Precise facts of this writ petition are that dispute arose between the marital spouses which was resolved through arbitration and a word was given on 1-12-2000 by virtue of terms of award respondent No,2 was to pay Rs,2,00,000 to the petitioner in case of obtaining Khula' and hand over the children to petitioner. Children are still in the custody of petitioner and respondent is not interested to keep the children with her. Instead of compliance of the terms of award respondent No,2 has filed suit for dissolution of marriage before the learned Judge Family Court, Sahiwal, which is pending adjudication before the same Court and next date of hearing is 8-2-2002, following issues are formulated:--
(i) Whether the plaintiff is entitled to decree for dissolution of marriage as prayed for?OPP
(ii) Whether the plaintiff has no cause of action to file the instant suit? OPD
(iii) Relief.
2. The petitioner has now applied to formulate additional issues as per pleadings of parties in view of preliminary objections in written statement. Application for formulation of additional issues was rejected by the order of learned Judge Family Court, which is under challenge in this writ petition.
3. Arguments advanced by learned counsel for the petitioner are that it is the bounden duty of the Court to formulate issues which are arising out of the pleadings of the parties.
4. I have heard the learned counsel for the petitioner and perused the record. Learned Judge Family Court vide order dated 23-1-2002 has observed that issues have been formulated and Issue No,2 is "Whether the plaintiff has no cause of action to file the instant suit?OPD. This issue is sufficient to produce evidence whatsoever, in the presence of said issues no further issue can be framed. Section 10(4) of Family Courts Act. 1964 is reproduced as under:-- "If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording of evidence." Section 11(2) of Family Courts Act, 1964 is reproduced as under:-- "The Court shall not issue any summons for the appearance of any witness unless within three days of the framing of issues any party intimates the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible or practicable for such party to produce the witness."
These provisions of law show that unlike Civil Procedure Code the Family Court is restrained to formulate issues at later stage as it will violate the provisions of section 11(2) of Family Courts Act, 1964, which is a mandatory provision of law to summon the evidence within three days of framing of issues.
2. Even otherwise under section 7 proviso the Family Court may allow any evidence at any later stage if it is expedient for justice. Issue No,2 lack of cause of action envisages the petitioner's preliminary objection as to the maintainability of present suit, therefore, the order of learned Judge Family Court is not to be interfered in the Constitutional jurisdiction. Writ petition is dismissed in limine.