FAMILY COURTS ORDINANCE 1985, SECTION 3, 4 & 5

Section 3–

The Family’ Appellate Court cannot exercise power in sending the suit back on remand to the Family Court for disposal and it can only decide the appeal keeping its authorit y within the four walls of the Ordinance itself.

Atiqur Rahman (Md) vs Ainunnahar 52 DLR 453

Sections 3, 5 & 4–

Family Courts Ordinance applies to all citizens irrespective of religion.

Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Sections 3 & 5–

Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC.

Kowsar Chowdhury vs Latifa Sultana 54 DLR 175.

Section 4–

The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance.

Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Section 5–

A person professing any faith has got every right to bring suit for the purpose as contained in this section–a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance.

Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514.

Section 5–

After the coming into force of the Family Courts Ordinance the Criminal Court’s jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings.

Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Section 5–

Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance–she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co­-plaintiff with his mother in suit.

Saleha Begum vs Kamal Hossain 50 DLR 180.

Section 5–

If any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the “welfare” and the “benefit” of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court.

Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532.

Section 5–

Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children.

Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612.

Section 5–

In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement.

Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of “Suit”, “plaint”, “Written statement”, “decree”, etc.clearly attracts the Limitation Act under section 29(2) thereof.

Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985.

Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife.

Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife, can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law.

Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Family Court has got every jurisdiction to decide as to whether the ‘kabinnama’ in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnised or not before it decides to grant any decree for dower and/or maintenance.

Shafiqul Huq (Md) vs Mina Begum 54 DLR 481

Section 5–

The child born during the subsistence of the marriage is a legitimate child and entitled to maintenance till his majority.

Jashimuddin (Md) alias Md Jashimuddin vs Dali Begum and another 56 DLR 358

Sections 5, 10, 11, 13 and 20–

The Family Court constituted under the Family Courts Ordinance (XVIII of 1985) cannot grant temporary injunction under Order XXXIX, rule 1 CPC in view of the bar of section 20 of the Family Courts Ordinance No.18 of 1985.

Since there is prima facie separation or talak between the petitioner and the OP No.l, the Court cannot grant any injunction restraining the opposite party Nos.2–4 from giving the OP No.1 in marriage to anyone or elsewhere.

Maqbul Ahmed vs Safia Khatun 40 DLR 305.

Sections 5 & 23–

Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only.

Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Sections 5 & 24–

Sections 5 and 24 of the Family Courts Ordinance are also applicable to the members of other than the Muslim community and they are entitled to avail settlement of disputes regarding maintenance, etc and the Family Court has got the exclusive jurisdiction to try those matters.

Ganesh Chandra Das vs Arati Acharjya 54 DLR 348

Section 5(d)–

Maintenance–The wife is not entitled to past maintenance. Maintenance can be allowed to her only from the date of institution of the suit before the Family Court till three months after the decree for dissolution of the marriage. Neither the child nor the person who maintains it can claim past maintenance from the father unless the same is previously fixed.

Rustom Ali vs Jamila Khatun 43 DLR 301.

Section 5(h)–

The restitution of conjugal right is a reciprocal right thus it is neither discriminatory nor violative of any of the provisions of the Constitution.

Chan Mia (Md) vs Rupnahar 51 DLR 292.

Section 6(2)–

A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit.

Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591.

Section 16(3B)–

A fresh and separate cause of action will arise for failure to pay money of each and every installment for the purpose of sending the judgment debtor to imprisonment for his failure to pay the money under each installment.

Maksuda Akhter vs Md Serajul Islam 51 DLR 554.

Section 16(4) & (5)–

Call it the executing Court or the trial Court, it is nontheless the Family Court which passed the decree and its power to allow installments even after passing of the decree is undoubted.

Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57.

Section 17–

Remand–The Court of appeal under the Family Courts Ordinance is not competent to remand a suit to the trial Court ­Scheme of the Family Court is quick disposal of a case between the husband and the wife and for such purpose under section 20 of the Family Courts Ordinance provisions of the Evidence Act and the Code of Civil Procedure (except sections 10 and ll thereof) have been excluded. The Court of appeal below can only decide the appeal and no power to send the case on remand to the Family Court has been given to the Court of appeal below.

