Minors filed suit for maintenance allowance against their father which was decree d---Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached--

PLD 2016 Lah. 622

 * Minors filed suit for maintenance allowance against their father which was decree d---Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached---Contention of grandfather was that he was not party to the suit and decree could not be executed against him---Validity---Liability of grandfather to maintain his grandchildren would start when father was poor and infirm and mother was also not in a position to provide maintenance to her children---Such liability of grandfather was dependent upon the fact that he was in easy circumstances---If father and mother were alive then grandfather could not be held responsible for maintenance of his grandchildren unless it was first determined that he was in easy circumstances---family court was bound to first adjudicate and determine such fact which could not be done unless he was a party to the suit having fair opportunity to explain his status and position---No decree could be executed against a person who was not a party to the proceedings---Executing court could not go beyond the decree ---decree passed by the family court would remain in field to the extent of actual judgment-debtor even after suffering civil prison unless it was satisfied---Process of execution of decree could not shift towards the grandfather only on account of mere fact that judgment-debtor had failed to discharge his liability under the decree --family court could adopt the procedure provided in civil Procedure Code, 1908 for execution of its decree ---Judgment-debtor could be sent to civil prison for one year--Impugned order for attachment of property of grandfather was un-warranted by law which was declared illegal and unlawful---Constitutional petition was allowed in circumstances.

PLD 2016 Lah. 622
MUHAMMAD RAMZAN Versus ALI HAMZA

Custody of minor --- Mother contracting second marriage -

 Custody of minor --- Mother contracting second marriage --- Mother remarrying does not automatically tear her under the law from the custody of her children --- Holistic reading of the relevant Islamic principles , the Convention on the Rights of the Child , and Convention on the Elimination of All Forms of Discrimination Against Women leads to the conclusion that there is no legal justification for separating a mother from her child if the mother remarries .

Civil Petition No. 3718 of 2023
Mst . QURAT -UL-AIN versus STATION HOUSE OFFICER , POLICE STATION SADDAR JALALPUR JATTAN , DISTRICT GUJRAT and others
2024 S C M R 486

Complete citations on Family Execution,

 * Decree passed by the family court had to be executed either by the court which had passed the same or by any other civil court as directed by the District Judge through a special or general order---Executing court had to follow the procedure contained in civil Procedure Code, 1908---decree for restitution of conjugal rights would become inapplicable of execution if wife had proved non-payment of dower on demand---Only attachment of property of wife could be made in execution of a decree for restitution of conjugal rights---Wife could not be compelled to go and live with her husband in a decree for restitution of conjugal rights---Executing court had committed an error by giving direction for personal appearance of wife in execution of decree for restitution of conjugal rights---Impugned order passed by the Executing court for personal appearance of wife was set aside---Constitutional petition was accepted in circumstances.


2016 MLD 1430
Mst. SAIMA TABBASAM
Versus
Syed SHER SHAH

(i) Khula is a basic right of a woman under Muslim family law, (ii) Khula can only be granted by the court if she seeks the same in express terms, (iii) For the grant of Khula, her consent is vital.

Where a woman files suit for dissolution of marriage under the grounds of Dissolution of Muslim Marriage Act or through khula, there are procedural distinctions. Firstly, under Section 2 of the DMMA, various grounds (cruelty, assault, ill-treatment, etc.) are provided for judicial pronouncement of dissolving the marital relationship, which is also called fuskh. Hence, there must be some cause as per the DMMA to get a decree of dissolution of marriage under the DMMA. However, khula can be granted to a woman without establishing any ground or proving the cause to the court. Secondly, if the grounds under the DMMA are established by a woman, then Section 5 of the said law protects her right of dower as the same shall not be affected. Whereas in khula, she has to waive or forgo her right of dower. Lastly, in terms of procedure in the case of khula, once the pre-trial reconciliation fails under Section 10 of the Family Courts Act, 1964 (FCA), the court is bound to immediately pass a decree for the dissolution of marriage.18 Whereas the decree for dissolution of marriage under the DMMA can only be passed after the recording of evidence under Section 11 of the FCA. Therefore, termination of marriage under the DMMA or by way of khula exists in distinct and different legal domains with separate consequences.

C.P.L.A.4657/2022
Ibrahim Khan thr. Attorney Muhammad Zaheer v. Mst. Saima Khan and others
Mrs. Justice Ayesha A. Malik
15-02-2024
20-03-2024










According to section 6(2A) of the Muslim Family Laws Ordinance, 1961, the Nikah Registrar or the person who solemnizes a Nikah shall accurately fill all the columns of the nikahnama form with specific answers of the bride or the bridegroom.

