--Custody of minor---Leave to appeal was granted by Supreme Court to consider whether second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, had overriding effect on S.9(1) of Guardians and ..............

 PLD 2012 SUPREME-COURT 66

S. 7(2), second proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Guardians and Wards Act (VIII of 1890), S.9(1)---Constitution of Pakistan, Art. 185(3)---Custody of minor---Leave to appeal was granted by Supreme Court to consider whether second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, had overriding effect on S.9(1) of Guardians and Wards Act, 1890; whether in the matters of custody of minors where question of Territorial jurisdiction was involved, which of the said two provisions of law either second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, or S.9(1) of Guardians and Wards Act, 1890, would be applicable; whether in view of second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, filing of suit for dissolution of marriage was sine qua non for including claims relating to dowry, maintenance, dower, personal properties and belongings of a wife, custody of children etc. in one plaint or independent suits to claim that relief could be filed notwithstanding filing of suit for dissolution of marriage.
Ss. 5 & 7(2), second proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Guardians and Wards Act (VIII of 1890), Ss. 9(1), 12 & 25---Custody of minor---Territorial jurisdiction---Determination---Minors were permanently residing with their father at place "M" and their mother filed application for their custody before Guardian Judge at place "L"---Guardian Judge as well as Lower Appellate Court held that the courts at place "M" had Territorial jurisdiction over the matter but High Court declared that proceedings initiated by mother of minors, at place "L" were maintainable---Validity---Minors were residing with their father at place "M", where they were admitted to school---Mother had failed to prove that she had brought them to place "L" and was deprived of their custody from there, on account of which the cause of action could arise in her favour at place "L"---Was not established, if before parting, the parties hereto were residing at place "L" so as to attract R.6(b) of West Pakistan Family Courts Rules, 1965---High Court had fallen in error while declaring the suit maintainable at place "L"---Supreme Court set aside the judgment passed by High Court and those of Guardian Judge and Lower Appellate Court were restored---Appeal was allowed.

Divorce‑‑‑Iddat‑‑‑Period of Iddat starts from date of judgment and decree of the Court.

1999-CLC-514
[Lahore]
Before Mrs. Fakhar‑un‑Nisa Khokhar, J
Mst. MAHPARA‑‑‑Petitioner
versus
S. ARSHAD MAHMOOD and another‑‑‑Respondents
Writ Petition No.5974 of 1997, heard on 8th October, 1998

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Supervisory jurisdiction of High Court‑‑‑Scope‑‑‑High Court has no supervisory jurisdiction on Special Tribunals of Family Court as provided by West Pakistan Family Courts Act, 1964--While sitting over judgment passed by Special Tribunals under Family Courts Act, High Court Acts as Family Court under West Pakistan Family Courts Act, 1964.
(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 17‑‑‑Civil Procedure Code (V of 1908), Preamble ‑‑‑Procedure‑‑ Applicability' of Civil Procedure Code‑‑‑Settlement of matrimonial affairs between spouses‑‑‑Procedure in family suits is made more easier by deviation from procedure of Civil Procedure Code, 1908.
(c) Muhammadan Law‑‑‑
‑‑‑‑ Divorce‑‑‑Iddat‑‑‑Period of Iddat starts from date of judgment and decree of the Court.
(d) West Pakistan Family Courts Rules, 1965‑‑‑
‑‑‑‑R. 13‑‑‑Limitation to file application for setting aside ex parte decree starts from date of judgment and decree of dissolution of marriage‑‑‑Ex pane‑‑‑Notice to Chairman, Arbitration Council by petitioner for getting certificate of effectiveness of divorce‑‑‑Respondent husband appeared before Chairman, Arbitration Council and expressly gave consent to issue a certificate of effectiveness of divorce which was issued by the Chairman‑‑‑Petitioner got remarried to some other person and in that wedlock a child was born‑‑‑Ex parte decree was set aside by Trial Court‑‑‑Respondent, husband who had knowledge of proceedings and had given consent to Chairman, Arbitration Council to issue certificate of effectiveness of divorce filed application for setting aside ex parte decree thereafter‑‑‑Limitation‑‑‑Period of limitation to set aside ex parte decree starts from date of judgment and decree or from date of knowledge‑‑‑Application for setting aside the ex parte decree was dismissed being time‑barred in circumstances.
Pervaiz Ahmad v. Tahra Shaheen alias. Balquees Shahzadi 1988 CLC 1444; Ainuddin Karikar v. Salatanness Bibi PLD 1953 Dacca 216; Mst. Fahmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694 and Muhammad Shamim Siddiqui v. Mrs. Kausar Aziz and others 1982 CLC 1972 ref.
(e) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 21(2)(3)‑‑‑Divorce‑‑‑Certificate of effectiveness of divorce‑‑‑Husband had given consent for issuance of such certificate‑‑‑Such certificate having not been challenged before Competent Authority had attained finality.
Qamar Zaman Qureshi for Petitioner.
Ch. Shazib Saeed for Respondent No.2
Date of hearing: 8th October, 1998

