PLJ 1990 Lahore 399
Present: MALIK MUIIAMMAD
QAYYUM J BASHIR
AHMAD-Petitioner
versus
Mst. ZUBAIDA BIBI and
another-Respondents
Writ petition No. 1662 of 1990 accepted on
29.5.1990
Family Courts Act, 1964 (W.P. Act XXXV of
1964)-
—-Ss. 17 & 10-Dissolution of
marriage-Suit for-Non-filing of written statement—Defence struck off and suit
decreed—Challenge to—Contention that even if no written statement had been
filed, it was incumbent upon Family
Court to have recorded some evidence in support of case set up by respondent No. 1 and suit could not be decreed
without any proof-Provisions of CPC are not applicable to proceedings
before Family Court in view of Section 17 of Act-Held: Words "if any"
appearing in Section 10(2) ordain that even
if there is no written statement, reconciliation proceedings must be held and evidence should be recorded-Writ
petition accepted. [P. 400]A,B&C
PLD 1989 Lahore
69 rel.
Mr. Klialid Ikram Kliatana, Advocate for
Petitioner. Mr. Tahir
Qureshi, Advocate for
Respondent No.l. Nemo for Respondent No.2. Date
of hearing: 29.5.1990.
judgment
Respondent No.l, Mst, Zubaida Bibi was
married to Bashir Ahmad petitioner
about 6-7 years ago. Unfortunately, the parties fell apart and on 28th October, 1989, respondent No.l filed a
suit seeking dissolution of her marriage on various grounds. In response to the summons issued by the
Family Court, the petitioner
appeared before it on 18.12.1989 when the case was adjourned to 17.1.1990. On this date the case was
adjourned for filing of written statement to 24.1.1990 at the request of the learned counsel appearing
on behalf of the petitioner.
Again no written statement was presented on 24.1.1990 nor on 12.2.1990 when the learned Judge
Family Court proceeded to strike off the defence of the petitioner and without recording any
evidence decreed the suit of the respondent. This judgment and decree of the
Family Court has been assailed by the petitioner by filing this constitutional petition.
2. The contention of the learned
counsel for the petitioner is that even if no written statement had been presented on behalf of the
petitioner, it was incumbent
upon the Family Court to have recorded some evidence in support of the case set up the respondent No.l
and the suit could not be decreed without any proof merely on the ground that no written statement had
been filed on behalf of the
petitioner.
This contention of the learned counsel
is well founded. There can be no dispute that the provisions of the Code of
Civil Procedure are not applicable to the proceedings before the Family Court in view of the
express provisions contained
in section 17 of the Punjab Family Courts Act, 1964, Neither this Act nor the rules framed thereunder
authorise the Family Court to decree the suit merely on the failure to file written statement. On the
other hand the intention to the contrary is spelt out from section 10 of the
Punjab Family Courts Act, 1964, sub-section (2) whereof provides that on the date fixed, the Court shall
examine the plaint, the
written statement (if any) and the precis of evidence and documents filed by the parties. According to
sub-section (3), the Court shall make an attempt to effect a compromise or reconciliation between the
parties. Sub-section (4) provides,
that if no compromise is possible the Court shall frame the issues and fix a date for recording of evidence. The
words 'if any' appearing in sub-section (2) are significant and ordain that even if there is no
written statement, reconciliation proceedings must be held and evidence should
be recorded. In a somewhat similar situation, this Court in Muhammad Ashraf vs. Nasreen Begum
through legal heirs and
3 others (PLD 1989
Lah. 69), held that the Family Court could not without recording evidence
decree the suit who has been proceeded against exparte. Faced with this situation, the learned
counsel for the contesting respondent has nothing to argue.
As a result
of what has been stated above, this writ petition is accepted, the judgment and decree of the Family Court
dated 12.2.1990 is declared to be without lawful authority and of no legal effect with the result that the
suit filed by respondent
No.l shall be deemed to be pending before the Family Court which shall now be decided by it in
accordance with law. The parties shall appear before the Judge, Family Court on 13.6.1990
who shall make efforts to decide the suit expeditiously. No order as to costs:
(MBC) Petition accepted
(MBC) Petition accepted
