The process of the Family Courts Act, 1964, whatever property she has acquired during the subsistence of the marriage,

15. The judgment of Apex Court approves the judgment of High Court in case title “Muhammad Akram v. Mst. Hajra Bibi and 2 others” (PLD 2007 Lahore 515), relevant portion of which is reproduced as under:- “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.”  

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
RAWALPINDI BENCH, RAWALPINDI
WP- Family Law
3045-14
2015 LHC 5006

Wife cannot be compelled to live with her husband

18. As far as decree of restitution of conjugal rights is concerned, it has become redundant as this Court has already held that petitioner No.1 has been divorced by the respondent No.1 on 12.03.2013. Even otherwise, it has been held in “Shamshoo v. Mst. Tahira and another” (1983 CLC 133) that “a wife cannot be compelled to live with her husband even if he obtains decree for restitution of conjugal rights”. It has also been held in a case reported as “Rukhsana Tabassm v. Judge, Family Court and 2 others” (1999 CLC 878) that “a decree for restitution of conjugal rights is not absolute decree and cannot be enforced by Courts of justice.”. The said decree is a good answer to a suit for maintenance filed by wife. 

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
RAWALPINDI BENCH, RAWALPINDI
WP- Family Law
3045-14
2015 LHC 5006

نابالغ کی پرورش کے لیے ذرائع نہیں ہیں تو

 اگر والد کے پاس نابالغ کی پرورش کے لیے ذرائع نہیں ہیں تو والدہ کی ذمہ داری ہے کہ نابالغ کی پرورش کرے۔ اس کے علاوہ اس کیس لاء میں تفصیل سےنابالغان کے حوالےسے والدین کی ذمہ داریوں کا تعین کیا گیا ہے۔ *ہمایوں حسن بنام ارسلان ہمایوں وغیرہ

* Verified Citation: *PLD 2013 SC 557* ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ فیملی 

Under sub-section (4) of section 10 of the Family Courts Act, 1964

2. Briefly the facts of the case are that respondent No.2 instituted a suit for dissolution of marriage, recovery of maintenance, dower amount and dowry articles. The suit was contested by the petitioner by filing a written statement. Pre-trial reconciliation proceedings were conducted and the suit of respondent No.2 for dissolution of marriage was decreed on 28.03.2014 under sub-section (4) of section 10 of the Family Courts Act, 1964 and for the rest of the controversy, the following issues were framed:- 

“1. whether the plaintiff is entitled to recover the maintenance allowance as prayed for? OPP
  2. whether the plaintiff is entitled to recover the dowry articles as per list annexed with the plaint or its alternate value Rs.2,60,975/-? OPP 
  3. whether the plaintiff has no cause of action to file the instant suit? 4. Relief.” 

The parties led their evidence pro and contra to prove their respective contentions. On 16.06.2015 the petitioner was proceeded against ex-parte. The learned trial court vide impugned judgment and decree dated 01.07.2015 decreed the suit of respondent No.2 for dowry articles and she was held entitled to get back dowry articles to the extent of Rs.1,00,000/- as alternate price. Hence this writ petition. 

Part Of Judgment 
IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT 
WP- Family Law
28781-15
2015 LHC 6508 

Attached property is under the exclusive ownership and possession of the petitioner

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 
IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
11914-15
2015 LHC 6866
 

Established from the record that the petitioner was not party in the suit

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 (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 
IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
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 
IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
11914-15
2015 LHC 6866

Petitioner to withdraw the civil suit and file fresh suit

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 
IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
11914-15
2015 LHC 6866

Substantive vested right An appeal is a continuation of a suit.

6. It is an established principle of law that appeal is not merely a matter of procedure but substantive vested right. An appeal is a continuation of a suit. The institution of a suit carries an implication that all rights of appeal then in force are available to the litigants till the end. Reference may be made to the case laws titled as “Muhammad Saleem v. Muhammad Ali through real mother and 2 others” (2007 MLD 1533) and “Mst. Ghulam Fatima v. Fazal and others” (1986 CLC 2057).

Part Of Judgment 
IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT 
WP- Family Law
28781-15
2015 LHC 6508 

About to leave the country of dispose of his property with a view to frustrate or delay execution of decree that could be passed against him.

