Welfare of minors was the supreme consideration in cases of guardianship

Dictum laid down in 1997 MLD 965 reads as under:

“Minor’s mother being employed as teacher in Education Department, in spite of her second marriage could took well after her children as compared to minors grand-paternal mother, grand-maternal mother and paternal aunt--- welfare of minors was the supreme consideration in cases of guardianship.”

Part Judgment  of
Lahore High Court
Writ Petition-Family-Guardianship
5828-13
2017 LHC 2776

Petitioner never stood surety or guarantor on behalf of the judgment debtor

5. It is established from the record that the petitioner was not party in the suit. It is also established from bare perusal of the execution petition that the same was filed against Muhammad Nasir, judgment-writer. It is also established from the record that no decree has been passed against the petitioner. The petitioner never stood surety or guarantor on behalf of the judgment debtor. The petitioner did not give any undertaking that in case his son (judgment debtor) does not pay the decretal amount he will pay the same, therefore, decree could not be executed against the petitioner. The executing court has exceeded his jurisdiction by executing the decree against the petitioner who is the paternal grandfather of respondents No.3 and 4.

PLD 2012 Lahore 148

Used in Judgment of
Lahore High Court
WP- Family Law
11914-15

Nikah Nama whether the same are mentioned as dower or undertaking for the satisfaction of dower

Yet, another aspect of the entry of column No. 16 is also discussed in a recent judgment titled “Mst. MITHAN versus ADDITIONAL DISTRICT JUDGE, JATOI and 7 others” (2017 MLD 1101), where this Court in depth examined the validity of entry of column No. 16 envisaged in the Nikah Nama. The observation rendered by my learned brother is that after the insertion of item No.10 of amendment of Schedule of Act XXXV of 1964, all the matters relating to the Nikah Nama can only be examined and entertained by the Judge Family Court. Thus, it is settled that the Family Court has the jurisdiction to entertain and decide the matters arising out of Nikah Nama whether the same are mentioned as dower or undertaking for the satisfaction of dower

Used in Judgment of
Lahore High Court
Writ Petition-Family-Maintenance
11306-15
2017 LHC 2850

Family Court empowered to strike off defendant's defence and pass ex parte decree

Reliance is placed on “Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others” (2014 SCMR 1365), relevant portion is reproduced herein below:-

“Family Court empowered to strike off defendant's defence and pass ex parte decree---Scope---Family Court was a quasi-judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principles of fair hearing and trial”

Used in Judgment of
Lahore High Court
Writ Petition-Family-Guardianship
8132-17
2017 LHC 2257

Section 14 of the Family Court Act provides that decision given under Family Court Act is appealable.

4. On the other hand, learned counsel for respondent No.2 has vehemently opposed the contentions advanced by the learned counsel for the petitioner mainly on the ground that Provisions of Guardian and Wards Act cannot be read in isolation and combined reading of Family Court Act will lead to a conclusion that in fact Section 14 of the Family Court Act provides that decision given under Family Court Act is appealable. Contends that impugned order under Section 12 passed by Judge Family Court was not interim in nature. Further contends that appeal filed by respondent No.2 before the Additional District Judge was fully competent. Submits that Guardian Judge under the Family Court Act is exclusively governed by said Act and can exercise powers to modify or review the order which  was earlier passed. In this regard learned counsel for respondent No.2 has placed reliance on “Dr. Kiran Qadir v. Maj. Dr. Muhammad Ali Yousaf Khan” (PLD 2014 Lahore 17), “Abdul Hameed v. Mst. Shabnam alias Shabana and 2 others” (PLD 2014 Baluchistan 39) and “Muhammad Anwar Khan v. Mst. Yasmin Zafar” (1987 SCMR 2029)

Used in Judgment of
Lahore High Court
Writ Petition-Family-Guardianship
8132-17
2017 LHC 2257

