Family Case Laws
Fatwa, Validity
SBLR 2007 FSC 135
Court held that not Fatwa of any religious Scholar, Mufti, a Juris, Consultant is not binding on a Court of law or any party having of no legal effect—Consequently not enforceable under Law or any party having of no legal effect— consequently not enforceable under law
Hindu Separation Suit
Hindu Married Women s Rights to Separate Resident and Maintenance Act, 1946– —-Scope of–Muslim Family Courts Act, 1964, S. 10(5)–Muslim Family Law Ordinance, 1961, S. 1(2)–Hindu lady, filed suit for separation against petitioner, which was allowed by Family Court under Section 10(5) of Family Court Act 1964–Petitioner challenging judgment of family Court–Held: Act, 1964 is not only relating to muslim family matters and Special Courts were established to exercise jurisdiction in respect of all matters as mentioned in Part I of schedule under Section 5 of Act irrespective of facts that any dispute brought to special Court, i.e family Court is by a Muslim or a non Muslim or a Hindu. [P. 733] A
Paternity of Minor
PLJ 2016 Lahore High Court 818
Paternity of Minor– —-Disown paternity of minor by father-Jurisdiction–Question of paternity can only be decided by Civil Court–Validity–Question of paternity cannot be determined by Family Court and as such District Judge in appeal could not remand case to Family Court to determine paternity of minor–Family Court as well as Court of District Judge is not a Court of civil jurisdiction as understood in CPC–It is only a civil Court which can adjudicate upon paternity of minor.
Jurisdiction of family court in custody cases
2017 CLC Note 162
PLD 2012 Supreme Court 66
custody and guardianship of minor–determination of jurisdiction… family court had exclusive jurisdiction to entertain, hear and adjudication all the matters which fell within first Schedule of Family Court Act 1964 which included and guardianship matters…. In the present case, application for custody of minors filed under section 25 of guardian and ward Act 1890 was returned for presentation before the appropriate forum.. constitution Petition was allowed accordingly,
wife not entitle of maintenance
2017 CLC Notes 163
wife was stay away from husband and was not performing her part of marital obligation and that too without any justification wife has failed to prove the maltreatment against the husband. wife was not entitled for maintenance allowance
When wife Voluntarily Left the husband house she cannot claim maintenance
2016 YLR 371 Supreme Court Azad Kashmir
Section 5 sched .. cruel attitude was not confined only to the extent of physical violence but it would include mental torture hateful attitude of husband or other inmates of the house and also included the circumstances in presence of which wife was forced to abandon the house o her husband. Wife has failed to prove cruelty in the present case. Family court has correctly passed decree on the ground of khula. Husband was bound to pay maintenance charges to the wife till she was faithful to him and lived with im and if she had voluntarily left eh house of husband then she was not entitled to maintenance charges. Wife had voluntarily left the house of her husband and she was not entitled to maintenance charges. Dower once paid could not be demanded for second time. Appeal field bye wife was partly accepted to the extent of maintenance charges. Decree of maintenance charges passed by Shaiarat court was set aside
Effect of Illegal Terms and conditions at the time of divorce
2009 P.Cr.L.J 118
The illegal terms and condition between the parties at the time of divorce cannot override the law of land and mother cannot be deprived for the custody of the minor
Non appearing in Pre-Trial Proceedings
2017 CLC 1718 Sindh
Under section 5, 10 and 18 of Family court Act 1964.. suit for dissolution of marriage by wife… failure of wife to appear before the family court in pre-trial proceeding— effect—wife failed to appear before the family court in pre-trial proceedings and her suit was dismissed— validity—plaintiff wife was a Canadian citizen and she did not reside in Pakistan— wife had filed suit through her attorney who was her maternal uncle— appearance before the family court through agent was permissible and if plaintiff did not appear before the family court then no adverse inference could be drawn against her— even if plaintiff did not appear in spite of direction by the family court for the participation in reconciliation proceedings her suit could not be dismissed for non-prosecution—family court could presume from such conduct of wife that she was not interested in reconciliation proceedings— if family court was of the view that wife wish with regard to reconciliation proceedings should be found out by asking her personally then it could have proceeded to ascertain such fact through video link—family court had misdirected itself while dismissing the suit fo the wife in default on account of her failure to appear in the pre-trial proceedings— Impugned order being illegal and against natural justice was set aside—Matter was remanded to the family court with direction to adopt proper procedure of law and decide the same on merits within specified period.. constitutional petition was disposed of in circumstances.
Family court recording evidence through video link
Section 5 schedule, section 11(1-A) of family court act, article 164 of Qanoon-e-Shahdat Order 1984, Article 199 of Constitution of Pakistan petition.. suit for dissolution of Marriage—Recording of statement through video link— Evidence recorded though modern device— Scope—wife filed application for recording her statement through video link which was accepted by the family court—Validity – Family court could regulate its own procedure— violation of undertaking by the party could not deprive court of its jurisdiction— Family court could adopt its own procedure and was not bound by the rigors of civil procedure code 1908— family court could proceed on the premise that every procedure was permissible unless prohibited— evidence received though modern devices was admissible under article 164 of Qanoon-e-Shahadat 1984, however qanoon-e-Shahadat was not strictly applicable to family court but family court was not barred from receiving such evidence under any provision of law — Petitioner for invoking constitutional jurisdiction of High court was bound to show that court below bad exercised jurisdiction not vested in it by law or there was jurisdictional defect in the order impugned or order was illegal or perverse – NO jurisdictional defect has ben pointed out in the impugned order passed byt eh family court – constitutional petitioner was dismissed in the circumstances.
Guardianship by Father
2018 SCMR 427
Section 7 of Guardianship and ward act, Guardianship certificate—Father as guardian of person and property of minors –scope—No bar or restrictions was placed on father/natural guardians against obtaining a guardianship certificate from the court, however the circumstances and bona fides of father is obtaining such declaration /certificate needed to be examined keeping in view the peculiar facts of the case
Limitation of Recovery of Maintenance of wife and Children
2018 YLR 128
Section 5and 9 family court act 1964 , Article 120 of Limitation Act 1908, Article 2-A and 199 of Constitution of Pakistan, Suit for recovery of Maintenance allowances of wife and daughter— Plaintiff/wife sought education, medical and expenditure of marriage of daughter and claimed maintenance for the last 30 years—- substance of marriage—scope— limitation, question of – Responsibility of husband toward wife and daughter— injunctions of Islam—scope—petitioner/husband contended that as wife had not been living hi is house so Appellant court had wrongly decreed past maintenance of wife for the last six years—validity—under Islamic law the husband was liable to maintain his wife and children from the very date when marriage was solemnized—- record proved that respondent/plaintiff was turned out of the house and subjected to cruel behavior by petitioner/defendant so many times but she joined the marital life on the intervention of Jirga and again due to his cruel behavior she was ousted form his house and she started living at her parents house for the last 30 years and was still there but the petitioner/husband had not divorced her and failed to maintain her and his daughter which was Zulm-eAzeem to the Muslim who lived under the protection of law—High Court observed that under Art. 2-A, of the constitution the Quran and Sunnah was the basic law of the land and section 9 of Muslim family Law Ordinance 1961 was a special law which did not presce3ive specific period of limitation for past maintenance— payment of maintenance ot the wife by her husband was governed by injunctions of Islam— petitioner/husband had not in the present case., paid any maintenance educational expenses marriage expenses for his daughter and maintenance allowance to his wife to meet daily needs life food and clothes etc. which was his duty to bear the provision of limitation prescribed under Art 120 of Limitation Act 1908 for recovery of past maintenance was not stricto sensu application—husband was responsible for the maintenance of wife from the day when the Nikah was solemnized and daughter when she was born—record showed that husband has admitted in the cross examination that he never paid any amount to his wife or his daughter—both courts below had erred by not considering the said admission by the husband wile decreeing the past maintenance for wife for past six years only— Husband was bound to pay the maintenance allowance for past 30 years to his wife and expenses claimed in the suit( marriage expenses of daughter etc)—- High court observed that great injustice had been caused to the wife and daughter of petitioner so despite the fact that respondent/wife had not challenge the judgment and decrees of courts below which might be due to economic constraints of neglected mother and daughter but High court in exercise of its constitutional jurisdiction under Art. 199 was vested with jurisdiction to proved relief to party with whom injustice had been done so that judgment and decrees of the both courts below to the extent were set aside modified and the suit of plaintiff/respondent was decreed as prayed for
DNA Test in Family Matter
2017 PLD Lahore 892
Section 7 family court act, Art. 128 of Qanoon Shahadat order 1984—— DNA Test—Scope—Suit for recovery of dowry articles— Dower amount and maintenance for herself and for mniors was filed by respondent wife and the same was pending trail before family court— Petitioner/husband during pendency of the suit disowned two miors daughters and sought permission to condict DNA Test—Application of petitioner /husband was dismissed by family court as wella s by lower appellate court—Validtiy— Birth certificates of two minors girls were brought on record which depicted that both mionrs girls were born when plaintiff was legally wedded wife of the defendant and he did not dispute the same— Plea that minors girls were not born out of the wedlock of parties was raised for the first time in weitten statement—Nothing was brought on record from the side of petitoner/husband to establish that he had disputed legitimacy of children soon after their birth—Petitoiner /husband remained silent till he filed written statement in the suit. DNA Test was always conducted with the consent of the person concerned and no such consent was available. Once consent was not given DNA Test could not be conducted—High Court declined to interfere in orders passed by two courts below. Constitutional Petition was dismissed in circumstances
Will
2015 CLC PESHAWAR 298
Will would be valid to the extent of 1/3 of the property.. testator could not bequest his entire property, however he could bequest only 1/3 of his entire property with the consent of legal heirs—property could not be bequest in the favor of legal heirs without the consent of other legal heirs— scribe of will deed in the present case, was not mentioned nor had been produced by the plaintiffs— contents of will deed were against Quranic Version, Sunnah and law—Muslim could exercise his right to utilize his property as he wishes in his lifetime by alienating the same in any manner but he had no right to by-pass the dictates of Quran, Sunnah and prevailing law— Testator had no authority to deprive the legal heirs of their shari shares though will deed— statements of marginal witnesses of will deed were full of contradictions— Notary public who attested the will deed had not entered the same in his register— Legal right which had bestowed upon the heirs could not be jeopardized by executing an unregistered deed which was no in the knowledge of legal heirs— consent of other legal heirs had not been obtained while executing the will deed—said will deed has not been proved nor the same contained the description or property—Legal rights of defendants to the extent of their Shari shares could not be disturbed—Inheritance mutation attested in accordance with law was not liable to be annulled which was maintained—plaintiffs were bound to prove partition deed by producing cogent and confidence inspiring evidence— partition deed was unregistered documents which had not been proved— Temporary arrangement of partition for the purpose of produce of land would not amount to permanent private partition or a legal partition—Both the courts below had decided the this lis with conscious and application of independent mind=== revision was dismissed in the circumstances
Maintenance during iddat
PLD 2015 Lahore 258
Divorced wife’s right to maintenance during period of “Iddat”— concept of maintenance during iddat examined in light of Quranic Verses—- obligation of husband to maintain wife during period of “Iddat” —- scope— Quranic meanings and concepts of “Nafaqah” “mata”, “wa matee o hanna” and “fa anfiqo” meaning “to spend” used in the verses of the Holy Quran revealed the commands of Allah to a Muslim husband rendering him under an obligation to maintain his divorced wife during period of “iddat” as per Injunctions of Islam; which may be a onetime provision or in shape of affordable instalments during period of “iddat” — Intent and spirit of commands of Allah was to provide for maintenance to a divorced wife during period of “Iddat” for the simple reason that as per Injunction of Islam; a divorced woman could not remarry during the period of “iddat” — commands of Allah therefore, create a right of maintenance in favor of a divorced wife and an obligation upon a husband to maintain her during period of “iddat” – such right in Pakistan is enforceable by the Family Court which had exclusive jurisdiction under the West Pakistan Family Court Act 1964
Return of Benefit against Khula
West Pakistan Family Courts Act 1964, section 5 and 10 proviso. Dissolution of Marriage… Talaq and Khula.. Non return of benefit… Effect.. Divorce on the basis of khula by wife is right at par with right of pronouncement of Talaq by husband, with one difference that husband can pronounce talaq himself but wife has to file suit in that behalf.. right of khula is not contingent upon consent of husband but is dependent upon reaching conclusion on the part of court that spouses could no longer live within the limits of Almighty Allah. Wife is bound to return benefits which she received on account of marriage from husband but family court determines as to what benefits have been received by wife and also to direct their return. Return of benefit is not a condition precedent to dissolution of marriage. Decree of dissolution of marriage on the basis of khula even though made condition upon return of benefits, would operate to dissolve the marriage when it is passed and effect thereof would not be postponed till the benefits were returned.. Failure on the part of wife to return benefits received by her from her husband within stipulated period would not adversely affect factum of dissolution and return of benefits by wife to husband remains merely a liability of civil nature, which can be enforced by husband through appropriate means.. similarly, dissolution of marriage effected though khula is neither revocable nor appealable and only decision regarding dower is appealable.
Divorce through SMS
PLD 2015 Lahore 231
Article 73 of Qanun-e-Shahadat Information conveyed over modern devices such as SMS – such information is means to communication validly accepted all over the world, however the witness in whose presence such information is conveyed or received is always important to prove a fact through its verification — Although under article 73 of Qanoon e Shahadat 1984 modern devices are legally acceptable yet in order to prove a fact, the required procedure has to be followed.
Dismissal for Non-Prosecution
PLD 2005 Quetta 70
West Pakistan Family Court Rules, 1965..
R- 12(2)-- West pakistan family courts Act, S.5 sehed, 8,9 & 10 --- Limitation Act, art, 181-- Suit for recovery of maintenance allowance for Iddat period-- Dismissal for non-prosecution.. application for restoration of suit-- Limitation condonation of delay-- sufficient cause -- Held, in absence of any specific provision providing the period of limitation for making application for restoration of the suit dismissed for non-prosecution by family court, residuary Art, 181, Limitation Act, 1908 would be applicable seeking restoration of the suit from the date when the right to apply accrued... dismissal of the application by family court for restoration of the suit filed after two months and twenty days from the date of the order on which the suit was dismissed for non-prosecution, as well as the dismissal of the appeal on the ground that the application for restoration of the suit was not filed within 30 days from the date of the jurisdiction, were set aside and declared to be of no legal effect by High court-- sufficient cause having been shown by the plaintiff for her order was also set aside and application for restoration of suit was allowed---principles.
2016 MLD 618 SHARIAT-COURT-AZAD-KASHMIR
Ss. 5, Sched. & 14—Suit for recovery of maintenance allowance—Execution petition—interim order—Appeal—Maintainability—Family Court ordered to pay amount of decretal amount in installments—Contention of judgment-debtor was that nothing was outstanding against him—Validity—Court below had calculated the amount on the basis of its record—Nothing was on record to rebut the conclusion arrived at by the court below—Impugned order being interim order did not fall within the definition of a “decree” or a “judgment”—Appeal was not competent in circumstances—Appeal was dismissed.
2016 PLD 73 LAHORE-HIGH-COURT-LAHORE
S. 17-A—interim maintenance , fixation of—Procedure—Family Court had power to pass interim maintenance order at any stage of the suit—interim maintenance should be fixed after filing of written statement of the defendant.
2016 PLD 73 LAHORE-HIGH-COURT-LAHORE
Ss. 17-A & 5, Sched—General Clauses Act (X of 1897), S.24-A–Constitution of Pakistan, Arts. 199 & 10-A—Constitutional petition–Maintainability—maintenance of minor child—interim maintenance , fixation of—Procedure—interim order—Appeal—Family Court fixed interim maintenance of minor at the rate of Rs.10,000/- per month–Validity—Family Court had power to pass interim maintenance order at any stage of the suit—interim maintenance should be fixed after filing of written statement of the defendant—If defendant had found that same was excessive or if order suffered from any illegality, irregularity or same was arbitrary, fanciful, void ab initio, without jurisdiction or same had attained the status of final order, then the constitutional petition was maintainable—Constitutional petition was not maintainable where factual controversies were involved—Public Authority was required to furnish reasons for every order whether the same was executive or judicial and order for grant of interim maintenance allowance was not an exception—-Family Court while keeping in view prima facie status of both the parties fixed tentative interim maintenance allowance of the minor daughter at the rate of Rs.10,000/- per month—Father was working abroad but he had not mentioned about his actual salary in his written statement—Amount fixed by the Family Court could not be termed excessive or in consistent with ostensible financial status of father in the given circumstances– Father was under legal as well as moral obligation to maintain and support his minor daughter as per Injunction of Islam—Impugned order could not be assailed in constitutional petition as statute did not provide any appeal against interlocutory order—Impugned order was neither void ab initio nor without jurisdiction and not a final order– Amount of Rs.10,000/- per month as an interim maintenance was sufficient to meet day to day expenses of minor daughter who was of only one and half year old—Family Court, while passing the interim maintenance was required to give the bear minimum to the minor—No illegality or material irregularity had been pointed out in the impugned order—Both the constitutional petitions were dismissed in circumstances.
2016 CLC 81 LAHORE-HIGH-COURT-LAHORE
Ss. 14 & 17-A—-Constitution of Pakistan, Art. 199—Constitutional petition—Suit for maintenance —Appeal—Appellate court upheld decree of maintenance of rupees thirty-five hundred per month on ground that no appeal was maintainable against maintenance for less than rupees five thousand—Validity—maintenance as a whole would determine pecuniary jurisdiction of appellate court—Under S.17-A of West Pakistan Family Courts Act, 1964, if defendant had failed to pay interim maintenance fixed by trial court, then not only right of defence could be struck off but decree could also be passed—Appellate court had incorrectly found that order of maintenance passed by Family Court was interim order under S.14(3) of West Pakistan Family Courts Act, 1964, therefore no appeal could be preferred against the same—High Court, setting aside impugned judgment and decree, directed appellate court to decided appeal on merits—Constitutional petition was allowed in circumstances.