“Application under O.XXXVIII, R.5, CPC could only be granted when sufficient material was on record that defendants were planning to leave the country with a view to defeat the recovery of plaintiff’s claim. No such circumstance existed in the present case. Vague allegation about intentions that defendant would leave the country were not sufficient. Definite evidence was required to be led before the Court in support of such contentions. Court was required to satisfy itself that defendant was about to dispose of his assets, only then such order could be made. Merely by establishing a prima facie case attachment before judgment could not be granted unless necessary ingredients of Order XXXVIII, R.5, C.P.C had been established. Attachment before judgment was not to be lightly ordered and Court had to satisfy itself before making such order whether defendant was about to leave the country of dispose of his property with a view to frustrate or delay execution of decree that could be passed against him.”

2005 CLC 1270

PLD 2017 Lah. 689

It will not be out of context to observe that the intent of legislature while promulgating Family Courts Act, 1964

6. Worth mentioning that under Order XII Rule 6 C.P.C. where defendant admits claim of the plaintiff either in pleadings or otherwise the court has discretion to decree the suit on the basis of such admission, to the extent of admission and proceed with regard to rest of the claim/controversy and this provision of law enables a court to dispose of such part of the suit with regard to which there is no dispute between the parties. In this regard reliance can be placed on case Allah Ditta and 2 others v. Walayat and 17 others [PLJ 1983 SC (AJ&K) 131 (Appellate Jurisdiction)]. Worth mentioning that impugned order is in line with these provisions of C.P.C. Moreover at the stage of framing of issues under Order XIV Rule 1(5) C.P.C. the Civil Court is competent to record better statements of the parties and such exercise of discretion has always been approved and appreciated by this Court, so that controversial issues between the parties may so far as possible be curtailed and the remaining controversy be adjudicated by recording evidence of the parties. Such course even relieves the parties to produce large number of witnesses and their lengthy cross-examination. It will not be out of context to observe that the intent of legislature while promulgating Family Courts Act, 1964 was the same. For that very purpose provisions of pre-trial and post-trial reconciliation were introduced. 

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

To take a child from his native land

The court should take into account the conduct of the peccant parent while deciding the matter but it must not penalize the child for it. The Court of Appeal said: 

“To take a child from his native land, to remove him to another country where, may be, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors), which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge, may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spent in his country the period must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child‟s own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child.” 

Part Of Judgment
Lahore High Court
Criminal Proceedings
74048/19
2020 LHC 1172

Custody of the male child for this principle is only applicable in cases of females

In another case “Mst. Ruqayya Yasmin v. Muhammad Riaz and others” (1991 MLD 166), it was observed that: 

“4. From a perusal of the orders passed by the Guardian Judge as also the Addl. District Judge, it becomes abundantly clear that the only reason which prevailed with them for directing that the custody of the minors be handed over to respondent No.1, the father, was that the petitioner on account of her remarriage with the stranger has lost her right of Hizanat. Unfortunately, however, while deciding the application no attention was paid by the Courts below either to the evidence on the record nor was any effort made so as to ascertain that it would be in the welfare of the minors to continue living with the mother notwithstanding her remarriage. It is trite law that the dominant or rather the only factor which is to be considered by the courts while determining the question of custody of the minors is, their welfare. To this paramount consideration all other reasons are subordinate. The fact that the petitioner had remarried was one of the factors which could be taken into consideration while deciding the dispute, but it certainly form the sole basis. Reference in this connection may be made to Shagufta Bano. v. Musarrat Hanif and others 1982 CLC 1821; Mst. Rafiqan and 2 others v. Jalal Din 1983 SCMR 481; Mst. Jannatan v. Ch.Abdul Hamid and others 1984 CLC 345 and Mst. Feroze Begum v. Lt. Col. Muhammad Hussain 1983 SCMR 606 it was observed that :- “…It is therefore, provided specifically that although the guardian is entitled to such a custody, no order will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. Even if there be a presumption that it is for the welfare of the ward to deliver him into the custody of guardian, the Court will have to weigh it against the other weighty considerations on the record. The overriding and paramount consideration always is the welfare of the minor. Indeed, this is the sole consideration that must prevail in the final analysis and the fact that the father is the lawful guardian of his minor children does not compel the Court to pass an order in this favour unless it is in their welfare to do so. The welfare of a minor means his material, intellectual, moral and spiritual wellbeing.” The Courts below while dismissing the appeal relied upon Mst. Parveen Akhtar v. Muhammad Ashraf 1986 SCMR 1944 and Mst. Zubeda Khanum v. the District Judge, Karachi South and 2 others 1988 CLC 556 but these authorities are distinguishable on facts inasmuch as, in both the cases it was held that the welfare of minors demanded that their custody be granted to their father. Unfortunately, in the present case, as already indicated, no such exercise was undertaken which has rendered the orders of the Courts below to be without lawful authority. It is also to be noticed that while adjudicating upon the question, the custody of minors, it is not the right of the parties which is required to be decided by the Courts but instead it is the welfare of the minors which has to be considered. Consequently, both the Courts below fell in serious error in proceeding to decide the application for custody of the minors on the sole ground that the petitioner had lost her right of Hizanat. Another legal error committed by the Courts below is that they have failed to consider that the factum of remarriage of the mother has no relevance as regards the custody of the male child for this principle is only applicable in cases of females”

