There is no bar in the Family Courts Act, 1964 for filing second suit for enhancement of maintenance allowance except the one under Section 11 of the CPC,

10. Bare reading of Section 17 of the West Pakistan Family Courts Act, 1964, revels that Section 11 of the Civil Procedure Code, is applicable to the Family Cases. However, under changed circumstances and with the passage of time suit for enhancement of maintenance allowance has been accepted by the courts. In this regard reference is made to the judgment of this court reported as “Ijaz Ahmed through Attorney Vs. Judge Family Court and 5 others”(2005 CLC 1913) wherein it was held that:-

 “There is no bar in the Family Courts Act, 1964 for filing second suit for enhancement of maintenance allowance except the one under Section 11 of the CPC, which was made applicable to these proceedings by virtue of Section 17 of the Act of 1964. Under this provision, second suit will only be bared in case the matter has been directly or substantially in issue in a former suit between the parties. No doubt the earlier suit was for recovery of maintenance but issue regarding its enhancement was neither raised nor was considered in that suit and thus was not in issue, then. In view of this position, Section 11 of the CPC would not bar any subsequent suit, which was filed only for enhancement of maintenance allowance.” 

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
WP- Family Law
2406-10
2014 LHC 5377

It is settled that claim of custody of the minor needs prompt recourse to the legal remedies, which is lacking in case

8. This is not the case of ordinary impression. The instant case has its own facts and merits. It is admitted fact that the minor is in the custody of the petitioner eversince, she was 05 days old. Prima facie it seems that the minor was handed over to the petitioner by respondents No.1 and 2 with their own free will. It is also admitted that the petitioner and his family members are not strangers to the minor as the petitioner is living with her father and brother who are also father and brother of respondent No.2. It reflects that this arrangement continued till 2011 when some differences arose between the parties resulting into divergent litigation inter se the parties for the guardianship and custody of the minor. Admittedly, respondent No.1 filed application for restoration of custody of the minor on 29.10.2011 at a belated stage as at the relevant time, the minor had accustomed to the atmosphere provided by the petitioner and naturally minor had developed love and affection for the petitioner. Even otherwise, it is settled that claim of custody of the minor needs prompt recourse to the legal remedies, which is lacking in case of the respondent No. 1. Reference could be made of judgment reported in Mst. Shaheen Bibi (Nusrat Shaheen) Vs. Zulfiqar Ali Shah Kazmi and 2 others [(1995 CLC 306 (Lahore)].

Part of Judgment : 

IN THE LAHORE HIGH COURT, RAWALPINDI BENCH RAWALPINDI
WP- Family Law
15-14
2014 LHC 5489

Provision of law contemplates that a guardian ad-litem shall not be permitted to enter into a compromise with the plaintiff on behalf of the minor without obtaining a prior permission from the Court before which the matter is sub-judice against a minor.,

17. In the case in hand, no such permission was obtained by the guardian ad-litem before entering into compromise. Therefore, it was not a valid compromise and cannot bind the petitioners. In this regard, reference is made to the case reported as “Mst. Rakhmat Jan Vs. Umar Mehmood (Minor) and another” (PLD 2013 AJK (HC) 8) wherein it was held as under:-

 “The above mentioned provision of law contemplates that a guardian ad-litem shall not be permitted to enter into a compromise with the plaintiff on behalf of the minor without obtaining a prior permission from the Court before which the matter is sub-judice against a minor., But the trial Court did not fulfil the requirements of the said provision of law because the Court was bound to enquire as to whether a proposed compromise was in the interest of minor or not and to grant permission to a guardian ad-litem for the said compromise.  

 Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
WP- Family Law
2406-10
2014 LHC 5377

Father is even liable to maintain a divorced daughter.

12. Similar view was taken by this Court in “Muhammad Islam Vs. Mst. Rashidah Sultana and 4 others” (2013 CLC 698) and in “Muhammad Iqbal Vs. Mst. Nasreen Akhtar” (2012 CLC 1407). This court in “Mian Muhammad Sabir Vs. Mst. Uzma Parveen and 2 others” (PLD 2012 Lahore 154) held that father is even liable to maintain a divorced daughter. It was held in the case as under:- 

“The rationale for providing maintenance to a Muslim female until her marriage is understandable as in most cases she could need the financial support of her father for having no means of her own. The responsibility of the father continues till his daughter’s marriage when it is passed on to her husband, who is under a legal obligation to maintain his wife. However, the obligation of the husband to maintain his wife lasts as long as the marriage is intact with the consequence that upon the dissolution of the marriage, the husband is no longer liable and has no obligation to maintain his erstwhile spouse. Upon losing her marital status, a female reverts to her status of a single lady who needs financial support in the same manner as she needed it before she was married. Her right to receive maintenance should not be defeated by her marriage no longer in existence. The rationale for providing maintenance to an unmarried lady is equally applicable to a divorced lady as in either case the single lady has no independent source of income. As such, there is no reason to treat a divorced lady differently and deny her the maintenance she is in need of it.”  