Extent of maintenance allowance

Learned counsel for the petitioner at the very outset states that he do not challenge the validity of impugned judgment and decree to the extent of maintenance allowance as already expressed by him before this Court on 04.08.2017. However, he challenges the validity of impugned judgments and decrees passed by the Courts below to the extent of alternate value of dowry articles as well as dower in favour of respondent No.3. It is argued that the Courts below have not adverted to the actual facts relating to dower while awarding the decree. He has specifically mentioned that the contents of Purt Nikah have a pivotal role in case of dower and as such entry in Column No. 16 cannot be treated as the part of dower, therefore, the learned trial Court as well as the learned appellate Court have not considered this fact and wrongly decreed the suit. Similarly the value of dowry articles was also awarded in favour of the respondent No. 3 without considering the evidence of the parties as the respondent No.3 has failed to prove the dowry articles of such value; therefore, her claim is also liable to be dismissed. He relied upon “Mst. ISHRAT BANO versus NOOR HUSSAIN and 2 others” (PLJ 2010 Peshawar 139 (DB), “Syed NADEEM RAZA through Attorney General versus Mst. AMNA-TAZ-ZAHRA and 2 others” (2011 CLC 726), “UMAR FAROOQ versus MEHNAZ IFTIKHAR and 2 others” (2006 MLD 555) and “LAL MUHAMMAD versus Mst. GUL BIBI AND ANOTHER” (PLD 1986 Quetta 185)

Used in Judgment of
Lahore High Court
Writ Petition-Family-Maintenance
11306-15
2017 LHC 2850

Any illegality or error in the impugned judgments and decree passed by the Courts below

Since this is a case of concurrent findings and in the constitutional jurisdiction, it is mandatory for the petitioner to specify a jurisdictional defect or error with regard to the judgments of lower fora but the petitioner has failed to point out any illegality or error in the impugned judgments and decree passed by the Courts below. Hence, by relying upon the dictum laid down in “Waqar Haider Butt. Vs. Judge Family Court and others” (2009 SCMR 1234), the concurrent findings of fact settled by the Courts below, cannot be interfered by this Court. Thus, the same are maintained and upheld.

Used in Judgment of
Lahore High Court
Writ Petition-Family-Maintenance
11306-15
2017 LHC 2850

Terms of Section 14(3) appeal before the learned District Judge

Learned counsel for the petitioner has mainly argued that in terms of Section 14(3) appeal before the learned District Judge was incompetent; therefore, impugned order is coram non judice, without jurisdiction In this regard, he has relied on “Mst. Sabira Sultana v. Asif Firdous” (2011 YLR 1543), “Shamim Ara v. Bakhtawar Gul and 2 others” (2012 CLC 1881). Learned counsel for the petitioner further argued that lower appellate Court has failed to appreciate, while passing the impugned order dated 18.02.2017 that any order in the presence of order dated 03.06.2015 regarding chalking out the schedule of meeting in accordance with the wishes of respondent No.2 would amount to review of earlier order dated 03.06.2015 after lapse of more than 1 year and 8 months, which is certainly not warranted by law as the same had attained finality and respondent No.2 has not challenged the same at any forum. Contends that in terms of Section 47 of Guardian and Wards Act order passed under Section 12 is not appealable. Moreover, impugned judgment is contrary to law and is liable to be set aside.

Used in Judgment of
Lahore High Court
Writ Petition-Family-Guardianship
8132-17
2017 LHC 2257

Law that action for recovery of decretal amount

this the citation titled “AMANULLAH KHAN versus DISTRICT JUDGE and 3 others” (2012 CLC 679) has also discussed the supra situation which is as under: -

 “It is manifest from the perusal of above mentioned provisions of law that action for recovery of decretal amount can validly be taken against a surety of a defaulter. The petitioner stood as a surety. He was under no obligation to bind himself but he did bind himself to pay the decretal amount, therefore, no interference is required by this court in the impugned order passed by the learned Civil Judge/Judge Family Court, as well as, in order dated 11.10.,2011 passed by the learned Additional District Judge, Sheikhupura.”

Used in Judgment of
Lahore High Court
Writ Petition-Family-Miscellaneous
9483-17
2017 LHC 3061

Settled principle of interpretation of statues

8. It is settled principle of interpretation of statues that the statute which is later in time shall prevail. Reliance is placed on “Messrs Mehraj Flour Mills and others v. Provincial Government and others” (2001 SCMR 1806), “Suo Motu Case No.13 of 2007”(PLD 2009 SC 217) and “Aley Nabi and others v. Chairman, Sindh Labour Court and another”(1993 SCMR 328).

Used in Judgment of
Lahore High Court
Writ Petition-Family-Guardianship
8132-17
2017 LHC 2257

Nikah can be entertain-able by the Judge Family Court?”

7. At the first instance with regard to issue of dower, it has to be examined that:-

“Whether the entry of column No.16 of Purt Nikah can be entertain-able by the Judge Family Court?” The columns No. 13 to 16 of Nikah Nama, which relates to dower, shows that in these specific columns, anything mentioned therein is the dower or the part of dower. The specific question whether the entry of column No. 16 can be treated as dower has already been examined by the apex Court in the case titled “Mst. YASMEEN BIBI versus MUHAMMAD GHAZANFAR KHAN and others” (PLD 2016 SC 613), whereby it is held that an undertaking given in the Nikah Nama that certain property/land shall be transferred in the name of wife and she would be exclusive owner of the same, then such an undertaking can be construed as a part of dower or a gift to wife in consideration of marriage, therefore, it would fall within the exclusive domain of the Family Court to pass a decree in relation to such property/land.