Hosne Ara Begum vs Alhaj Md Rezaul Karim 43 DLR 543.

Section 17–

The appeal before the court of the District Judge against an interlocutory order passed by the Family Court was not maintainable.

Younus Mia (Md) vs. Abida Sultana Chhanda 47 DLR 331.

Sections 17(1) & 20–

Court of the District Judge whether a Family Court–under section 17(1) of the Ordinance an appeal shall lie from a judgment, decree or order of Family Court to “the Court of the District Judge.” The latter being a Civil Court, provisions of the Code of Civil Procedure would apply to the proceeding before it. There is no scope for thinking that the District Judge referred to in the Ordinance is a persona designata or a Family Court and that provision of Ordinance XLI, rule 19 were not applicable to proceeding arising out of Family Court judgment.

Md Moinuddin vs Amina Khan Majlish 42 DLR 483.

Section 17–

The ‘order’ in its widest sense may be said to include any decision rendered by a court on question between the parties of a proceeding before the court and the same can be construed or read either final or interlocutory and both are appealable.

Atiqur Rahman (Md) vs Ainunnahar 52 DLR 453

Section 17–

The order under challenge is an interlocutory order and the same is appealable­this civil revision petition is not at all maintainable.

Firojul Islam (Md) (Firoj) vs Zahanara Akter 52 DLR 107.

Section 17–

The mere fact of first plaintiffs not having preferred an appeal or a cross–appeal or cross–objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order XLI of the Code.

Hasibur Rahman (Md) vs Shakila Begum and another 53 DLR 152.

Sections 17(1) & 24–

Since the word ‘Order’ has not been defined in the Ordinance it cannot be read to mean as being only final order.

Captain Shamsul Alam Chowdhury vs Shirin Alam Chowdhury 43 DLR 297.

Section 17(5)–

The Family Court passed the impugned order rescheduling the mode of payment of the decretal dues by the petitioner in exercise of his judicial discretion.

Alamgir (Md) vs Habea Begum 52 DLR 157.

Section 17(7)–

Under section 17(7) of the Ordinance a Subordinate Judge can exercise the appellate power in such family matters only after an appeal is transferred to him by the District Judge for disposal. He has got no like power of a District Judge to take cognisance of an appeal by way of admission.

Shafiqul Huq (Md) vs Mina Begum 54 DLR 481.

Section 20–

When section 20 of the Ordinance says that provisions of the Code “shall not apply to proceedings before the Family Courts” it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts.

Younus Mia (Md) vs Abida Sultana Chhanda 47 DLR 331.

Section 20–

Section 20 of the Family Courts Ordinance is a bar to the application of the Civil Procedure Code in Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence as the provisions of appeal in the Family Courts Ordinance does not provide for taking of evidence. It being special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Family Court Ordinance does not provide for any such provision.

Saleha Begum vs Dilruba Begum 53 DLR 346.

Section 20(1)–

Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice.

Nazrul Islam Majumder (Md) vs Tahamina Akhtar and another 47 DLR 235.

Section 24–

Since the procedure under Order XLI, rule 27 is a bar under section 20 of the Family Courts Ordinance in a Family Court proceeding only recourse left to the lower Appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians and Wards Act while deciding the question of guardianship and custody of a minor.

Saleha Begum vs Dilruba Begum 53 DLR 346.

Section 27–

Suit in the Family Court in the face of earlier suit for the self–same relief in the civil Court–There is no bar either under the Family Court Ordinance or under the Code of Civil Procedure in filing two separate suits in two different Courts for the self–same relief. Pending cases in any Court other than the Family Court in matters within the exclusive jurisdiction of the Family Court may continue in such other court if filed before the Family Court Ordinance came in force but there is no bar to withdraw and discontinue a pending case from any other court and in filing a fresh suit in the Family Court for the self–same relief.

Abdur Rahman vs Shahanara Begum 43 DLR 599.

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