Tarka---Legal heirs, entitlement of---Special oath, administration of---After death of civil servant, petitioner applied for issuance of............

 2024 MLD 1156
Rehana Shafqat Vs
 Afira Butt

Tarka---Legal heirs, entitlement of---Special oath, administration of---After death of civil servant, petitioner applied for issuance of succession certificate about pensionary benefits of her deceased husband, who was an employee in the Pakistan Telecommunication Company Limited---Petitioner contended that deceased had already Divorced his second wife/respondent No. 1, therefore she was not entitled to any pensionary benefits---Such claim was resisted by the respondents---Trial Court held the two wives and children entitled for pensionary benefits---Petitioner being aggrieved preferred an appeal---Appellate Court modified the order and entitled both wives only for pensioner benefits---Matter was decided on Special Oath---Held that nothing was on record to divulge that the petitioner was prompted by the respondents or by the Trial Court to arrange the disposal of lis on the basis of special oath, rather it was her sweet will to get decided the matter in terms of Special Oath--- Therefore, said offer being made voluntarily and accepted by the respondent No. 1 was binding upon the petitioner---Offer so made by the petitioner to the respondent No. 1 was binding upon her and she could not resile from the same, and she had to face the consequence of the same---
Tarka---Legal heirs, entitlement of---After death of civil servant, petitioner applied for issuance of succession certificate about pensionary benefits of her deceased husband, who was an employee in the Pakistan Telecommunication Company Limited---Petitioner contended that deceased had already Divorce d his second wife/respondent No. 1, therefore she was not entitled to any pensionary benefits---Such claim was resisted by the respondents---Trial Court held the two wives and children entitled for pensionary benefits---Petitioner being aggrieved preferred an appeal---Appellate Court modified the order and held both wives only entitled for pensionary benefits---Validity---Petitioner took a stance that deceased Divorce d the respondent No.1 through Talaq-e-Bian on 13.12.2002 but as per observations of the Appellate Court, there were two Divorce deeds of different dates on record of the concerned Union Council: one was issued on 13.12.2002 and other one issued on 03.09.2004 by the deceased in presence of two witnesses but the petitioner could not produce both the said witnesses in support of her contention especially after a categorical denial and special oath by the respondent No. I in pursuance to the offer of the present petitioner---Other aspect of keeping the purported proceedings of issuance of certificate of Talaq for a considerable period of seven years also spoke volumes of the authenticity and veracity of the same, as the first notice of Talaq was issued on 28.05.2011 and Divorce effectiveness certificate was issued on 05.10.2011---Moreover, it was also not clear that on which Divorce deed the same was issued, because the Appellate Court found two Divorce deeds of different dates in the record of Union Council---

The utmost priority of the Court in determining the custody of a minor is to see his/her welfare and well-being. This is the reason, law provides a parental .......

 The utmost priority of the Court in determining the custody of a minor is to see his/her welfare and well-being. This is the reason, law provides a parental jurisdiction to the Guardian Judge in such cases. The objective of the law is not just handing over the custody of the minor, but to examine all the aspects which are ancillary to it. The power and duty of the Court while considering the question of custody of a minor is to thoroughly and comprehensively take into consideration the minor's welfare. The word "welfare" in such cases is to be taken in its widest sense, which includes not only the monetary expenses of the minor but also his mental and physical health, educational needs, psychological well-being, religious and moral values. The Courts are duty bound to consider such cases in the best interest and healthy up-bringing of the minor which sometimes may yield the rights of the parents. No doubt according to certain Muslim jurists, custody of a minor son till the age of seven years may remain with the mother and in the case of minor daughter till she attains the age of puberty and thereafter, normally their custody should be restored to the father. However, it is an established principle of law that the paramount consideration in all such situations would be the betterment of the minor and even a mother may be deprived of the custody of a minor if circumstances of the case so allow. In the cases, concerning the custody of a child, the Guardian Court is not required to go into the intricacies/technicalities of the matter, rather is obliged to confine itself to the extent of the welfare of the child/minor, which is a paramount consideration.