2016 CLCN 26 LAHORE-HIGH-COURT-LAHORE
S. 5, Sched—Constitution of Pakistan, Art. 199—Constitutional jurisdiction, exercise of—Scope—Suit for recovery of maintenance allowance, dower and dowry articles—Application for summoning of witnesses/scribe of receipts of dowry articles—Wife produced purchase receipts of dowry articles during her evidence—Husband/petitioner moved an application for summoning of witnesses/scribe of receipts produced in evidence—Family Court observed that objections, relevancy, admissibility and evidentiary value of the receipts of dowry articles would be decided at appropriate stage and defendant had not mentioned name, address and sufficient particulars of any witness to whom he wanted to summon through process of court; however, defendant-husband would be at liberty to produce any evidence/witness during his own evidence subject to all just and legal exceptions—Validity—Right of defendant-husband to produce evidence had not been closed by the Trial Court—Defendant-husband would be at liberty to produce any witness at his turn while recording evidence—interim order passed by the Family Court should not be brought to superior courts to obtain fragmentary decisions which would harm the advancement of fair play and justice, curtailing remedies available under the law—Husband had not been prejudiced by the impugned order—Constitutional jurisdiction was not to be exercised in routine but only to foster the ends of justice—Constitutional petition being not maintainable was dismissed in limine
2016 MLD 742 KARACHI-HIGH-COURT-SINDH
S. 17-A—-Constitution of Pakistan, Art. 199—Constitutional petition—Maintainability—maintenance of minor—Non-compliance of interim order of maintenance —Power of Family Court to decree suit—Averments of plaint not denied in written statement—Presumption—Conduct of father as to payment of maintenance —Relevance—Plaintiff/wife after dissolution of marriage, along with minor son, filed suit for recovery of maintenance , recovery of dower amount and dowry articles—Family Court passing order under S. 17-A of Family Courts Act, 1964 fixed interim maintenance of minor—Defendant filed application and later Constitutional petition for modification of said interim order, which were dismissed—Family Court decreed the suit for non-compliance of said interim order of maintenance —Defendant took plea that trial court had not considered his financial position while fixing maintenance —Validity—Family Court under S. 17-A of Family Courts Act, 1964 was empowered to grant interim maintenance and in case of non-compliance of interim order, court might struck off defence of defendant and also pass final decree—Under S. 17-A of Family Courts Act, 1964, right of defendant as to further adjudication of question of maintenance was contingent right subject to fulfilment of contingency of S. 17-A—If defendant desired to contest suit, he was required to comply with interim order passed by Family Court under S.17-A of Family Courts Act, 1964—Plaintiff had specifically stated in plaint all expenses being incurred by her family on minor and quantum of income being earned by defendant—Claim or allegation of fact in plaint, if not denied specifically or by necessary implications in written statement, would be taken to have been admitted by defendant—As averments made in plaint as to income of defendant had not been denied by him either specifically or by necessary implication, the same were, deemed to have been admitted—Conduct of defendant (husband) regarding non-payment of interim maintenance was also relevant which showed that he had come to court with unclean hands, as he had not complied with interim order of maintenance —-Constitutional jurisdiction of discretionary character could not be invoked as a matter of routine or be used as alternate of appeal or revision—Constitutional petition was dismissed in circumstances.
2016 MLD 742 KARACHI-HIGH-COURT-SINDH
S. 17-A—-Scope—Non-compliance of interim order of maintenance —Power of Family Court—Family Court under S.17-A of Family Courts Act, 1964 is empowered to grant interim maintenance and in case of non-compliance of interim order, court may struck off defence of defendant and also pass final decree—Under S.17-A of Family Courts Act, 1964, right of defendant as to further adjudication of question of maintenance is contingent right subject to fulfillment of contingency of S. 17-A.
2015 YLR 1433 SUPREME-COURT-AZAD-KASHMIR
S. 5, Sched.—Azad Jammu and Kashmir interim Constitution Act (VIII of 1974), Ss. 42 & 44—Writ petition—maintenance allowance to wife—Scope—Capacity of husband to pay maintenance as fixed—Non-framing of issue—Effect—Contention of husband was that wife had voluntarily left his house and she was not entitled for maintenance allowance—Suit was decreed concurrently—Validity—Wife was entitled for maintenance if she had obeyed the husband and was ready to live in his house but if she had left the house of husband voluntarily then wife was not entitled for maintenance —Duty of husband to maintain his wife was conditional upon performance of marital obligations—Wife was bound to guard the reputation, property of her husband in his absence and also her own virtue—maintenance allowance should be according to the financial position of husband—Family Court was bound to resolve the question of capacity of husband to pay maintenance —No issue, in the present case, was framed with regard to capacity of husband whether he had a source to pay the maintenance fixed by the Family Court—Non-framing of issues was not vital for a case if parties were vigilant on the point, if however the parties had led the evidence on the said issue then question could be resolved without framing the issue—Both the parties had led the evidence but Family Court had failed to resolve the question with regard to capacity of husband to pay maintenance —Family Court was bound to record findings with regard to capacity of husband whether he was in a position to pay maintenance charges claimed by the wife or not—Supreme Court had powers to decide any issue if there was evidence of the parties on record—Remand of case would further prolong the litigation and there would be undue burden on the parties—Both the courts below had not considered that husband had meager source to maintain his wife—No mis-reading or non-reading of evidence was pointed out—Attitude of husband towards the wife was cruel and he had ousted her from house after beating—Wife and minor children were entitled to maintenance —Husband or father could not be burdened for payment of maintenance beyond his capacity—Husband in the present case, was a Rickshaw driver and due to rising costs of living maintaining a wife and two minors in a meager amount of Rs. 5,000 per month was difficult but wife herself had demanded Rs.5000—Family Court had correctly concluded that wife/children were entitled for maintenance of Rs. 5,000 per month and defendant was in a capacity to pay the said amount—Appeal was dismissed in circumstances.
2015 YLR 170 SUPREME-COURT-AZAD-KASHMIR
S. 5, Sched.—Azad Jammu and Kashmir interim Constitution Act (VIII of 1974), S. 44(2)—Suit for recovery of maintenance allowance—Past Main-tenance—Entitlement—No mis-reading or non-reading of evidence was pointed out with regard to fact of cruelty and ousting the wife from the house by the husband—Findings of Family Court and Shariat Court that wife had failed to prove that she was treated with cruelty and ousted from the house were based on evidence—Family Court was bound to award past maintenance to the minor when she was living with her mother since birth but no reason had been given for not awarding the same—Minor was entitled to maintenance allowance from the date of her birth—Husband was working abroad and he was maintaining his second wife who was a resourceful person—Court had power to grant maintenance keeping in view the financial position of father and his economic resources—maintenance allowance awarded to the minor was meagre keeping in view the rising cost of living and same was enhanced from Rs.2,000 per month to Rs. 4,000 per month as prayed for since from the date of birth of minor—Appeal was accepted partly to the extent of minor and was dismissed to the extent of wife.
2013 YLR 1839 LAHORE-HIGH-COURT-LAHORE
Ss.14 & 17-A—Constitution of Pakistan, Art. 199— Constitutional petition—Maintainability— interim maintenance allowance—Interlocutory order—Such order did not have the effect of a final order, which had to be passed ultimately by the Family Court after recording evidence and assessing the paying capacity of the father/husband—Unless an order bears characteristics and effect of a final order, it could not be subjected to judicial scrutiny in proceedings under Art.199 of the Constitution.
2014 CLC 860 LAHORE-HIGH-COURT-LAHORE
Ss. 17-A & 5, Sched.—Constitution of Pakistan, Art. 199—Constitutional petition—Maintainability—Suit for recovery of maintenance allowance—Interim maintenance was fixed by the family court but same was not paid by the husband and his defence was struck off—Contention of husband was that wife had refused to perform matrimonial obligations and she was not entitled for any maintenance allowance—Suit was decreed concurrently—Validity—Constitutional petition was not maintainable as Judge family court was not arrayed as one of the respondents—Husband did not challenge the validity of order by virtue of which interim maintenance was fixed—Husband was estopped to question the correctness of such order through present constitutional petition—Impugned order could not be declared to have been passed without jurisdiction and lawful authority—family court had rightly insisted upon implementation of order for payment of interim maintenance—Section 17A of West Pakistan family court s act , 1964 empowered the family court to strike off defence of husband who had failed to pay interim maintenance and decree the suit without recording evidence—Suit was rightly decreed by the court s below—Constitutional petition was dismissed in circumstances.
2013 YLR 965 LAHORE-HIGH-COURT-LAHORE
S. 17A —Constitution of Pakistan, Art. 199—Constitutional petition against interim order—Maintainability—Conditions—Interim maintenance, order for—Suit for recovery of maintenance allowance—Husband assailed order of family court whereby he was ordered to pay interim maintenance during pendency of proceedings; on the ground that the quantum of maintenance was exorbitant—Validity—Husband had contended that he had recently been sacked from his job—Disputed questions of fact s regarding job, source of income and salary of the husband had been raised which could not be resolved in the Constitutional Jurisdiction of High court and it was not possible to determine the veracity of claims of husband without recording evidence—Such exercise could not be undertaken in the Constitutional Jurisdiction of High court especially when the finding was only tentative in nature and not final and impugned order was interim in nature—Under Art. 199 of the Constitution, petition against interim order was maintainable if the same was void ab inito, without jurisdiction or had attained status of a final order—family court had jurisdiction to fix interim maintenance allowance, therefore, the impugned order did not fall within such categories—Legislature had under S. 14(3) of the West Pakistan family court s act , 1964 had specifically prohibited filing of appeal against interim order and if Constitutional Petition was allowed to be filed against such order, same would tantamount to defeating and diverting intent of the legislature—Petitioner had an alternate remedy available to him by challenging impugned order in appeal which he may file against ultimate order /judgment if passed against husband—Constitutional petition, being not maintainable, was dismissed in circumstances.
2013 YLR 965 LAHORE-HIGH-COURT-LAHORE
S. 17A —Interim maintenance of minor—Object and purpose—Purpose behind S.17A of the West Pakistan family court s act , 1964 was to ensure that during pendency of proceedings before the family court ; financial constraints faced by minors were ameliorated.
2013 PLD 64 LAHORE-HIGH-COURT-LAHORE
Ss. 17A & 12A, proviso—Constitution of Pakistan, Art. 199—Constitutional petition—Interpretation of Ss.17A and 12A, proviso, West Pakistan family court s act , 1964—Interim order fixing maintenance allowance—Time period for which such interim order would remain valid—Scope—Joint reading of Ss.17A and 12A of West Pakistan family court s act , 1964 revealed that when family court was made competent to pass an interim order for payment of maintenance allowance, it was also made incumbent upon the family court to dispose of the case pending before it within a period of six months from the date of institution—Order passed under S.17A of the West Pakistan family court s act , 1964 would be, at most, effective for a period of six months, which time had been allocated by virtue of S.12A for final disposal of a lis pending before family court —When the maximum age of an interim order passed under S.17A of the West Pakistan family court s act , 1964 expired, continuation of proceedings before family court , would violate provisions of S.12A of the said act —Age of an order passed under S.17A of West Pakistan family court s act , 1964 for interim maintenance would at maximum be six months and if proceedings were not concluded within such time in the main suit wherein interim order was passed, the family court should not insist upon the implementation of the order of interim maintenance—High court observed that family court had to report to the High court for non-implementation of S.12A of West Pakistan family court s act , 1964 or in case of failure of family court to do so, either party would have a right to bring to notice of High court such illegality being continued in the family court and High court shall then, either under proviso to S.12A of the said act or under Art.199 of the Constitution, pass appropriate order and reconsider quantum of maintenance—Constitutional petition was disposed of accordingly.
2015 YLR 2650 SUPREME-COURT-AZAD-KASHMIR
S. 25—Custody of minor—Maintenance of minor by father—Scope—Mother and father had contracted second marriage s—Effect—Desire of minor—Significance—Contention of father was that mother of minor had contracted second marriage and she was not entitled for custody—Application for custody of minor (son) by the father was dismissed concurrently—Validity—Prime consideration while deciding the matter of custody of minor was welfare of minor—Age of minor, in the present case, was 10 years and he was matured to express his independent opinion—Minor had stated before the court that he wanted to live with his mother—Mere contracting second marriage did not disentitle the parties to get the custody of minor—No order could be passed against the interest of welfare of minor—Court being custodian of minor had to consider welfare of minor—Welfare of minor being with the mother, father was legally and morally bound to maintain the minor even if he (minor) resided with his mother—Nothing was on record that minor was not willing to live with his mother—Mother could not be deprived of the custody of minor on the pretext of having limited resources—Father could not be deprived to meet his son on the ground that he had contracted second marriage —Minor could not be compelled to live with his father—Father was ready to get admitted the minor in a well reputed school by bearing all the expenditures—Family Court was directed by the Supreme Court to arrange the meeting of minor with his father once in a month on the date mutually agreed by the parties—Father would be at liberty to move an application for such purpose before the Family Court who should entertain the same and make proper arrangements after mutual consent of both the parties—Appeal was dismissed in circumstances.
2016 YLR 15 LAHORE-HIGH-COURT-LAHORE
Ss. 7 & 8—West Pakistan Rules made under Muslim Family Laws Ordinance, 1961, R.3(b)—Constitution of Pakistan, Art. 199—Constitutional petition—Divorce—Shia law—Issuance of certificate for effectiveness of divorce—Scope—Shia personal law of divorce was not so strict so as to make a woman slave of the man who would always remain unable to get divorce without his permission—Wife who had been delegated the right of divorce by the husband could pronounce divorce by sending a notice in writing to the Chairman Union Council—Such notice had to be sent to the Union Council of the union where wife to whom Talaq had been pronounced was residing at the time of the pronouncement of Talaq—Notice had to be sent to the Union Council where Nikah was registered in case of divorce by the wife with delegated powers by the husband—No illegality had been committed while issuing certificate of effectiveness of divorce—Constitutional petition was dismissed in circumstances.
2014 MLD 254 KARACHI-HIGH-COURT-SINDH
S.7—Constitution of Pakistan, Art. 199—Constitutional petition—Divorce, pronouncement—Fiqah Jafria—Parties were husband and wife inter se and dispute between them was regarding pronouncing of divorce—Grievance of husband was that divorce was not properly pronounced and executed hence was invalid—Validity—In divorce deed there was no mention that husband or authorized person recited Seegha or pronounced Talaq, orally in a set form of Arabic words to wife by her name—It was mentioned in certificate of Talaqnama that it was decided to issue Seegha of Talaq on behalf of husband but it was not mentioned therein that such decision was acted upon and followed by pronouncement of oral Talaq or recitation of Seegha/Khutba Talaq—Such certificate of Talaqnama did not say about pronouncement of Talaq in prescribed form in presence of witnesses, though names of two witnesses were mentioned therein with their signatures like attesting witnesses of Talaqnama but for its pronouncement, their evidence was not recorded in court—Though Talaqnama was followed by divorce deed but it also did not fulfil requirements of earlier document—Divorce pronounced by husband to wife was not valid Talaq or valid repudiation in accordance with requirement of Fiqah Jafria and, therefore, the same was not effective under Shia doctrine of Talaq—As valid Talaq was precondition for exercise of jurisdiction under S.7(1) of Mulsim Family Laws Ordinance, 1961, or initiating proceedings under it and as Talaq in question was invalid, therefore, wife was not liable to act upon such invalid Talaq and as such any proceedings, if initiated, on the basis of invalid Talaq would be illegal and without lawful authority and of no binding effect—Husband was at liberty to pronounce fresh Talaq to his wife keeping in view the requirements prescribed under Shia law and thereafter, wife would act in accordance with without any delay—Petition was disposed of accordingly.
2014 MLD 351 PESHAWAR-HIGH-COURT-NWFP
S. 17A & 5, Sched.—Constitution of Pakistan, Art. 199—Constitutional petition—Maintainability—maintenance of children by father—Scope—Suit for recovery of dower and maintenance allowance—Application for fixation of interim maintenance for minor—Contention of father was that mother had waived right of maintenance of minor—Application for fixation of interim maintenance for minor was accepted by the Family Court—Validity—Father was responsible to meet expenses of his minor children whether they were in the custody of their mother or in his own custody; he was even bound to maintain divorced daughter if she was living with her mother instead of himself—No illegality, irregularity or jurisdictional defect in the interlocutory order had been pointed out by the defendant—Constitutional petition did not lie against an interlocutory order and same was dismissed.
2013 PLD 464 LAHORE-HIGH-COURT-LAHORE
S. 5, Sched.—Constitution of Pakistan, Art.199—Constitutional petition—Suit for maintenance of daughter including educational expenses—Claim of past maintenance —maintenance —Definition—Suit was decreed and father (petitioner) was ordered to pay past maintenance including for education of daughter —Contention of the father (petitioner) was inter alia, that his daughter was disobedient and was therefore, not entitled to recover maintenance and that maintenance did not include education expenses—Validity—Father was bound to maintain his daughter until she was married, and the father was not bound to maintain a child which was capable of being maintained out of his or her own property—Definition of “maintenance ” was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means to support life—Father was bound to maintain a daughter and she was entitled to receive maintenance regardless of her age till such time she was married—Even on attaining the age of majority, the father was responsible for daughter ‘s maintenance —Father in the present case had been providing maintenance to his other children from his other wives and as such he treated his daughter with discrimination—Contention that the daughter was disobedient had no force, since, firstly, the father was unable to show his love or affection for his daughter , therefore he could not expect her to return, secondly no instance was mentioned showing disobedience, and thirdly, under Islamic law, there was no institution of abandonment (“aaq”) for a disgruntled son/daughter depriving him/her from inheritance and therefore a daughter could not be deprived of her right to be maintained by her father during his life time—No interference was called for in the impugned orders—Constitutional petition was dismissed, in circumstances
2013 PLD 228 LAHORE-HIGH-COURT-LAHORE
S. 5, Sched. Entry No.3—Constitution of Pakistan, Art.199—Constitutional petition—Suit for recovery of maintenance allowance of minor daughter —Decree of Family Court awarding maintenance to minor with 10% annual increase therein upheld by Appellate Court—Father’s plea was that in absence of any provision in West Pakistan Family Courts Act, 1964, Family Court on its own could not grant such increase in maintenance to minor—Validity—Nothing was available in S.5 of West Pakistan Family Courts Act, 1964 or its Sched. to prohibit Family Court from granting maintenance to needy minor with annual increase therein—Basic requirements of life of a minor would grow with his growing age—Family Court would always be deemed to exercise its parental jurisdiction and supposed to look into future needs of minor while granting maintenance in its age of infancy—maintenance would never be considered as charity—Forcing minor to stand in attendance before father or appear before Family Court every year with folded hands for annual increase in maintenance would be violative to his/her dignity—Legislature had not provided any fixed rate of maintenance , thus, Family Court could fix its rate while keeping in view financial and social status of parties and requirements of minor and evidence of parties in support thereof —Family Court could grant annual increase in maintenance of minor—High Court by virtue of S.5(3) of West Pakistan Family Courts Act, 1964 had power to add annual increase in already existing Entry at Sr. No.3 of Sched., thereof —High Court dismissed constitutional petition filed by father and directed the Registrar of the Court to place present judgment before Chief Justice for adding suitable entry against Column No.3 of Sched. to the Act by exercising powers provided in S.5(3) thereof —Principles.
