Section 9(2) of the Family Courts Act, 1964 („Act‟) clearly provides that where a defendant relies upon a document in his possession or power, he shall produce it or copy thereof in the Court along with the written statement. Sub-section (4) of Section 9 ibid requires copies of the documents referred to in subsection (2) to be given to the plaintiff along with the written statement on the date fixed for that purpose.
Although the word “shall” has been used in subsections (2) & (4) of Section 9 of the Act, however, that does not make these provisions mandatory thereby rendering non-compliance thereof absolutely fatal so as to prevent a defendant from belatedly filing and producing in evidence any document that was not filed along with the written statement. This is primarily for the reason that no such penal consequences have been specified by the legislature in Section 9 of the Act. It thus remains discretionary for the Family Court to permit a defendant to file any document, deliver a copy thereof to the plaintiff that was not filed along with the written statement and produce the same in evidence in a suit. The question then arises what are the principles governing the exercise of such discretion by the Family Court?
It is well settled that a purposive rather than literal approach to the interpretation is to be adopted while interpreting provisions of the Family Courts Act, 1964, therefore, an interpretation which advances purpose of the Act is to be preferred over an interpretation which defeats its object. It cannot be lost sight of that a special forum of the Family Court has been created by the legislature for expeditious settlement and disposal of disputes relating to marriage and family affairs, as manifest from preamble of the Act. Section 12A of the Act has specified a period within which such cases have to be disposed of by a Family Court. It is a quasi-judicial forum which can draw and follow its own procedure provided such procedure is not against the principles of fair hearing and trial.
Keeping in view the principle of purposive interpretation as also the aforementioned object of the Act, it is held that permission for belated filing and production of a document in evidence cannot be granted as a matter of routine. The discretion should be exercised by the Family Court through a speaking order keeping in view the facts and circumstances in each case. The relevant considerations for the Family Court in this regard include the stage of proceedings at which the permission is sought, reason furnished by a defendant that prevented him from filing and producing the document at the relevant time, nature of the document sought to be filed and produced (such as admissible per se or otherwise required to be proved), delay in conclusion of the proceedings likely to be occasioned by the permission and likelihood of any other prejudice to the plaintiff if the permission sought is granted.
It is abundantly clear that permission to produce additional evidence in this case has been denied to the petitioner for having been made at the fag end of proceedings in the suit after recording of evidence by the parties and that too to adduce a private document which is not admissible per se. No valid reason preventing the petitioner from filing and producing the document sought to be tendered in evidence at the relevant time has been advanced and it has been rightly found to be an attempt to fill in lacuna after evidence of the parties has been recorded. The permission sought, if granted, would not only cause serious prejudice to the case of the respondent-plaintiff but also defeat the object of the Act i.e. expeditious disposal of the dispute. Therefore, the exercise of discretion on part of the Courts below in this case is clearly not arbitrary, capricious or whimsical but manifestly based on valid reasons which do not warrant interference by this Court.
WP 65227/23
Muhammad Nawaz Vs ADJ Hafizabad etc
Mr. Justice Raheel Kamran
05-10-2023
2023 LHC 4878
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