Valuable rights accrued in favour of other party. (after giving six opportunities coupled with cost and last warning)

Record suggests that after giving six opportunities coupled with cost and last warning, the petitioner has failed to file written statement and also to pay costs vide order dated 26.11.2013. Keeping in view of above referred circumstances, learned Judge Family Court while relying upon case law titled “FAIZ-UL-HASSAN versus Mst. JAN SULTAN and 2 others” (2001 SCMR 1323) struck off the right of filing written statement vide order dated 18.12.2013 and decreed the suit vide ex-parte judgment dated 26.02.2014. Initially, ex-parte decree was passed on 05.05.2011 which was set aside on 26.11.2013. Inspite of numerous opportunities petitioner had failed to file written statement, resultantly, his right to file written statement was struck off as stated supra. Thereafter, impugned judgment and decree was passed on 26.02.2014. Surprisingly, after passing of impugned ex-parte judgment and decree, he remained mum and filed appeal on 28.03.2015, after delay of more than one year. It is well settled principle by now that delay of each and every day has to be explained as on account of limitation certain valuable rights accrued in favour of other party. Record negates the version of learned counsel for petitioner that due to death of real brother of counsel for the petitioner, learned Judge Family Court struck off the right of petitioner in hasty manner.  

Part Of Judgment
Lahore High Court
WP- Family Law
2280-16
2016 LHC 1487

Stance of the petitioner that nothing in the shape of dowry articles was given to respondent No.1 is not acceptable.

6. The stance of the petitioner that nothing in the shape of dowry articles was given to respondent No.1 is not acceptable. It is customary in our society that parents do give dowry articles to their daughters merely as a token of love and symbol of honour and the petitioner has miserably failed to bring on record anything from which it could be inferred that something contrary to the settled norms was happened in respondent’s case. I have also gone through the decreed items and am of the considered view that the same are of daily use and usually given to a daughter at the time of marriage by the parents even having unsound financial background. The alternate price assessed in lieu of the dowry articles by the learned Judge Family Court and affirmed by the learned Appellate Court is also very reasonable. Concurrent findings of facts in the absence of any illegality or irregularity need no interference by this Court in its Constitutional jurisdiction. Reliance is placed on case reported as Muhammad Habib ..Vs.. Mst. Safia Bibi and others (2008 SCMR 1584).

Part Of Judgment
Lahore High Court
WP- Family Law
8604-16
2016 LHC 4572

Extent of grant of future maintenance to the minors.

4. The petitioner has no objection to the grant of past maintenance to his minor children/respondents No.2 to 4. He has only challenged the impugned decree only to the extent of grant of future maintenance to the minors. The law does not make any distinction between “past” and “future maintenance”. In this regard reliance is placed on the case of Aurangzeb v. Judge Family Court, Khanewal and others (PLJ 2003 Lahore 1494). As per settled law a father is bound to pay maintenance allowance to his minor children till their legal entitlement. Mere non-mentioning of the word “future maintenance” in the plaint neither disentitles the minors from future maintenance nor absolves the petitioner father from the duty of providing maintenance to his minor children till their entitlement. There is nothing on the record to show that the minors or their mother/respondent No.1 are living with the petitioner after passing the impugned judgments and decrees, so they are not entitled to future maintenance. A child who is entitled to past maintenance is also entitled to future maintenance. If the plaintiffs-respondents in their plaint omitted to claim future maintenance along with the past maintenance, the Court itself is empowered to grant such relief for complete administration of justice. Reliance in this regard is placed on the cases of Samar Gul v. Central Government and others (PLD 1986 SC 35) and Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984). In these circumstances, this Court is of the considered view that both the courts below have not committed any illegality or travelled beyond their jurisdiction by granting future maintenance to the minors, which is their undeniable, legal and vested right. 

Part Of Judgment
Lahore High Court
WP- Family Law
8427-15
2016 LHC 4626

First glance, clause 1(a) of Article 128 appears to pose a difficulty (Qanune-Shahadat )

12. Admittedly, the minor born during the subsistence of marriage and this proposition has already been dealt with by the Hon'ble Supreme Court of Pakistan in a judgment cited as “Ghazala Tehsin Zohra versus Mehr Ghulam Dastagir” (PLD 2015 SC 327), wherein it has been observed that:- “We first of all, take up for comment the provisions of Article 128 ibid. The Article is couched in language which is protective of societal cohisn and the values of the community. This appears to be the rationale for stipulating affirmatively that a child who is born within two years after the dissolution of the marriage between his parents (the mother remaining unmarried) shall constitute conclusive proof of his legitimacy. Otherwise, neither the classical Islamic jurists nor the farmers of the Qanun-eShahadat Order could have been oblivious of the scientific fact that the normal period of gestation of the human foetus is around nine months. That they then extended the presumption of legitimacy to two years, in spite of this knowledge, directly points towards the legislative intent as well as the societal imperative of avoiding controversy in matters of paternity. It is in this context that at first glance, clause 1(a) of Article 128 appears to pose a difficulty. It may be noted that classical Islamic Law, which is the inspiration behind the Qanune-Shahadat Order (though not incorporated fully) and was referred to by learned counsel for the appellant also adheres to the same rationale and is driven by the same societal imperative. In this regard, it is also worth taking time to reflect on the belief in our tradition that on the Day of  Judgment, the children of Adam will be called out by their mother’s name. It shows that the Divine Being has, in His infinite wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall be laid bare the secrets about paternity shall not delved into or diverged.”