2012 YLR 1559 SHARIAT-COURT-AZAD-KASHMIR
S. 5, Sched. & S.14—Suit for dissolution of marriage—Plaintiff (wife) had amply proved the factum of cruelty, non-payment of maintenance allowance and non-performance of marital obligations by the defendant (husband)—Record showed that defendant was living abroad for the last many years; he had contracted a second marriage there, and had a daughter from that wedlock—Defendant had not paid any maintenance allowance to the plaintiff from the day of separation and did not perform his marital obligations for more than a period of three years—Defendant had failed to produce sufficient and reliable evidence in rebuttal of the allegations made by plaintiff—No misreading and non-reading of evidence was noticed in the case; and judgment of the court below to the extent of dissolution of marriage had been recorded in a legal manner, which was maintained by Shariat Court in circumstances.
2013 CLC 601 LAHORE-HIGH-COURT-LAHORE
S. 25—Constitution of Pakistan, Art.199—Constitutional petition—Custody of minor—Contest between father and mother of minor—Father (petitioner) impugned order of Family Court whereby his petition under S.25 of the Guardian and wards act , 1890 for custody of minor was dismissed—Validity—Father had entered into a second marriage while the mother had not entered into a second marriage but devoted her remaining life to her son—After taking of the custody of minor from the real mother, the same could not be hand ed over to a step-mother—Minor, in the present case, had been with the mother from his birth and at the age of eleven years, a change of custody would damage the minor psychologically, which could not be considered to be in his welfare, as “lap of mother is the lap of God”—Contention that father was entitled to custody of minor on the ground that he was providing maintenance for the minor was no ground for claiming custody of minor as it was the absolute duty of a father to maintain his child, wherever the child lived—Poverty of a mother would not deprive her from the custody of her real child—Findings of courts below were correct—Constitutional petition was dismissed.
2013 MLD 247 LAHORE-HIGH-COURT-LAHORE
S. 5 & Sched.—Muslim Family Laws Ordinance (VIII of 1961), S.6(5)—Suit for recovery of dower—Deferred dower—Second marriage by husband—Effect—Husband who contracts second marriage without seeking permission from his first wife was bound to immediately pay the entire amount of dower to his first wife irrespective of the fact whether the same was prompt or deferred—Perusal of Nikkahanama of husband with second wife, in the present case, showed that he admitted factum of his earlier marriage to the plaintiff wife and took the stance that he had divorced her—Even if said stance was true, even then husband was bound to pay the amount of dower to the wife if the same was deferred.
2013 CLC 601 LAHORE-HIGH-COURT-LAHORE
S. 5, Sched—Constitution of Pakistan, Art. 199 —Constitutional petition—Jurisdiction of Family Court—-“Personal belongings or property of wife”—Scope—Suit for recovery of dower was partly decreed—Wife (petitioner) had claimed an amount on basis of an alleged “iqrarnama” executed by husband in favour of wife for an amount to be payable to her by the husband in case of certain commissions or omissions by husband—Said claim of wife was denied by Appellate Court—Contention of wife was that said document (iqrarnama) was not objected to by the husband and as such her claim had been proved—Wife further contended that Family Court could adjudicate on her claim since the same fell within the scope of “personal belongings or property of wife” was given in the Schedule to section 5 of the West Pakistan Family Courts Act, 1964—Validity—Document which was exhibited in evidence, must not be a proved document and question of jurisdiction as to the admissibility of claim and nature of document was also to be seen by the court—Commitment or undertakings in the said document/iqrarnama could not attain the status of personal belongings or property of a wife and thus adjudication on basis of such document would fall outside the scope of the jurisdiction of the Family Court—Claim of wife to such extent was rightly denied by Appellate Court—Constitutional petition was dismissed.
2013 YLR 852 LAHORE-HIGH-COURT-LAHORE
S.5 & Sched.—Constitution of Pakistan, Art.199—Constitutional petition—Recovery of dower, dowry articles, maintenance allowance and delivery expenses—Concurrent findings of Trial Court and Appellate Court by which decree for maintenance for son, recovery of dower amount and dowry articles was passed in favour of the wife (respondent)—Husband (petitioner) in his petition did not challenge the quantam of maintenance allowance as fixed by courts below but objected to the 20% annual increase in the said allowance—Husband also contented that dowry list was not signed by him or his representative and list of dowry articles exhibited in the court did not mention their prices—Validity—Petitioner had failed to produce his salary slips to establish his contention that 20% annual increase in maintenance allowance was beyond his means—Minor son was a ‘special child’ because of which wife had to incur a lot of expense on his medical treatment—Such fact was also admitted by one of petitioner’s witnesses, in view of which 20% annual increase in maintenance allowance was rightly fixed by courts below—Wife had proved the list of dowry articles, as the same was signed by her and she had also produced different receipts regarding the purchase of said dowry articles—Husband having failed to point out any illegality or irregularity in concurrent findings of Trial Court and Appellate Court below, his petition was dismissed.
2013 PLD 11 ISLAMABAD
S. 5 Sched. & S.17—Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), Ss. 2(b) & 10—Dowry and Bridal Gifts (Restriction) Rules, 1976, R.4—Constitution of Pakistan, Art.199—Constitutional petition—Suit for recovery of dowry articles—Rule of thumb—Applicability—List of dowry articles produced in evidence by both parties in support of their respective claim—Decree passed by Family Court on basis of such list produced by husband upheld by Appellate Court—Wife’s plea that rule of thumb would apply to proceedings before Family Court and not provisions of Qanun-e-Shahadat, 1984 or its principles, thus, receipts in respect of purchase of dowry articles produced by her were liable to be relied upon by courts below—Validity—Wife in her statement had admitted that such list was not prepared at time of her Nikah, while her father had deposed otherwise—Rule of thumb would not absolve a party from establishing his/her claim—Party denying liability, on basis of such rule, could not be burdened to shoulder claim of opposite party without its proof—Dowry list produced by wife was not prepared in shape of Form D-1 as prescribed in R.4(1) of Dowry and Bridal Gifts (Restriction) Rules, 1976, therefore same was not to be considered in support of her claim—Receipts in respect of purchase of household articles on basis of rule of thumb, would not qualify and meet essential requirement of proof of purchase of said articles by parents of wife and its giving to her before or after marriage—High Court dismissed constitutional petition in circumstances.
2013 PLD 88 LAHORE-HIGH-COURT-LAHORE
S. 5 & Scehd.—Muslim Family Laws Ordinance (VIII of 1961), S.7—Constitution of Pakistan, Art.199—Constitutional petition—Dissolution of marriage on the basis of Khula’—Scope—Khula’ obtained from wife under coercion—Effect—Suit for dissolution of marriage on basis of Khula’ was decreed when husband in his statement stated that he would have no objection to such decree—Special attorney appeared on behalf of wife and she did not tender appearance in person and no pre-trial reconciliation took place–Wife made statement before High Court that Khula’ was not sought by her on her own freewill and was procured by appointment of special attorney by her father under coercion—Contention of the husband (petitioner) was that said decree was illegal and of no binding effect—Validity—Pivotal question to be determined was as to what was the effect of decree of dissolution of marriage and whether parties could rejoin as husband and wife after pronouncement of Khula’ by court—Khula’ was repudiation with consent at instance of wife in which she agreed to give consideration to husband for release from marital bond and it had the effect of “talaq bayen” (single divorce)—Pronouncement of Khula’ by court would amount to single divorce and husband would be at liberty to marry the wife again after solemnization of nikah without intervention of a third person—Section 7(6) of the Muslim Family Laws Ordinance, 1961 did not debar wife whose marriage had been terminated by divorce under S.7 of the said Ordinance from remarrying the same husband without intervening marriage with a third person—High Court set aside orders of courts below—Constitutional petition was allowed, accordingly.
2013 CLC 276 LAHORE-HIGH-COURT-LAHORE
Ss. 10(4), 5 & Sched.—Constitution of Pakistan, Art.199—Constitutional petition—Khula—Suit for dissolution of marriage on basis of Khula was decreed and wife was directed to return gold and land received from husband in lieu of decree of Khula—Contention of wife inter alia was that a specific amount of money was mentioned in column 13 of the Nikahnama which was to be the consideration for the Khula and that the gold was a bridal gift whereas the land was not Haq Mehr but a validly made gift in the wife’s favour—Validity—Under Islamic Law marriage between a Muslim man and woman could be dissolved on basis of Khula for which some consideration is given in the form of dower which the wife was entitled to receive at the time of demand—Wife was also entitled to receive bridal gifts at the time of marriage which was solely the wife’s property—Once gift of land was made, the title/ownership of the same departed from the original doner and vested to the donee which, without consent of the latter, could not be returned—Amount of money was mentioned in column 13 of the Nikahnama in the present case, and consideration for Khula was to be the said amount which was specifically mentioned in the Nikahnama—Gold and land were bridal gifts which were to remain in the ownership of the wife—High Court set aside findings of the courts below and directed that wife be allowed to retain the gold and land—Constitutional petition was allowed, in circumstances.
2013 PLD 228 LAHORE-HIGH-COURT-LAHORE
S. 5, Sched. Entry No.3—Constitution of Pakistan, Art.199—Constitutional petition—Suit for recovery of maintenance allowance of minor daughter—Decree of Family Court awarding maintenance to minor with 10% annual increase therein upheld by Appellate Court—Father’s plea was that in absence of any provision in West Pakistan Family Courts Act, 1964, Family Court on its own could not grant such increase in maintenance to minor—Validity—Nothing was available in S.5 of West Pakistan Family Courts Act, 1964 or its Sched. to prohibit Family Court from granting maintenance to needy minor with annual increase therein—Basic requirements of life of a minor would grow with his growing age—Family Court would always be deemed to exercise its parental jurisdiction and supposed to look into future needs of minor while granting maintenance in its age of infancy—Maintenance would never be considered as charity—Forcing minor to stand in attendance before father or appear before Family Court every year with folded hands for annual increase in maintenance would be violative to his/her dignity—Legislature had not provided any fixed rate of maintenance, thus, Family Court could fix its rate while keeping in view financial and social status of parties and requirements of minor and evidence of parties in support thereof—Family Court could grant annual increase in maintenance of minor—High Court by virtue of S.5(3) of West Pakistan Family Courts Act, 1964 had power to add annual increase in already existing Entry at Sr. No.3 of Sched., thereof—High Court dismissed constitutional petition filed by father and directed the Registrar of the Court to place present judgment before Chief Justice for adding suitable entry against Column No.3 of Sched. to the Act by exercising powers provided in S.5(3) thereof—Principles
RECOVERY OF DOWRY ARTICLES
2013 PLD 194 KARACHI-HIGH-COURT-SINDH
S. 5, Sched.—Penal Code (XLV of 1860), Ss.193, 468 & 220—Criminal Procedure Code (V of 1898), Ss.195, 476 & 476-A—Constitution of Pakistan, Art.199—Constitutional petition—Perjury—Cognizance, taking of —During proceedings in suit for recovery of dowry articles filed by wife, husband relied upon certain receipts of gold ornaments which the jeweller denied to have issued—Wife filed application for initiation of proceedings against husband for giving false evidence before Family Court—Family Court as well as Lower Appellant Court declined to initiate proceedings of perjury against husband—Validity—Family Court was categorized as Civil Court, empowered to record evidence, thus Family Court being Civil Court could take cognizance under Ss.195 and 476, Cr.P.C. which provisions were a check on litigant and parties—Such provisions armed the courts with authority to commit any person who had misled court by producing perjured evidence—Courts exercising civil, criminal or revenue jurisdiction were competent to try of fence punishable under numerous provisions of Penal Code, 1860, enumerated therein including S.193, P.P.C. (punishment for giving false evidence), when such of fence was alleged to have been committed in or in relation to any proceedings in any court which was competent to take cognizance—When any person dared to give false evidence in any court competent to record evidence, would expose himself to be committed for perjury—High Court set aside orders passed by Family Court and Lower Appellate Court and application under Ss.193/468/220, P.P.C. filed by wife was granted—High Court directed the Family Court to take cognizance of the of fence, try the same itself an/or forward the same to the court having jurisdiction in terms of S.476-A, Cr.P.C.—Petition was allowed accordingly.petition was dismissed accordingly.
2013 PLD 11 ISLAMABAD
S. 5 Sched. & S.17—dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), Ss. 2(b) & 10—dowry and Bridal Gifts (Restriction) Rules, 1976, R.4—Constitution of Pakistan, Art.199—Constitutional petition—Suit for recovery of dowry articles—Rule of thumb—Applicability—List of dowry articles produced in evidence by both parties in support of their respective claim—Decree passed by Family Court on basis of
such list produced by husband upheld by Appellate Court—Wife’s plea that rule of thumb would apply to proceedings before Family Court and not provisions of Qanun-e-Shahadat, 1984 or its principles, thus, receipts in respect of purchase of dowry articles produced by her were liable to be relied upon by courts below—Validity—Wife in her statement had admitted that such list was not prepared at time of her Nikah, while her father had deposed otherwise—Rule of thumb would not absolve a party from establishing his/her claim—Party denying liability, on basis of such rule, could not be burdened to shoulder claim of opposite party without its proof —dowry list produced by wife was not prepared in shape of Form D-1 as prescribed in R.4(1) of dowry and Bridal Gifts (Restriction) Rules, 1976, therefore same was not to be considered in support of her claim—Receipts in respect of purchase of household articles on basis of rule of thumb, would not qualify and meet essential requirement of proof of purchase of said articles by parents of wife and its giving to her before or after marriage—High Court dismissed constitutional petition in circumstances.
such list produced by husband upheld by Appellate Court—Wife’s plea that rule of thumb would apply to proceedings before Family Court and not provisions of Qanun-e-Shahadat, 1984 or its principles, thus, receipts in respect of purchase of dowry articles produced by her were liable to be relied upon by courts below—Validity—Wife in her statement had admitted that such list was not prepared at time of her Nikah, while her father had deposed otherwise—Rule of thumb would not absolve a party from establishing his/her claim—Party denying liability, on basis of such rule, could not be burdened to shoulder claim of opposite party without its proof —dowry list produced by wife was not prepared in shape of Form D-1 as prescribed in R.4(1) of dowry and Bridal Gifts (Restriction) Rules, 1976, therefore same was not to be considered in support of her claim—Receipts in respect of purchase of household articles on basis of rule of thumb, would not qualify and meet essential requirement of proof of purchase of said articles by parents of wife and its giving to her before or after marriage—High Court dismissed constitutional petition in circumstances.
2012 PLD 108 PESHAWAR-HIGH-
s. 5 & 17—Qanun-e-Shahadat (10 of 1984), Arts. 129(g) & 79—Constitution of Pakistan, Art.199—Constitutional Petition—Suit for recovery of dowry articles and declaration of title on the basis of agreement in favour of the wife at time of Nikah—Suit of wife (petitioner) was decreed by Trial Court and the Appellate Court set aside order of Trial Court to the extent of declaration of title in favour of wife—Contention of the wife was that the husband at time of the marriage had gifted suit land to the wife besides the dower amount, and such fact had been incorporated in the nikahnama—Validity—Admittedly, deed for transfer of land in favour of the wife had been mentioned in the nikahnama—Husband, according to his own version, was in possession of the said deed, but did not produce the same before the Trial Court—Under Art.129(g) of the Qanun-e-Shahadat, 1984, adverse inference would be drawn to the effect that the same was intentionally concealed and it would be deemed as if the same was produced, and the contention of the wife, therefore, stood proved—Husband admitted the contents of the said deed up to the extent of entry regarding dower amount whereas the remainder was denied—Signature of husband were available on the next page of the said deed where the entire agreement was concluded—Wife had produced petition-writer, who verified issuing of stamp paper to the defendant—Signature of husband were available on the register as well as on the overleaf of the stamp paper of the said deed—Signatures on the deed and on the nikahnama were similar, and both documents were not denied by the husband—Appellate Court had not appreciated said deed which was clearly mentioned in the nikahnama in a different column and which specifically related to the deed executed at the time of the Nikah—Deed was produced by the wife, whereas the husband, having the same, did not produce it and therefore, the said deed produced by the wife would be presumed to be correct—Family courts were governed by the special law of the West Pakistan Family Courts Act, 1964,
wherein the proof of documents as prescribed under Qanun-e-Shahadat, 1984 in its stricto sensu was not applicable—All entries in the nikahnama were presumed to be correct—Any document or deed mentioned in the nikahnama though not proved under Art.79 of the Qanun-e-Shahadat, 1984, its existence and production of the stamp vendor before the Family Court was sufficient to rely on the said deed and on the same being correct and validly executed—Trial Court had rightly decreed the suit of the wife, and findings of the Appellate Court were liable to be set aside—High Court set aside order of the Appellate Court and restored the decree of Trial Court—Constitutional petition was allowed, accordingly.
wherein the proof of documents as prescribed under Qanun-e-Shahadat, 1984 in its stricto sensu was not applicable—All entries in the nikahnama were presumed to be correct—Any document or deed mentioned in the nikahnama though not proved under Art.79 of the Qanun-e-Shahadat, 1984, its existence and production of the stamp vendor before the Family Court was sufficient to rely on the said deed and on the same being correct and validly executed—Trial Court had rightly decreed the suit of the wife, and findings of the Appellate Court were liable to be set aside—High Court set aside order of the Appellate Court and restored the decree of Trial Court—Constitutional petition was allowed, accordingly.
