THE
AZAD JAMMU AND KASHMIR FAMILY COURTS
ACT, 1993
ACT XI OF 1994

January 25th, 1994

AN ACT to make provisions for the establishment of Family Courts.

WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement &disposal of disputes relating to marriage and family affairs and for matters connected therewith; It is hereby enacted as follows:-

1. Short title, extent and commencement.—- (1) This Act may be called the Azad Jammu and Kashmir Family Courts Act, 1993.
(2) It extends to the whole of the Azad Jammu and Kashmir.
(3) It shall come into force on such date as the Government may, by notification in the Official Gazette, appoint.

2. Definitions.—- In this Act, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say-
(a) “Family Court” means a Court constituted under this Act;
(b) “Government” means the Azad Government of the State of Jammu and Kashmir;
(c) “Party” shall include any person whose presence as such is considered necessary for a proper decision of the dispute and whom the Family Court adds as party to such dispute;
(d) “Prescribed” means prescribed by rules made under this Act

3. Establishment of Family Courts.—– Government shall establish one or more Family Courts in each District or at such other place as it may deem necessary and appoint a judge in each of such Courts.

4. Qualifications of Judges.—- No person shall be appointed as a Judge of a Family Court unless he is or has been or is qualified to be a District Judge or an Additional District Judge or had been an Advocate of High Court for five years.

5. Jurisdiction.—- The Family Courts shall have exclusive Jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule.
Court Decisions
Jurisdiction of Family Court to entertain suit for past maintenance–Family Courts in Azad Jammu and Kashmir are competent to adjudicate upon cases pertaining to past maintenance–Provision of S. 5, Mad Jammu and Kashmir Family Court’s Act, ‘1993, gives exclusive jurisdiction to entertain, hear and adjudicate upon matter of maintenance and word “maintenance” includes, past, present and future maintenance–Words “exclusive jurisdiction” to entertain, hear and adjudicate upon matters occurring in S. 5, Azad Jammu and Kashmir Family Courts Act, 1993 ousts jurisdiction of ordinary Courts in regard to the matter enumerated in Schedule including maintenance–After enactment of Family Courts Act, 1993, matters given in Schedule of the Act, were only triable by Family Courts established in Azad Kashmir–Civil Courts, thus, were not competent to hear such matters including matter regarding past maintenance–Family Courts when adjudicating upon claim for maintenance were competent to award maintenance allowance keeping in view genuine requirements, of individual–When however, application was made under S. 488, Cr.P.C. then Family Courts could not go beyond amount specified by legislation and too from date of application or from date of order–Judgment and decree of trial Court whereby petitioner’s suit was dismissed on the ground that it lacked jurisdiction to allow past maintenance was set aside and case was remanded for decision afresh in accordance with law. PLJ 2000 Sh.C. (AJK) 61

6. Place of sitting.- Subject to any general or special orders of Government in this behalf, a Family Court shall hold its sittings at such place or places within the district as may be specified by the District Judge.

7. Institution of suits.- (1) Every suit before a Family Court shall be instituted by the presentation of a plaint or in such other manner and as may be prescribed.
(2) The plaint shall contain all facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of tile facts to which they would depose;
Provided 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.
(3) All documents which the plaintiff intends to rely upon in respect of his claim shall be appended to the plaint.
(4) The plaint shall be accompanied by as many duplicate copies thereof (including the Schedule and the lists of documents referred to in sub-section (3), as there are defendants in the suits, for service upon the defendants.
Court Decisions
Appreciation of evidence in proceedings before Family Court–Method of institution of suit and recording of evidence altogether different from cases instituted in Civil Courts–Evidence adduced before Family Court, thus, cannot be evaluated and appraised in a manner as it is appreciated in cases before Civil Courts–Documentary evidence produced before Family Court could not, therefore, be discarded for the mere reason that list of dowry and receipts were not exhibited–Appellant had appended list of her dowry as also receipts with her plaint and she was cross-examined in detail relating to such documents, therefore, documentary. evidence could not be ignored and discarded merely for the reason that the same could not be exhibited–Documentary evidence produced by appellant coupled with oral evidence sufficiently proved assertions of appellant relating to her claim of dowry–Evidence of appellant having not been challenged in cross-examination would be presumed to have been accepted by respondent–Evidence produced by appellant sufficiently proved that dowry worth specified amount was given to appellant at the time of marriage and that the same was in possession of respondent–Trial Court’s judgment and decree denying relief to appellant was set aside and appellant’s suit was decreed in terms of receipts appended with the plaint– PLJ 2002 Sh.C. (AJK) 5

8. Intimation to defendants.—— (1) Within three days of the presentation of the plaint to a Family Court the plaintiff shall send to each defendant by registered post, a copy of the plaint together with a copy of the schedule as mentioned in Section 7(2) and copies of all documents mentioned in Section 7 (3).
(2) Save as may otherwise be prescribed, the plaintiff shall also, within the time specified in sub-section (1), cause notice to be published in newspapers approved by the Family Court of the fact of his having filed the plaint.

