Right of the father to claim the custody of a minor son is not an absolute right,

In “Mst. Rabia Bibi v. Abdul Qadir and others” (2016 CLC 1460) it was observed to the effect that mere fact of remarriage of mother would not ipso facto disentitle her from retaining custody of minor and handing him over to the father when it is not otherwise in the welfare of the minor and that the welfare of the minor is the paramount consideration in determining the custody of a minor. In “Mst. Firdous Iqbal v. Shafaat Ali and others” (2000 SCMR 838) it was observed by the honourable Supreme Court as follows: 

“15. As stated earlier, the main consideration which weighed with the learned Judge in Chambers of the High Court for making the order of delivery of custody of the minor to the father was only that after attaining the age of seven years, the right of ‘Hizanat’ of the male minor child under the Muslim Personal Law vested in the father as he is the natural guardian under section 25 of the Guardians and Wards Act (VIII of 1890). The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record showed that the respondent father who sought custody of the minor, neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the petitioner-mother. She had brought him up and educated him till she had to opt for her second marriage…”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Guardianship
1795-20
2020 LHC 162

Second marriage could not be made a ground to disentitle the mother to the custody of the minors.

In “Sardar Hussain v. Mst. Parveen Umer and six others” (2003 YLR 3054) while considering the objection on the basis of second marriage of the mother, in custody matters, it was observed that: 

“6. The second plea is also not sufficient to disentitle the respondent No.1 from having the custody of the minors. She was deserted along with the 3 minors and was thrown into a tide of hostile social conditions with uncertain future and that too within our male dominated society thus she legitimately felt insecure and defenceless was therefore justified to contracting second marriage for securing her own future as well as of the minors. As discussed above, the petitioner did not pay a single penny to respondent No.1 for the maintenance of the 3 minors and the present husband took on himself such responsibility without any hesitation and exception. The minors have been brought up by this way by their mother with the help of the present husband, therefore, the second marriage could not be made a ground to disentitle the mother to the custody of the minors.”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Guardianship
1795-20
2020 LHC 162

Granting permanent custody of a male minor of tender age to his father

The petitioner who was paternal grandmother and also having statedly entered second wedlock herself after the death of her husband, could not be given preference to the real mother of the minors who since their birth was looking after them and bringing up the children along proper and better lines. In “Mst. Noor Afshan v. Muhammad Ghalib and 3 others” (2019 CLC 1787) it was observed as follows:

“…Learned appellate court granted permanent custody of the minor to respondents No.1 on sole ground that the petitioner has re-married and is now living with her second husband. In my humble opinion such ground could not be applied in the present case as the same could have been applied had been subject minor been a girl. Except for the above, no other justifiable reason has been assigned by the learned appellate court for granting permanent custody of a male minor of tender age to his father…”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Guardianship
1795-20
2020 LHC 162

Marriageable age by the time she get decided her suit for dissolution of marriage.

Hon’ble Supreme Court in case Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others (2011 SCMR 1361) at page 1373 are quite relevant which are reproduced as under: 

“So, if the provisions of the Code and the Evidence Act were made applicable, it would have frustrated the very object of the Act, which requires the Special Court shall be constituted and such Court hall have exclusive jurisdiction in respect of the matrimonial disputes. The object of the Act is to shorten the agony of litigant parties and to provide them justice as early as could be possible. Matters pertaining to the Family Court be of dissolution of marriage, restitution of conjugal rights, entitlement of a child or children or of wife to the maintenance, payment of dower, all such issues are required to be decided in speedy manner, because no such issue can be left undecided for decades; because a minor, seeking maintenance, may become major by the time his case is decided by the Family Court or a wife, seeking dissolution of marriage, may go out of marriageable age by the time she get decided her suit for dissolution of marriage.”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Maintenance
2932-20
2020 LHC 758

Does not pay the decretal amount he will pay the same

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 judgmentdebtor. The petitioner did not give any undertaking that in case his son (judgmentdebtor) 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. Reference may be made to the case law titled as “Muhammad Jameel v. Mst. Tahira Bibi and 4 others” (2013 CLC 1529 (D.B.), “Muhammad Aslam v. Ayaz Ghazanfar and 2 others” (PLD 2012 Lahore 392) and “Mst. Nasreen v. Government of Sind and 2 others” (PLD 1989 Karachi 28).


