By Fatima Ghufran (Pakistan)

Irrespective of the various contemporary dispute resolution frameworks in place, family disputes have remained a sensitive domain since time immemorial. While legal proceedings are rarely straightforward in any context, disputes arising within the family pose a unique challenge, as they frequently engage emotional, social, and time sensitive considerations that strain the adequacy of rigid procedural frameworks. Matters such as the custody and guardianship of minors, maintenance of pregnant wives, domestic violence, and visitation rights often require a degree of judicial sensitivity and contextual appreciation to reach outcomes that are fair and just, particularly where the welfare of minors, children with special needs, or victims of abuse is involved. In such circumstances, the formal and adversarial environment of ordinary courts may itself become an impediment to justice. This procedural inadequacy of strict formalism necessitates a forum capable of adapting process to welfare oriented adjudication rather than strict adherence to rules.

The Family Courts Act, 1964 responds to this need by establishing a specialised adjudicatory framework. Under section 5, exclusive jurisdiction is vested in Family Courts to hear and determine matters including khula, dower, maintenance, and custody. The Act thus operates as a special law that consciously departs from the rigid procedural regimes of ordinary civil proceedings. This departure has been judicially recognised by the Supreme Court, which has observed that “The voice of the child must be heard and respected in every custody and guardianship matter. Family Courts have a moral and legal responsibility to see, hear, and protect every child not as a passive subject of proceedings, but as a rights bearing individual whose dignity must be safeguarded at every stage of the judicial process” (per Mansoor Ali Shah J., Dr. Muhammad Asif v Dr. Sana Sattar and others, SCP, 2025). The case concerned a custody dispute involving two minor children, aged eight and seven, where the younger child suffered from significant developmental delays requiring continuous therapeutic care. In determining custody, the Court prioritised the child’s special needs and emotional stability, holding that his best interests were served by remaining with the mother as the primary caregiver. Significantly, this conclusion was reached through a welfare based, inquisitorial assessment rather than strict adversarial testing; a style typical of the quasi-judicial function of Family Courts, and difficult to achieve in ordinary civil cases.

The legitimacy of this child centric and welfare oriented approach finds support in both international law and the constitutional framework of Pakistan. Articles 3 and 12 of the United Nations Convention on the Rights of the Child enshrine the primacy of the child’s best interests and the right to be heard in matters affecting them. These principles resonate within the Constitution of Pakistan, particularly Articles 9, 14, 25, and 35. Article 9 guarantee of the right to life encompasses the right to a secure, healthy, and meaningful existence; Article 14 protects the inherent dignity of every person, including children and Article 25 ensures equality before the law and prohibits discrimination. Crucially, Article 35 obligates the State to protect the marriage, the family, the mother, and the child, thus constitutionally supporting a legal approach that prioritizes familial interests above procedural rigidity. Read together, these provisions provide a robust constitutional foundation for Family Courts to exercise procedural flexibility in pursuit of substantive justice. This fusion of socially responsive legislation, the Family Courts’ inquisitorial approach, and the constitutional priority on child welfare and equitable outcomes firmly establishes them in Pakistan as a quasi-judicial forum capable of delivering legally sound, socially responsive, and humane justice.

The quasi-judicial nature of Family Courts is most clearly reflected in the procedural departures mandated by the Family Courts Act, 1964, particularly under section 10. Unlike ordinary civil litigation, section 10(2) requires the Court at the outset to examine the pleadings, supporting material, and, where appropriate, hear the parties, enabling an early understanding of the substance of the dispute. More significantly, section 10(3) empowers the Court at the pre-trial stage to identify points of controversy and actively attempt reconciliation before proceeding to frame issues and record evidence. This sequencing prioritises conciliation and welfare oriented resolution over adversarial determination, placing the judge in an active, facilitative role. The legislature’s intent to free Family Courts from rigid procedural constraints is further evident from section 17, which excludes the application of the Qanun-e-Shahadat, 1984 and most provisions of the Code of Civil Procedure, 1908, and section 5(2), which confers limited criminal jurisdiction notwithstanding the Code of Criminal Procedure. Together, these provisions demonstrate that Family Courts are designed to adjudicate through flexible, inquisitorial processes, which are the hallmarks of a quasi-judicial forum.

The quasi-judicial character of Family Courts in Pakistan emerges not as a departure from legality, but as a much needed response to the nuanced nature of family cases. By adopting procedures that are flexible, emphasise reconciliation, and focus on the welfare of children and other vulnerable parties, Family Courts function beyond mere formalism in both their structure and practice. This flexibility, however, is not without its challenges. Increasing caseloads, procedural delays, and the risk of creeping formalisation threaten to dilute the very attributes that distinguish Family Courts from ordinary civil and criminal forums. Nevertheless, the continued relevance of Family Courts lies in their capacity to balance legal adjudication with social sensitivity. Preserving this equilibrium is crucial so that Family Courts can effectively deliver substantive justice in matters involving the most intimate aspects of human relationships.