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

Section 17 of the Act, ibid application of Code of Civil Procedure, 1908 (C.P.C.)

No doubt to achieve afore-noted aims and objects, by way of Section 17 of the Act, ibid application of Code of Civil Procedure, 1908 (C.P.C.) except Sections 10 and 11 has been excluded in order to avoid technicalities by providing a short, simple and speedy methodology for settlement and disposal of disputes relating to family matters. Notwithstanding the fact that provisions of C.P.C. are not stricto senso applied to the cases of the Family Courts so as to achieve the ends of settlement of such disputes at the earliest, yet it is settled law that the Family Court has discretion and is always competent to adopt any procedure to decide the case provided such procedure is not expressly barred by the said Act of 1964 or offends any of its provisions or is violative of any right of parties being against the principles of fair hearing/trial. Meaning thereby that the Family Court can follow the principles and procedure laid down in C.P.C. if such principles are not contrary to the Family Laws and are matching with aims and objects of the Family Court, Act. Steering thoughts in this regard, besides Farzana Rasool’s case supra, have been gathered from Muhammad Tabish Naeem Khan v. Addl. District Judge, Lahore (2014 SCMR 1365), Abdul Rehman v. Mst. Ruqia Begum and others (2018 C.L.C. Note 35 Lahore), Sulman Ahmad Khan v. Judge Family Court, Multan and others (PLD 2017 Lahore 689), Malik Hashim Amir Khan v. Mst. Saadia Tabbassum and another (2015 MLD 89 Lahore), Ghulam Murtaza v. Additional Distt. Judge (II) D.G. Khan and 2 others (1999 C.L.C. 81 Lahore) and Nadeem Yousaf v. Sara Nadeem and 3others 2017 MLD 786 Lahore).

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

Question of custody of minor child in the light of the governing principle of Muhammadan Law

In “Mehmood Akhtar v. District Judge, Attock and 2 others” (2004 SCMR 1839) it was observed by the honourable Supreme Court to the effect that:

“…The Courts, subject to the welfare of minor, always determine the question of custody of minor child in the light of the governing principle of Muhammadan Law but mere fact that the father becomes entitled to get custody of minor or mother has lost the right of Hizanat, is not a sole criteria to decide the question of the custody of minor. This Court in Firdous Iqbal v. Shifaat Ali 2000 SCMR 838 having discussed all the above questions raised before us in the light of Muslim Personal Law and the provisions contained in Muhammadan Law by Mulla, has held that notwithstanding the right of father for custody of minor under Muslim Personal Law, this right is always subject to the welfare of the minor which is the paramount consideration for determining the question of custody of minor. 4. We having considered the matter in the light of law laid down by this Court and the principles of Muhammadan Law, find that in the given facts and peculiar circumstances of the present case, it would not be in the interest and welfare of minor to handover her custody to father rather the welfare of minor would lie in her custody with her mother…”

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