Husband’s legal capacity to deal with property of his wife

 Download Link: https://www.supremecourt.gov.pk/downloads_jud gements/c.p._154_2019.pdf 

CIVIL PETITIONS NO. 154 AND 155 OF 2019 

 It was contended before the Court that the husband was an ostensible owner of the property of his wife and thus he could transfer that property. The Court repelled the contention, and held: “To attract section 41 it had to be established that, Mst. Khurshida [the wife] had expressly or impliedly held out that her husband [the transferor] was the “ostensible owner” of the Property and had authorized him to transfer the Property to Mehreen [the transferee]. The other requirements of section 41 are that the proposed transferee had taken “reasonable care to ascertain that the transferor had power to make the transfer” and had “acted in good faith”. Mst. Khurshida neither held out that her husband was the ostensible owner of the Property nor that she had authorized him to transfer it. Mehreen also lead no evidence to show that she had attempted to ascertain that Haji Muhammad Ishaq Jan had the power to transfer the Property. Therefore, Mehreen could not avail the benefit of section 41 of the Transfer of Property Act.” The Court further held that “a husband has no right to his wife’s property nor can he ‘guarantee’ or encumber it without her permission.”

2. Fawad Ishaq v. Mehreen Mansoor 

 Download Link: https://www.supremecourt.gov.pk/downloads_jud gements/c.p._154_2019.pdf 

Present Mr. Justice Qazi Faez Isa and Mr. Justice Sardar Tariq Masood 

Right of a married woman in her owned property, in Islam

CIVIL PETITIONS NO. 154 AND 155 OF 2019 

The Court made a comparative analysis of the old European and American concepts with the classic Islamic law as to rights of a married woman in her owned property, and observed: “A chasm existed between a woman’s position in Islam to that which prevailed till a century ago in Europe and America where upon marriage a wife stood deprived of her property, which became that of her husband to do with it as he pleased. However, in the Muslim world the situation was altogether different and this has been the position since over fourteen hundred years…..In Islamic societies Muslim ladies not only retained their properties but also their identities after marriage.” 

 2. Fawad Ishaq v. Mehreen Mansoor 

 Download Link: https://www.supremecourt.gov.pk/downloads_jud gements/c.p._154_2019.pdf 

Present Mr. Justice Qazi Faez Isa and Mr. Justice Sardar Tariq Masood 

Principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor.....

8. The learned Courts below while disturbing the custody of the minor mainly relied upon the fact that the petitioner has contracted second marriage and the minor has crossed the age of seven years as such she has lost her right of hizanat. It is settled principle of law that while deciding the application for custody of minor the paramount consideration is the welfare of the minor and nothing else Reliance is placed on case reported as Mehmood Akhtar ..Vs.. District Judge, Attock and 2 others (2004 SCMR 1839) wherein it has been laid down as under:-

“The right of custody of minor is not an absolute right rather is it always subject to the welfare of the minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt general principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject to the welfare of minor which is the prime consideration in determination of the question of custody.” 

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE 
WP- Family Law
14684-11
2014 LHC 5106

Such a divorce is known as “Talak by Tafweez”. The delegation of option called “Tafweez” by the husband to his wife, confers on her the power of divorcing herself. Tafweez is of three kinds, ....

20. In case reported as Mehnaz Mehboob ..Vs.. Ishtiaq ur Rashid and another (2006 YLR 335) it has been laid down as under:-

 “Although the power to give divorce belongs to the husband, he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable but a permanent delegation may be revoked. The pronouncement of divorce after demand had not caused public policy and principles of Muhamadan Law. Such a divorce is known as “Talak by Tafweez”. The delegation of option called “Tafweez” by the husband to his wife, confers on her the power of divorcing herself. Tafweez is of three kinds, 

(a) Ikhtiar, giving her the authority of Talak herself, 

(b) Amr-ba-Yed, leaving the matter in her own hand, and 

( c) Mushiat, giving her the option to do what she likes. All these, when analyzed, resolve themselves into one. Viz., leaving it in her or somebody else’s option to do what she or he likes. The wife cannot sue to enforce the authority alleged to have been given to her, but she sues after she has given effect to it to make the husband liable for her dower or to restrain him from seeking conjugal rights.

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
12640-13
2014 LHC 5114

Principle of law that poverty on the part of a mother is no ground to disentitle her from the custody of the minor.

