Payment/receipt/remission of dower

“However, where a dispute arises on this issue between the parties as to the payment/receipt/remission of dower then the same would have to resolved by the Family Court. In this situation if the wife is willing to deposit the dower amount in Court, then too a preliminary decree for dissolution of the marriage should be passed by the Family Court whereafter the disputed issue regarding the dower amount could be resolved. Of course if the wife does not deposit the dower amount in Court; the matter would have to be decided upon taking evidence whereafter the decree should be passed accordingly. In this connection it would be seen that where the husband asserts payment but the same is denied by the wife, he would have to prove the same because the onus of proof is always upon the person who alleges a fact. Reference can also be made to Mulkhan Bibi v. Muhammad Wazir Khan PLD 1959 (W.P.) Lahore 710. As regards section 17 of the Family Court Act, 1964, which provides that the Qanun-e-Shahadat, 1984 and the Code of Civil Procedure, 1908 shall not apply to proceedings before the Family Court, in my opinion the same does not debar such Court from passing a preliminary decree dissolving the marriage on the basis of Khula‟ or any other ground. The provision of section 17 as to nonapplicability of the Qanun-e-Shahadat Order and Civil Procedure Code in my view, is to expedite the proceedings before the Family Court so that the same are not delayed for lack of procedural formalities as contained in the aforementioned laws. The same cannot be construed so as to defeat the purposes of the Family Courts Act, 1964”

PLD 2006 Karachi 272

Used In Judgment of:
Lahore High Court
WP- Family Law
337-12

“certiorari” could only be issued,

“8 …in regard to finding of fact recorded by the respondent writ of “certiorari” could only be issued, if in recording such findings, the respondent had acted on evidence which was legally inadmissible or had refused to accept admissible evidence or if the findings were not supported by any evidence at all. If in such cases error would amount to error of law…”

2009 SCMR 210

Used In Judgment of:
Lahore High Court
WP- Family Law
2945-13

Nikah Nama regarding payment of dower

 Learned counsel for the petitioner contends that receiving of the gold ornaments (worth Rs.100,000/-) as dower was specifically denied by the petitioner in paragraph No.4 of the plaint. The entries in the Nikah Nama regarding payment of dower were alleged to have been wrongly written or tampered. Since the petitioner had denied receiving of dower in the shape of gold ornaments, therefore, family court was bound to record evidence by framing issue regarding receiving of the dower amount. He submits that decision of the learned appellate court regarding exclusion of oral evidence in presence of documentary evidence is against the provisions of Section 17 of the Family Courts Act, 1964. Learned counsel for the petitioner has relied on the judgment of this Court in the case of Wahidul-Islam versus Shaheen Akhtar and 2 others reported as 2011 CLC 566. He has also relied on two judgments of Sindh High Court in the cases of Abdul Sattar versus Mst. Kalsoom (PLD 2006 Karachi 272) and Aurangzeb versus Mst. Gulnaz and another (PLD 2006 Karachi 563).

2014 LHC 2125

Used In Judgment of:
Lahore High Court
WP- Family Law
337-12

DNA profile test is always conducted

DNA profile test is always conducted with the consent of the person concerned and is normally applied in criminal cases as held by the Hon’ble Supreme Court in SALMAN AKRAM RAJA and another vs. GOVERNMENT OF PUNJAB through Chief Secretary, and others [2013 SCMR 203]

Used in Judgment of:
Lahore High Court
WP- Family Law
25711-13

Misreading and non-reading of material evidence

“It is settled rule by now that interference in the findings of facts concurrently arrived at by the courts should not be lightly made, merely for the reason that another conclusion shall be possibly drawn, on the reappraisal of the evidence; rather interference is restricted to the cases of misreading and non-reading of material evidence which has bearing on the fate of the case.” 

2011 SCMR 1073

Used in Judgment of:
Lahore High Court
WP- Family Law
1068-14

Summons for the appearance of witness, unless a party intimates

“The proviso of subsection (2) of the section 7 clearly provide that the parties may with permission of the court call any witness at any later stage if the Court considered such evidence expedient in the interest of justice. Addition of word “further” in proviso of section 7(2) by Ordinance VL of 2002 on 1-10-2002 manifest the intention of legislature to grant a permission liberly, if, the Court considers such evidence expedient and essential for a just decision. 8. Section 11(2) places bar on issuance of summons for the appearance of witness, unless a party intimates the Court within three days of the framing of issue of its desire to summon a witness through court. It is not couched in mandatory language and will not be treated as mandatory one in the absence of consequence for its non-compliance.”

2004 M L D 635

Used in Judgment of:
Lahore High Court
WP- Family Law
2603-15

Question of conducting the DNA Test.

