Bridal gifts fall within the ambit of personal property and belongings of a wife

8. Bridal gifts fall within the ambit of personal property and belongings of a wife i.e. Item No.9 of the Schedule in terms of Section 5 of the Family Courts Act, 1964 which confers exclusive jurisdiction upon the Family Court to hear the claim of such matters. The term “personal property and belongings of a wife” has already been explicated by this Court in the case titled Muhammad Akram v. Hajra Bibi (PLD 2007 Lah. 515) and maintained by the Hon’ble Supreme Court of Pakistan in the case titled Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 SC 260). Relevant extract from the case of Muhammad Akram (supra) reads below:-
 “Such personal property or belonging referred to in 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 her 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.”


Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
29827-14
2014 LHC 7218

Entitled to recover the same as per condition mentioned in column No. 17 of the Nikah Nama.

13. Now I advert to the legal objection raised by the learned counsel for the petitioner that the learned Judge Family Court was not competent to decide the claim of respondent No. 3 for recovery of 5-tolas gold ornaments mentioned in column No. 17 of the Nikah Nama. He has placed reliance on judgment of this Court reported as “Muhammad Awais Vs. Mst. Zahida Parveen” (PLD 2012 Lahore 38). In the referred judgment one Mst. Zahida Parveen instituted a suit for recovery of gold ornaments valuing Rs. 2,00,000/- in the Family Court at Okara against the defendant alleging therein that she is entitled to recover the same as per condition mentioned in column No. 17 of the Nikah Nama. Her suit was dismissed by the learned Judge Family Court with the observations that the matter was not triable by a Family Court. Thereafter, the appeal filed by Mst. Zahida Parveen was accepted by the learned Appellate Court and the case was remanded to the learned Judge Family Court for fresh trial. Muhammad Awais husband of Mst. Zahida Parveen filed W.P. No. 16081 of 2010 before this Court which was accepted by this Court in view of the dictum laid down by the Hon’ble Supreme Court of Pakistan in the case titled as “Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others” (PLD 2011 Supreme Court 260), and resultantly, judgment of learned Additional District Judge was set aside and the judgment recorded by the learned Judge Family Court, Okara was restored whereby he had dismissed the suit of Mst. Zahida Parveen on the point of jurisdiction.

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

Dower becomes payable on dissolution of marriage either by death or divorce

10. It has been contended on behalf of the petitioner that respondent No. 3 was not entitled to recover the alleged amount of deferred dower Rs. 2,00,000/- during the subsistence of marriage as deferred dower becomes payable on dissolution of marriage either by death or divorce and both the lower courts have committed illegality while granting the said relief in favour of respondent No. 3. He has placed reliance on the judgment of Hon’ble Supreme Court of Pakistan reported as “Saadia Usman and another Vs. Muhammad Usman Iqbal Jadoon and another” (2009 SCMR 1458), to contend that deferred dower becomes payable on dissolution of marriage either by death or divorce.  

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

Ornaments were recorded in the Nikah Nama later on, whereas, no dower was fixed at the time of Nikah; that the suit

6. Learned counsel for the petitioner contended that as the marriage of respondent No. 3 with the petitioner was intact at the time of filing of suit and passing of decree, therefore, the respondent No. 3 was not entitled to recover the alleged deferred dower from the petitioner. In this respect he has placed reliance upon judgment of Hon’ble Supreme Court of Pakistan reported as “Saadia Usman and another Vs. Muhammad Usman Iqbal Jadoon and another” (2009 SCMR 1458). He further contended that the entries regarding the dower amount of Rs. 2,00,000/- and 5-tolas gold ornaments were recorded in the Nikah Nama later on, whereas, no dower was fixed at the time of Nikah; that the suit of respondent No. 3 to the extent of recovery of 5-tolas gold ornaments mentioned in column No. 17 of the Nikah Nama was not competent before the learned Judge Family Court, Mian Channu. To substantiate his contention he has placed reliance upon “Muhammad Awais Vs. Mst. Zahida Parveen” (PLD 2012 Lahore 38); that respondent No. 3 left his house at her own and she was not entitled to recover any maintenance allowance; that the learned lower courts have fixed maintenance allowance of respondent No. 3 at very excessive rate against the law and facts of the case. 

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

The provisions of Civil Procedure Code, 1908 as well as Qanun-eShahadat Order, 1984 are not applicable in stricto senso to the proceedings before the Family Court by virtue of Section 17 of the Family Courts Act, 1964.