13. Now dealing with the contention of the learned counsel that the respondent has sufficient source of income and he can fulfill all needs of the minor, it is pointed out that the respondent himself while appearing as AW3 during his cross-examination deposed that his monthly salary is Rs.6,000/-, therefore, in no manner he can be said a person of sufficient means. Besides, it is an established principle of law that poverty on the part of a mother is no ground to disentitle her from the custody of the minor. Reliance is placed on case reported as Mst. Razia Bibi ..Vs..Riaz Ahmad and another (2004 SCMR 821).

  Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE 
WP- Family Law
14684-11
2014 LHC 5106

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

14. For the above discussion, seeing from whatever angle welfare of the minor lies in his custody with 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 
WP- Family Law
14684-11
2014 LHC 5106

Provisions of Order XX, Rule 10, C.P.C. will not be applicable strictly to the execution of a decree by the Family court in view of section 17 of the West Pakistan Family Courts Act, 1964.”

12. Now coming to the question that on which date the alternate price of the gold ornaments is to be determined. There is a plethora of judgments of this Court as well as the Hon’ble Apex Court that in case of a decree of gold ornaments the alternate price is to be determined at the time its execution, so, that on failure of return of gold ornaments the decree holder would be able to fetch equal weight of the gold. Learned Judge Family Court while awarding alternate price of the gold ornaments at the rate which was prevailing at the time of filing of institution of suit, relied upon the judgment of the Hon’ble Supreme Court of Pakistan reported as Mst. Mehbooba ..Vs.. Abdul Jalil (1996 SCMR 1063). The facts and circumstances of the said case are distinguishable. In the said case plaintiff/wife had not claimed recovery of gold ornaments rather she specifically claimed alternate value of the gold ornaments specified in the plaint. Therefore, it was held by the Hon’ble Apex Court that she was held entitled to market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as no decree for delivery of gold ornaments had been passed. She was granted money decree simplicitor. While in the present case respondent claimed for a decree of gold ornaments or in the alternative its market value and the same was awarded to her by the learned courts below, therefore, while determining alternate price of said gold ornaments prevalent at the time of institution of suit, both the courts committed material illegality and irregularity. Reliance is placed on case reported as Mst. Ayesha Shaheen ..Vs.. Khalid Mehmood and another (2013 SCMR 1049) wherein the Hon’ble Apex Court while distinguishing Mst. Mehbooba’s case referred supra has observed as under:-

“The case of Mst. Mehbooba v. Abdul Jalil turned on its own facts and does not in any way lay down a general rule that in all cases where the decree for recovery of gold is granted its value shall be determined at the market price prevailing on the date of grant of decree or filing of the suit. Where decree for delivery of gold or its market value is granted the value shall be determined with reference to the date of payment. As only then the decree can become fully satisfied. Neither the High Court nor the First Appellate Court had focused on the afore-stated distinction. In the case of Mst. Humaira Majeed V. Habib Ahmad cited in the leave granted order the Lahore High Court had also drawn the said distinction and had rightly held that the provisions of Order XX, Rule 10, C.P.C. will not be applicable strictly to the execution of a decree by the Family court in view of section 17 of the West Pakistan Family Courts Act, 1964.”

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
12640-13
2014 LHC 5114

As far as Limitation Act is concerned under its Article 182 period for execution of a decree of any Civil Court has been prescribed to be three years but in our opinion as the Family Court is not a Civil Court stricto senso, therefore, the provisions of this Article can also not be pressed into service.

 8. First of all I would like to dilate upon the issue of limitation. During the course of arguments learned counsel for the petitioner has laid a lot of emphasis that according to Articles 103 and 104 of the Limitation Act, 1908 suit of the respondent was time barred. The Hon’ble Supreme Court of Pakistan in case reported as Syed Muhammad ..Vs.. Mst. Zeenat and others (PLD 2001 Supreme Court 128) has observed that “ As far as Limitation Act is concerned under its Article 182 period for execution of a decree of any Civil Court has been prescribed to be three years but in our opinion as the Family Court is not a Civil Court stricto senso, therefore, the provisions of this Article can also not be pressed into service. Thus reliance has to be placed on the residuary Article i.e. Article 181 of the Limitation Act, which provides the period of three years when the right to apply accrues.” Articles 103 and 104 of the Act ibid relied upon by the learned counsel for the petitioner provides as under:-

 Description of Suit Period of Intimation Time from which period begins to run 1 2 3

103. By a Muhammadan for exigible dower (mu’ajjal) 

Three years 

When the dower is demanded and refused or (where during the continuance of marriage no such demand has been made( when the marriage is dissolved by death or divorce.