2012 PLD 408 LAHORE-HIGH-COURT-LAHORE
S.18—Constitution of Pakistan, Art. 199—Constitutional petition—recovery of dowry articles—Evidence through attorney—Principle—Wife objected to recording of evidence of husband through attorney—Validity—If attorney was well conversant with all facts of case, there was no legal bar in West Pakistan Family Courts Act, 1964, whereby any of the parties could be deprived from appointing an attorney, if the party was not available due to reason beyond his control—Legislature enacted provisions of S.18 in West Pakistan Family Courts Act, 1964, keeping in view only the matters relating to dissolution of marriage, dower, maintenance, restitution of conjugal rights and custody of children—Provisions of S.18 of West Pakistan Family Courts Act, 1964, were meant for such category of cases where personal appearance of spouses was essential enabling court to apprise itself of the real controversy/differences between the parties and for such purpose a mandatory provision of reconciliation was also included in West Pakistan Family Courts Act, 1964—recovery of dowry articles was a civil liability which was included in Schedule of West Pakistan Family Courts Act, 1964—Provisions of S.18 of West Pakistan Family Courts Act, 1964, were just enabling provisions and husband could not be deprived to defend the suit against him through his attorney—High court declined to interfere in concurrent orders passed by both the courts below, whereby application filed by wife was dismissed—Petition was dismissed in circumstances.
2012 PLD 165 LAHORE-HIGH-COURT-LAHORE
S. 5 & Sched.—Constitution, of Pakistan, Art. 199—Constitutional petition— dowry articles, recovery of —-Amount instead of articles—Suit for recovery of gold ornaments was decreed by Family Court in favour of wife—Family Court, while framing the decree, did not mention recovery of money in alternate
of articles—During execution of decree, judgment debtor instead of delivering the gold ornaments preferred to pay value of ornaments as on the date of filing of suit—Validity—Judgment debtor had no option to insist that he be allowed to pay price of gold ornaments instead of delivering the same—Executing Court could not order determination of price of gold ornaments without finding that delivery of gold ornaments was not possible—Decree holder had throughout claimed return of her gold ornaments lying with judgment debtor—Decree holder was entitled to seek recovery of gold ornaments instead of their value which had given rise to the controversy on account of dispute as to the market rate applicable—If judgment debtor did not return gold ornaments but was allowed to make payment of an amount which was illusory, being not at all equivalent to the price of weight of gold ornaments that would result in gross injustice to decree holder—Judgment debtor was liable to return the gold ornaments or gold of that weight to decree holder failing which he would make payment of the price as would fetch equal weight of gold at the time of payment subject to adjustment or return of any money paid during execution proceedings by judgment debtor to decree holder—Petition was allowed accordingly.
of articles—During execution of decree, judgment debtor instead of delivering the gold ornaments preferred to pay value of ornaments as on the date of filing of suit—Validity—Judgment debtor had no option to insist that he be allowed to pay price of gold ornaments instead of delivering the same—Executing Court could not order determination of price of gold ornaments without finding that delivery of gold ornaments was not possible—Decree holder had throughout claimed return of her gold ornaments lying with judgment debtor—Decree holder was entitled to seek recovery of gold ornaments instead of their value which had given rise to the controversy on account of dispute as to the market rate applicable—If judgment debtor did not return gold ornaments but was allowed to make payment of an amount which was illusory, being not at all equivalent to the price of weight of gold ornaments that would result in gross injustice to decree holder—Judgment debtor was liable to return the gold ornaments or gold of that weight to decree holder failing which he would make payment of the price as would fetch equal weight of gold at the time of payment subject to adjustment or return of any money paid during execution proceedings by judgment debtor to decree holder—Petition was allowed accordingly.
2012 PLD 165 LAHORE-HIGH-COURT-LAHORE
S. 5 Sched. & S.17—Civil Procedure Code (V of 1908), O.XX, R.10—recovery of gold ornaments–Decree—Non-mentioning of value of ornaments—Decree passed by Family Court did not state value of gold ornaments to be recovered from judgment debtor—Validity—Such decree was not in the usual form as it directed delivery of gold ornaments but did not state alternative of money payable in case of non-delivery of gold ornaments by judgment debtor—Decree in question was not framed in accordance with the provisions of O.XX, R.I0, C.P.C.—In view of S.17 of West Pakistan. Family Courts Act, 1964, provisions of O.XX, R.10, C.P.C. were not stricto sensu applicable to a decree obtained in a Family suit—No provision existed in West Pakistan Family Courts Act, 1964, similar or corresponding to O.XX, R.10, C.P.C.—Decree passed under West Pakistan Family Courts Act, 1964, for recovery of dowry articles including gold ornaments or other movable property was lawful and executable, even if it did not state monetary value payable in case movable property was not delivered.
2011 PLD 242 LAHORE-HIGH-COURT-LAHORE
S. 5, Sched. & S.14(2)(c)—Constitution of Pakistan, Art.199—Constitutional petition—Suit for recovery of maintenance and dowry articles—Bar on appeal from decree of Family Court—Applicability—Scope—
Trial Court decreed the suit—Appellate Court enhanced rate of maintenance upon appeal filed by plaintiff—Defendant contended that judgment of the Appellate Court was result of wrongful exercise of jurisdiction as S.14(2)(c) of the West Pakistan Family Courts Act, 1964 barred appeal from a decree passed by a Family Court awarding maintenance of Rs.1000 or less per month—Validity—Barring clause of S.14 of the West Pakistan Family Courts Act, 1964 operated where decree of maintenance was challenged to disentitle the decree-holder or reduce the rate of maintenance allowance and the same was not applicable to appeals for enhancement of maintenance—Defendant’s objection to maintainability of appeal was, therefore, misconceived–Strong financial position of defendant had been proved by his gifts to his second wife—Even otherwise, father was legally bound to maintain his children—Appellate Court rightly enhanced the rate of maintenance—Constitutional petition was dismissed accordingly.
Trial Court decreed the suit—Appellate Court enhanced rate of maintenance upon appeal filed by plaintiff—Defendant contended that judgment of the Appellate Court was result of wrongful exercise of jurisdiction as S.14(2)(c) of the West Pakistan Family Courts Act, 1964 barred appeal from a decree passed by a Family Court awarding maintenance of Rs.1000 or less per month—Validity—Barring clause of S.14 of the West Pakistan Family Courts Act, 1964 operated where decree of maintenance was challenged to disentitle the decree-holder or reduce the rate of maintenance allowance and the same was not applicable to appeals for enhancement of maintenance—Defendant’s objection to maintainability of appeal was, therefore, misconceived–Strong financial position of defendant had been proved by his gifts to his second wife—Even otherwise, father was legally bound to maintain his children—Appellate Court rightly enhanced the rate of maintenance—Constitutional petition was dismissed accordingly.
2011 PLD 579 LAHORE-HIGH-COURT-LAHORE
S. 5. Sched. & S.17—Civil Procedure Code (V of 1908), S.11 & O.XXIII, R.1—Constitution of Pakistan, Art.199—Constitutional petition—Suit for recovery of dowry articles including gold ornaments—Withdrawal of claim for gold ornaments given to plaintiff as marriage gift by defendant. finding mention in Column No.17 of Nikahnama far realizing same not to be recoverable as part of dowry —Filing of separate fresh suit for recovery of ornaments—Defendant’s plea that fresh suit for ornaments was not maintainable for being barred by S.11, C.P.C. as claim made therein had been withdrawn earlier unconditionally—Suit for ornaments decreed by Family Court dismissed by Appellate Court—Validity—Provisions of C. P. C. except Ss.10 & 11 thereof would not apply to proceedings before Family Court by virtue of S.17 of West Pakistan Family Courts Act, 1964—Res Judicata would not apply to earlier suit for having been withdrawn, but not decided—Such ornaments for being bridal gift had become personal property of plaintiff, thus, was recoverable by her through such suit—High Court set aside impugned judgment/ decree and restored that passed by, Family Court in circumstances.
2011 PLD 569 LAHORE-HIGH-COURT-LAHORE
S. 5 & Sched.—West Pakistan Family Courts Rules, 1965, Rr. 5 & 6—Constitution of Pakistan, Art.199—Constitutional petition—Suit for dissolution of marriage, recovery of maintenance and dowry articles—Suit decreed to extent of dissolution of marriage and maintenance of minor son, but plaint to extent of claim for dowry articles returned by Family Court for lacking territorial jurisdiction—Dismissal of appeal
by Appellate Court—Validity—Suit categorized in Sched. of West Pakistan Family Courts Act, 1964 could be instituted in a court within whose local limits either cause of action wholly or in part had arisen or parties reside or resided together lastly—An omnibus suit could be filed combining therein causes of action of all suits mentioned in Sched. of West Pakistan Family Courts Act, 1964, and Family Court in such case could not divide plaint into causes of action falling within its territorial jurisdiction and those beyond its jurisdiction and return plaint in part for lacking such jurisdiction—Plaint could be returned as a whole for lacking territorial jurisdiction—Partial or piecemeal return of plaint like partial rejection of plaint was not envisaged by any Rule of West Pakistan Family Courts Rules, 1965 or provisions of the Act—Convenience of females would be an overriding consideration to disallow partial return of plaint in family suits—High Court set aside impugned judgment to extent of return of plaint with direction to Family Court to decide claim of dowry articles and maintenance for Iddat period of wife.
by Appellate Court—Validity—Suit categorized in Sched. of West Pakistan Family Courts Act, 1964 could be instituted in a court within whose local limits either cause of action wholly or in part had arisen or parties reside or resided together lastly—An omnibus suit could be filed combining therein causes of action of all suits mentioned in Sched. of West Pakistan Family Courts Act, 1964, and Family Court in such case could not divide plaint into causes of action falling within its territorial jurisdiction and those beyond its jurisdiction and return plaint in part for lacking such jurisdiction—Plaint could be returned as a whole for lacking territorial jurisdiction—Partial or piecemeal return of plaint like partial rejection of plaint was not envisaged by any Rule of West Pakistan Family Courts Rules, 1965 or provisions of the Act—Convenience of females would be an overriding consideration to disallow partial return of plaint in family suits—High Court set aside impugned judgment to extent of return of plaint with direction to Family Court to decide claim of dowry articles and maintenance for Iddat period of wife.
2010 PLD 422 LAHORE-HIGH-COURT-LAHORE
S. 5 & Sched.—Constitution of Pakistan (1973), Art.199—Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 119 & 128—Constitutional jurisdiction of High Court—Scope—Suit for recovery of maintenance allowance for minor son and dowry articles—Trial Court decreed the suit fixing maintenance at Rs.2000 per month and awarding Rs.30, 000 as alternative price of dowry articles—Defendant’s appeal was dismissed by the Appellate Court—Defendant contended that the Appellate Court did not issue direction for conducting DNA Test to determine the legitimacy of the minor and that the courts below allowed plaintiff to enter and rely on documents which were not attached at the time of initiation of suit—Validity—Defendant’s admissions regarding his knowledge of the minor’s birth and entry of his name in defendant’s Shajrah Nasab by Halqa Patwari led to the conclusion that his denial of legitimacy of his son was a ploy meant to avoid maintenance—Defendant admitted having divorced the plaintiff but failed to disprove the birth of minor one year before divorce—Birth during marriage was conclusive proof of legitimacy under Art.I28 of the Qanun-e-Shahadat, 1984—Objection to admissibility of documents produced by plaintiff was not tenable as the plaintiff produced the copy of birth certificate of the minor only after defendant refused to acknowledge the minor as his son—Even otherwise, birth certificate was a public document to which presumption of truth was attached, therefore, no exception could be taken to the admissibility of the same—Direction could not be issued for conducting the DNA Test as a matter of routine in cases where father refused to acknowledge his child born during lawful wedlock because under Art.128 of the Qanun-e-
Shahadat, 1984, a child born during continuance of a valid marriage or within two years of its dissolution, if mother remained unmarried during that period, was conclusive proof that he was legitimate child of that man, unless the man denied the same—Even otherwise, burden of proof under Arts.117, 118 and 119 of the Qanun-e-Shahadat, 1984 was on the defendant—Birth of the minor one year before divorce indicated that he was born during subsistence of marriage, presumption could safely be drawn that he was legitimate child of the defendant—In view of
the undesirable practice of denying legitimacy of one’s own child in order to avoid maintenance or exclude the child form inheritance, issuance of direction for DNA Test was not proper—Conditions were not suitable in Pakistan for application of DNA Test owing to lack of skills and facilities required for DNA Test—Any mistake or malpractice committed in the course of DNA Test was tantamount to stigmatize the child for the rest of his life—Possibility of error in the results of DNA Test could not be ruled out, therefore, attending circumstance of the case had to be taken into consideration—Point of time at which father denied paternity was a relevant factor, so considerable delay in raising the plea of illegitimacy was not permissible—Defendant denied paternity after more than eleven years of the birth of minor son and failed to produce any cogent evidence to rule out possibility of his cohabitation with the plaintiff—Concurrent findings of courts below could not be assailed in constitutional jurisdiction unless subordinate courts had exceeded jurisdiction, acted without jurisdiction or such findings were not based on any evidence—Findings of fact recorded by a court of competent jurisdiction could not be challenged through constitutional petition merely on the ground that the same evidence could be viewed differently—Courts below did not commit any illegality, material irregularity, misreading or non-reading of evidence—Constitutional petition was dismissed in circumstance.
Shahadat, 1984, a child born during continuance of a valid marriage or within two years of its dissolution, if mother remained unmarried during that period, was conclusive proof that he was legitimate child of that man, unless the man denied the same—Even otherwise, burden of proof under Arts.117, 118 and 119 of the Qanun-e-Shahadat, 1984 was on the defendant—Birth of the minor one year before divorce indicated that he was born during subsistence of marriage, presumption could safely be drawn that he was legitimate child of the defendant—In view of
the undesirable practice of denying legitimacy of one’s own child in order to avoid maintenance or exclude the child form inheritance, issuance of direction for DNA Test was not proper—Conditions were not suitable in Pakistan for application of DNA Test owing to lack of skills and facilities required for DNA Test—Any mistake or malpractice committed in the course of DNA Test was tantamount to stigmatize the child for the rest of his life—Possibility of error in the results of DNA Test could not be ruled out, therefore, attending circumstance of the case had to be taken into consideration—Point of time at which father denied paternity was a relevant factor, so considerable delay in raising the plea of illegitimacy was not permissible—Defendant denied paternity after more than eleven years of the birth of minor son and failed to produce any cogent evidence to rule out possibility of his cohabitation with the plaintiff—Concurrent findings of courts below could not be assailed in constitutional jurisdiction unless subordinate courts had exceeded jurisdiction, acted without jurisdiction or such findings were not based on any evidence—Findings of fact recorded by a court of competent jurisdiction could not be challenged through constitutional petition merely on the ground that the same evidence could be viewed differently—Courts below did not commit any illegality, material irregularity, misreading or non-reading of evidence—Constitutional petition was dismissed in circumstance.
2010 PLD 119 LAHORE-HIGH-COURT-LAHORE
S. 5 & Sched. —Constitution of Pakistan (1973), Art.199—Constitutional petition—Dower property—House—Not in name of husband—Effect—Plaintiff (wife) filed suit for recovery of dower, comprising a house and gold ornaments, dowry articles or Rs.159,500 in lieu thereof , as well as maintenance of herself and the minor—Defendant (husband) filed written statement wherein he asserted that he did not own the house described in the nikahnama—During pendency of suit, defendant died and the parents, brothers and sister of the defendant were impleaded as defendants—Trial Court partially decreed the claim of the plaintiff to the extent of house in haq mehr and dowry articles as per list or its value to the. sum of Rs.100,000 and further maintenance of the plaintiff and minor as Rs.700 and Rs.1500 respectively, per month from the date of judgment, with 10% increase till the age of majority of the minor—Appellate Court on appeal dismissed the same—Validity—Husband as a rule, could not give as dower property that did not belong to him but belonged to someone else including his father—Exception to this rule could be found if it was shown that the father of the husband agreed to do so—In spite of having knowledge that his house had been given as dower in nikahnama, the father of the husband never took any step to take any legal action for exclusion of the house from nikahnama—House mentioned in the nikahnama as dower even though, it did not belong to the husband was liable to be transferred to the plaintiff as the father of the husband had given his consent for the same—Liability of the grandfather to pay maintenance for the minor would include past maintenance as well as future maintenance as’ the grandfather was responsible to maintain his grandchildren in absence of the
father or on the inability, of the father to maintain his children—Constitutional petition was dismissed by High Court.
father or on the inability, of the father to maintain his children—Constitutional petition was dismissed by High Court.
2010 PLD 10 KARACHI-HIGH-COURT-SINDH
S. 5—Constitution of Pakistan (1973), Art.199—Constitutional petition—dowry articles , recovery of —Onus to prove—Shifting of onus–Wife filed suit for recovery of dowry articles which was decreed in her favour by Family Court—Judgment and decree passed by Family Court was set aside by Lower Appellate Court on the ground that plaintiff failed to prove dowry articles —Validity—Father of plaintiff appeared as supporting witness and stated that at the time of her marriage he had given his daughter dowry articles worth more than Rs.500, 000/- and brother in law of defendant received the same—Having. asserted such facts, plaintiff discharged her onus to prove and it was for defendant to lead evidence in rebuttal or to shake evidence of plaintiff through cross-examination—Defendant failed to lead evidence in rebuttal, therefore, he had to bear the consequences–Unless Court had come to the conclusion that value claimed in dowry articles was so disproportionate to the known sources of income of family of bride or items were so out of scene with the situation and standard of living of the family, it would be reasonable for Family Court to require plaintiff before it to produce proof of income of her family—It was not alleged, and even if it was alleged, since defendant did not produce any evidence, therefore, no such burden of proving income of parents of bride could be lumped at the door of helpless woman—Same principle would be held true regarding independent witness regarding purchase of dowry articles —High Court found it unfair that after lapse of more than ten years to hold plaintiff only entitled to recovery of articles because ten years was a long period of time and many of the articles might not have been left with any value in them, therefore, High Court ordered defendant to pay a sum of Rs.400,000/- to plaintiff in lieu of dowry articles —Petition was allowed accordingly.
2009 PLD 359 LAHORE-HIGH-COURT-LAHORE
S. 5, Sched. Part I, Item No.8 & S.19—Suit for recovery of dowry or its price in alternative—Appeal against decree for recovery of Rs.2,00,000 passed in such suit—Non-payment of ad valorem court-fee on memo. of appeal—Validity—Provisions of Court Fees Act, 1870 would not apply to such decree as decretal amount was in alternative of dowry articles .