14. It is a settled principle of law that purpose of enacting the special law regarding family disputes is to advance justice and to avoid technicalities, which are hindrance in providing ultimate justice to the parties. The West Pakistan Family Courts Act, 1964 was promulgated for the expeditious settlement and disposal of disputes relating to the marriages and  other family affairs and special procedure was provided to achieve this object. The purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between parties in shortest possible time. The provisions of Civil Procedure Code, 1908 as well as Qanun-eShahadat Order, 1984 are not applicable in stricto senso to the proceedings before the Family Court by virtue of Section 17 of the Family Courts Act, 1964. Family Court has to regulate its own proceedings in accordance with the provisions of the Act, 1964 as the evidence adduced before the Family Court cannot be evaluated and appraised in the manner as it is appreciated in the cases presented under Civil Procedure Code, 1908. A mere fact that a party did not finally prove the receipts of dowry articles in evidence have no legal consequence. Reliance is placed on case law reported as “Mst. Shakeela Bibi Vs. Muhammad Israr and others”(2012 MLD 756). 

Part of Judgment : 
THE LAHORE HIGH COURT, BAHAWALPUR BENCH BAHAWALPUR
WP- Family Law
2673-14
2014 LHC 7190

Recover the dower amount Rs. 2,00,000/- which was not paid to her by the petitioner; that the learned Family Court was competent to adjudicate upon the claim

7. On the other side, learned counsel for respondent No. 3 argued that respondent No. 3 was subjected to torture and she was turned out by the petitioner from his house and the learned trial Court has rightly granted her maintenance allowance; that respondent No. 3 was fully entitled to recover the dower amount Rs. 2,00,000/- which was not paid to her by the petitioner; that the learned Family Court was competent to adjudicate upon the claim of respondent No. 3 regarding 5-tolas gold ornaments; that the learned trial Court as well as the learned appellate court have passed the judgments and decrees in favour of respondent No. 3 in accordance with law and the writ petition against concurrent findings of both the learned courts below is not competent. He has placed reliance on “Liaquat Ali Vs. Additional District Judge, Narowal and 2 others” (1997 SCMR 1122), “Mst. Razia Begum Vs. Jang Baz and 3 others” (2012 CLC 105), and “Mst. Ghulam Shaheena Vs. Judge, Family Court” (2010 CLC 87).  

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

Column No. 17 of Nikah Nama as it falls out of ambit of Section 5 and Schedule of West Pakistan Family Courts Act, 1964.

14. In the present case as per record 5-tolas gold ornaments are mentioned in column No. 17 of the Nikah Nama (Ex. PI) and in column No. 16 of the Nikah Nama it is clearly mentioned that no property was given in lieu of dower. Therefore, the alleged claim of respondent No. 3 that 5-tolas gold ornaments were mentioned in the Nikah Nama as consideration for dower remains unproved. It has been clearly held in the above referred precedent case that the learned Family Court has no jurisdiction to decide the claim of wife regarding any amount or property mentioned in column No. 17 of Nikah Nama as it falls out of ambit of Section 5 and Schedule of West Pakistan Family Courts Act, 1964. Therefore, in these circumstances, I am of the considered view that the learned trial Court as well as the learned appellate court have not considered this aspect of the matter and the suit of respondent No. 3 for the claim of 5-tolas gold ornaments has been illegally decreed by the learned courts below. The judgments referred by learned counsel for respondent No. 3 reported as (1) “Mst. Razia Begum Vs. Jang Baz and 3 others” ( 2012 CLC 105), “Mst. Ghulam Shaheena Vs. Judge, Family Court” (2010 CLC 87), and “Liaquat Ali Vs. Additional District Judge, Narowal and 2 others (1997 SCMR 1122), are not applicable in this case as in the referred cases the property was given to the wife as dower, whereas, in the present case 5-tolas gold ornaments are mentioned in column No. 17 of the Nikah Nama and the same were not given to respondent No. 3 in lieu of dower. Hence, findings of learned trial Court as well as learned appellate court for passing the decrees regarding 5-tolas in favour of respondent No. 3 are not sustainable under the law. Resultantly, I reversed the findings of both the courts below on issue No. 1 and decide the same against respondent No. 3.  

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

Specifically stipulated in clause 20 of the Nikahnama.

After solemnization of Nikah respondent became legally wedded wife of the petitioner, therefore, he was bound to maintain her irrespective of the fact that marriage was consummated or not and particularly when a specific stipulation was made in the Nikahnama. Reliance is placed on case reported as Mst. Shamim Akhtar ..Vs.. Additional District Judge, Sialkot and another (1991 CLC 1142) wherein it has been laid down as under:-

 “There is no dispute between the parties that the Nikah was solemnized on 16 th June, 1985 at which time it was agreed that the respondent shall pay maintenance at the rate of Rs.300 per month, to his wife. It is so specifically stipulated in clause 20 of the Nikahnama. This stipulation was not made dependent upon the performance of Rukhsati nor was any such condition attached. In the written statement filed by respondent No.2, there was no averment that despite demand made by him, the wife had refused to perform her marital obligations or to live with him. That being so, the Additional District Judge was clearly in error in setting aside the decree  by holding that as Rukhsati had not taken place, the petitioner was not entitled to any maintenance.” 