 According to section 6(2A) of the Muslim Family Laws Ordinance, 1961, the Nikah Registrar or the person who solemnizes a Nikah shall accurately fill all the columns of the nikahnama form with specific answers of the bride or the bridegroom. Moreover, according to section 5(5) of the said Ordinance, the form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of nikahnama shall be supplied to the parties, and the fees to be charged therefor, shall be such as may be prescribed. If Nikah Khawan/Registrar fails to perform his duties diligently instead of taking any action against any party, Nikah Khawan/Registrar should be held accountable.

Though, the direction/observation of this Court does not admit any kind of ambiguity but even then public-at-large is facing unnecessary litigation on account of inefficiency on the part of the Nikah Khawan/Registrar towards completion of entries in Nikah Nama inviting stern action against the hoodlums.
According to the custom prevalent in our society, families having agriculturist background, use to give dowry articles to their daughters at the time of marriage irrespective of the fact as to whether it was her first or second marriage.

Writ Petition No.4265 of 2020.
Irfan Mohsin Versus Additional District and Sessions Judge & others
Date of hearing: 06.03.2024 & 12.03.2024.
2024 LHC 920





















ماں کی دوسری شادی اسکو بچوں کی حضانت سے محروم نہیں کرسکتی

 2024 S C M R 486

Custody of minor --- Mother contracting second marriage --- Mother remarrying does not automatically tear her under the law from the custody of her children --- Holistic reading of the relevant Islamic principles , the Convention on the Rights of the Child , and Convention on the Elimination of All Forms of Discrimination Against Women leads to the conclusion that there is no legal justification for separating a mother from her child if the mother remarries .
Civil Petition No. 3718 of 2023
Mst . QURAT -UL-AIN versus STATION HOUSE OFFICER , POLICE STATION SADDAR JALALPUR JATTAN , DISTRICT GUJRAT and others

چچا کیخلاف دعوی نان ونفقہ دائر نہ ہو سکتا ہے

 Muhammadan Law by D.F. Mulla is neither a statute nor a custom or usage, therefore, not binding on Courts. Claim of maintenance from grandfather and paternal uncle is on different principles of Islamic Jurisprudence, hence paternal uncle could not replace the grandfather, as defendant, after his death.

PLJ 2024 Lahore 135
Present: Shahid Jamil Khan, J.
MAHNOOR SHABBIR--Appellant
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P. No. 62482 of 2022, decided on 12.12.2023.

Muhammadan Law--
----Para 337--Constitution of Pakistan, 1973, Art. 199--Suit for maintenance--Decreed--Appeal--Allowed--Paternal uncle--Distant relative--Inheritance of paternal uncle--Poor instant relative--Counsel for petitioner was asked whether Section 373 of Muhammadan Law is a statutory provision, answer was in negative--He was also asked to produce any judgment where decree of maintenance against distant relative is issued on basis of Section 373, he could not produce-- The petitioner could not establish before Appellate Court that she would get inheritance from estate of respondent on his death--Petitioner could not prove herself to be poor distant relative--The reasons for claiming maintenance from grandfather in absence of father are on different premises whereas claim of maintenance from a relative under Section 373 and different principles of Islamic jurisprudence--If suit was filed to claim maintenance from grandfather after death of father, paternal uncle could not have been replaced as defendant in shoes of grandfather--Petition dismissed.
[Pp. 137, 138 & 139] A, B, C & D

PLD 2021 FSC 1.
M/s. Waqas Umer Sial, Ch. Muslim Abbas and Abbas Sheheryar Chaudri, Advocates for Petitioners.
Nemo for Respondents.
Date of hearing: 12.12.2023.