2008 PLD 410 LAHORE-HIGH-COURT-LAHORE
Ss. 5, 7(2) & Sched. [as amended by Family Courts (Amendment) Act (VII of 1997)]—Constitution of Pakistan (1973), Art.199—Constitutional petition—Territorial jurisdiction—Determining factor—Suit for recovery of dowry articles was filed by wife at place “L”—Husband resisted the suit on the ground that place of residence of wife was at place “G” therefore, suit at place “L” was not maintainable—-Validity—It was wife’s right to bring the suit within the local limits of Family Court, where she ordinarily resided—Ordinary residence could not be determined through hard and fast rules—Intention of wife to stay at a particular place was material and not length of stay—Neither Civil Procedure Code, 1908, nor Qanun-e-Shahadat, 1984, was applicable to the matters falling within the jurisdiction of Family Court—It was the ordinary residence which was determining factor for jurisdiction of Family Court—Wife had filed suit for recovery of dowry articles as far back as in year, 2001 and as yet she had not succeeded in getting her case/suit decided on merits—Parties had been fighting on technicalities for the past seven years and the case was yet to be decided on merits—High Court directed Family Court to decide pending suit of wife expeditiously—Petition was dismissed in circumstances.
2008 PLD 477 KARACHI-HIGH-COURT-SINDH
S. 5, Sched., & S.12-A—Suit for maintenance of children, divorce/Khula’ and recovery of dowry articles —Trial and decision of such cases on priority basis—Method emphasized by High Court to be adopted by Family Courts.
2007 PLD 38 QUETTA-HIGH-COURT-BALOCHISTAN
S. 5 & Sched.—Limitation Act (IX of 1908), Art.120—Constitution of Pakistan (1973), Art.199—Constitutional petition—Suit for recovery of dowry articles —Limitation—Jurisdiction of Family Court—Respondent within three years of death of her husband filed suit in Family Court for recovery of dowry articles —Petitioner, father of deceased husband of respondent filed application seeking dismissal/rejection of suit filed by respondent being barred by time and for want of jurisdiction—Said application was dismissed and suit filed by respondent having been decreed by the Family Court,
petitioner had filed constitutional petition against judgment of Family Court—Validity—Where no period of limitation was prescribed in filing suit for recovery of dowry articles ; provisions of Art.120, Limitation Act, 1908, providing six years period for filing suit in that respect, would be applicable, but when claim was for a specific movable property or for compensation for wrongful taking, period of limitation was three years from the day, when demand for return of articles was refused; and possession over said articles became unlawful—Suit filed by respondent within three years, was not barred by time—Before amendment in West Pakistan Family Court Act, 1964 suits for recovery of dowry articles , no doubt were to be instituted in civil court, but after amendment in the Act vide Family Courts (Amendment) Act (VII of 1997), such cases either pending or instituted were made exclusively triable by Family Court—Suit, in circumstances, was rightly filed by respondent before Family Court, which was competent forum for recovery of dowry articles —Suit filed by respondent in circumstances fell within exclusive jurisdiction of Family Court—Family Court on proper interpretation of law, had rightly decided to proceed with the case and rejected application of petitioner—Petitioner having failed to make out a case for interference of High Court in exercise of its constitutional jurisdiction, constitutional petition was dismissed.
petitioner had filed constitutional petition against judgment of Family Court—Validity—Where no period of limitation was prescribed in filing suit for recovery of dowry articles ; provisions of Art.120, Limitation Act, 1908, providing six years period for filing suit in that respect, would be applicable, but when claim was for a specific movable property or for compensation for wrongful taking, period of limitation was three years from the day, when demand for return of articles was refused; and possession over said articles became unlawful—Suit filed by respondent within three years, was not barred by time—Before amendment in West Pakistan Family Court Act, 1964 suits for recovery of dowry articles , no doubt were to be instituted in civil court, but after amendment in the Act vide Family Courts (Amendment) Act (VII of 1997), such cases either pending or instituted were made exclusively triable by Family Court—Suit, in circumstances, was rightly filed by respondent before Family Court, which was competent forum for recovery of dowry articles —Suit filed by respondent in circumstances fell within exclusive jurisdiction of Family Court—Family Court on proper interpretation of law, had rightly decided to proceed with the case and rejected application of petitioner—Petitioner having failed to make out a case for interference of High Court in exercise of its constitutional jurisdiction, constitutional petition was dismissed.
2006 PLD 457 SUPREME-COURT
S. 5—Constitution of Pakistan (1973), Art.199—recovery of dowry articles —List containing value of dowry articles —Affidavit attested by Pakistan Embassy abroad—Non-appearance of deponent—Wife filed suit for recovery of dowry articles valuing Rs.955,038 against her husband who was living abroad—Family Court relying on affidavit of husband duly attested by Pakistan Embassy and contents of written statement, partly decreed the suit to the extent of Rs.400,000—-Judgment and decree passed by Family Court was set aside by Appellate Court and the suit was decreed in favour of wife in the sum of Rs.955,038 but High Court in exercise of constitutional jurisdiction restored the judgment and decree passed by Family Court—Validity—Evidence of wife was neither contradicted nor rebutted and list of articles as well as value of articles shown in it must be accepted on its face value—Reasons recorded by Family Court did not appeal to Supreme Court and assessment of value of articles in the sum of Rs.400,000 appeared to be artificial, whimsical and arbitrary—On the other hand calculation made by Lower Appellate Court accepting claim of wife in the sum of Rs.955,038 was evidently justified and warranted by law—High Court in constitutional jurisdiction could not substitute its own findings for the findings recorded by Court of appeal after appraisal of evidence—Judgments passed by High Court as well as by Family Court were set aside and that of the Appellate Court was restored—Appeal was allowed.
2006 PLD 457 SUPREME-COURT
—O.XIII, R.2—West Pakistan Family Courts Act (XXXV of 1964), S.5—Filing of petition for leave to appeal—Limitation—Condonation of delay—Wrong advice of counsel—Wife, in the matter of recovery of dowry articles and past maintenance, being dissatisfied from the judgment of High Court, filed petition for leave to appeal which was barred by 27 days—Plea raised by the wife was that delay was due to wrong advice of counsel who consulted a diary published by Punjab Bar Council—Wife produced affidavit of the counsel and also copy of the diary relied upon—Validity—Party should not be made to suffer or prejudiced on account of wrong advice of counsel provided it was tendered bona fide—Supreme Court, in larger interest of justice extended period for filing of petition for leave to appeal under the provisions of O.XIII. R. 2 of Supreme Court Rules, 1980.
2006 PLD 99 PESHA
–S. 5, Sched. & S.14—Constitution of Pakistan (1973), Art.199—Constitutional petition—Scope—Suits for restitution of conjugal rights, dissolution of marriage, recovery of dower amount, dowry and maintenance—Family Court dismissed suit of petitioner/husband for restitution of conjugal rights and partially decreed suit of respondent/wife qua dissolution of marriage, recovery of dower amount and dowry articles , etc.—Appeal filed by petitioner-husband against judgment and decree of Family Court, having been dismissed; petitioner husband had filed constitutional petition—Validity—Respondent-wife had produced sufficient evidence in support of her claim and nothing was brought on file in rebuttal—Specific assertion made by witness, material to the controversy of the case, having not been challenged in cross-examination by putting contrary suggestions, was to be given full credit and accepted as true unless displaced by reliable, cogent and clear evidence—High Court, in exercise of its constitutional jurisdiction, could not interfere with the findings of fact, unless it was shown that such findings by the lower Court suffered from misreading/non-reading, affecting findings on merit—Decisions of forum constituted under Special Law, were normally not interfered with in exercise of constitutional jurisdiction unless same was illegal, void and without jurisdiction—Courts below; in the present case having properly appreciated evidence available on record, concurrent findings of Courts below not suffering from any illegality, could not be interfered with in constitutional jurisdiction of High Court.
2004 PLD 668 LAHORE
—-S. 5 & Sched.—Constitution of Pakistan (1973), Art.199–Constitutional petition—Suit for recovery of dowry articles – –Decree for payment of money in lieu of dowry articles passed by Family Court was upheld by Appellate Court—Validity—Defendant had not challenged list of articles annexed with plaint—Value of articles as stated by witnesses of plaintiff had not been challenged by defendant in cross-examination–Defendant had not denied factum of car brought by plaintiff alongwith ornaments at the time of marriage—Plaintiff had alleged in plaint sale of car by defendant and misappropriation of its sale proceeds by him–Defendant had not produced evidence in rebuttal to show that plaintiff herself had sold car —In absence of such evidence, concurrent findings of fact of Courts below could not be interfered with in Constitutional jurisdiction of High Court—–
2004 PLD 588 LAHORE-HIGH-COURT-LAHORE
—-S.5 & Sched—Constitution of Pakistan (1973), Art. 199–Constitutional petition—Suit for recovery of value of dowry articles and compensation for divorce—Suit for recovery of compensation for divorce filed by wife was resisted by husband on ground that Family Court had no jurisdiction to grant that relief—Husband had claimed that he had divorced the lady because of her bad character—Evidence on record had shown that husband had made false accusation against the lady as he had no evidence to of fer for the same—No particulars were given as to how he had accused the lady to be of a bad character–Divorce, in circumstances was pronounced by husband without giving any reason against the lady—
2004 PLD 249 LAHORE-HIGH-COURT-LAHORE
—-Ss. 5, Sched. & 13 Constitution of Pakistan (1973), Art.199–Constitutional petition—Suit for recovery of dowry articles or in alternative price thereof —Defendant’s plea was that plaintiff was not given any dowry at the time of marriage—Suit was decreed as prayed for—Executing Court through Local Commission found restitution of such articles impossible, thus, directed the recovery price thereof –Defendant’s plea was that such direction was without jurisdiction as decree did not find mention of money payable by him in the alternative–Validity—Words “as prayed for” were important, which had to
be read in conjunction with prayer clause of the plaint, wherein while seeking decree for recovery of dowry articles , prayer in alternative for price thereof had been made—Local Commissioner’s report showed that most of such articles were either-missing or destroyed or damaged, while some did not belong to the plaintiff—Defendant had produced some articles before the Local Commission of fering delivery thereof , but plaintiff had refused to accept same for not being articles under claim–Plea raised in written statement was that the defendant had no intention to part with any article of dowry belonging to plaintiff–Appointment of Local Commission was for satisfaction of defendant, though there was no need of its appointment after defendant having once denied to be in possession of any dowry articles –Executing Court had, thus, rightly directed defendant to pay cost/value of dowry articles —High Court dismissed Constitutional petition in limine.
be read in conjunction with prayer clause of the plaint, wherein while seeking decree for recovery of dowry articles , prayer in alternative for price thereof had been made—Local Commissioner’s report showed that most of such articles were either-missing or destroyed or damaged, while some did not belong to the plaintiff—Defendant had produced some articles before the Local Commission of fering delivery thereof , but plaintiff had refused to accept same for not being articles under claim–Plea raised in written statement was that the defendant had no intention to part with any article of dowry belonging to plaintiff–Appointment of Local Commission was for satisfaction of defendant, though there was no need of its appointment after defendant having once denied to be in possession of any dowry articles –Executing Court had, thus, rightly directed defendant to pay cost/value of dowry articles —High Court dismissed Constitutional petition in limine.
PLD 2002 KAR.524(a)
Suit for recovery of dower and maintenance –ex parte decrees,setting aside of—Defendant was declared ex parte during proceedings of suits—family court passed ex parte decrees after dismissing
2011 SCMR 1591
S. 2(d) & Sched. Item No. 8—Constitution of Pakistan, Art .185(3)—Suit for recovery of dowery articles by wife—Impleadment of father, brother and mother of husband as party by wife—Petitioners (father, brother and mother) never objected to their impleadment in their written statement before the Family Court or in their appeal before the first appellate court or in the constitutional petition before the High Court—Question of jurisdiction of Family Court was also not raised before any of the courts and petitioners fully participated in the suit trial, filed their appeal and then a constitutional petition in the High Court—Petitioners, in circumstances, were debarred from claiming such a ground (objection to the impleadment) for the first time before the Supreme Court-Petition for leave to appeal was dismissed.
2011 SCMR 1591
S. 2(d). & Sched. Item No.8 (dowery )—“Party”—Suit for recovery of dowry articles -Contention that wife was competent to file such suit only against her husband and not against the father, mother and brother of her husband,, was baseless—Provisions of West Pakistan Family Courts Act, 1964 and its Schedule in item No.8 contains “dowery .
2006 SCMR 662
–S. 5 & Sched.—Constitution of Pakistan (1973), Art.199—Constitutional petition—Suit for recovery of dowery articles or value thereof in alternative—Family Court decreed suit partly while declining claim for motorcycle or its value and gold ornaments—Appellate Court dismissed appeal of wife-Plea of wife was that motorcycle was purchased by her father through her brother, which was given to her at the time of marriage and was sold by husband for Rs.50,000—Husband’s plea was that his brother-in-law had offered motorcycle for sale to him, which he purchased being a dealer of motorcycles and subsequently sold to someone else—High Court in Constitutional petition added price of motorcycle (Rs.50,000) to the amount of decree passed by Family Court—Validity—High Court had correctly added price of motorcycle in amount of decree after finding that motorcycle had been given to wife at the time of marriage as a dowry article, which had been sold by husband for Rs.50,000—No illegality or jurisdictional defect was found in impugned judgment—-Controversy was merely factual in nature not involving any question of law—Supreme Court dismissed petition and refused leave to appeal.
2002 SCMR 701
West Pakistan Family Court Act 1964 —-S. 5 &. Sched.—Constitution of Pakistan (1973), Arts. 199 & 185(3)–Suit for return of dowery articles —District Judge had refused to allow return of the other articles which in the light of evidence on record stood admittedly given by way of dowery in the absence
of any rebuttal or evidence that the goods mentioned in the list were not given as such—District Judge, thus failed to read evidence on record and this was a case of gross misreading of record—Judgment and decree of the District, Judge were held to be without lawful authority by the High Court in its Constitutional jurisdiction under Art. 199 of the Constitution—Validity–No misreading or non-reading of evidence by the High Court was found—High Court in its Constitutional jurisdiction rightly exercised its powers, wherein .the order of the District Judge was found contrary to the evidence recorded by the parties and his findings were perverse which resulted in miscarriage of justice—Supreme Court declined interference in the findings of the High Court in circumstances.
of any rebuttal or evidence that the goods mentioned in the list were not given as such—District Judge, thus failed to read evidence on record and this was a case of gross misreading of record—Judgment and decree of the District, Judge were held to be without lawful authority by the High Court in its Constitutional jurisdiction under Art. 199 of the Constitution—Validity–No misreading or non-reading of evidence by the High Court was found—High Court in its Constitutional jurisdiction rightly exercised its powers, wherein .the order of the District Judge was found contrary to the evidence recorded by the parties and his findings were perverse which resulted in miscarriage of justice—Supreme Court declined interference in the findings of the High Court in circumstances.
MLD 2000 MLD 1638 PESHAWAR-HIGH-COURT-
Muslim Family Laws Ordinance 1961 —-Ss.9 & 10—West Pakistan Family Courts Act (XXXV of 1964), Ss.5, Sched. & 14—Constitution of Pakistan (1973), Art.199—Constitutional petition—Suit for maintenance and dower—Dower and dowery –Distinction—Wife in her suit for maintenance and dower had claimed gold ornaments and a house as dower—Family Court decreed the suit, but Appellate Court in appeal dismissed the claim of wife—Claim of wife qua ornaments and house was specifically mentioned in dower/deed/kabinnama—Wife who admittedly had received gold ornaments at the time of marriage had contended that gold ornaments which were given at the time of Nikah were part of dowery but were snatched and kept into possession by the husband—Contention was devoid of force because dowery were those articles which were given to wife by parents at the time of “Rukhsati” whereas dower was a right of wife which was. always paid or to be paid in lieu of marriage by husband—Dower once paid, liability of same would be satisfied—Taking away of dower by husband after marriage could be considered as loan/credit, return of which could only be sought through civil suit—Wife was entitled to payment of dower in shape of house which had been given to her in dower by husband as per dower deed.
1995 MLD 1149 LAHORE-HIGH-COURT-LAHORE
West Pakistan Family Court Act 1964 —-S.5 & Sched.—Recovery of amount of dowery —Suit for—Plaintiff-wife filed suit for recovery of amount of dowery articles against defendant-husband alleging that disputed articles were given to her by her parents and defendant had deprived her of said articles and threw her out of his house and later on had divorced her—Claim of plaintiff wife was supported by witnesses who had named articles and had also worked out value thereof and had stated that defendant had divorced plaintiff and that disputed dowery articles had not been returned to her despite a demand was made by plaintiff-wife in that respect–Credibility of witnesses was not shaken despite cross-examination to which they were subjected, but Trial Court disbelieved them simply on ground that they were close relatives of plaintiff-wife and that they had not purchased articles in question themselves—That could not form a valid basis to discredit witnesses whose testimony inspired confidence—Even otherwise near relatives were best witnesses to depose as to what articles were given to plaintiff-wife in dowery —Merely because witnesses did not purchase articles in question, would pot show that they were not witnesses of articles being passed out to plaintiff- wife at time of marriage—Plaintiff-wife having already been divorced and there being nothing on record to show that she had received any benefits during subsistence of marriage, it would be rather cruel to deny her articles given by her parents at time of marriage in her marriage.
Bridal gifts
PLD 2006 Karachi 272. Abdul Sattar V/S Mst. Kalsoom
Marriage, dissolution of – Khula, ground of.. Consideration for dissolution of marriage would be remission of dower amount by wife, if not received or its payment, if received– All bridal gifts given to wife before or after marriage would not be returned to husband
Bridal gifts
PLD 2004 Lahore 290. Mst. Shahnaz Begum V/S Muhammad Shafi & Others
S.2(A) & 3 Dowry & Bridal Gifts (Restriction) Act 1976. Art.199 of Constitution. “Dowry” – Definition – Articles of dowry, bridal gifts, presents or all the other movable properties are the belongings of bridge and the husband if deprives her of the same, she has the right to recover all these articles even though the same were given in contradiction of provisions of S.3 of the Dowry & Bridal Gifts (Restriction) Act 1976. Bridge can always recover the articles of dowry and Wari given to her by the bridegroom or the bridegroom side at the time of marriage. Bridal gift given by the husband is the absolute property of the wife and it could not be snatched away from her. CASE REMANDED
Bridal gifts
NLR 2003 SD 347. (Lahore)
S.2,3. Articles of dowry, bridal gifts, presents and all other movable property are the belongings of wife. Wife, if deprived by her husband of bridal gifts, would have right to recover all these articles even though the same were given in violation of S.3
List of Dowry Articles
2013 CLC 698 Lahore
Qanoon-e-Shahadat section 17
suit for the recovery of dowry articles- non production of receipts for dowry article – effect – provision of the qanun-e-shahadat 1984 were not applicable in the proceedings before family court act 1964 – intent of the legislature was clearly to simplify the proceddure and the law makers were aware of the fact that in cases relating to dower the lists were seldom prepared and receipts were very rarely kept intact as everyone made arrangements for marriage of one’s daughter with the hope and prayer that she would lead a happily married life.