9. Written statement.—– (1) Within fifteen days of the service of notice upon him by registered post or the appearance of a notice in a newspaper, whichever is earlier, the defendant shall appear in Court and file his written statement.
(2) With the written statement the defendant shall attach-
(a) copies of the entire documentary evidence that he wishes to produce in the case; and
(b) a list of the names and addresses of his witnesses along with a precis of the evidence that each Witness is expected to give:
(3) Copies of the written. statement and the documents referred to in subsection (2) shall be sent by registered post by defendant to the plaintiff within three days of his filing the written statement;
Provided that if there are several defendants and they file a joint written statement, only one of them shall send a copy of the written statement with the documents mentioned in sub-section (2).
(4) If the defendant fails to appear within the time specified in sub-section (1), the Family Court may proceed against him ex parte.
Court Decisions
Development not filed alongwith written statement–Cannot be considered as evidence–Report of examiner of question document could not be brought under consideration as the same was not tiled alongwith written statement as required by law–Appeal was accepted and judgment of Shariat Court as well as reference of Family Court to the report and finding based on same was ordered to he vacated by Supreme Court. PLJ 1997 SC (AJK) 317

10. Pre-trial proceeding.— (1) As soon as may be, after the written statement has been filed, the Court shall fix a date for pre-trial hearing of the case and issue notices to the parties for attending the Court on the date so fixed.
(2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties and shall also, if it so deems fit, record the statement of parties or their counsel.
(3) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.
(4) If no compromise or reconciliation is possible, the Court shall frame the issues in the case and fix a date for evidence.
Court Decisions
Suit for dissolution of marriage on basis of “khula”–Representation of respondent through agent–AJ&K Family Courts Act 1993, does not take away right of a counsel or agent to appear and act for or on behalf of his client, therefore, bar cannot be created for a lady not to be represented through her duly authorized agent or counsel. PLJ 2003 Sh.C. (AJK) 22

11. Recording of evidence.—- (1) On the date fixed for recording of evidence, the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.
(2) 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.
(3) The witnesses shall give their evidence in their own words and no question shall be put to them by any party or any counsel of a party by way of examination-in-chief, cross examination or re-examination:
Provided that the Court may, if it so deems fit, put any question to any witness for the purpose of elucidation of any point which it considers material in the case.
(4) The Family Court may permit tile evidence of any witness to be given by means of an affidavit:
Provided that if the Court deems fit it may call such witness for tile purpose of, examination in accordance with sub-section (3).
Court Decisions
Appreciation of evidence in proceedings before Family Court–Method of institution of suit and recording of evidence altogether different from cases instituted in Civil Courts–Evidence adduced before Family Court, thus, cannot be evaluated and appraised in a manner as it is appreciated in cases before Civil Courts–Documentary evidence produced before Family Court could not, therefore, be discarded for the mere reason that list of dowry and receipts were not exhibited–Appellant had appended list of her dowry as also receipts with her plaint and she was cross-examined in detail relating to such documents, therefore, documentary. evidence could not be ignored and discarded merely for the reason that the same could not be exhibited–Documentary evidence produced by appellant coupled with oral evidence sufficiently proved assertions of appellant relating to her claim of dowry–Evidence of appellant having not been challenged in cross-examination would be presumed to have been accepted by respondent–Evidence produced by appellant sufficiently proved that dowry worth specified amount was given to appellant at the time of marriage and that the same was in possession of respondent–Trial Court’s judgment and decree denying relief to appellant was set aside and appellant’s suit was decreed in terms of receipts appended with the plaint– PLJ 2002 Sh.C. (AJK) 5

