24. Further, there are concurrent findings of both
the learned Courts below against the petitioner. In case
of concurrent finding of the courts below the scope of
the constitutional petition becomes very limited. The
petitioner has failed to point out any mis-reading or
non-reading of the evidence. It has been laid down in
Syed Arif Ali Sabri V. Abdul Samad through L.Rs. and 2
others (2008 YLR 2309)...
Courts are bound to grant Khula to claimant wife where she has expressly claimed or has omitted to claim in her pleadings or in case any other ground for seeking dissolution of marriage could not be proved by her
15. In fact Khula is a way to release the wife from matrimonial
bond and can be exercised by wife if the circumstances divulge that it
is impossible for her to live within the limits prescribed by the
Almighty Allah and the compelling of wife to live with her husband
will give rise to a hateful union, then the courts are bound to grant
Khula to claimant wife where she has expressly claimed or has
omitted...
It is well settled that orders at the interlocutory stages should not be brought to the higher Courts to obtain fragmentary decision, as it tends to harm the advancement of fair play and justice, curtailing remedies available under the law, even reducing the right of appeal.
Also in Mohtarma Benazir Bhutto, MNA and Leader of the
Opposition, Bilawal House, Karachi Vs. The State (1999 SCMR
1447) the Hon’ble Supreme Court held:-- "It is well settled that orders at the interlocutory
stages should not be brought to the higher Courts to
obtain fragmentary decision, as it tends to harm the
advancement of fair play and justice, curtailing
remedies available under the law,...
Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity.
10. However, as Lord Nicholls of Birkenhead has held in
Spectrum Plus Limited and others Vs. National Westminster
Bank PLC ([2005] 2 AC 680) as under; ―Rigidity in the operation of a legal system is a
sign of weakness, not strength. It deprives a legal
system of necessary elasticity. Far from achieving
a constitutionally exemplary result, it can produce
a legal system unable to function effectively...
Family Court can adopt every procedure/law in furtherance of dispensation of justice unless the procedure/law going to be adopted is specifically prohibited.
18. It is however necessary to mention here that although
provision of review is not provided in the West Pakistan
Family Court Act, 1964, however, in view of the law laid down
by the Hon’ble Peshawar High Court in Muhammad Saad
Ali & 2 others Vs. Mst. Maryam Khan & 2 others (2014 CLC
715) wherein it was held as under:- ―The Family Court has got every jurisdiction to
adopt any procedure/law...
Under the above provision, Family Court has the power to pass interim maintenance order at any stage of the suit
12. Under the above provision, Family Court has the
power to pass interim maintenance order at any stage of the
suit. Normally it is passed after filing of the written statement
on behalf of the respondent/defendant in the suit. Now if the
defendant found the same to be excessive or if the order
suffers from some illegality or irregularity or it is arbitrary,
fanciful, void ab-initio, without jurisdiction...
Transferring the family suit to the court of learned Guardian Judge who lacks jurisdiction to hear and try the family cases.
3. It is argued by the learned counsel for the petitioner
that the learned District Judge erred in law while transferring
the family suit to the court of learned Guardian Judge who
lacks jurisdiction to hear and try the family cases. Places
reliance on the case of Major Muhammad Khalid Karim v. Mst.
Saadia Yaqub and others (PLD 2012 Supreme Court 66).Part of Judgment : IN THE LAHORE HIGH COURT,...
Under the West Pakistan Family Courts Act, 1964 (WPFCA, 1964) Family Courts has the power to grant interim maintenance under Section 17-A which states;
11. Under the West Pakistan Family Courts Act, 1964
(WPFCA, 1964) Family Courts has the power to grant interim
maintenance under Section 17-A which states;
Interim order for maintenance.—At any stage
of proceedings in a suit for maintenance, the
family Court may pass an interim order for
maintenance, whereunder the payment shall be
made by the fourteenth of each month, failing
which the court may...
Statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction
, therefore Hon’ble Supreme Court of Pakistan
in Syed Saghir Ahmed Naqvi Vs. Province of Sindh through
Chief Secretary S&GAD, Karachi and others (1996 SCMR
1165) held as under:- “Constitutional jurisdiction, exercise of statute
excluding a right of appeal from the interim order
could not be bypassed by bringing under attack such
interim orders in constitutional jurisdiction. Party
affected...
writ against interim order lies only if the order passed by the Learned Family Court is illegal, mala fide or without jurisdiction.
6. On the other hand, learned counsel for the
respondent/mother states that writ against interim order lies
only if the order passed by the Learned Family Court is
illegal, mala fide or without jurisdiction. In this regard relied
upon Awais Khalid Vs. Judge Family Court and others 2011
YLR 3034 (Lahore) and Abrar Hussain Vs. Mehwish Rana & 3
others (PLD 2012 Lahore 420).Part of Judgment : IN...
To state that writ petition against interim order is maintainable
5. Learned counsel for the petitioner/father relied upon
Irfan Ahmed v. II-Judicial Magistrate East, at Karachi and
another 2006 MLD 135 (Karachi) and Mst. Samina Afzaal & 5
others Vs. Additional District Judge and another 2010 MLD 52
(Lahore) to state that writ petition against interim order is
maintainable. Further states that no appeal is available
against interim order, therefore writ petition...
It is a consistent view of this Court that in cases where factual controversies are involved, Constitution petition in the High Court is not the proper remedy,
In this regard reference is made to the judgment reported as
Muhammad Younus Khan and 12 others Vs. Government of
N.W.F.P through Secretary, Forest and Agriculture, Peshawar
and others (1993 SCMR 618) wherein Hon’ble Supreme
Court held as under:-- "It is a consistent view of this Court that in cases
where factual controversies are involved,
Constitution petition in the High Court is not the
proper...
Factual controversies involved in the case, could not be solved without a full-fledged trial.
14. Similarly in Benedict F.D. Souza v. Karachi Building
Control Authority and 3 others (1989 SCMR 918) it was
observed that; "Factual controversies involved in the case, could
not be solved without a full-fledged trial.
Accordingly we find that the approach of the High
Court in its discretionary writ jurisdiction to
decline relief to the petitioner, was
unexceptionable. No justification has...
Purpose behind insertion of section 17-A in Family Courts Act, 1964
15. This court in the case of Mst. Sitwat Chughtai and
another v. Judge, Family Court, Lahore and another (PLD
2009 Lahore 18) for administration of justice laid down
certain guidelines in the following manner:- (i) Purpose behind insertion of section 17-A in
Family Courts Act, 1964 is to ensure that during
pendency of proceedings with Family Court,
financial constraints faced by minors are
ameliorated; (ii)...
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