Recovery of Gold Ornaments or its value
2013 SCMR 1049
Section 5 of the west Pakistan family courts act (XXXV of 1964)—gold ornaments – market value – compensating wife/decree holder with market value of gold instead of gold ornaments – scope – wife filed suit for recovery of dowry articles against her husband and the list of dowry articles included 17 tolas of gold – suit prayed for either recovery of 17 tolas of gold or its value which was stated to e Rs. 380,000/= — trial court granted decree only for recovery of dowry articles but not its market value therefore wife was held entitled to recovery of 17 tolas and in case he was not in a position to provide the same the wife could be appropriately and fully compensated in terms of money only if she was paid an amount that would enable her to purchase the same from the open market – unlike other property moveable or immoveable determination of market value of gold did not pose any difficulty as the sasem was fixed by gold market on daily basis and was readily exchangeable for case – wife was entitled to recovery of 17 toals gold ornaments or in the alternative its current market value – appeal was allowed accordingly
Receipts of the Dower Articles
2013 CLC 1789 Sindh
Suit for the Recovery of dowry articles- proof in form of list dowry articles bearing signatures of husband side- scope- not possible for a wife to produce such kind of documentary evidence.
Court observe that in our society it is not possible for any bride/wife to keep the record of purchase receipts prepare the list of dowry articles, and obtain signature from bridegroom / husband side. In judge observation mothers start collecting purchase and preserving of articles for her daughter when she starts growing. It is also a tradition that in laws of any bride/wife are extended esteem respect and it is considered an insult to prepare the dowry list for the purpose of obtaining signature form them. I am also forfeited with the ration and wisdom of the court of apex provided though cases Muhammad Habib versus Mst. Safia reported as 2008 SCMR 1584 and Mirza Arshad Baig versus Additional District Judge reported as 2005 SCMR 1740
Receipts are not required to be filed and shopkeepers are not required to be witnesses for dowry articles
2016 YLR Note 43
Section 5 of family court act 1964
Suit for recovery of maintenance dowry articles gold ornaments dower and money – dowry articles proof of—production of receipts regarding dowry articles – requirement – trial court decreed the suit – both parties filed appeal and appellate court dismissing appeal filed by defendant, decreed suit filed by plaintiff as prayed for .. contentions raised by defendant were that no documentary proof had been produced regarding preparations of dowry articles and gold ornaments – validity—defendant had failed to fulfill the marital obligations – plaintiff was not responsible for her desertion— appellant court had rightly held that plaintiff was entitled to dower gold ornaments and cash amount as prayed for— after snatching dowry articles bridal gifts gold ornaments from plaintiff, defendant had not provided any maintenance to her—defendant during cross examination had failed to discard claim made by plaintiff and throughout her statement remained unrebutted of defendant that plaintiff had not proved dowry articles by producing their receipts was not tenable as neither villagers would ask for receipts of wedding shopping nor would shopkeeper stand as witnesses for their customer—appellant court had rightly passed impugned judgment and decree after proper appreciation of evidence which could not be interfered with by High court in exercised of constitutional jurisdiction. Constitutional petition was dismissed in circumstances..
2016 YLR Note 43
U/S 151 CPC
2016 SCMR 1821
Family court has power to enhance the maintenance allowance by application u/s151 Of CPC and no need of independence suit for enhancement.
Grand Father
PLD 2016 Lahore 622
Grand father is only liable to maintain the the grand children when father of child is poor or infirm and mother of child is also not able to maintaian the child.
Review
2016 P.L.D Lah 73
Family judge has the power to review his own order to some extent.
Children should be Brought up according to the Sect/religion of their Father.
PLD 2008 Karachi 198
Ss.12,25 & 47__West Pakistan Family Court …. Art 199 CP.. Appointment of guardian and custody of minors– one of the minor was of about 8 years while other was about 5 1/2 years old– petitioner, who was father of minors was Shia and had sufficient means to look after the welfare of minors, and also to provide them better means for their to handing over the temporary custody to the mother and no evidence was available on record to the effect that during temporary custody of mother, minors were going to school — mother of minors was residing with her three brothers, one of whom was a convicted person and was residing abroad–Record has also shown that the family atmosphere of father was much better for future growth of minors as mother of the father was retired principal of a School, his elder brother was running his own school and his second brother was getting education in Austraila — Father had sufficient source of income to maintain the minors in better way– Father and mother had equal love with the children, more so minors needed love, affection, better education, mental and physical health and civil and social atmosphere– Children should be brought up according to the Sect/religion of their father– both courts below while granting temporary custody of minors to mother had not considered said facts and circumstances and had misread evidence available on record and had not properly appreciated the evidence–impugned Judgments were set aside and petition by father was allowed as prayed for and he was appointed as guardian of the minors till the age of their majority as welfare of minors lay with him.
Resjudicata
(2016 MLD Lahore.1639)
section..11..cpc..section..5..family court act.. resjudicata. “”generally principle of resjudicata is not applicable in family nature cases”
Divorce Through SMS
PLD 2015 Lahore 231
Divorce through SMS Article 73 of Qanun-e-Shahadat Information conveyed over modern devices such as SMS – such information is means to communication validly accepted all over the world, however the witness in whose presence such information is conveyed or received is always important to prove a fact through its verification — Although under article 73 of Qanoon e Shahadat 1984 modern devices are legally acceptable yet in order to prove a fact, the required procedure has to be followed.
Appeal against Dissolution of Marriage
(2013 CLC 1203)
Section 14(2)(a) of West Pakistan family Court Act 1964 and section 2(iii)(d) of Dissolution of Muslim Marriage Act 1939 that no appeal against decree for dissolution of marriage . Its object to deprive from filing of appeal against the decree regarding dissolution is to shorten the agony and to resolve the controversy expeditiously. Theme behind the proceedings or reconciliation proceedings before and after evidence and taking out of the right of appeal in case of dissolution of marriage by the Family Court is only to settle the matter regarding the marriage of the spouses as early as possible. No right of appeal is provided if marriage was dissolved by the family court however if marriage was dissolve under section 2(iii)(d) of the Dissolution of Muslim Marriage Act 1939 then right of appeal had been awarded before the District Judge.
Non-payment of dower or paid on first night
2013 CLC ( Islamabad) 1085
Section 5 of west Pakistan family court Act (XXXV of 1964) — article 199 of constitution Petition – suit for recovery of maintenance allowance and dower was decreed – contention of husband was that he had stated before the family court that dower had been paid to the wife on the wedding night therefore, finding of courts below were incorrect – validity – mere statement before family court could not be considered as proof of payment of dower and the husband was bound to prove the same though evidence – in absence of cogent evidence, simple statement could not be considered as a proof and in such a case the onus would not shift to the wife to disprove the claim of the husband – dower in fact was a debt against the husband in case the dower amount is not paid the wife would have right to refuse the performance of her marital obligations – once it was proved that the dower had not been paid the wife would be entitled to sty away from the husband and the husband would be bound to pay maintenance to the wife – husband in the present case did not prove that he had paid dower to his wife therefore the wife was entitled to receive maintenance allowance
Recovery of Gold Ornaments or its value
2013 SCMR 1049
Section 5 of the west Pakistan family courts act (XXXV of 1964)—gold ornaments – market value – compensating wife/decree holder with market value of gold instead of gold ornaments – scope – wife filed suit for recovery of dowry articles against her husband and the list of dowry articles included 17 tolas of gold – suit prayed for either recovery of 17 tolas of gold or its value which was stated to e Rs. 380,000/= — trial court granted decree only for recovery of dowry articles but not its market value therefore wife was held entitled to recovery of 17 tolas and in case he was not in a position to provide the same the wife could be appropriately and fully compensated in terms of money only if she was paid an amount that would enable her to purchase the same from the open market – unlike other property movable or immovable determination of market value of gold did not pose any difficulty as the sames was fixed by gold market on daily basis and was readily exchangeable for case – wife was entitled to recovery of 17 toals gold ornaments or in the alternative its current market value – appeal was allowed accordingly
Signing Nikahnama
CLC 2013 932
Marriage – Nikahnama signing of – effect – As soon as an adult of sound mind signed the nikahnama, he entered into a contract, whereby heavy responsibility was cast upon him to provide basic necessities of life to his wife.
Wife Disentitle of Maintenance
2013 CLC 897
Section 5 west Pakistan Family Courts Acts 1964 – suit for recovery of maintenance allowance by wife – refusal of wife to live with her husband despite having received dower amount on basis of compromise effected between spouses in suit for restitution of conjugal rights filed by husband – validity—wife for being disobedient was not entitled to maintenance during period of desertion – suit was dismissed in circumstance
Increment of Minor Maintenance
2013 CLC 897
Maintenance allowance for minor – admission of father ( Govt. employee) to be drawing monthly salary as Rs, 9,944/= with periodic increase therein – maintenance awarded to minor by family court @ Rs. 3000/= per month with annual increase therein @ 10% upheld by appellant court – father pleas was that no provision existed in west Pakistan Family Courts Act 1964 for granting maintenance with annual increase therein—validity – Father in evidence had admitted increase in his pay on periodic basis as well as 50% increment in his earlier basic pay and medical allowance – courts below on basis of evidence available on record regarding periodic increase in monthly salary /income of father and also considering growing needs of minor along with rampant inflation in currency had rightly awarded 10% annual increase in maintenance of minor – High Court dismissed constitutional petition in circumstance.
Remarriage after Khula without Intervening
PLD 2013 Sindh 209
Section 7(6) Muslim Family Law Ordinance 1961 — constitutional petition — re-marriage – parties were husband and wife inters and their marriage had been dissolved on the basis of khula vied ex parte decree dated 7-11-2009 – plea raised by parties was that suit for dissolution of marriage was filed on misunderstanding and both of them wanted to re-marry without intervening marriage (Hallala) – validity – Approved mode of divorce, under Muslim Family laws Ordinance 1961 was by one “Talaq” and such mode was obligatory for husband to divorce by one mode of “talaq” other than “Talaq-e-“Ahsan” – Couple could remarry without any intervening marriage except where wife had been divorced thrice and third divorce had become 4 effective and only in that case they could not remarry without “Halala” – All divorces were revocable under section 7(6) of Muslim Family Law Ordinance 1961 – High Court allowed reunion of parties after revival of “Nikah” particularly when wife was willing to live again with her husband and to perform her matrimonial conjugal rights within the limits ordained by the Holy Quran and Sunnah – Petition was allowed in circumstances.
Marriage of Girl having 14 yeas of age
PLD 2013 Lahore 243
1994 SCMR 2102
Section 375 Pakistan Penal Code
Ss. 2(a) & (b) Child Marriage Restrain Act 1929 Ss. 2(a) & (b)
Section 491 Habeas Corpus Criminal Procedure Code 1898 – Petition for the recovery of Detenue – Rape —
Marriage of Muslim girl below sixteen years of age who had otherwise attained puberty and consented to the marriage — Legality — complainant (father of alleged detenue ) filed present petition for recovery of her daughter contending that she was a minor girl and accused was subjecting her to rape – alleged detenue contended that she had attained puberty and contracted marriage with the accused out of her own free will and consant –– validity — Medical reports of alleged detenue revealed that she was between 14 and 15 years of age at the time of her marriage with the accused – medico-legal certificate available on record showed that alleged detenue had developed all physical characteristics of having attained puberty – marriage of the Muslim girl who was below 16 yeas of age, but had attained puberty and was also a consenting party to the marriage, was valid for all intent and purposes — relationship of accused with the alleged detenue could not be equated with rape in such circumstances — Alleged detenue claimed to have attained puberty and admitted her willful nikah with the accused and also deposed to accompany him — petition for recovery of alleged detenue was dismissed in circumstances.
List of Dowry Articles
Qanoon-e-Shahadat section 17
2013 CLC 698 Lahore
suit for the recovery of dowry articles- non production of receipts for dowry article – effect – provision of the qanun-e-shahadat 1984 were not applicable in the proceedings before family court act 1964 – intent of the legislature was clearly to simplify the procedure and the law makers were aware of the fact that in cases relating to dower the lists were seldom prepared and receipts were very rarely kept intact as everyone made arrangements for marriage of one’s daughter with the hope and prayer that she would lead a happily married life.
List of dowry Articles, Receipts of dowry articles, Recovery of dowry articles Retrun of Haq Mehr in lieu of Khula
2013 CLC 450
section 5 and section 10(4) of West Pakistan Family Courts Act 1964
Dissolution of marraige by way of khula – dower (haq Mahr) – return- scope- dispute regarding payment of dower – wife admitted payment of dower at the time of marriage but alleged that the same was snatched from her subsequently – wife filed suit for dissolution of marriage by way of khula which was decreed by the trial court in lieu of payment of dower. However due to the dispute between parties regarding payment of dower, trial court framed an issue to the effect that whether husband had paid doer to the wife – validity – wife had admitted that dower was paid to her and that same was later allegedly snatched from her – once the husband had paid to her wife liability of payment of dower stood fulfilled – even if dower was subsequently snatched by the husband it could not be said that dower amount was not paid – allegation made by wife that her dower amount had been snatched by the husband did not absolve her from the liability of returning the same because once dower amount was paid by the husband, payment of dower attained finality and allegedly snatched amount article would not be termed as dower amount -trial court had passed decree for disslution of marraige by way of khula in liue of dower but at the same time also framed an issue to the effect that whether husband had paid dower to the wife – trial court in such circumstances should have first decide the issue regarding payment of dower after recording evidence and then should have passed decree for granting khula or otherwise – case was remanded to the trial court with direction to first decide the issue regarding payment of dower and then pass appropriate order with regard to grant of khula.
Khula in lieu of dower, return of dower in khula Succession Certificate of Nominee section 372 and section 373 Succession Certificate
2013 CLC 406 Sindh High Court
Nominee is not entitled as owner of the amount subject matter in the succession matters but is only a representative and legal, duty bound to receive the amount and distribute among legal heirs.
Nominee succession certificate, Succession Certificate of Nominee
Grandchildren Right of Inheritance
2013 CLC 542 Peshawar
Section 4 of Muslim Family law Ordinance 1961
Article 203-D of Constitution of Pakistan
Right of Inheritance – scope- right of grandchildren to inherit the share of their predeceased father from their grandfather — Legality – Although Federal Shariat Court had declared section 4 of Muslim Family Law Ordinance 1961 to be repugnant to Islamic Sharia but such verdict was under challenge before the Supreme Court and thereby the operation of said verdict stood suspended automatically till decision of the appeal as provided by Article 203-D of the Constitution – grandchildren therfore, could inherit the share of their predeceased father from their grandfather.
Grandchildren Right of Inheritance Maintenance of Breast Feeding Maintenance of breast feeding
2004 CLC 473
PLJ 2004 Lahore 1075
Mother is entitled to maintenance for breast feeding the suckling baby for two years even after the period of iddat. However social status of the man and the level of his legitimate financial source which are imminent factor for deciding the quantum of maintenance shall not be ignored.
Breast feeding, Breast feeding maintenance, Maintenance of Breast Feeding Quantum of Interim Maintenance
2011 MLD 1105 Lahore
Section 17-A West pakistan Family Court Act 1964
Constitution of Pakistan Article 199
Maintainability- interim maintenance, quantum of – petition father /defendant challenged the reate of interim maintenance allowance awarded to his daughters – quantum of interim maintenance allowance was not excessive in view of status of parties and expenses incurred on the education of daughters – determination of adequacy and inadequacy of the quantum of interim mantenance allowance would require factual inquiry which could not be undertake by the High Court in its constitutional jurisdiction – impugned order was interlocutory in nature and was based on tentative assessment and the same could not be questioned in the constitutional jurisdiction of High court – Constitutional Petition was dismissed accordingly.
Determination of interim maintenance, Interim Maintenance Petition, quantum of interim Maintenance
Past Maintenace limitation
2011 MLD 1012 Lahore
section 5 Limitation Act 1908
section 5 Limitation Act 1908
Article 120, 199 Constitution of Pakistan
Suit for maintenance for four year till the period of iddat – appellate court upheld the judgment of trial court – defendant contended that past maintenance allowance could not be granted for more than a peiod of three years – validity – defendant remained out of country during last five years of marriage leaving behind the family and visited the country only twic – nothing was brought on record to unsettle the factual controversies and the findings of the courts below – No period of limitation was prescribed under the limitation Act 1908 filing suit for maintenance allowance and was governed by article 120 of the limitation Act 1908 which provided period of six years for filing and suit for which no period of limitation was prescribed – constitutional petition was dismissed for being within merit.
Consent of Wali for Marriage
2011 MLD 1228 Lahore
PLD 2004 Supreme Court 219
Marriage – Validity- consent of “Wali” isnot required and a sui juris Muslim female can enter into valid marriage / nikah of her own free will and choice
Maintenance Interim Order Limitation
PLD 2013 Lahore 64
Section 17A and 12A of West Pakistan Family Court Act 1964
Section 17A and 12A of West Pakistan Family Court Act 1964
Interim maintenance order fixing allowance – time period for which such interim order would remain valid – scope joint reading of section 17A and 12A of West Pakistan Family Courts Act 1964 reveled that when Family Court was made competent to pass an interim order for payment of maintenance allowance, it was also made incumbent upon the Family Court to dispose of the case pending before it within a period of six months from the date of institution – order passed under section 17A of the Wets Pakistan Family Court Act 1964 would be, at most effective by virtue of section 12A for final disposal of a lis pending before Family Court- when the maximum age expired, continuation of proceedings before Family Court violate provision of section 12A of the said Act- age of an order passed under section 17A of West Pakistan Family Courts Act 1964 for interim maintenance would at maximum be six months and if proceedings were not concluded within such time in the main suit wherein interim order was passed, the Family Court should not insist upon the implementation of the order of interim maintenance – High Court observed that family Court had to report to the High Court for non implementation of section 12A of West Pakistan Family Court Act 1964 or in case of failure of Family Court to do so, either party would have a right to bring to notice of High Court such illegality being continued in the Family Court and High Court shall then either under prosaic to section 12A of the said Act or under Article 199 of the Constitution pass appropriate order and reconsider quantum of maintenance
Wife can remarry without intervention after Khula
PLD 2013 Lahore 88
PLD 2010 Karachi 131
section 7(6) of Muslim Family Law Ordinance 1961
section 7(6) of Muslim Family Law Ordinance 1961
Pronouncement of talaq by court would amount to single divorce and husband would be at liberty to marry the wife again after solemnization of nikah without intervention of a third person – section 7(6) of the Muslim Family Law Ordinance 1961 did not debar wife whose marriage had been terminated by divorce under section 7 of the said ordinance from remarrying the same husband without intervening marriage with a third person.