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
WP- Family Law
2406-10
2014 LHC 5377

Pronouncement of Talaq is not a pre-condition for the maintainability of the suit for recovery of dower.

22. I am also fortified in my opinion from the view taken by the Honourable High Court in its authoritative judgments cited as 2006 YLR 33 (Lahore) {Muhammad Azam versus Additional District Judge and others} and 2000 CLC 1384 (Lahore) {Dr. Sabira Sultana versus Maqsood Sulqari, Additional District and Sessions Judge, Rawalpindi and 2 others} where it is held that the dower whether prompt or deferred is an inalienable right of wife and after consummation, same would become vested right of a wife at any time. Pronouncement of Talaq is not a pre-condition for the maintainability of the suit for recovery of dower. 

Part of Judgment : 

IN THE LAHORE HIGH COURT MULTAN BENCH MULTAN
WP- Family Law
10265-14
2014 LHC 4091

جہاں بیوی/عورت رہتی ہوگی اسی جگہ فیملی کیس دائر کیا جاسکتا ہے

  جہاں بیوی/عورت رہتی ہوگی اسی جگہ فیملی کیس دائر کیا جاسکتا ہے۔ علاقائی اختیار سماعت نہیں دیکھا جائے گا۔ 

*محمد طارق بنام مسماۃ شاہین

* Verified Citation: *PLD 2006 Pesh 189* ۔

Amount of maintenance is exorbitant and petitioner is unable to pay the said amount as the same has been fixed without considering the financial position of the petitioner.

7. The learned counsel for the petitioner submits that both the Courts below failed to appreciate the evidence adduced by the petitioner as respondent No.3 was unable to prove her case as her oral statement was set of contradictions. No such list of articles of Barri as relied upon by respondent No.3 was prepared or handed over to the petitioner at the time of Rukhsati. It is further complained that both the Courts below have failed to appreciate the evidence of the parties in its true perspective and reached to the conclusion not warranted by law. The findings of both the Courts below are not based on sound appreciation of facts, so he prayed for setting aside the impugned judgments and decrees of both the Courts below to the extent of dowry articles. Further submits that amount of maintenance is exorbitant and petitioner is unable to pay the said amount as the same has been fixed without considering the financial position of the petitioner. The learned counsel while relying upon Umar Farooq v. Mehnaz Iftikhar etc. (NLR 2007 Civil 105), Mst. Allah Rakhi v. Tanvir Iqbal and others (2004 SCMR 1739), Muhammad Akram v. Mst. Hajra Bibi and 2 others (PLJ 2008 Lahore 147) and Abdullah v. Mst. Zubaida Begum and others 1998 CLC 1631 (Lahore) prayed for setting aside of impugned judgments and decrees as well as order dated 07.04.2009. 

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
19091-09
2014 LHC 5328

Act which include matters pertaining to non-Muslims (including Ahmadies) as well as matters which arise out of non-codified personal law

11. The above raised question was already adjudicated upon by this court in the case reported as Riaz Javaid Vs. Sheraz Ahmed & 4 others (2010 CLC 1925) wherein the learned single judge of this court held that: 

“it is abundantly clear that the Family Courts established under the Act, 1964 embraces personal laws of all religions and entertain causes relating to matters mentioned in Para 1 of the schedule to the said Act which include matters pertaining to non-Muslims (including Ahmadies) as well as matters which arise out of non-codified personal law”.

 The above quoted judgment clearly holds that the followers of all religions fall within the purview of the provisions of Family Courts Act 1964 being the subject to this Act. Therefore, the first objection of the petitioner with regard to the applicability of the Act 1964 is repelled  

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
2163-09
2014 LHC 5509

All concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor.

The Hon’ble Supreme Court of Pakistan in case reported as Mst. Razia Bibi ..Vs..Riaz Ahmad and another (2004 SCMR 821) almost in the identical circumstances has observed in the following terms:- 

“It is to be noted for all concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor. The petitioner lady has been looking after her minor son since his birth and maintaining him in a good environment. The father, who is under the law to maintain his child, has not provided any maintenance till date. The minor is living since his birth with his mother and welfare of the child, in the circumstances, also lies in favour of the petitioner. It is true that non-maintenance on the part of the father would not automatically disentitle him from the custody of his child but this would one of the circumstances for determining the welfare of the minor. This certainly shows the conduct of the respondent and in the case in hand, as already stated, right from the birth of the child the respondent has not maintained his son. The respondent, as stated by the learned counsel, has contracted second marriage and the mother, on the contrary, has not contracted second marriage. She is devoting her complete attention towards the upbringing of her minor son. Furthermore, it would be harsh at this juncture to hand over the custody of the minor to the respondent leaving him at the mercy of step mother in presence of his real mother who is properly maintaining him.”

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
21752-10
2014 LHC 708

Manifest from the reading of Order II, Rule 3 that a plaintiff can unite in the same suit several causes of action against the same defendant.