[PLD 2010 Lahore 422], relevant extract is re-produced below:- “Now I would like to dilate upon the question of conducting the DNA Test. DNA Test is not to be directed as a matter of routine in cases where the father refuses to acknowledge his child born during lawful wedlock, for the reason that otherwise the presumption under Articles 117, 118, 119 and 128 of Qanun-e-Shahadat Order, 1984 that a child born during the continuance of a valid marriage and within two years after its dissolution, provided the mother remaining unmarried during this period, shall be conclusive proof that he is legitimate child of that man, unless the man denies the same. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - It has been observed by this Court that it has become a common practice that when the relationship between the parties become strained after marriage and even extreme hatred is developed between the spouses and the same is dissolved, the parties do not spare each other and even go to this extent that often father refuses to acknowledge the child for the reason either to evade maintenance or to deprive the child from inheritance of in case of his second marriage at the insistence of his second wife or pressure of the elders of the family and this trend is not only damaging but also very dangerous for the society and in such a situation request for DNA test is not proper.”

Used in Judgment of:
Lahore High Court
WP- Family Law
25711-13

Withdrawn the notice of Talak within given time

In view of the above facts and the legal provisions, although it was well within the rights of the petitioner to have withdrawn the notice of Talak within given time (90 days), which he has failed to do, because of which Talak became effective and irrevocable. Reliance can be placed on M. Salahuddin Khan v. Muhammad Nazir Siddiqi & others (1984 SCMR 583) and M. Zikria Khan v. Aftab Ali Khan & another (PLD 1985 Lahore 319). Respondent No.1 rightly held that the Talak became effective and the matrimonial bond came to an end on the expiry of 90 days.

2015 LHC 359

Used in Judgment of:
Lahore High Court
WP- Family Law
2801-14

Confronted with the provisions of section 7 and 11 of the Family Courts Act, 1964

“The provisions of subsection (2) specifically lay down that the parties may, with the permission of the Court call any witness at any later stage if the Court considers such expedient in the interest of justice. By virtue of these provisions the Court is competent to allow a party to include the name of desired witness in the list in accordance with subsection (2) of section 7 (ibid). The witnesses so included can be produced by the party, though it cannot get the summons issued if within three days of the framing of the issues it has not intimated the Court its desire that a witness may be summoned through the Court.

5. When confronted with the provisions of section 7 and 11 of the Family Courts Act, 1964 the learned counsel for the petitioner stated that the petitioner would like to include the names of the witnesses in the list under section (2) of section 7 and would not seek the summoning of such witnesses through the Court but would himself produce them in evidence. He submitted that the necessity for including the names in the list of witnesses is that without including the names in that list the petitioner cannot even call the witnesses in the witness box at his own responsibility.”

2009 CLC 269

Used in Judgment of:
Lahore High Court
WP- Family Law
2603-15

Settled principle of law that constitutional jurisdiction under Article 212(3)

9. It is settled principle of law that constitutional jurisdiction under Article 212(3) is discretionary in character. It is settled law that grant of leave to appeal is discretionary. See Ghulam Qadir Khan’s case (1986 SCMR 1386). It is also settled law that constitutional jurisdiction against void order may be refused if it was meant to enable petitioner to circumvent provisions of law of limitation or if he was estopped by his conduct from challenging of order. See:-- Muhammad Ismail’s case (1983 SCMR 168) Abdul Rshid’s case (1969 SCMR 141) Wali Muhammad’s case (PLD 1974 SC 106) 10. Keeping in view the conduct of the petitioner mentioned herein above in para 10 of the impugned judgment we are not inclined to exercise our discretion in favour of the petitioner on the well known maxim that he who seeks equity must come with clean hands as law laid down by this Court in Nawab Syed Raunaq Ali’s case (PLD 1973 SC 236)”

2011 SCMR 676

Used in Judgment of:
Lahore High Court
WP- Family Law
700-10

Delivery of dowry articles

(2008 SCMR 1584), it was held that delivery of dowry articles should also be seen with reference to the nature of the dowry articles whether they are of personal use or otherwise. Applying this principle statement of PW-1 showing the normal useable articles do not appear to be exaggerated.


Used in Judgment of:
Lahore High Court
WP- Family Law
21501-12

Divorce notice has to be sent by the husband

 (2005 SLR 626), in which it was held that the divorce notice has to be sent by the husband to the union council where the wife resides but nowhere it was held that in case of divorce by the wife she must send a notice to a union council of her own residence.

Used In Judgment of
Lahore High Court
WP- Family Law
26026-14

Not even the divorce document has been placed

“We notice that the learned counsel for the petitioner has taken it as a ground for the first time that the divorce pronounced orally in October 1979 or in writing in January, 1980 was such as to fall outside the provisions of sections 7 and 8 of the Family Laws Ordinance. Not even the divorce document has been placed on record to make out this ground. What we find is that the two courts dealing with the question have recorded a finding that the divorce was pronounced by the petitioner on 17th of January, 1980, that it was a divorce as envisaged under section 7 of the Muslim Family Laws Ordinance and it required notice and did not become effective till 90 days expired after such notice. Reading sections 7 and 8 together we find no such distinction as is sought to be made out by the learned counsel for the petitioner.”