Judgment
Petitioner has assailed judgment dated 08.06.2022 passed by Additional District Judge, Lahore, exercising appellate jurisdiction, whereby suit of the petitioner for maintenance against her paternal uncle has been dismissed by reversing the judgment and decree by the trial Court.
2. Learned counsel for the petitioner submits that appeal of respondents is time barred but no finding in this regard is available in the impugned judgment.
On merits, he apprised that the suit was originally against grandfather and after his death, the paternal uncle was substituted as defendant. The claim of maintenance allowance is based on Section 337 of Muhammadan Law and the petitioner claim herself to be a poor distant relative, who would get inheritance from the property of paternal uncle, received by him as a consequence of death of his father and petitioner’s grandfather. Also submits that grandfather had inherited some property on death of petitioner’s father which has further been devolved to the respondent-uncle.
3. Operative part of the Appellate Court’s judgment deciding the legal question is reproduced hereunder:
“7. The observation of learned Trial Court qua fixation of liability on the Appellants/Defendant Nos. 3 & 4 being fallen under prohibited degree of other/poor relative was although without any support of statutory law or case law yet it seems that probably the provision of Section 373 of Muhammadan Law was in the mind of learned Trial Court which reads:
373. Maintenance of other relations
“Persons who are not themselves poor are bound to maintain their poor relation within the prohibited degrees in proportion to the share which they would inherit from them on their death. A father is not bound to maintain his son’s widow.”
8. Thus, as above the relatives having prohibited degree can be burdened to pay maintenance allowance to their poor relatives proportionately as per their share of inheritance of such poor relatives. Although it is not debatable at all that the appellants being real paternal uncles of the respondent/plaintiff do fall in her prohibited degree yet it is also indisputable that they will not get any share of inheritance of the estate of late father Shabbir Ramzan of the respondent/defendant for being survived through his parents, wife and children and therefore, his real brothers could not be considered his beneficiary legal heirs and they will also not get any share of estate (God forbid) of the respondent or her mother, in the attending situation. Therefore, the Court is of humble but firm view that no benefit of said provisions of Section 373 of Muhammadan Law can be extended in favour of the respondent/plaintiff against the Appellants/Defendants Nos.3&4.
9. Besides above, the Appellants/Defendants Nos.3&4 could be burdened to pay maintenance allowance to the respondent/plaintiff, had she had no resources or only being poor and unable to meet both ends together to carry on her mundane life. However, learned Trial Court itself noted at lower part of its finding in earlier quoted Paragraph No. 6, at the cost of repetition again, as under:
“It is ineluctable to highlight there that minor/plaintiff is getting education and her monthly paid fees slips are available on record in this regard. It clearly unveils that minor/Plaintiff mother is also in good stable condition who is rendering quality of education to her daughter.”
[Emphasis supplied]
4. Learned counsel for the petitioner is asked whether Section 373 of Muhammadan Law is a statutory provision, the answer is in negative. He is also asked to produce any judgment where decree of maintenance against the distant relative is issued on the basis of Section 373, he could not produce.
Federal Shariat Court in its judgment Messrs Najaat Welfare Foundation through General Secretary v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and four others (PLD 2021 FSC 1) has opined on the issue in following words:
“There is a plethora of judgments of the superior Courts of Pakistan, where they have differed from the so-called text books of Muhammadan Law including Mulla’s book. This trend was initiated soon after independence of Pakistan. Although, in a very limited way and sporadically, this trend was there even in pre-partition era of British India. After the independence of Pakistan, this trend became a norm by the superior Courts of Pakistan to evolve their own jurisprudence inter alia in the matters of Muslim Personal law also. For example; It was stated in a judgment very clearly while deciding a matter of Hisanat, which is an issue of Muslim Personal Law as:
“It would be permissible for the Courts to dif fer from the rules of Hisanat as quoted or stated in the text books like book of Mulla”. [Reference PLD 1965 W.P. Lahore 695]. This trend kept on evolving, and is still evolving. This process is primarily based on following factors:
(i) the superior Courts are clearly of the view that the opinion contained in text book of so - called Muhammadan Law, are neither final nor binding upon the superior Courts of Pakistan. While discussing paragraphs 352 and 354 of Mulla’s book the Supreme Court held:
“It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.” (2014 SCMR 343 para 13)
(ii) It is clearly mentioned in number of judgments that the book of D.F. Mulla is just a reference and not a statutory law applicable in Pakistan, so it is optional upon the Courts to consult this book while examining any matter in issue related to Muslim Personal Law. While dilating upon paragraph 113 of the Mulla’s book it was held:
___________
“Mulla’s “Principles of Muhammadan Law” is a reference or a text book as some times referred in our judgments like other books of this category and not a statutory book. Usually, when the Courts consult it, this exercise is just like consulting a b ook where the opinions of the great Muslim jurists are easy to get because opinions are mentioned in English language in an over simplified language and paragraphs of the book are numerically marked. The very style of composition of this book often create a confusion amongst the reader that it is a statute book which it is not. Perhaps this is the reason why the petitioner states in his petition that the book of D.F. Mulla comes within the purview of custom and usage which is absolutely wrong and incorrect.”
[Emphasis supplied]
D.F Mulla’s Muhammadan Law is just a text book, which can be referred or relied upon by Courts like any other text book. Being neither a statute nor a custom or usage, the opinion in it is not binding.
5. Without prejudice to the legal position, ibid, in this Court’s opinion, the findings given by the Appellate Court are factual and based on the Section 373 holding that conditions of this Section of the text book are not met. The petitioner could not establish before the Appellate Court that she would get inheritance from the estate of her respondent-paternal uncle on his death.
The Appellate Court also determined that the petitioner could not prove herself to be poor distant relative. The reasons for claiming maintenance from grandfather in absence of father are on different premises whereas claim of maintenance from a relative under Section 373 and different principles of Islamic jurisprudence.
6. In this Court’s opinion, if suit was filed to claim maintenance from grandfather after death of father, the paternal uncle could not have been replaced as defendant in the shoes of grandfather.
No case for interference is made out, therefore, the petition is dismissed.
(Y.A.) Petition dismissed
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