JAVAD IQBAL KHAN vs NAHID HUSSAIN and another
This constitutional petition challenged a trial court order that recorded the statement of the respondent (the wife) in a family suit before the petitioner (the husband) had been served or had filed a written statement. The respondent had sought to record her evidence under Order XVIII, Rule 16, Code of Civil Procedure 1908, citing her impending departure for Saudi Arabia. The core legal question was whether a family court could record evidence before completing the mandatory procedural stages prescribed by the Family Courts Act, 1964. The Lahore High Court held that the trial court committed a material irregularity by recording evidence without serving the defendant, providing notice, or allowing cross-examination. The Court emphasized that the Family Courts Act, 1964 mandates a specific sequence: filing of a written statement, a pre-trial reconciliation hearing, and only then, if reconciliation fails, the framing of issues and recording of evidence. Consequently, the Court set aside the impugned order, directing the trial court to follow the statutory procedure, including reconciliation efforts, before proceeding to record evidence.
- Can a family court record evidence before the defendant has been served and a written statement filed?
- Is a pre-trial reconciliation hearing mandatory under the Family Courts Act 1964 before recording evidence?
- Does the recording of evidence without notice to the opposing party constitute a material irregularity in family court proceedings?
- Order XVIII Rule 16, Code of Civil Procedure 1908
- Section 10, Family Courts Act 1964
- Section 11, Family Courts Act 1964
ORDER
'RAUF AHMAD SHEIKH, J.---The petitioner has assailed the vires of order dated 25-5-2010 whereby the statement of the respondent No,1 was recorded before filing of the written statement on an application submitted by her on 24-5-2010 under Order XVIII, Rule 16, C.P.C. She had contended that she was proceeding to Saudi Arabia, where she is serving as lady doctor so her statement be recorded. On this application, the learned trial Court proceeded on to record her statement.
2. It is clear that the defendant/petitioner had not been served till then in the suit. No notice of the application was given to him before recording the statement. He was not afforded an opportunity of cross-examination. The Family Courts Act, 1964, provides a special procedure. Under section 10 of the Act ibid, after submission of the written statement, pre-trial hearing of the case is to be held and an effort, is to be made for reconciliation. If the reconciliation effort does not bear fruit then the court shall pass a decree for dissolution of marriage on the principle of Khula and the material propositions on which the parties are at variance are to be reduced into issues and then the evidence is to be recorded under section 11 thereof. This being so, the learned trial Court committed irregularity in recording the evidence of the respondent No,1 without completing codal formalities and without giving notice to the petitioner. The learned trial Court should allow the petitioner to file the written statement, fix a date for reconciliation and if the reconciliation is not possible should proceed further in accordance with law in passing the decree on principle of Khula and the remaining disputed matters be reduced into issues and thereafter the evidence be recorded in accordance with the provisions of law. With these observations, the writ petition stands disposed of.