Part Of Judgment
Lahore High Court
WP- Family Law
9891-16
2016 LHC 911

Power to increase the quantum of maintenance allowance suo moto on appeal of the petitioner

4. Learned counsel for the petitioner submits that the learned Appellate Court has gone beyond its jurisdiction while increasing maintenance allowance of the respondents of its own. He emphatically argued that respondents did not challenge the findings of the learned Judge Family Court either through appeal or crossobjections as such findings of the Family Court to their extent had attained finality and the learned Appellate Court was not vested with any power to increase the quantum of maintenance allowance suo moto on appeal of the petitioner . Relies on Mateen Haider ..Vs.. Additional District Judge, Lahore and others (2005 SCMR 1683) and Muhammad Nazir Khan ..Vs.. Ahmad and 2 others (2008 SCMR 521). Adds that the learned Appellate Court did not consider the financial status of the petitioner while increasing maintenance allowance of the minors; that the petitioner has limited source of income out of which he has to maintain his second wife and children as well, therefore, he is unable to pay the maintenance allowance to the respondents at the enhanced rate fixed by the learned Appellate Court. He next argued that there is no provision in the West Pakistan Family Courts Act, 1964 empowering the Family Court to pass a decree of automatic annual increase; that the judgments and decrees of both the courts below are harsh and liable to be modified in accordance with the financial status of the petitioner.  

Part of Judgment of
Lahore High Court
WP- Family Law
1447-10
2015 LHC 8916

Court could increase quantum of maintenance allowance of the respondents/minors

8. First of all I would like to dilate upon the issue whether the Appellate Court could increase quantum of maintenance allowance of the respondents/minors in the absence of their appeal against the decree of the Family Court. In this context Rule 33 of Order 41 of CPC is very much relevant which reads as under:- “ Power of Court of Appeal.--- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection.”

Part of Judgment of
Lahore High Court
WP- Family Law
1447-10
2015 LHC 8916

Lean in favour of adjudication of causes on merits

Reliance is placed on case reported as Muhammad Arif ..Vs.. Uzma Afzal and others (2011 SCMR 374) wherein it has been laid down as under:-

“There is no cavil to the proposition that the “conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim ‘ he who seeks equity must do equity”. Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law under which he is claiming entitlement.”

Part Of Judgment
Lahore High Court
WP- Family Law
4892-13
2017 CLC 794

Family Court is vested with power to adopt its own course provided

11. Learned counsel for the petitioner urged that according to Section-17 of the West Pakistan Family Courts Act, 1964 provisions of CPC and Qanun-e-Shahadat, Order, 1984 have been made inapplicable. No doubt according to the said barring clause provisions of CPC are not stricto senso applicable in the family disputes but the Family Court is vested with power to adopt its own course provided such procedure is not against the principle of natural justice and offends any right of parties. Reliance is placed on case reported as Farzana Rasool and 3 others ..V.. Dr. Muhammad Bashir and others (2011 SCMR 1361), Muhammad Tabish Naeem Khan ..Vs.. Additional District Judge, Lahore and others (2014 SCMR 1365). Therefore, it can safely be concluded that in the family disputes powers of Appellate Court are wider than the ordinary Civil Appellate Court and in order to do complete justice it can mould/modify the relief in favour of nonappealing party. 

Part of Judgment of
Lahore High Court
WP- Family Law
1447-10
2015 LHC 8916

The provisions of Section 7 of the Ordinance have remained controversial

Larger Bench of Hon’ble Supreme Court titled as “Mst. Kaneez Fatima v. Wali Muhammad and another” (PLD 1993 Supreme Court 901), has held as under:-

“The provisions of Section 7 of the Ordinance have remained controversial from the very beginning and there are conflicting views in general about it. In view of the Constitutional restraints the Courts cannot give any verdict on the conflicting claims challenging or justifying the provisions of Section 7 of the Ordinance. However, keeping in view the facts of each case the applicability and interpretation of Section 7 has to be construed in that light.”

Part of Judgment of
Lahore High Court
Writ Petition-Family-Maintenance
27820-13
2017 LHC 2268

Undertaking given in the Nikahnama that certain property/land

It has been held by apex court in the case reported as “Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others”(PLD 2016 S.C. 613) that undertaking given in the Nikahnama that certain property/land shall be transferred in the name of the wife and she would be exclusive owner of the same----such an undertaking could 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. In the instant case, as per contents of Nikahnama, it is clear that Rs.200,000/-, five Tola gold ornaments and 07 Marla plot along with constructed house was fixed in consideration for marriage and defendant has failed to brought on record any evidence establishing that he had provided funds for purchase of plot in favour of plaintiff. Similarly he has also raised plea that plaintiff has been paid total dower but this version of defendant is also not supported with any piece of evidence.  

