MALIK MUHAMMAD QAYYUM, J.-Respondent No. 1, Mst. Zubaida Bibi was married to Bashir Ahmad petitioner about 6-7 years age. Unfortunately, the parties fell apart and on 28th October, 1989, respondent No. 1 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 OF of 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 has been presented on behalf of the petitioner, it was incumbant upon the Family Court to have recorded some evidence in support of the case set up by the respondent No. 1 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.
3. 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 i.e the written statement. On the other had 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 ex parte. Faced with this situation, the learned counsel for the contesting respondent has nothing to argue.
4. 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. 1 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.