Part of Judgment of
Lahore High Court
WP- Family Law
11914-15
2015 LHC 6866

Sole property of the petitioner cannot be attached by the learned executing court.

3. It is mainly contended by the learned counsel for the petitioner that any order against a person who is not party to the proceedings is not executable against him. He has placed reliance on 2006 SCMR 913. He submits that the attached property is under the exclusive ownership and possession of the petitioner and the judgment-debtor has no concern with this property. He further contends that the petitioner never stood guarantor of the judgment debtor during the proceedings and in such circumstances the sole property of the petitioner cannot be attached by the learned executing court. He lastly contends that the impugned orders dated 16.10.2014 and 19.02.2015 passed by the learned lower courts are liable to be set aside. On the other hand learned counsel for respondents No.3 and 4 has supported the impugned orders. He also relied upon case law titled as “Sultan Ahmad v. Judge Family Court and 5 others” (PLD 2012 Lahore 148).

Part of Judgment of
Lahore High Court
WP- Family Law
11914-15
2015 LHC 6866

File fresh suit on the same cause of action

6. In case titled “Sh. Shajar Hussain v. Haji Abdul Majeed and others” (2006 SCMR 913), it has been held as under:-

“After hearing the learned counsel for both sides and taking into consideration the fact that the property was originally owned by the Panjnad Textile Mills, therefore, it was incumbent upon the plaintiff/petitioner to have impleaded it as party and in absence of the original owner decree passed shall cause injustice to it and such order would not be executable against a person who was not a party to the proceedings. Therefore, we accept the request of the learned counsel for the petitioner. As a result whereof petition is converted into appeal the impugned judgment dated 1-3-2000 as well as judgments dated 2-2-1998 and 15-7-1996 passed by the trial Court and First Appellate Court are set aside and permission is accorded to the petitioner to withdraw the civil suit and file fresh suit on the same cause of action in accordance with law. Parties to bear their own costs”


Part of Judgment of
Lahore High Court
WP- Family Law
11914-15
2015 LHC 6866

Suit was filed by the minor children against grandfather

7. The judgment titled “Sultan Ahmad v. Judge Family Court and 5 others” reported in (PLD 2012 Lahore 148) is not applicable to the facts and circumstances of this case and I respectfully do not follow the said judgment for the reasons that in the said case reliance has been placed on the case law titled as “Haji Nizam Khan v. Additional District Judge, Lyallpur and others” (PLD 1976 Lahore 930). In case titled “Haji Nizam Khan v. Additional District Judge, Lyallpur and others” a suit was filed by the minor children against grandfather whereas in this case respondent No.4 has instituted suit against real father and not against the petitioner (paternal grandfather). 

Part of Judgment of
Lahore High Court
WP- Family Law
11914-15
2015 LHC 6866

Take up for comment the provisions of Article 128 ibid

Reliance is placed on the esteemed judgment passed by the Hon’ble Supreme Court of Pakistan 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 Qanun-eShahadat 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
8482-16
2016 LHC 905

Litigant was supposed to establish contact with his counsel and remain in touch with him in order to find out the result of the case

 No doubt, it is the case of heavy amount of dower and maintenance but a litigant should be vigilant while conducting a case. “Litigant was supposed to establish contact with his counsel and remain in touch with him in order to find out the result of the case”. Reliance in this regard is placed on case law titled “ALTAF HUSSAIN and 2 others versus MUHAMMAD NAWAZ and 2 others” (2001 SCMR 405). 

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

Maintenance accrediting to section 368 of the Muhammadan Law by D.F. Mullah,

There is no cavil to the proposition that none else except the respondent is responsible to maintain her. In case reported as Humayun Hassn ..Vs.. Arslan Humayun and another (PLD 2013 Supreme Court 557) the Hon’ble Supreme Court of Pakistan has observed as under:-

“There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 368 of the Muhammadan Law by D.F. Mullah, maintenance means and include food, raiment and lodging. However, it may be observed that from the very language of above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and capacity of the father to pay.”