Both the learned courts below were thus fully justified in holding that the petitioner was bound to pay maintenance allowance to respondent No.1 during subsistence of Nikah and no exception can be taken therefrom.  

Part of Judgment : 
THE LAHORE HIGH COURT, LAHORE
WP- Family Law
30974-14
2015 LHC 8948

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

7. It is argued by the learned counsel for respondent No.1 that oral Talak is not effective as no notice was given by him and the concerned Union Council has not issued a certificate of effectiveness of Talak. This argument is fully answered by august Supreme Court of Pakistan in a case reported as “Ghulam Shabir Shah v. The State” (1983 SCMR 942) held as under:- 

“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 17 th 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.”  

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

Family Court to determine the paternity of the minor.

7. The question of paternity cannot be determined by the Judge Family Court and as such the learned District Judge in appeal could not remand the case to learned Judge Family Court to determine the paternity of the minor. Reliance is placed upon the judgment reported as “Iftikhar Hussain and another v. Muhammad Aslam and others” (1991 MLD 1500).


Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
24836-14
2015 LHC 6511

Notice of Talaq to the Chairman under section 7 of the Family Laws Ordinance

9. In a case reported as “Allah Dad v. Mukhtar and another” (1992 SCMR 1273) it was held as under:- 

“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.” 

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

Oral Talaq even if proved is invalid since no notice under section 7 of Muslim Family Laws Ordinance, 1961

11. In another case reported as “Mst. Batool Bibi v. Muhammad Hayat and another” (1995 CLC 724) it is held that:-

 “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.” 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).

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

Oral Talaq would be effective and binding in spite

10. In a case reported as “Fida Hussain v. Mst. Najma and another” (PLD 2000 Quetta 46) relying upon “Mirza Qamar Raza v. Mst. Tahira Begum and others”, (PLD 1988 Kr. 169) and (PLD 1988 FSC 42), it was held that:- 

“In view of above position oral Talaq would be effective and binding in spite of its noncompliance with mandatory requirement of section 7 of the Muslim Family Laws Ordinance, 1961.”   

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

Only a civil court which can adjudicate upon the paternity of minor

8. The learned District Judge, Gujrat has exceeded his jurisdiction because he can only exercise jurisdiction vested under Family Courts Act, 1964. The learned Judge Family Court as well as the court of learned District Judge is not a court of civil jurisdiction as understood in Code of Civil Procedure. It is only a civil court which can adjudicate upon the paternity of minor. Reference may be made upon a case reported as “Mst. Aziz Begum v. Faiz Muhammad” (PLD 1965 (WP) Lahore 399).

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
24836-14
2015 LHC 6511

Quran pertain to a period before the pronouncement of ‘Talaq’ or that an official or other person cannot be designated

8. In case reported as “Muhammad Sarwar and another v. The State” (PLD 1988 Federal Shariat Court 42) it was held as under:-

 “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.”

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

The definition of “actionable claim” in the TPA

14. As far as the claim of petitioner No.1 with regard to recovery of Rs.100,000/- on the basis of condition No.16 in the nikahnama is concerned. Reliance is placed on a celebrated judgment of Hon’ble Supreme Court of Pakistan reported as “Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others.” (PLD 2011 Supreme Court 260), the relevant portion is reproduced as under:-

 “The definition of “actionable claim” in the TPA is strictly and exclusively relatable to the operative provisions of Chapter VIII of that Act, which by virtue of Sections 130 to 137 thereof inter alia, prescribes the requirements and the broad mechanism for the transfer and the assignment of the “actionable claims” so defined in section 3. It has no application beyond the Act even if any general concept emerges on account of the expression, it is restricted to the law it forms part and cannot be stretched to apply to any other law of the land, including the Family Courts Act, 1964, thus the interpretation of entry No.9 ibid as provided by Muhammad Akram v. Mst. Hajra Bibi and 2 others (supra) is the correct explication of law, which is hereby approved. However, adding thereto, it may be held that if the ratio of Nasrullah dictum (supra) which is entirely and solely founded on the noted concept / definition is taken to be correct, than a suit for Specific Performance, declaratory suits of any nature, or any other civil legislation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law. Because according to the literal approach of reading a statute, the statue has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and subtraction of a word in a statute is reading in and reading down may be pressed into service in certain cases; thus when in Entry No.9 ‘actionable claim’ has not been provided by the legislature intent and the rules of interpretation to add this express to the clause / entry. ”

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