Mst. FAIZ NOOR vs DILAWAR HUSSAIN and others
This constitutional petition challenges the orders of the Family Court, Lahore, which set aside an ex parte decree for maintenance allowance in favor of the petitioner. The core legal question was whether the Family Court acted lawfully in denying the petitioner the opportunity to cross-examine the respondent regarding his application to set aside the ex parte decree, particularly when the petitioner had produced evidence of service. The High Court held that the Family Court erred by failing to provide this essential opportunity for cross-examination, which prevented a judicious adjudication of the matter. The Court emphasized that while the Family Court has discretion in procedural matters, it is under a duty to ensure fairness, especially when determining whether to set aside an ex parte decree. Relying on the provisions of the West Pakistan Family Courts Act, 1964, the High Court set aside the impugned orders and remanded the case, directing the trial court to allow the petitioner to cross-examine the respondent's evidence before deciding the application afresh to ensure the interests of justice are served.
- Does the Family Court have a duty to allow cross-examination of a witness supporting an application to set aside an ex parte decree?
- Can a Family Court permit the calling of witnesses at a later stage if it is considered expedient in the interest of justice?
- Is an order denying the opportunity for cross-examination in a Family Court proceeding subject to constitutional review?
- Section 7(2), West Pakistan Family Courts Act, 1964
' The brief facts leading to the filing of the present petition are that the petitioner filed a suit for recovery of maintenance allowance; she got an ex party decree passed against the respondent No, 1 vide judgment and decree dated 2-9-1986 by the Judge, Family Court, Lahore. The respondent No, 1 filed an, application for setting aside the said judgment and decree on 16-11-1986 which was resisted by the present petitioner. On 28-6-1989 the evidence of the respondent No,1 was recorded as the Court hours were over, the counsel for the petitioner requested for adjournment of the case for next day for cross-examination. His request. Was turned down. The petitioner filed an application for recall of the witness which was also dismissed on 16-9-1989. The petitioner challenged the order dated 28-6-1989 and 16-9-1989 in W.P. No,776 of 1990 which was disposed of with the observation that the petitioner could challenge the interim orders when the final order in the instant suit is passed. Thereupon the petitioner produced evidence and the learned Judge, Family Court vide judgment and decree dated 31-1-1993 accepted the application of the respondent No,1 and set aside the ex parte decree passed on 2-9-1986. The petitioner has now challenged the order dated 31-1-1993, 28-6-1989 and 16-9-1989 being passed without lawful authority. Without keeping in view the present law, the learned Judge, Family Court should have given an opportunity of cross-examination to the petitioner since she had produced a registered acknowledgement due of the service of notice upon the respondent No,1 which was annexed with the reply of the petitioner. Since the petitioner was not given an opportunity of cross-examination so the learned Judge, Family Court could not adjudicate the matter judiciously.
2. I have seen the acknowledgement due received by the respondent No,1. Under proviso to subsection (2) of section 7 of the West Pakistan Family Courts Act, 1964 the parties may with the permission of the Court call any witness at any later stage if the Court considers such evidence expedient in the interest of justice. So far as the contention of the learned counsel for the petitioner is concerned they seem very reasonable because the learned fudge, Family Court was to look for setting aside an ex parte decree in favour of the petitioner and against the respondent, he was under the duty to give opportunity of cross-examination to the petitioner which has not been afforded to her although the provisions of the Family Court Act allow the evidence to be A called at the later stage.
3. In view of the above observation, I accept this petition, set aside the orders dated 28-6-1989, 16- 9-1989 and 31-1-1993 passed by the learned Judge, Family Court and remand this case back to the Judge, Family Court, Lahore so as to provide an opportunity of cross-examination of the evidence of respondent No,1 in the application for setting aside the ex parte decree and after careful scrutiny of the same decide the case afresh.
Cited by 3 cases
- Sadia Arif vs Adnan Shahid and 2 others 2021 YLR 1753
- Sadia Arif vs Adnan Shahid, etc 2021 IHC 114
- MUHAMMAD FAZAL RASOOL vs ADDITIONAL DISTRICT JUDGE, FEROZEWALA 2020 [M] C L R 1310, 2012 MLD 1948