The consideration for grant or refusal of custody of minors will always be determined on the basis of their welfare, that is to consider what is in the best interest of the child. The court's jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents' ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents' ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child. Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets. Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional wellbeing of the child. Custody is about the care and comfort of the child and the right of the child to a family. Custody matters are always sensitive and require a great deal of care as the court has to weigh in all factors in order to determine where the welfare of the minor lies. In cases of remarriage, circumstances change, hence, while looking at the welfare of the child, the entire living arrangement and environment has to be reassessed in the context of the welfare of the child. Fundamental to this decision is the best interest of the child and not that of the parent.
Section 25 of the “Act” relates to transfer of the custody of minor if he leaves or is removed from the custody of a guardian of his person. Paramount and supreme consideration in custody of minor is the welfare of minor and nothing else. Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Courts on such yard stick and the Court has to record a definite finding on the point before passing any order in the matter. The Guardian Court, while passing order, has to see the age, sex, environment under which the minor is being brought up and all the attending circumstances, position of parties and also the law to which the minor is subject.

Writ Petition No.452 of 2024
Irfan Arshad V/S Mst. Zainab Noor etc.
Date of hearing: 23.12.2024

























In habeas corpus petition the Court may recover custody of the minor children from one parent and hand the same over to other parent but ............

In habeas corpus petition the Court may recover custody of the minor children from one parent and hand the same over to other parent but said jurisdiction is summary in character and neither controversies are tried nor entire evidence is recorded under ordinary substantive and procedural laws under civil and criminal jurisdiction and such a jurisdiction being extraordinary (naeem)in its very nature should be sparingly used because the plenary jurisdiction in the matter rests under other laws in other forums of special jurisdiction who should normally be allowed to exercise it in accordance with law.

WP 89/25
Hamna Fahad Vs C.C.P.O Lahore etc
Mr. Justice Muzamil Akhtar Shabir
03-01-2025
2025 LHC 1







 

At the time of Nikah, the husband agreed to give 8-tolas gold ornaments to the wife and a stipulation was imposed on the right of divorce of the present........

 At the time of Nikah, the husband agreed to give 8-tolas gold ornaments to the wife and a stipulation was imposed on the right of divorce of the present petitioner that if he divorces the respondent, he will pay Rs.500,000/- in lieu thereof.

All the witnesses have corroborated the stance of the respondent with regards to the entries made in the Nikahnama germane to gold ornaments and stipulation as well as restriction on right of divorce by the petitioner, which have been mentioned in columns No.17 and 19 of the Nikahnama. The petitioner could not lead evidence as to obtaining of his thumb impression on the Nikahnama by force and under undue influence by the respondent and even the same does not appeal to prudent mind. The Nikahnama is per se admissible in evidence and entries of the same have not been challenged by the petitioner before any forum at the relevant time. Even otherwise, the entries of the Nikahnama have been proved by the respondent by producing oral as well as documentary evidence. As against this, the petitioner could not lead evidence in rebuttal as his right to produce evidence was closed by the learned trial Court and he remained unsuccessful in getting the said order reversed by the higher Courts despite availing of the remedy provided under law. Meaning thereby the evidence of the respondent on this point is unrebutted and even during cross examination, conducted on the P.Ws. the petitioner’s side could not shake the veracity of the testimonies of the P.Ws. rather the witnesses remained firm and unscathed. Therefore, it can safely be concluded that the respondent has rightly been held entitled to recover 8-tolas gold ornaments from the petitioner as agreed by him at the time of Nikah with the respondent, by the learned Courts below. As such, the findings of the learned Courts below to this extent are upheld and maintained.

PLJ 2024 Lahore 165
2024 CLC 2129

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