does not specify such an annual increase, the maintenance “shall automatically stand increased at the rate of ten percent each year.”

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Section 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.”

Section 20 has been replaced with “20 – Family Court to exercise the powers of the Judicial Magistrate”, which states that a family court “shall be deemed as the Judicial Magistrate of the first class under the Code of Criminal Procedure, 1898 (V of 1898) for taking cognizance and trial of any offence under this Act; the Muslim Family Laws Ordinance, 1961 (VIII of 1961); and, the Child Marriage Restraint Act, 1929 (XIX of 1929)”.

Section 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.

Section 21 is now followed by “21A. Intimation to Arbitration Council”, which states that in case of dissolution of marriage by the Family Court , it is required to “immediately but not later than three days from the decree send by registered post or other means a certified copy of the decree to the concerned Chairman of the Arbitration Council”, and that “upon receipt of the decree, the Chairman shall proceed as if he had received intimation of Talaq under the Muslim Family Laws Ordinance, 1961 (VIII of 1961).”

An Act to give effect to the Foreign Marriages Order in Council, 1903.

Whereas it is expedient to give effect to the Foreign Marriages Order in Council, 1903 ; It is hereby enacted as follows :-

1. Short title, extent and application.- (1) This Act may be called the foreign Marriage Act, 1903.
(2) It extends to the whole of Pakistan.
(3) It applies also to all citizens of Pakistan and to all persons in the service of Government whether citizens of Pakistan or not, in any Acceding State.

2. Notice of marriage intended to be solemnized under 55 & 56 Vict., c. 23.-(1) Notice in writing of a marriage which it is intended to solemnize under the Foreign Marriage Act, 1892, may be given by one of the parties intending such marriage, to
(a) Marriage Registrar appointed under the Christian Marriage Act, 1872, where either of such parties is a person professing the Christian religion ;
(b) a District Magistrate, or Political Agent, where neither of such parties is a person professing the Christian religion :
Provided that the party giving such notice as aforesaid shall have had his usual place of abode for not less than three consecutive weeks immediately preceding the giving of notice within the local limits of the area for which the Marriage Registrar, Magistrate or Political Agent to whom the notice is given, if appointed.
(2) Every notice given under this section shall state-
(a) the name, surname, age and profession or condition of each of the parties intending marriage ;
(b) the residence of each of them ;
(c) the time during which each of them has dwelt there ; and
(d) the place In which the intended marriage is to be solemnized ; and it shall contain a declaration by the party giving the notice to the effect that he believes that there is no impediment of kindred or affinity or other lawful hindrance to the solemnization of the said intended marriage.
(3) A copy of every notice given under this section shall be published by being affixed in some conspicuous place in the office of the officer to whom the notice is given.
(4) On the expiration of four clear days after such notice as aforesaid has been published in the manner prescribed by sub-section (3), the officer to whom the notice is given, unless he is aware of any impediment of kindred or affinity or other lawful hindrance to the solemnization of the said Intended marriage, shall, on payment of such fee (if any) as [the Provincial Government] for each Province and the Central Government for [the citizens of Pakistan and Servants] of the State in any [Acceding State] may fix in this behalf, furnish the party by whom the notice was given, with a certificate, under his hand and seal, to the effect that the notice has been so given and published.

An Act to restraint the solemnization of child marriages.

Whereas it is expedient to restrain the solemnization of child marriages:
It is hereby enacted as follows:

1.Short titled, extent and commencement.
(1) This Act may be called the Child Marriage Restraint Act (1929).
(2) It extends to the whole of Pakistan and applies to all citizens of Pakistan wherever they may be.
(3) It shall come into force on the 1st day of April, 1939.

2.Definitions.
In this Act, unless there is anything repugnant in the subject or context,
(a) “child” means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age;
(b) “child marriage” means a marriage to which either of the contracting parties is a child;
(c) “contracting party” to a marriage means either of the parties whose marriage is or is about to be thereby solemnized;
(d) “minor” means person of either sex who is under eighteen years of age,
(e) “Union Council” means the Union Council or the Town Committee constituted under the Law relating to Local Government for the time being in force.

PUNJAB AMENDMENT IN SECTION 2:
(i) at the end of clause ©, the word “and” shall be added;
(ii) the comma appearing at the end of clause (d) shall be replaced by a full stop; and
(iii) clause e shall be omitted.
Punjab Ordinance, 23 of 1971.

3.Omitted by Muslim Family Laws Ordinance, 1961 (VIII of 1961 S. 12 (w.e.f. 15.07.1961).

4.Punishment for male adult above eighteen years of age marrying a child.
Whoever, being a male above eighteen years of age, contracts child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

5.Punishment for solemnizing a child marriage.
Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.

6.Punishment for parent or guardian concerned in a child marriage.
(1) Where a minor contracts a child marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both:
Provided that no woman shall be punishable with imprisonment.
(2) For the purpose of this section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.

7.Imprisonment not to be awarded for offence under section 3.
Notwithstanding anything contained in section 25 of the General Clauses At, 1897, or section 64 of the Pakistan Penal Code, Court sentencing an offender under section 3 shall not be competent to direct that, in default of payment of the fine imposed, he shall undergo only term of imprisonment.

8.Jurisdiction under this Act.
Notwithstanding anything contained in section 90 of the Code of Criminal Procedure, 1898, no Court other than that of a Magistrate of the First Class shall take cognizance of or try any offence under this Act.

9.Mode of taking cognizance of offence.
No Court shall take cognizance of any offence under this Act except on a complaint made by the Union Council, or if there is no Union Council in the area, by such authority as the Provincial Government may in this behalf prescribe, and such cognizance shall in no case be taken after the expiry of one year from the date on which the offence is alleged to have been committed.

PUNJAB AMENDMENT
In section 9:
The words and commas “except on a complaint made by the Union Council, or if there is no Union Council in the area, by such authority as the Provincial Government may in this behalf prescribe, and such cognizance shall in no case be taken” occurring after the words “under this Act” and before the words “after the expiry” shall be omitted.

Punjab Ordinance, 23 of 1971, S. 3.
10.Preliminary inquiries into offences under this Act.
The Court taking cognizance of an offence under this Act shall, unless it dismisses the complaint under section 203 of the Code of Criminal Procedure, 1898, either itself make an inquiry under section 202 of that Code or direct a Magistrate of the First Class subordinate to it to make such inquiry.

11.Omitted by Muslim Family Laws Ordinance, 1961.

12.Power to issue injunction prohibiting marriage in contravention of this Act.

(1) Notwithstanding anything to the contrary contained in this Act, the Court may, if satisfied from information laid before it through a complaint or otherwise that a child marriage in contravention of this Act has been arranged or is about to be solemnized, issue an injunction against any of the persons mentioned in sections 3, 4, 5 and 9 of this Act prohibiting such marriage.

(2) No injunction under sub-section (1) shall be issued against any person unless the Court has previously given notice to such person, and has afforded him an opportunity to show-cause against the issue of the injunction.

(3) The Court may either on its own motion or on the application of any person aggrieved, rescind or alter any order made under sub-section (1).

(4) Where such an application is received, the Court shall afford the applicant an early opportunity of appearing before it either in person or by pleader, and if the Court rejects the application wholly or in part, it shall record in writing its reasons for so doing.

(5) Whoever, knowing that an injunction has been issued against him under sub-section (1) of this section disobeys such injunction shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both:
Provided that no woman shall be punishable with imprisonment.