Used in Judgment of
Lahore High Court
Writ Petition-Family-Maintenance
11306-15
2017 LHC 2850

Handing over custody of the minor during the summer vacations

12. So far as the argument of learned counsel for the petitioner that family Court could not pass the order dated 25.06.2016 whereby application filed by respondent No.2 for handing over custody of the minor during the summer vacations was illegal on the ground that when the application already decided no fresh application could be entertained. In this regard, it is observed that the Guardian Judge exercises a parental jurisdiction and there is no scope of such jurisdiction for any undue adherence to technicalities. Separate application can be made on fresh grounds. Reliance is placed on “Malik Khizer Hayat Khan Tiwana and another v. Mst. Zainab Begum” (PLD 1967 SC 402).

Used in Judgment of
Lahore High Court
Writ Petition-Family-Guardianship
8132-17
2017 LHC 2257

Learned Guardian Judge/Judge Family Court under Section 12 of the Guardian

 learned Guardian Judge/Judge Family Court under Section 12 of the Guardian and Wards Act was a decision or an interim order. This Court while confronted with the similar situation had already pronounced that such order falls within the purview of “decision given” and is appealable under Section 14 of Family Court Act. 1964. Reliance is placed on “Mst. Zaibun Nisa v. Muhammad Mozammil” (PLD 1972 Karachi 410). In another pronouncement “Syed Shamim Ahmad v. Mst. Riaz Fatima” (PLD 1975 Karachi 448), it was observed that expressions or decisions given in Section 14 are not in any manner qualified by any such word as final, and therefore, an order under Section 12 is a decision given and is appealable. Further reliance has been placed on “Muhammad Deen Malik and another v. IInd Additional District Judge, Karachi and 2 others” (1982 SCMR 1223) and “Sakhawat Ali and another v. Mst. Shui Khelay” (PLD 1981 Supreme Court 454)

Used in Judgment of
Lahore High Court
Writ Petition-Family-Guardianship
8132-17
2017 LHC 2257

Suit for maintenance under Section 17- B

10. Learned counsel for the petitioner has relied on “Mst. Sabira Sultana v. Asif Firdous” (2011 YLR 1453). This judgment does not relate to a case of Guardianship and is a dispute pertaining to maintainability of appeals against an order passed in a suit for maintenance under Section 17- B which was under discussion, therefore, this judgment is inapt

Used in Judgment of
Lahore High Court
Writ Petition-Family-Guardianship
8132-17
2017 LHC 2257

Under Rule 5(6) of the West Pakistan Rules 1961

(PLD 1995 S.C. 633). He further submits that under Rule 5(6) of the West Pakistan Rules 1961 (Rules), all decisions of the Arbitration Council are taken by majority and where no decision could be taken with majority, the decision of the Chairman shall be the decision of Arbitration Council. He submits that in present case neither the majority decision was taken nor it is case of no decision by Members of Council, hence respondent No.1, could not pass impugned order dated 04.07.2017, which is coram non judice

Used In Judgment of
Lahore High Court
W.P. No.238815/2018

Option to appeal by virtue of section 14

"Now, I advert to the plea of learned counsel for the petitioner thut since the orders impugned heriin are of far rcuching consequences they can be challenged by means of a Constitutionul petition.

.,Assuming for the sake of arguwent that -these orders would have lot of beating on the fate of the case, of the whole gamut of dispute between the parties. Final decision on the suit would be option to appeal by virtue of section 14 of the said Ad and, therefore, if the petitioner fails before the learned Family Court, he will be able to assail, before the Appellate Court, the orders now being challenged by him. Thus, he has a remedy qua the orders in question although he with have to wait for some time to kave recourse to that remedy if at all there arises a need for his so doing. He wilt not have to worry bout those orders ,f the respondent's suit is dismissed by the learned Family Court If orders like those under challenge are allowed to be taken exception to in writ jurisdiction, it will not be possible to achieve the object for which the law embodied in the said Act was framed because writ petitions relating to such would obviously consume a lot of time and that would result in inordinute delav in the Jinalization of matrimonial disputes,,' '

PLD 1982 Lahore 281

Used In Judgment of:
Lahore High Court
WP- Family Law
29938-14
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