15. The Hon’ble Supreme Court of Pakistan has also allowed joinder of several causes of action against the same defendant/respondent in Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company (1992 SCMR 2375) wherein it was held; 

“It is manifest from the reading of Order II, Rule 3 that a plaintiff can unite in the same suit several causes of action against the same defendant. Needless to mention that in a suit for pre-emption the preemptor and the vendee are the only necessary parties and as such the plaintiff/pre-emptor could join against the vendee/defendant several causes of action. The impugned transaction though on behalf of different persons and finalized through two different mutations were sanctioned on the same date. The plaintiffs/appellants rightly joined the two sale transactions in a single suit because if he had filed separate suits, even then they had to be consolidated as common questions of law and fact regarding right of pre-emption of parties and determination of market value would have been involved . As such the joining of two transactions in one suit was more proper and convenient than filing of separate suits”.

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
19091-09
2014 LHC 5328

Rules of personal law would be subservient to the welfare of the minor.

 13. For the above discussion, seeing from whatever angle welfare of the minor lies in custody of the petitioner particularly in view of the law laid down by the Hon’ble Supreme Court of Pakistan in the case reported as Firdaus Iqbal ..Vs.. Shafaat Ali and others (2000 SCMR 838) that the rules of personal law would be subservient to the welfare of the minor.

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
21752-10
2014 LHC 708

The Code is framed on the scheme of providing generally for the mode in which the High court is to exercise its jurisdiction, whatever it may be while, specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the code is not to apply.

11. In this regard although the Civil Procedure Code 1908 (CPC) is not applicable to the suits filed under West Pakistan Family Courts Act, 1964, however High Court in its extra ordinary Constitutional jurisdiction can recourse to CPC as an enabling tool. In this regard reference is made to the decision of Hon’ble Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein it was held; 

“The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding. As regards application of the provisions of the Code in proceedings before a High Court, their Lordships of the Privy Council in Sabitri Thakurani v. Savi (1) observed: “The Code is framed on the scheme of providing generally for the mode in which the High court is to exercise its jurisdiction, whatever it may be while, specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the code is not to apply.” The underlining* in the above quotation is mine. The words underlined* clearly indicate that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court’s jurisdiction in a civil matter, whatever may be the nature of that jurisdiction”. 

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
19091-09
2014 LHC 5328

Provisions of West Pakistan Family Courts Act, 1964 are equally applicable to all Muslims and Non-Muslims regardless of their faith and personal law.

7. On the other hand learned counsel appearing on behalf of respondent No.1 vehemently supported the orders and the judgment of the Family Court. Learned counsel while relying upon Mst.Noreen Iqal Vs Sohail Iqbal and others (2005 CLC 1472) submits that provisions of West Pakistan Family Courts Act, 1964 are equally applicable to all Muslims and Non-Muslims regardless of their faith and personal law.

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
2163-09
2014 LHC 5509

Condition of deposit of minor’s allowance is not against the provision of law as under Section 17-A of the West Pakistan Family Courts Act, 1964 a Family Court has the power to pass an order for interim maintenance.

18. Keeping the above in mind, when the order dated 04.04.2009 is examined, it is found that the appeal was dismissed solely on the ground that petitioner had failed to deposit the maintenance of minor as per direction of the court. This condition of deposit of minor’s allowance is not against the provision of law as under Section 17-A of the West Pakistan Family Courts Act, 1964 a Family Court has the power to pass an order for interim maintenance. It is also an admitted fact that appeal is continuation of suit and therefore the order passed by the learned Appellate Court directing the petitioner to deposit the maintenance allowance of minor by the next date of hearing and petitioner’s failure to deposit the amount or in other words petitioner’s failure to comply with the order of the Appellate Court calls for the strict action against the petitioner. The Appellate Court rightly dismissed petitioner’s appeal on the ground of failure to deposit the maintenance amount as well as on account of non-compliance of order of the Appellate Court. The order impugned is neither illegal nor void. Injustice is also not caused due to the said order to the petitioner. Although learned counsel for the petitioner has relied upon Abdullah v. Mst. Zubaida Begum and others (1988 CLC 1631) to state that pre-condition of deposit of decretal amount is illegal.

  Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
19091-09
2014 LHC 5328

Filing the suit for dissolution of marriage and same belied the prosecution story as narrated in the F.I.R

 In this regard I respectfully refer the case of Majid Khan v. Sessions Judge, Kasur and 5 others (2014 P.Cr.L.J. 903) wherein it has been observed as under:- 

“Since nikah with the petitioner is admitted by Nadia Aslam, the alleged abductee by filing the suit for dissolution of marriage on 22.6.2012 and same belied the prosecution story as narrated in the F.I.R., she cannot be permitted to change her stance by making false statement to achieve nefarious goad. All this shows that she wants to make another statement under Section 164 Cr.P.C. with some ulterior motive to entangle the petitioner in further litigation.” 

 Part of Judgment

LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI
WP- Criminal Proceeding
27577-15
2015 LHC 6617
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