Recovery of Dowry Articles
PLD 2013 Islamabad 11
Section 17, Dowry and Bridal Gifts (Restriction) Act 1976
Section 2(b) 10, Dowry and Bridal Gift (Restriction) Rule 1976
Suit for Recovery of dowry articles- list of dowry articles produced in evidence by both parties in support of their respective claim – decree passed by Family Court on basis of such list produced by husband upheld by Appellant Court. Wife plea that rule of thumb would apply to proceedings before Family court and not provisions of Qanoon-e-Shahadat 1984 or its principles, thus receipts in respect of purchase of dowry articles produced by her were liable to be relied upon by courts below –
Validity – wife in her statement had admitted that such list was not prepared at time of her nikah, while her father had deposed otherwise – rule of thumb would not be solve a party from establishing his/her claim – party denying liability, on basis of such rule, could not be burdened to shoulder claim of opposite party without its proof- Dowry list produced by wife was not prepared in shape of Form D-1 as prescribed in Rule 4(1) of Dowry and Bridal Gift (Restriction ) Rules 1976, therefore same was not to be considered in support of her claim – receipts in respect of purchase of household articles on basis of rule of thumb would not quality and met essential requirement of proof of purchase of said articles by parents of wife and its giving to her before or after marriage – High Court dismissed constitutional Petition in circumstances
Female Child Custody
2013 CLC Lahore 235
section 25 of Guardian and Ward Act 1890
Minor, Wefare of – Minor daughter was living with her mother and Guardian Court declined to interfere in the custody but lower Appellate Court handed over the minor to her father – Validity – Love and affection of a mother could not be compared with – welfare of minor was to be given paramount consideration for disposal of such like questions i.e. custody of minor and for that purpose any other consideration, even personal law of the parties was sometimes preferred to be ignored – whenever any such circumstances existed or controversies were brought before the court, Judge performed his jurisdiction like parents- Tearing apart the minor from lap of her mother, who at such stage, for the sake and betterment of minor, even was taking risk of her matrimonial life with her second husband, would affect mental, psychological and physical uplift of the minor – High court in exercise of constitutional jurisdiction, set aside the judgment and decree passed by Lower Appellant court and restored that the Guardian Court – Petition was allowed
Divorce wife residing abroad
2013 CLC Islamabad 108
Section 7 West Pakistan Rules under Muslim Family law Ordinance 1961.
talaq (divorce)- wife residing abroad-serving of notice on wife, effectiveness of – arbitration council jurisdiction of- preoceedings for dissolution of Marriage, custody of minor and equitable distribution of property initiated by wife in the foreign court- husband ws alleged to have prepared a forged divorce deed in Pakistan with the intention to frustrate said proceeding before foreign court- contention of wife was that she residing aborad and was not served otice of talaq by Arbitration council in accordance with section 7 of Muslim Family law Ordinance 1961 and that arbitration council had failed to appreciate her objection about her non residence within its territorail jurisdiction- validity- perusal of reply affidavit submitted by wife before foreign court showed that she had knowledge about pronouncement of talaq and proceedings before the arbitration council in Pakistan- Rule 3(b) of west Pakistan Rules under Muslim Family Law Ordinance 1961 clearly provide that where she last resided would have jurisdiction for the purpose of notice therefore contention of wife regarding jurisdiction needed no further discussion.
talaq (divorce)- wife residing abroad-serving of notice on wife, effectiveness of – arbitration council jurisdiction of- preoceedings for dissolution of Marriage, custody of minor and equitable distribution of property initiated by wife in the foreign court- husband ws alleged to have prepared a forged divorce deed in Pakistan with the intention to frustrate said proceeding before foreign court- contention of wife was that she residing aborad and was not served otice of talaq by Arbitration council in accordance with section 7 of Muslim Family law Ordinance 1961 and that arbitration council had failed to appreciate her objection about her non residence within its territorail jurisdiction- validity- perusal of reply affidavit submitted by wife before foreign court showed that she had knowledge about pronouncement of talaq and proceedings before the arbitration council in Pakistan- Rule 3(b) of west Pakistan Rules under Muslim Family Law Ordinance 1961 clearly provide that where she last resided would have jurisdiction for the purpose of notice therefore contention of wife regarding jurisdiction needed no further discussion.
Restoration of Haq Mehr
2013 CLC Lahore 94
section 10(4) of West Pakistan Family Courts Act 1964
Interpretation of section 10(4) proviso of west Pakistan Family Courts Act 1964- Restoration of Haq Mehr- proviso to section 10(4) of the west Pakistan Family Court Act 1964 provided that it could be validity inferred that if pre-trial reconciliation efforts familed, the family court would pass decree for dissolution of marriage forthwith and would also restore to the husband, the haq mehr received by the wife- order for the restoration of Haq Mehr could not be made mechanically as a matter of routine without first determining if the Haq Mehr was in fact received or not by the wife.
Interpretation of section 10(4) proviso of west Pakistan Family Courts Act 1964- Restoration of Haq Mehr- proviso to section 10(4) of the west Pakistan Family Court Act 1964 provided that it could be validity inferred that if pre-trial reconciliation efforts familed, the family court would pass decree for dissolution of marriage forthwith and would also restore to the husband, the haq mehr received by the wife- order for the restoration of Haq Mehr could not be made mechanically as a matter of routine without first determining if the Haq Mehr was in fact received or not by the wife.
Family court territorial jurisdiction, Court within the local limits of which the wife ordinary resides
PLD 2016 SC Page 613
Family court territorial jurisdiction .. court within the local limits of which the wife ordinary resides… family court alone had exclusive jurisdiction to deal with all the matrimonial disputes, whatever their nature, irrespective of territorial jurisdiction, provided that the family court where the wife resides shall have the jurisdiction to entertain such suits/claims… provisions of section 16, 17, 18, 19 and 20 CPC stood excluded from the proceedings before the family court, thus the question of its territorial jurisdiction would never arise, provided that the family court where the wife resides shall have the exclusive jurisdiction over all such matter
Uncle & Aunt Not Entitled to have Custody of Minor According to Prevalent Law in presence of Mother.
(1997 MLD Lah 543)
S. 12 & 25 G&W Act.. Constitution of Pakistan Art. 199—Constitutional Petition- – Custody of minor Daughter – – Mother, who was divorced by her husband claiming custody of her minor daughter in suit filed before guardian judge- During pendency of adjudication, Custody of minor was handed over to her mother as an interim measure—Father’s appeal was dismissed by appellate Court—Validity—Minor daughter was aged less than 2 ½ years and her father being army jawan and being posted away from his village was not looking after his daughter – Minor daughter was with brother of her father and her paternal aunt—legally, welfare of minor has to be kept in mind while disposing of application under S. 25, Guardian and wards Act, 1890 as also, under S. 12 of the act—Minor’s father being away from his home was not leading matrimonial life, even no female of his family was living with him at the place of his posting—Minor daughter was living with her uncle and aunt, who were not entitled to have custody being of minor according to prevalent law in presence of mother, minor daughter being of tender years would need nursing care of convenient life and would not be able to get proper guidance and have proper bringing up – both courts below had rightly handed over custody of minor to her mother—No interference was warranted in concurrent order of courts below in handing over custody of minor to mother.
Limitation in suit for Recovery or Dower
(2016 CLC 313 ISLAMABAD)
S. 5, Sched.—Limitation Act (IX of 1908), Art.49—Suit for recovery of dower—Limitation—Three years limitation period had been provided for a suit for gold ornaments
PLD 2016 FSC 4
O.XXI, Rr. 32, 33 of C.P.C.—- S. 5 of WPFCA, 194—Decree against wife for restitution of conjugal rights— Non-compliance with decree by wife—Jurisdiction of Family Court to attach wife’s property or order her to make periodical payments to the husband for non-compliance with decree— Repugnancy to injunctions of Islam—Decree passed by a competent court had great significance and sanctity in Islam— Order XXI, Rr.32 & 33, C.P.C. provided a mechanism for execution of decree/judgment delivered by Family Court, in the event that a spouse was not complying with such decree/judgment—- Order XXI, Rr. 32 & 33, C.P.C. were not against the Injunctions of Islam
Custody of minor girl to father
(2014 SCMR 343)
Mother’s claim for guardinship of minor daughter, second marriage by mother with a person not related to minor within prohibited degree, father haveing three children from second marriage– validity– mere second marriage by father would not disentitle him from getting custody of his minor daughter– mother, according to Islamic Law, despite being entitled to custody of her minor daughter would become disentitled, if she took second husband not related to minor within prohibited degree, thus custody of minor in such case would belong to her real father. Custody of minor daughter was directed to be handed over to her father in circumstances.
Mother’s claim for guardinship of minor daughter, second marriage by mother with a person not related to minor within prohibited degree, father haveing three children from second marriage– validity– mere second marriage by father would not disentitle him from getting custody of his minor daughter– mother, according to Islamic Law, despite being entitled to custody of her minor daughter would become disentitled, if she took second husband not related to minor within prohibited degree, thus custody of minor in such case would belong to her real father. Custody of minor daughter was directed to be handed over to her father in circumstances.
Custody of minor male children to father
(PLJ 2009 Lahore High Court 356)
—-art. 199–constitutional petition–custody of minors–male children was handed over to father, who was a civil servant and even educated person–application for custody to extent of the male children was accepted–appeal was dismissed–challenged through writ petition–right of custody for male minors who are above 7 years–validity–question raised through writ petition is that change of custody from mother to father shall change the scenario, and would damage the future of minors–held: civil servant being an educated person will not care for future of his minor sons for whom he was much concerned all along–right of custody for male minors who are above 7 for father is to be preferred as he is in a better position to facilitate and arrange schooling–no illegality or infirmity calling for interference in exercise of constitutional jurisdiction of high court–petition was dismissed
Statement Of Ward
PLJ 2009 Karachi High Court 47
—-arts. 199 & 187–guardians and wards act, (viii of 1890), s. 25–custody of minor–statement of ward–validity–where children had remained under complete supervision of mother and maternal parents/relatives to the complete exclusion of father and his part of family for the last 8 to 9 years, statements of such children were a result of tutoring and brain washing–statements of such children could not be accepted
Liability of maintenance of female after dissolution.
(PLD 2015 Lah 683)
After dissolution of marriage , female losses her marital status and liability again shifted toward her father female entitle to maintenance and claim it after dissolution of marriage from her father, as liability of husband to maintain his wife only continues till the subsistence of marriage.
Halala
Remarriage After Khula
(PLD 1970 Lah 1)
(PLD 2011 lah 458)
(2011 CLC 1211)
(PLD 2003 pesh 169)
No intermediate marriage of women with another is necessary.
Free will/ legal right of inheritance of a Muslim girl
2014 YLR 2053
Plaintiff/ legal heir could not be deprived of her right of inheritance merely for the reason of entering into a contract of marriage with her own free will which was otherwise a legal right of every muslim girl.
Maintenance
2015 YLR 511
Law did not debar minor children to claim the maintenance allowance even after attaining the age of majority.
Children should be Brought up according to the Sect/religion of their Father.
PLD 2008 Karachi 198
Ss.12,25 & 47__West Pakistan Family Court .... Art 199 CP.. Appointment of guardian and custody of minors-- one of the minor was of about 8 years while other was about 5 1/2 years old-- petitioner, who was father of minors was Shia and had sufficient means to look after the welfare of minors, and also to provide them better means for their to handing over the temporary custody to the mother and no evidence was available on record to the effect that during temporary custody of mother, minors were going to school -- mother of minors was residing with her three brothers, one of whom was a convicted person and was residing abroad--Record has also shown that the family atmosphere of father was much better for future growth of minors as mother of the father was retired principal of a School, his elder brother was running his own school and his second brother was getting education in Austraila -- Father had sufficient source of income to maintain the minors in better way-- Father and mother had equal love with the children, more so minors needed love, affection, better education, mental and physical health and civil and social atmosphere-- Children should be brought up according to the Sect/religion of their father-- both courts below while granting temporary custody of minors to mother had not considered said facts and circumstances and had misread evidence available on record and had not properly appreciated the evidence--impugned Judgments were set aside and petition by father was allowed as prayed for and he was appointed as guardian of the minors till the age of their majority as welfare of minors lay with him.
Appeal against Dissolution of Marriage
(2013 CLC 1203)
Section 14(2)(a) of West Pakistan family Court Act 1964 and section 2(iii)(d) of Dissolution of Muslim Marriage Act 1939 that no appeal against decree for dissolution of marriage . Its object to deprive from filing of appeal against the decree regarding dissolution is to shorten the agony and to resolve the controversy expeditiously. Theme behind the proceedings or reconciliation proceedings before and after evidence and taking out of the right of appeal in case of dissolution of marriage by the Family Court is only to settle the matter regarding the marriage of the spouses as early as possible. No right of appeal is provided if marriage was dissolved by the family court however if marriage was dissolve under section 2(iii)(d) of the Dissolution of Muslim Marriage Act 1939 then right of appeal had been awarded before the District Judge.
Non-payment of dower or paid on first night
2013 CLC ( Islamabad) 1085
Section 5 of west Pakistan family court Act (XXXV of 1964) — article 199 of constitution Petition – suit for recovery of maintenance allowance and dower was decreed – contention of husband was that he had stated before the family court that dower had been paid to the wife on the wedding night therefore, finding of courts below were incorrect – validity – mere statement before family court could not be considered as proof of payment of dower and the husband was bound to prove the same though evidence – in absence of cogent evidence, simple statement could not be considered as a proof and in such a case the onus would not shift to the wife to disprove the claim of the husband – dower in fact was a debt against the husband in case the dower amount is not paid the wife would have right to refuse the performance of her marital obligations – once it was proved that the dower had not been paid the wife would be entitled to sty away from the husband and the husband would be bound to pay maintenance to the wife – husband in the present case did not prove that he had paid dower to his wife therefore the wife was entitled to receive maintenance allowance
Recovery of Gold Ornaments or its value
2013 SCMR 1049
Section 5 of the west Pakistan family courts act (XXXV of 1964)—gold ornaments – market value – compensating wife/decree holder with market value of gold instead of gold ornaments – scope – wife filed suit for recovery of dowry articles against her husband and the list of dowry articles included 17 tolas of gold – suit prayed for either recovery of 17 tolas of gold or its value which was stated to e Rs. 380,000/= — trial court granted decree only for recovery of dowry articles but not its market value therefore wife was held entitled to recovery of 17 tolas and in case he was not in a position to provide the same the wife could be appropriately and fully compensated in terms of money only if she was paid an amount that would enable her to purchase the same from the open market – unlike other property movable or immovable determination of market value of gold did not pose any difficulty as the sames was fixed by gold market on daily basis and was readily exchangeable for case – wife was entitled to recovery of 17 toals gold ornaments or in the alternative its current market value – appeal was allowed accordingly
Signing Nikahnama
CLC 2013 932
Marriage – Nikahnama signing of – effect – As soon as an adult of sound mind signed the nikahnama, he entered into a contract, whereby heavy responsibility was cast upon him to provide basic necessities of life to his wife.
Wife Disentitle of Maintenance
2013 CLC 897
Section 5 west Pakistan Family Courts Acts 1964 – suit for recovery of maintenance allowance by wife – refusal of wife to live with her husband despite having received dower amount on basis of compromise effected between spouses in suit for restitution of conjugal rights filed by husband – validity—wife for being disobedient was not entitled to maintenance during period of desertion – suit was dismissed in circumstance
Increment of Minor Maintenance
2013 CLC 897
Maintenance allowance for minor – admission of father ( Govt. employee) to be drawing monthly salary as Rs, 9,944/= with periodic increase therein – maintenance awarded to minor by family court @ Rs. 3000/= per month with annual increase therein @ 10% upheld by appellant court – father pleas was that no provision existed in west Pakistan Family Courts Act 1964 for granting maintenance with annual increase therein—validity – Father in evidence had admitted increase in his pay on periodic basis as well as 50% increment in his earlier basic pay and medical allowance – courts below on basis of evidence available on record regarding periodic increase in monthly salary /income of father and also considering growing needs of minor along with rampant inflation in currency had rightly awarded 10% annual increase in maintenance of minor – High Court dismissed constitutional petition in circumstance.
Remarriage after Khula without Intervening
PLD 2013 Sindh 209
Section 7(6) Muslim Family Law Ordinance 1961 — constitutional petition — re-marriage – parties were husband and wife inters and their marriage had been dissolved on the basis of khula vied ex parte decree dated 7-11-2009 – plea raised by parties was that suit for dissolution of marriage was filed on misunderstanding and both of them wanted to re-marry without intervening marriage (Hallala) – validity – Approved mode of divorce, under Muslim Family laws Ordinance 1961 was by one “Talaq” and such mode was obligatory for husband to divorce by one mode of “talaq” other than “Talaq-e-“Ahsan” – Couple could remarry without any intervening marriage except where wife had been divorced thrice and third divorce had become 4 effective and only in that case they could not remarry without “Halala” – All divorces were revocable under section 7(6) of Muslim Family Law Ordinance 1961 – High Court allowed reunion of parties after revival of “Nikah” particularly when wife was willing to live again with her husband and to perform her matrimonial conjugal rights within the limits ordained by the Holy Quran and Sunnah – Petition was allowed in circumstances.
Marriage of Girl having 14 yeas of age
PLD 2013 Lahore 243
1994 SCMR 2102
Section 375 Pakistan Penal Code
Ss. 2(a) & (b) Child Marriage Restrain Act 1929 Ss. 2(a) & (b)
Section 491 Habeas Corpus Criminal Procedure Code 1898 – Petition for the recovery of Detenue – Rape —
Marriage of Muslim girl below sixteen years of age who had otherwise attained puberty and consented to the marriage — Legality — complainant (father of alleged detenue ) filed present petition for recovery of her daughter contending that she was a minor girl and accused was subjecting her to rape – alleged detenue contended that she had attained puberty and contracted marriage with the accused out of her own free will and consant –– validity — Medical reports of alleged detenue revealed that she was between 14 and 15 years of age at the time of her marriage with the accused – medico-legal certificate available on record showed that alleged detenue had developed all physical characteristics of having attained puberty – marriage of the Muslim girl who was below 16 yeas of age, but had attained puberty and was also a consenting party to the marriage, was valid for all intent and purposes — relationship of accused with the alleged detenue could not be equated with rape in such circumstances — Alleged detenue claimed to have attained puberty and admitted her willful nikah with the accused and also deposed to accompany him — petition for recovery of alleged detenue was dismissed in circumstances.