12. Conclusion of trial.—– (1) After the close of evidence of both sides, the Family Court shall make another effort to effect a compromise or reconciliation between the parties.
(2) If such compromise or reconciliation is not arrived at, the Family Court shall announce its judgement and give a decree:
Provided that, a Family Court shall finally decide a case before it, within a period of four months from the date of the presentation of the plaint.
Court Decisions
Suit for dissolution of marriage on basis of “khula”–Representation of respondent through agent–AJ&K Family Courts Act 1993, does not take away right of a counsel or agent to appear and act for or on behalf of his client, therefore, bar cannot be created for a lady not to be represented through her duly authorized agent or counsel. PLJ 2003 Sh.C. (AJK) 22

13. Enforcement of decrees.—– (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register.
(2) if any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment and the delivery of property, as the case may be, in the aforesaid register.
(3) Where a decree relates to the payment of money and tile decorate amount is not paid within the time specified by the Court, the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.
(4) The decree shall be executed by the Court passing or by such other Civil Court as the District Judge, may, by special or general order, direct.
(5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such instalments as it deems fit.
Court Decisions
Whether Family Court could order recovery of maintenance allowance in instalments and whether impugned order would be deemed to be a `decree’ within meanings of sub-section 5 of section 13–Questions of–Word `decree’ appearing in sub-section 5 of section 13 of Family Courts Acts cannot be assigned restricted meanings given to it by Code of Civil Procedure 1908–Supreme Court is of the considered view that word “decree” appearing in aforesaid provision would include an order passed in recovery proceedings of maintenance allowance and thus Family Court was legally competent to order payment of arrears of maintenance allowance by installments–Order accordingly. PLJ 1996 SC (AJK) 159

14. Appeals.- (1) Notwithstanding anything provided in any other law for the time being in force, a decision or a decree passed by a Family Court shall be appealable to the Azad Jammu and Kashmir Shariat Court only.
(2) No appeal shall lie from a decree passed by a Family Court—
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939;
(b) for dower not exceeding rupees one thousand;
(c) for maintenance of rupees seventy-five or less per month,
(3) Every appeal under this Act shall be decided by the appellate Court within a period of sixty days, from the date of presentation of appeal.
(4) Subject to the provisions of sub-section (5) the order of the Azad Jammu and Kashmir Shariat Court shall be final.
(5) An appeal to the Supreme Court of Azad Jammu and Kashmir from judgement, decree or order of the Shariat Court shall lie only if tile Supreme Court of Azad Jammu and Kashmir being satisfied, that the case involves a substantial question of law of public importance grants leave to appeal.
Court Decisions
Respondent filed an appeal to Shariat Court on ground that issue regarding cruelty was decided in her favour and, as such, she was entitled to decree for dissolution of marriage on basis of cruelty and not on basis of alternate plea of “Khula”–Learned Judge in Shariat Court accepted appeal and dissolved marriage on basis of cruelty instead of on payment of “Khula” as was done by trial Court–Appeal, by leave, has been preferred against decree of Shariat Court on ground that under section 14 of Azad Jammu and Kashmir Family Courts Act, 1993, no appeal was competent before Shariat Court, as such, Judgment of Shariat Court is without jurisdiction–Primary object of sub-section (2) (a) of section 14 is to debar husband from challenging a decree for dissolution of marriage except in case of eventuality envisaged therein–Decree of dissolution of marriage has been passed in favour of respondent on basis of `Khula’-Respondent did not challenge decree for dissolution, rather her grievance is that decree for dissolution of her marriage should have been passed in her favour on basis of `cruelty’ because relevant issue was decided by Family Court in her favour–Supreme court is of the view that Shariat Court, was not debarred from hearing appeal which was filed by respondent seeking dissolution of her marriage on ground of ‘cruelty’—Appeal dismissed. PLJ 1996 SC (AJK) 162, Recovery of dower money after divorce of plaintiff–Defendant’s claim that plaintiff while obtianing “Khula” had compromised with defendant to the effect that if he divorced her through “Khula” she would forego her claim of dower money and thus, plaintiff having obtained Khula was not entitled to claim dower amount was convincing and proved on record–Remission of dower being act of plaintiffs free will and consent was not assailable and parties to such bilateral agreement were bound by the same–Plaintiff was, therefore, not found entitled to claim dower money. PLJ 2002 Sh.C. (AJK) 1 Azad Jammu and Kashmir Family Courts (Procedure) Rules, 1998, R. 22–Limitation Act (IX of 1908), Ss. 5, 29, 4, 9 to 18 & 22–Institution of appeal against judgment/order of Family Court–Limitation–Azad Jammu and Kashmir Family Courts Act 1993, being a special law, special period of limitation has been provided for the institution of appeals under the Act–Provision of S. 5, Limitation Act, 1908 stands excluded by virtue of S. 29(2) of the Limitation Act, 1908, which permits application of only Sections 4, 9 to 18 and 22, thus, S. 12 of the Limitation Act, 1908 has been made applicable to cases filed under the Act–Time spent in obtaining copies of judgment and decree has thus, to be excluded in computing period of limitation–Delay in filing appeal caused by obtaining copies of judgment and decree was therefore, condoned and appeal was deemed to be within time. PLJ 2002 Sh.C. (AJK) 1, Res-judicata–Principle of–Whether applicable to proceedings under Family Courts Act–Question of–It is clearly stated in Family Courts Act that Civil Procedure Code will not be applicable to proceedings under Family Court Act, therefore, res judicata and estoppel are not applicable–In view of question of law which arises is whether general principles of res judicata and estoppel are applicable where application of Civil Procedure Code is specifically barred–Another question which arises is whether a fresh suit on behalf of a wife who has withdrawn an earlier suit for dower after a compromise with husband in which dower has not been given up is maintainable or not–It appears that these points of law effect large number of cases–Therefore, a case for grant of leave is made out–Leave granted. PLJ 1998 SC (AJ&K) 235

