JAMILA JAHANOOR ASLAM, J. --- The Counsel for the Petitioner states that there is a suit for dissolution of marriage, recovery of dower amount, maintenance and for the recovery of dowry articles in the Family Court, Rawalpindi.
2. The suit is still pending adjudication, therefore, the order being impugned are interim orders thus making this writ petition maintainable. I concur with the Counsel for the Petitioner thus, am giving my findings on It.
3. The Counsel for the Petitioner states that suit was fixed for recording of Respondent No. 1 's evidence on 22.10.2008 and this date he (the Counsel for the Petitioner) approached Respondent No. 2 (Judge Family Court) and on his request the learned Judge fixed a time for recording of Respondent No. 1's evidence.
4. On the time fixed, the Counsel for the Petitioner went to the Court and cross-examined Respondent No. 1 on the basis of her affidavit dated 24.09.2008. After the cross-examination the Counsel for the Petitioner asked for the documentary evidence, he was told by Respondent No. 2 (Judge Family Court) that it was completed. The counsel for the Petitioner objected to this and informed Respondent No. 2 that he had not adopted the proper procedure and in his (Petitioner Counsel's) absence fake documents had been exhibited. The Counsel for the Petitioner does on to state that he was told by Respondent No. 2 to file an application objecting to the interim order and the next date of hearing was fixed for 03.11.2008 for recording of the Petitioner's (the Defendant's) evidence.
5. The Counsel for the Petitioner filed an application before 03.11.2008 praying for recalling the interim order passed by Respondent No. 2 as he alleged that the document exhibited were fake and fabricated and that it was imperative that they be de-exhibited. He also pointed out that the documents exhibited were not mentioned in the list of documents/reliance attached to the plaint.
A reply was filed by the Counsel for the Respondent No. 1 and after arguments, the application of the Petitioner was dismissed vide order dated 15.04.2009 which he claims, is liable to be set aside.
6. The Counsel for the petitioner contends that the provisions of Section 7(3)(4) of the West Pakistan Family Courts Act, 1964 have not been adhered to.
7. Arguments heard. Record perused.
8. Since the change of procedure of examination- in-chief has changed in family suits and instead of deposing verbally the parties are allowed to submit their affidavits on the basis of which they are cross-examined. There seems to be confusion qua the documentary evidence. Separate dates are set by the Family Courts for submission of documentary evidence and this is normally done after the cross-examination. This is in turn leads to the fact that witnesses cannot be confronted with the documents and causes confusion. This practice needs to be modified.
9. The provisions of Section 7(2), Proviso which is "Provided further that 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."
10. It is settled that Family Courts are vested with the powers to allow any witness to produce any documents on record and to pass orders they deem expedient and just for the decision of a case.
The Family Court makes it clear that family disputes are to be decided expeditiously without being burdened with the strict technicalities of law and it is for this reason that the Qanoon-e-Shahadat, 1984 has been barred under Section 17 of the West Pakistan Family Courts Act, 1964. The only requirement under the law is that proper procedure should be adopted by the Family Courts to decide it within a reasonable time and after hearing both the parties. Family Courts being special Courts can regulate their own procedure which is more flexible so that family matters can be settled by way of administration of-justice in its true sense unhindered by technicalities.
11. If documentary evidence is mentioned in the affidavit and it has been stated as annexures or exhibits it should be considered exhibited specially in light of the fact that a copy of the affidavit is given to the party cross-examining. Then, it is upto the party conducting the cross-examination to confront if the need be there. However, it is mandatory that the letters of the alphabet and numbers of exhibits be written on all the documents by the Court itself and it not be left to the respondent. Having said that parties in suits for recovery of maintenance must be allowed to put on the and/or exhibit receipts of reasonable expenditures incurred after institution of the suit of maintenance.
12. The bone of contention here is that the documentary evidence was exhibited in the absence of the Counsel for the petitioner. I have perused the record and it is very clear from the order sheet that on 22.10.2008 the Counsel for the petitioner was present and cross-examined respondent No. 1 although he was stated at the bar that he was not the Counsel present it was the other one. Be that as it may, it is admitted by the Counsel in the writ petition that he cross-examined Respondent No.
1. He should have objected to the documentary evidence at that time. It is also obvious from the order impugned that documentary evidence was not objected to at the time of cross-examination so far the counsel for the petitioner to cover up his negligence is obstructing the course of justice.
13. The perusal of the record also reveals that respondent No. 1 in her list of documents and reliance has mentioned the documents to be exhibited and the ones she has placed reliance on. Had it not been so even then Respondent No. 1 had the right under Section 7(2) of the Family Courts Act, 1064 to put the same on file after permission of the Court. The mode of evidence being at the discretion of the Family Court. The Court is bound to allow what is in the interest of justice and exercise its own powers to prevent the course of justice from being deflected from the path that leads to fair and just decision.
The writ petition is ill-founded and is devoid of merits; therefore, it warrants a dismissal in limine, .