1983 SCMR 942

Used in judgment of
Lahore High Court

WP- Family Law
3045-14

Oral Talaq even if proved is invalid since no notice under section 7

“The objection of learned counsel for respondent No.1 that oral Talaq even if proved is invalid since no notice under section 7 of Muslim Family Laws Ordinance, 1961 was given by respondent No.1 to Chairman, Union Council or to the petitioner is not sustainable. It has been held in case titled Allah Dad v. Mukhtar and another (1992 SCMR 1273) that failure to send notice to Chairman, Union Council does not render the divorce ineffective in Shariah. The same has been held in another case titled Mst. Zahida Shaheen and another v. The State and another (1994 SCMR 2098). Respondent No.1 had assailed the genuineness of the Nikahnama, however, he has not been able to lead any evidence to the effect that the Nikahnama is forged. There is a rebuttable presumption regarding the validity of public documents. Since this presumption has gone unrebutted, the Nikahnama stands as a genuine document and it is stated in the Nikahnama that the petitioner has entered into Nikah after being divorced. Respondent No.2 has not properly appraised the evidence regarding pronouncement of oral Talaq nor has he taken into consideration the fact that the genuineness of Nikahnama of the petitioner with Lal has gone unchallenged. Respondent No.2 has also not taken into consideration the fact that the petitioner was pregnant during the proceedings for jactitation of marriage. He passed the impugned order setting aside the judgment of the learned Judge, Family Court and consequence of his order would be that child born to the petitioner would be considered illegitimate. In such a situation, the law leans in favour of validity of marriage and legitimacy of a child who is innocent. This consideration was totally disregarded by respondent No.2. He also failed to take into consideration the fact that in pursuance of his judgment, the petitioner and Lal would be convicted and sentenced in the case pending against them under the Zina Ordinance.”

1995 CLC 724

Used In Judgment of:
Lahore High Court
WP- Family Law
3045-14

 Note

 Reliance is also placed upon the cases reported as “Ms. Roheela Yasmin v. Ms. Neelofar Hassan and 6 others” (2014 YLR 2315), “Mst. Zarina Begum v. Major Aziz ul Haq and 3 others.”(2006 CLC 1525) and “Hamid Hameed Waris v. Mst. Tehseen” (PLD 2002 Karachi 518).

Talaq has become effective

“The question of the notice of Talaq to the Chairman under section 7 of the Family Laws Ordinance was also decided by all these Courts in favour of the respondents and it was held that even in the absence of such a notice, the Talaq has become effective. Reliance, in this respect, was placed on Article 2-A of the Constitution, as interpreted in the case of Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169.”

1992 SCMR 1273

Used in Judgment of:
WP- Family Law
3045-14

‘Talaq’ cannot be subjected to the service of notice

“We have gone through the judgment in Mirza Qamar Raza and appreciate that the effectiveness of the ‘Talaq’ cannot be subjected to the service of notice on the Chairman. The observations of the learned Judge that the reconciliation efforts ordained in Quran pertain to a period before the pronouncement of ‘Talaq’ or that an official or other person cannot be designated in a man-made law to enforce and oversee the reconciliation proceedings in obedience to the dictates of Allah, are mere abiter dicta as these questions never fell to be decided.”

PLD 1988 Federal Shariat Court 42

Used in judgment of :
WP- Family Law
3045-14

Heard.

“Heard. As regards the question, whether the suit is competent before the Family Court, it is the case of respondent No.1, and also held by the learned Additional District Judge that the matter falls within the Entry No.9 of the Schedule to section 5, i.e. “personal property and belonging of the wife”. I feel amazed to note as to how the amount of Rs.100,000/- allegedly payable by the petitioner on account of the divorce or bad relations between the parties, is the personal property or belonging of respondent No.1, so as to bring the case within the jurisdiction of the Family Court. Such personal property or belonging referred to it Entry No.9, in my considered view, is a residuary provision, which enables the wife to recover through the process of the Family Courts Act, 1964, whatever property she has acquired during the subsistence of the marriage, which is not the part of her dowry, through her own independent means or even through the means provided by the husband, such as her clothes, ornaments and items of personal use and nature, this may also include anything which has been gifted to the wife by the husband or any of his or her relatives or the friends; such property and belonging may be the one acquired by the wife out of the money given to her by the husband, her saving from household allowance, or pocket money, from the money provided by her parents and relatives. But definitely the aforesaid entry does not cover any amount which is not yet the property of the wife and she only has a claim to recover from the husband on the basis of any special condition incorporated in the Nikahnama. I am not convinced by the argument that the amount in question is covered under the rules of actionable claims as envisaged by section 130 of the Transfer of Property Act, 1882. The term “actionable claim” in general means, a claim for which an action will lie, furnishing a legal ground for an action and according to section 3 of the Transfer of Property Act, a claim towards a debt. On account of both the means such claim cannot be equated as a “personal property and belonging of the wife.” Resultantly, in my considered view, the family Court has no jurisdiction in the matter and the suit in this behalf before the said Court was not competent.”

PLD 2007 Lahore 515

Used in judgment of:
WP- Family Law
3045-14
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