15. Power of Family Court to summon witnesses.—- (1) A Family Court may issue summons to any person to appear and give evidence, or to produce or cause the production of any document:
Provided that— (a) no person who is exempted from personal appearance in a Court under sub-section (1) of Section 133 of the Code of Civil Procedure, 1908, shall be required to appear in person;
(b) a Family Court may refuse to summon a witness or to enforce a summons already issued against a witness when, in the opinion of the Court, the attendance of the witness cannot be procured without such delay, expense or inconvenience or in the circumstances would be unreasonable.
(2) If any person to whom a Family Court has issued summons to appear and give evidence or to cause the production of any document before it, willfully disobeys such summons, the Family Court may take cognizance of such disobedience, and after giving such person an opportunity to explain, sentence him to a fine not exceeding one hundred rupees.

16. Contempt of Family Courts.—– A. person shall be guilty of contempt of the Family Court if he, without lawful excuse-
(a) offers any insult to the Family Court; or
(b) causes an interruption in the work of the Family Court; or
(c) refuses to answer any question put by the Family Court, which lie is bound to answer; or
(d) refuses to take oath to state the truth or to sign any statement made by him in the Family Court; and the Family Court may forthwith try such person for such contempt and sentence him to a fine not exceeding rupees two hundred.

17. Provisions of Evidence Act and Code of Civil Procedure not to apply.—- (1) Save as otherwise expressly provided by or under this Act, the provisions of the Qanoon-e-Shahadat as in force in Azad Kashmir and the Code of Civil Procedure, 1908, shall not apply to proceedings before any Family Court.
(2) Section 8 to 11 of the Oaths Act, 1873 shall apply to all proceedings before the Family Courts.

18. Appearance through agents.—- If a person required under this Act to appear before a Family Court, otherwise than as a witness, is a pardahnashin lady, the Family Court may permit her to be represented by a duly authorized agent.

19. Court fees.- Notwithstanding anything to the contrary contained in the Court Fees Act, 1872, no court-fees shall be charged on ay plaint filed before a Family Court.

20. Investment of powers of Magistrates on Judges.— Government may invest any Judge of a Family Court -with powers of Magistrate First Class to hear the case under Section 488 of the Code of Criminal Procedure, 1898.
Court Decisions
Jurisdiction of Family Court to entertain suit for past maintenance–Family Courts in Azad Jammu and Kashmir are competent to adjudicate upon cases pertaining to past maintenance–Provision of S. 5, Mad Jammu and Kashmir Family Court’s Act, ‘1993, gives exclusive jurisdiction to entertain, hear and adjudicate upon matter of maintenance and word “maintenance” includes, past, present and future maintenance–Words “exclusive jurisdiction” to entertain, hear and adjudicate upon matters occurring in S. 5, Azad Jammu and Kashmir Family Courts Act, 1993 ousts jurisdiction of ordinary Courts in regard to the matter enumerated in Schedule including maintenance–After enactment of Family Courts Act, 1993, matters given in Schedule of the Act, were only triable by Family Courts established in Azad Kashmir–Civil Courts, thus, were not competent to hear such matters including matter regarding past maintenance–Family Courts when adjudicating upon claim for maintenance were competent to award maintenance allowance keeping in view genuine requirements, of individual–When however, application was made under S. 488, Cr.P.C. then Family Courts could not go beyond amount specified by legislation and too from date of application or from date of order–Judgment and decree of trial Court whereby petitioner’s suit was dismissed on the ground that it lacked jurisdiction to allow past maintenance was set aside and case was remanded for decision afresh in accordance with law. PLJ 2000 Sh.C. (AJK) 61

21. Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890.- A Family Court shall be deemed to be District Court for the purposes of the, Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act.

22. Power to make rules.—– (1) Government may, by notification in the Official Gazette, make rules to carry into effect the provisions of this Act.
(2) Without prejudice to the generality of the provisions contained in sub-section (1), the rules so made may, among other matters, provide for the procedure, which shall not be inconsistent with the provisions of this Act, to be followed by the Family Courts.

SCHEDULE
(See Section 5)

1. Dissolution of marriage.
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody of children.
6. Guardianship.
7. This Act of the Legislative Assembly was assented to by the President on 19-1-1994 and published in the Gazette of AJ&K on 25-1-1994.
Court Decisions
Registration of criminal case and litigation between parties asserted by plaintiff has been admitted by defendant’s witness–Wife in such state of affairs has developed hatred towards husband and evidently spouses cannot live life of harmony and in conformity with their obligations–Fact that after decree of dissolution of marriage wife had contracted second marriage and had given birth to five children could not be lost sight of–Trial Court had thus, rightly dissolved marriage which warrants no interference- PLJ 2002 Sh.C. (AJK) 17 Plea of Khula not disclosed in plaint and no issue on Khula framed–Where a statement of facts disclosed in pleading without definite .and specific plea of Khula or on proof of such facts which course-forward during course of evidence, `Khula’ being a legal issue can be raised in Trial Court or at Appellate stage without introducing amendment in pleading and further evidence- PLJ 2002 Sh.C. (AJK) 17 Khula–Dissolution of marriage on the ground of Khula without . amendment in plaint and without framing issue–Legality–Additional district judge recorded finding that issue of `Khula’ being legal one, Trial ‘Court was empowered to dissolve marriage on the basis of `Khula’ even without framing issue and that sufficient evidence to resolve issue of `Khula’ being available on record, chance of adducing more evidence cannot be given–Such finding-was maintained by High Court, therefore, District Judge was not empowered to disturb such finding which had already attained finality–Even otherwise, in case of `Khula’ marriage can be dissolved without amendment in plaint and without framing issue thereon-PLJ 2002 Sh.C. (AJK) 17, Appellants claim that he was entitled to return of specific articles and dower which he had given to respondent at time of `Nikah’ was not decide by respondent–Respondent was directed to return admitted articles and dower money in liew of khula–Decree for dissolution of marriage on ground of khula was however, maintained. PLJ 2003 Sh.C. (AJK) 22
Jurisdiction of Family Court to entertain suit for past maintenance–Family Courts in Azad Jammu and Kashmir are competent to adjudicate upon cases pertaining to past maintenance–Provision of S. 5, Mad Jammu and Kashmir Family Court’s Act, ‘1993, gives exclusive jurisdiction to entertain, hear and adjudicate upon matter of maintenance and word “maintenance” includes, past, present and future maintenance–Words “exclusive jurisdiction” to entertain, hear and adjudicate upon matters occurring in S. 5, Azad Jammu and Kashmir Family Courts Act, 1993 ousts jurisdiction of ordinary Courts in regard to the matter enumerated in Schedule including maintenance–After enactment of Family Courts Act, 1993, matters given in Schedule of the Act, were only triable by Family Courts established in Azad Kashmir–Civil Courts, thus, were not competent to hear such matters including matter regarding past maintenance–Family Courts when adjudicating upon claim for maintenance were competent to award maintenance allowance keeping in view genuine requirements, of individual–When however, application was made under S. 488, Cr.P.C. then Family Courts could not go beyond amount specified by legislation and too from date of application or from date of order–Judgment and decree of trial Court whereby petitioner’s suit was dismissed on the ground that it lacked jurisdiction to allow past maintenance was set aside and case was remanded for decision afresh in accordance with law. PLJ 2000 Sh.C. (AJK) 61