List of Dowry Articles
Qanoon-e-Shahadat section 17
2013 CLC 698 Lahore
suit for the recovery of dowry articles- non production of receipts for dowry article – effect – provision of the qanun-e-shahadat 1984 were not applicable in the proceedings before family court act 1964 – intent of the legislature was clearly to simplify the procedure and the law makers were aware of the fact that in cases relating to dower the lists were seldom prepared and receipts were very rarely kept intact as everyone made arrangements for marriage of one’s daughter with the hope and prayer that she would lead a happily married life.
List of dowry Articles, Receipts of dowry articles, Recovery of dowry articles Retrun of Haq Mehr in lieu of Khula
2013 CLC 450
section 5 and section 10(4) of West Pakistan Family Courts Act 1964
Dissolution of marraige by way of khula – dower (haq Mahr) – return- scope- dispute regarding payment of dower – wife admitted payment of dower at the time of marriage but alleged that the same was snatched from her subsequently – wife filed suit for dissolution of marriage by way of khula which was decreed by the trial court in lieu of payment of dower. However due to the dispute between parties regarding payment of dower, trial court framed an issue to the effect that whether husband had paid doer to the wife – validity – wife had admitted that dower was paid to her and that same was later allegedly snatched from her – once the husband had paid to her wife liability of payment of dower stood fulfilled – even if dower was subsequently snatched by the husband it could not be said that dower amount was not paid – allegation made by wife that her dower amount had been snatched by the husband did not absolve her from the liability of returning the same because once dower amount was paid by the husband, payment of dower attained finality and allegedly snatched amount article would not be termed as dower amount -trial court had passed decree for disslution of marraige by way of khula in liue of dower but at the same time also framed an issue to the effect that whether husband had paid dower to the wife – trial court in such circumstances should have first decide the issue regarding payment of dower after recording evidence and then should have passed decree for granting khula or otherwise – case was remanded to the trial court with direction to first decide the issue regarding payment of dower and then pass appropriate order with regard to grant of khula.
Khula in lieu of dower, return of dower in khula Succession Certificate of Nominee section 372 and section 373 Succession Certificate
2013 CLC 406 Sindh High Court
Nominee is not entitled as owner of the amount subject matter in the succession matters but is only a representative and legal, duty bound to receive the amount and distribute among legal heirs.
Nominee succession certificate, Succession Certificate of Nominee
Grandchildren Right of Inheritance
2013 CLC 542 Peshawar
Section 4 of Muslim Family law Ordinance 1961
Article 203-D of Constitution of Pakistan
Right of Inheritance – scope- right of grandchildren to inherit the share of their predeceased father from their grandfather — Legality – Although Federal Shariat Court had declared section 4 of Muslim Family Law Ordinance 1961 to be repugnant to Islamic Sharia but such verdict was under challenge before the Supreme Court and thereby the operation of said verdict stood suspended automatically till decision of the appeal as provided by Article 203-D of the Constitution – grandchildren therfore, could inherit the share of their predeceased father from their grandfather.
Grandchildren Right of Inheritance Maintenance of Breast Feeding Maintenance of breast feeding
2004 CLC 473
PLJ 2004 Lahore 1075
Mother is entitled to maintenance for breast feeding the suckling baby for two years even after the period of iddat. However social status of the man and the level of his legitimate financial source which are imminent factor for deciding the quantum of maintenance shall not be ignored.
Breast feeding, Breast feeding maintenance, Maintenance of Breast Feeding Quantum of Interim Maintenance
2011 MLD 1105 Lahore
Section 17-A West pakistan Family Court Act 1964
Constitution of Pakistan Article 199
Maintainability- interim maintenance, quantum of – petition father /defendant challenged the reate of interim maintenance allowance awarded to his daughters – quantum of interim maintenance allowance was not excessive in view of status of parties and expenses incurred on the education of daughters – determination of adequacy and inadequacy of the quantum of interim mantenance allowance would require factual inquiry which could not be undertake by the High Court in its constitutional jurisdiction – impugned order was interlocutory in nature and was based on tentative assessment and the same could not be questioned in the constitutional jurisdiction of High court – Constitutional Petition was dismissed accordingly.
Determination of interim maintenance, Interim Maintenance Petition, quantum of interim Maintenance
Past Maintenace limitation
2011 MLD 1012 Lahore
section 5 Limitation Act 1908
Article 120, 199 Constitution of Pakistan
Suit for maintenance for four year till the period of iddat – appellate court upheld the judgment of trial court – defendant contended that past maintenance allowance could not be granted for more than a peiod of three years – validity – defendant remained out of country during last five years of marriage leaving behind the family and visited the country only twic – nothing was brought on record to unsettle the factual controversies and the findings of the courts below – No period of limitation was prescribed under the limitation Act 1908 filing suit for maintenance allowance and was governed by article 120 of the limitation Act 1908 which provided period of six years for filing and suit for which no period of limitation was prescribed – constitutional petition was dismissed for being within merit.
Consent of Wali for Marriage
2011 MLD 1228 Lahore
PLD 2004 Supreme Court 219
Marriage – Validity- consent of “Wali” isnot required and a sui juris Muslim female can enter into valid marriage / nikah of her own free will and choice
Maintenance Interim Order Limitation
PLD 2013 Lahore 64
Section 17A and 12A of West Pakistan Family Court Act 1964
Interim maintenance order fixing allowance – time period for which such interim order would remain valid – scope joint reading of section 17A and 12A of West Pakistan Family Courts Act 1964 reveled that when Family Court was made competent to pass an interim order for payment of maintenance allowance, it was also made incumbent upon the Family Court to dispose of the case pending before it within a period of six months from the date of institution – order passed under section 17A of the Wets Pakistan Family Court Act 1964 would be, at most effective by virtue of section 12A for final disposal of a lis pending before Family Court- when the maximum age expired, continuation of proceedings before Family Court violate provision of section 12A of the said Act- age of an order passed under section 17A of West Pakistan Family Courts Act 1964 for interim maintenance would at maximum be six months and if proceedings were not concluded within such time in the main suit wherein interim order was passed, the Family Court should not insist upon the implementation of the order of interim maintenance – High Court observed that family Court had to report to the High Court for non implementation of section 12A of West Pakistan Family Court Act 1964 or in case of failure of Family Court to do so, either party would have a right to bring to notice of High Court such illegality being continued in the Family Court and High Court shall then either under prosaic to section 12A of the said Act or under Article 199 of the Constitution pass appropriate order and reconsider quantum of maintenance
Wife can remarry without intervention after Khula
PLD 2013 Lahore 88
PLD 2010 Karachi 131
section 7(6) of Muslim Family Law Ordinance 1961
Pronouncement of talaq by court would amount to single divorce and husband would be at liberty to marry the wife again after solemnization of nikah without intervention of a third person – section 7(6) of the Muslim Family Law Ordinance 1961 did not debar wife whose marriage had been terminated by divorce under section 7 of the said ordinance from remarrying the same husband without intervening marriage with a third person.
Recovery of Dowry Articles
PLD 2013 Islamabad 11
Section 17, Dowry and Bridal Gifts (Restriction) Act 1976
Section 2(b) 10, Dowry and Bridal Gift (Restriction) Rule 1976
Suit for Recovery of dowry articles- list of dowry articles produced in evidence by both parties in support of their respective claim – decree passed by Family Court on basis of such list produced by husband upheld by Appellant Court. Wife plea that rule of thumb would apply to proceedings before Family court and not provisions of Qanoon-e-Shahadat 1984 or its principles, thus receipts in respect of purchase of dowry articles produced by her were liable to be relied upon by courts below –
Validity – wife in her statement had admitted that such list was not prepared at time of her nikah, while her father had deposed otherwise – rule of thumb would not be solve a party from establishing his/her claim – party denying liability, on basis of such rule, could not be burdened to shoulder claim of opposite party without its proof- Dowry list produced by wife was not prepared in shape of Form D-1 as prescribed in Rule 4(1) of Dowry and Bridal Gift (Restriction ) Rules 1976, therefore same was not to be considered in support of her claim – receipts in respect of purchase of household articles on basis of rule of thumb would not quality and met essential requirement of proof of purchase of said articles by parents of wife and its giving to her before or after marriage – High Court dismissed constitutional Petition in circumstances
Female Child Custody
2013 CLC Lahore 235
section 25 of Guardian and Ward Act 1890
Minor, Wefare of – Minor daughter was living with her mother and Guardian Court declined to interfere in the custody but lower Appellate Court handed over the minor to her father – Validity – Love and affection of a mother could not be compared with – welfare of minor was to be given paramount consideration for disposal of such like questions i.e. custody of minor and for that purpose any other consideration, even personal law of the parties was sometimes preferred to be ignored – whenever any such circumstances existed or controversies were brought before the court, Judge performed his jurisdiction like parents- Tearing apart the minor from lap of her mother, who at such stage, for the sake and betterment of minor, even was taking risk of her matrimonial life with her second husband, would affect mental, psychological and physical uplift of the minor – High court in exercise of constitutional jurisdiction, set aside the judgment and decree passed by Lower Appellant court and restored that the Guardian Court – Petition was allowed
Divorce wife residing abroad
2013 CLC Islamabad 108
Section 7 West Pakistan Rules under Muslim Family law Ordinance 1961.
talaq (divorce)- wife residing abroad-serving of notice on wife, effectiveness of – arbitration council jurisdiction of- preoceedings for dissolution of Marriage, custody of minor and equitable distribution of property initiated by wife in the foreign court- husband ws alleged to have prepared a forged divorce deed in Pakistan with the intention to frustrate said proceeding before foreign court- contention of wife was that she residing aborad and was not served otice of talaq by Arbitration council in accordance with section 7 of Muslim Family law Ordinance 1961 and that arbitration council had failed to appreciate her objection about her non residence within its territorail jurisdiction- validity- perusal of reply affidavit submitted by wife before foreign court showed that she had knowledge about pronouncement of talaq and proceedings before the arbitration council in Pakistan- Rule 3(b) of west Pakistan Rules under Muslim Family Law Ordinance 1961 clearly provide that where she last resided would have jurisdiction for the purpose of notice therefore contention of wife regarding jurisdiction needed no further discussion.
talaq (divorce)- wife residing abroad-serving of notice on wife, effectiveness of – arbitration council jurisdiction of- preoceedings for dissolution of Marriage, custody of minor and equitable distribution of property initiated by wife in the foreign court- husband ws alleged to have prepared a forged divorce deed in Pakistan with the intention to frustrate said proceeding before foreign court- contention of wife was that she residing aborad and was not served otice of talaq by Arbitration council in accordance with section 7 of Muslim Family law Ordinance 1961 and that arbitration council had failed to appreciate her objection about her non residence within its territorail jurisdiction- validity- perusal of reply affidavit submitted by wife before foreign court showed that she had knowledge about pronouncement of talaq and proceedings before the arbitration council in Pakistan- Rule 3(b) of west Pakistan Rules under Muslim Family Law Ordinance 1961 clearly provide that where she last resided would have jurisdiction for the purpose of notice therefore contention of wife regarding jurisdiction needed no further discussion.
Restoration of Haq Mehr
2013 CLC Lahore 94
section 10(4) of West Pakistan Family Courts Act 1964
Interpretation of section 10(4) proviso of west Pakistan Family Courts Act 1964- Restoration of Haq Mehr- proviso to section 10(4) of the west Pakistan Family Court Act 1964 provided that it could be validity inferred that if pre-trial reconciliation efforts familed, the family court would pass decree for dissolution of marriage forthwith and would also restore to the husband, the haq mehr received by the wife- order for the restoration of Haq Mehr could not be made mechanically as a matter of routine without first determining if the Haq Mehr was in fact received or not by the wife.
Family court territorial jurisdiction, Court within the local limits of which the wife ordinary resides
PLD 2016 SC Page 613
Family court territorial jurisdiction .. court within the local limits of which the wife ordinary resides… family court alone had exclusive jurisdiction to deal with all the matrimonial disputes, whatever their nature, irrespective of territorial jurisdiction, provided that the family court where the wife resides shall have the jurisdiction to entertain such suits/claims… provisions of section 16, 17, 18, 19 and 20 CPC stood excluded from the proceedings before the family court, thus the question of its territorial jurisdiction would never arise, provided that the family court where the wife resides shall have the exclusive jurisdiction over all such matter
Uncle & Aunt Not Entitled to have Custody of Minor According to Prevalent Law in presence of Mother.
(1997 MLD Lah 543)
S. 12 & 25 G&W Act.. Constitution of Pakistan Art. 199—Constitutional Petition- – Custody of minor Daughter – – Mother, who was divorced by her husband claiming custody of her minor daughter in suit filed before guardian judge- During pendency of adjudication, Custody of minor was handed over to her mother as an interim measure—Father’s appeal was dismissed by appellate Court—Validity—Minor daughter was aged less than 2 ½ years and her father being army jawan and being posted away from his village was not looking after his daughter – Minor daughter was with brother of her father and her paternal aunt—legally, welfare of minor has to be kept in mind while disposing of application under S. 25, Guardian and wards Act, 1890 as also, under S. 12 of the act—Minor’s father being away from his home was not leading matrimonial life, even no female of his family was living with him at the place of his posting—Minor daughter was living with her uncle and aunt, who were not entitled to have custody being of minor according to prevalent law in presence of mother, minor daughter being of tender years would need nursing care of convenient life and would not be able to get proper guidance and have proper bringing up – both courts below had rightly handed over custody of minor to her mother—No interference was warranted in concurrent order of courts below in handing over custody of minor to mother.
Limitation in suit for Recovery or Dower
(2016 CLC 313 ISLAMABAD)
S. 5, Sched.—Limitation Act (IX of 1908), Art.49—Suit for recovery of dower—Limitation—Three years limitation period had been provided for a suit for gold ornaments
PLD 2016 FSC 4
O.XXI, Rr. 32, 33 of C.P.C.—- S. 5 of WPFCA, 194—Decree against wife for restitution of conjugal rights— Non-compliance with decree by wife—Jurisdiction of Family Court to attach wife’s property or order her to make periodical payments to the husband for non-compliance with decree— Repugnancy to injunctions of Islam—Decree passed by a competent court had great significance and sanctity in Islam— Order XXI, Rr.32 & 33, C.P.C. provided a mechanism for execution of decree/judgment delivered by Family Court, in the event that a spouse was not complying with such decree/judgment—- Order XXI, Rr. 32 & 33, C.P.C. were not against the Injunctions of Islam
Custody of minor girl to father
(2014 SCMR 343)
Mother’s claim for guardinship of minor daughter, second marriage by mother with a person not related to minor within prohibited degree, father haveing three children from second marriage– validity– mere second marriage by father would not disentitle him from getting custody of his minor daughter– mother, according to Islamic Law, despite being entitled to custody of her minor daughter would become disentitled, if she took second husband not related to minor within prohibited degree, thus custody of minor in such case would belong to her real father. Custody of minor daughter was directed to be handed over to her father in circumstances.
Custody of minor male children to father
(PLJ 2009 Lahore High Court 356)
—-art. 199–constitutional petition–custody of minors–male children was handed over to father, who was a civil servant and even educated person–application for custody to extent of the male children was accepted–appeal was dismissed–challenged through writ petition–right of custody for male minors who are above 7 years–validity–question raised through writ petition is that change of custody from mother to father shall change the scenario, and would damage the future of minors–held: civil servant being an educated person will not care for future of his minor sons for whom he was much concerned all along–right of custody for male minors who are above 7 for father is to be preferred as he is in a better position to facilitate and arrange schooling–no illegality or infirmity calling for interference in exercise of constitutional jurisdiction of high court–petition was dismissed
Statement Of Ward
PLJ 2009 Karachi High Court 47
—-arts. 199 & 187–guardians and wards act, (viii of 1890), s. 25–custody of minor–statement of ward–validity–where children had remained under complete supervision of mother and maternal parents/relatives to the complete exclusion of father and his part of family for the last 8 to 9 years, statements of such children were a result of tutoring and brain washing–statements of such children could not be accepted
Liability of maintenance of female after dissolution.
(PLD 2015 Lah 683)
After dissolution of marriage , female losses her marital status and liability again shifted toward her father female entitle to maintenance and claim it after dissolution of marriage from her father, as liability of husband to maintain his wife only continues till the subsistence of marriage.
(PLD 2015 Lah 683)
After dissolution of marriage , female losses her marital status and liability again shifted toward her father female entitle to maintenance and claim it after dissolution of marriage from her father, as liability of husband to maintain his wife only continues till the subsistence of marriage.
Halala
Remarriage After Khula
(PLD 1970 Lah 1)
No intermediate marriage of women with another is necessary
(PLD 1970 Lah 1)
No intermediate marriage of women with another is necessary
Through Attorney Khula
2005 CLC 1906
Suit filed by wife through her attorney was decreed on the basis of Khula.
Free will/ legal right of inheritance of a Muslim girl
2014 YLR 2053
Plaintiff/ legal heir could not be deprived of her right of inheritance merely for the reason of entering into a contract of marriage with her own free will which was otherwise a legal right of every muslim girl.
Maintenance
2015 YLR 511
Law did not debar minor children to claim the maintenance allowance even after attaining the age of majority.
Review in Family Cases
2014 CLC 715
Family court could not refuse to exercise the jurisdiction on the ground of non-availability of the provision of review.
Custody of minor girl to father
(2014 SCMR 343)
Mother's claim for guardinship of minor daughter, second marriage by mother with a person not related to minor within prohibited degree, father haveing three children from second marriage– validity– mere second marriage by father would not disentitle him from getting custody of his minor daughter– mother, according to Islamic Law, despite being entitled to custody of her minor daughter would become disentitled, if she took second husband not related to minor within prohibited degree, thus custody of minor in such case would belong to her real father. Custody of minor daughter was directed to be handed over to her father in cicumstances.
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