Part Of Judgment
Lahore High Court
Writ Petition-Family-Dower
8446-14
2017 LHC 579

Persons jointly entitled or liable must be made parties to the suit

It has also been laid down in the case reported as “Ayesha Bibi v. Muhammad Faisal and 2 others”(PLD 2014 Lahore 498) as under:-

“Persons jointly entitled or liable must be made parties to the suit otherwise same might not result into an effective, enforceable or binding decree.”

Part Of Judgment
Lahore High Court
Writ Petition-Family-Maintenance
1216-17
2017 LHC 2413

“Section 2(d)---“Party”---Definition---Scope (of West Pakistan Family Courts Act, 1964)

It has been laid down in the case reported as “Muhammad Arif and others v. District and Sessions Judge, Sialkot and others”(2011 SCMR 1591) as under:-

“Section 2(d)---“Party”---Definition---Scope----Definition as given in S.2(d) of West Pakistan Family Courts Act, 1964 has two parts i.e. (a) any person whose presence as such is considered necessary for the proper decision of the dispute and (b) any person whom Family Court adds as “party” to such dispute ---Definition of word “party” is though not very different from the one obtaining under C.P.C., yet it is comparatively more liberal and extensive than the proverbial “necessary or proper party” of a civil suit.”

Part Of Judgment
Lahore High Court
Writ Petition-Family-Maintenance
1216-17
2017 LHC 2413

DNA test is always conducted with the consent of the person concerned

8. As far as DNA test is concerned, it has been observed in the case reported as “Mst. Shamim Akhtar v. Additional District Judge, Gujranwala and another”(PLD 2015 Lahore 500) that DNA test is always conducted with the consent of the person concerned and no such consent is available and once consent has not been given, DNA test could not be conducted. It has also been held in the case reported as “Khizar Hayat vs. Additional District Judge, Kabirwala and 2 others”(PLD 2010 Lahore 422) that direction could not be issued for conducting the DNA Test as a matter of routine in cases where father refuses to acknowledge his child born during lawful wedlock because under Article 128 of the Qanun-e-Shahadat Order, 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. 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. Learned counsel for petitioner has placed reliance on “Mst. Shamshad Bibi v. Bushra Bibi and 3 others”(PLD 2009 Islamabad 11), “Naseer Ahmed v. Mst. Azrah and another”(PLD 2010 Karachi 61). However, the facts and circumstances of the said cases are distinguishable as in the earlier case consent of the parties was given for DNA test and on their consent matter was directed to be referred to the institute concerned for conducting of DNA test. No illegality has been found in the impugned orders passed by learned Judge Family Court, Multan.

Part Of Judgment
Lahore High Court
Writ Petition-Family-Miscellaneous
9730-15
2017 LHC 238

Applying the provisions of Section 10(5) of The Muslim Family Courts Act, 1964.

The main contention raised by learned counsel for the petitioner was that the learned trial court erred in law while applying the provisions of Section 10(5) of The Muslim Family Courts Act, 1964. However, judgment of learned Sindh High Court in “RAMJO KOLHI V SHRIMATI BADI KOLHI and others” (2004 YLR 1666) can be relied. A learned Family Court allowed Hindu married couple separation which was impugned before learned Sindh High Court however, judgment of court below, was upheld that Hindu marriage was rightly allowed separation under the Act.

Part Of Judgment
Lahore High Court
Writ Petition-Family-Christian Marriage
2370-16
2017 LHC 1130

Solitary statement of wife was sufficient to prove the claim of dowry articles-

In this regard, it has been laid down in the case reported as “Mst. Shakeela Bibi v. Muhammad Israr and others”(2012 MLD 756) as under:-

“Solitary statement of wife was sufficient to prove the claim of dowry articles---Contention of husband that wife, while making claim for dowry articles, was required to prove the case in terms of the requirements of Qanun-e-Shahadat Order, 1984 was not only misconceived but was also besides the mandate of law as envisaged in S. 17(1) of the West Pakistan Family Courts Act, 1964----Section 17 of the West Pakistan Family Courts Act, 1964 was a special law and provisions of Qanun-e-Shahadat Order, 1984 were excluded through said section ---- Was not possible for any bride/wife in the society to keep the record of purchase receipts, prepare the list of dowry articles and obtain signatures from the husband’s side---Mothers start collecting, purchasing, and preserving articles for their daughters from when they start growing up and there was a tradition that the in-laws of any wife were extended esteem and respect and it was considered an insult to prepare the dowry list for the purposes of obtaining signatures from them.---Constitutional petition allowed, in circumstances.”


Part Of Judgment
Lahore High Court
Writ Petition-Family-Dower
8446-14
2017 LHC 579
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