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

According to section 368 of the Muhammadan Law by D.F. Mullah, maintenance means and include food, raiment and lodging

According to Section 368 of the Muhammadan Law by D.F. Mulla maintenance means and include food, clothing, lodging but the Hon’ble Supreme Court of Pakistan in case reported as Humayun Hassn ..Vs.. Arslan Humayun and another (PLD 2013 Supreme Court 557) has observed that said definition is neither conclusive nor exhaustive and laid down as under:- “

There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 368 of the Muhammadan Law by D.F. Mullah, maintenance means and include food, raiment and lodging. However, it may be observed that from the very language of above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and capacity of the father to pay.”

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

Appeal in case of dissolution of marriage was to protect women

The dictum laid down by the August Supreme Court of Pakistan in the case of Abid Hussain v. Additional District Judge (supra) also supports the view of this Court that if the petitioner-wife/decree-holder was aggrieved of the decree of the Family Court she could avail the remedy of appeal. In the cited case the August Supreme Court of Pakistan has observed as under:

“the object behind non-provision of appeal in case of dissolution of marriage was to protect women, an under privileged and generally oppressed section of the society, from prolonged and costly litigation, as such it aimed to put a clog on the right of husband. It would be improper to construe subsection (2)(a) in a way so as to deprive a wife from appealing from the decree refusing her relief on the grounds, which according to the Family Court have not been proved but nevertheless granting the decree of dissolution on some other ground. Such an interpretation would be in violation of the wholesome provision of appeal contained in subsection 14(1) and the very object of introducing the Family Courts Act.” 

Part Of Judgment
Lahore High Court
WP- Family Law
25336-15
2016 LHC 4629

Decreeing the suit on the basis of ‘khula’

3. Learned counsel for the petitioner contends that remedy of appeal is not available in view of section 14(2)(a) of the Family Courts Act, 1964; that the impugned order is against law and facts on record; that while decreeing the suit on the basis of ‘khula’ the learned trial Court has ignored the pleadings of the petitioner in which she had also alleged cruelty on the part of the respondent; that the petitioner has not been afforded an opportunity to prove her ground of cruelty by production of evidence, therefore, the impugned order is not sustainable in the eye of law; that though the dower was paid in cash at the time of ‘nikah’ but the same was taken back by the respondent and as such there was no occasion for the learned trial Court to order for return of the dower amount without recording evidence of both the parties in this respect; that even otherwise, in any case the amount of dower could not be ordered to be returned rather only a part amount was required to be returned under section 10(5) of the Family Courts Act, 1964 that the impugned order is liable to be set-aside to this extent. Reliance is placed on the cases of Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another (2006 SCMR 100) and Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another (2008 SCMR 186).  

Part Of Judgment
Lahore High Court
WP- Family Law
25336-15
2016 LHC 4629

Trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, rule 33, C.P.C, was not intended to apply to such an appeal.”

9. The aforesaid provision of law came up for consideration before the Hon’ble Apex Court in the case reported as Messrs S.M. Yusuf and Bros. ..Vs.. Mirza Muhammad Mehdi Pooya (PLD 1965 Supreme Court 15), and after considering the authorities cited at Bar the purpose underlying the above provision and its application to the various disputes were summarized by the Apex Court as under:-
“The term employed to confer the power are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit. The non obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the Appellate Court’s power. Here the whole decree was before the Appellate Court, but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that in the absence of a counter appeal being filed a decree against another defendant cannot be given not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule. We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi & Sons to examine the arguments there set out. Four precedent judgments are cited. From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power give by the rule is widely expressed and must be applied with discretion, where interference is required to “adjust the right of the parties in accordance with justice, equity and good conscience” or where the failure to exercise the power “would lead to impossible, contradictory and unworkable orders”. These particular considerations undoubtedly are circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts. The single case cited by the High Court with reference to its facts is that of Muhammad Khaleef Shirazi (1) which clearly shows points of difference from the present case. The fact were of a much more complicated character than they are in this case and in the result of Privy Council declined to interfere on behalf of the plaintiff to declare the liability of one of the defendants against whom his case had been expressly dismissed by the trial Court, and he had not appealed against that decision. The Judicial Committee holding that in effect, the plaintiff was moving an appeal direct to the Privy Council from the decree of the trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, rule 33, C.P.C, was not intended to apply to such an appeal.”  

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