104. By a Muhammadan for deferred dower (mu’wajjal) 

Three years 

When the marriage is dissolved by death or divorce  

Even if for the sake of arguments, it is assumed that the aforesaid Articles are applicable to the respondent’s suit even then the suit of the respondent is well within time. Admittedly, the divorce has been effected on 07.11.2004, whereas, the suit was filed on 07.09.2007 i.e. prior to expiry of three years period of limitation in the light of the aforesaid Articles. The contention of the petitioner that limitation would be computed from the date of pronouncement of divorce is misconceived because if it is taken into consideration then the whole intention of legislation for revocation of divorce within a certain period would fall to ground. Thus conclusion of the learned courts below on this issue is unexceptionable and needs no interference.  

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
12640-13
2014 LHC 5114

Since the right of “Tafweez of Talaq” is delegated right, therefore it cannot be termed as khulla by making wife liable to return dower.

Reliance is placed on case reported as Sajid Hussain Tanoli ..Vs.. Nadia Khattak and 3 others (2013 CLC 1625) wherein it has been laid down as under:- 

“Since the right of “Tafweez of Talaq” is delegated right, therefore it cannot be termed as khulla by making wife liable to return dower. There is much difference between prepare of Khulla and exercise of delegated right of divorce. In latter wife can repudiate marriage herself, while in former, wife has to seek divorce/ dissolution of marriage from her husband or from Court. In such a state of affairs, dissolution of marriage in the present case cannot be considered as divorce by khula.” 

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
12640-13
2014 LHC 5114

Pronouncement of Talaq is necessary.

19. In case reported as Dr. Qambar Murtaza Bokhari ..Vs.. Mst. Zainab Bashir (PLD 1995 Lahore 187) it has been observed as under:- 

“Under Mahomedan Law husband enjoys an absolute power of divorce to his wife. He may delegate this power to his wife by way of a contract. As a man in person repudiates his wife so he may commit the power of repudiation to his wife to repudiate herself. This power may be conferred on a third party as well.] (Wilson Anglo Mahmodan Law, Edn. VI and Baillie Digest of Mahomedan Law, Book III, Chapter III). When such power of repudiation is conferred on the wife or some third person the divorce will take effect, if the power so conferred is exercised. (Mahomedan Law by Tayyabjee and Buffatan Bibi v. Sh. Abdul Salim AIR 1950 Calcutta 304). This power can be a conditional power or rests upon the happening of some contingencies. It can also be unconditional. When it rests upon the happening of certain contingencies then the wife should exercise the delegated power of divorcing herself when the condition entitling her to exercise that power is fulfilled. But if that power is unconditional she may exercise the same when and where required. In both these circumstances a formal pronouncement of Talaq is necessary.”

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
12640-13
2014 LHC 5114

Maintenance has been fixed at Rs.4,000 per month temporarily which can obviously be modified later.

Reliance in this regard may be placed on the case of Munir Alam (2009 CLC 442), the relevant portion whereof reads as under:-

“4. The impugned order is an interim decision. Maintenance has been fixed at Rs.4,000 per month temporarily which can obviously be modified later. It is not a final order adversely affecting the petitioner. This Court does not want to prejudice the proceedings by commenting upon the claim of the petitioner. However, it is held that the interim order of the kind cannot be interfered with in a writ petition like this.

 5. In family matters this Court has unanimity that controversy between the parties effecting their rights even through an interlocutory order deciding such question finally would come within the ambit of case decided. Reference Muhammad Juman v. The State, 2004 MLD 278 ref. The ratio of the above judgment is clear and un-equivocal.

 6. In the present case, the issue being provisional which shall be re-visited by the Court at the time of making final decision, there is no question of interference. This Court is further fortified in his conclusion through judgment reported as University of Health Sciences through Vice-Chancellor v. Dr. Azeemuddin Zahid and another, 2007 CLC 1055 ref.”

Part of Judgment : 

IN THE LAHORE HIGH COURT, RAWALPINDI BENCH, RAWALPINDI
WP- Family Law
538-14
2014 LHC 5053

Father is bound to maintain the daughters till such time they are married.

6. Learned counsel for the petitioners submits that both the courts below were wrong to dismiss the claim of maintenance allowance of petitioners as their mother was not competent to give up their maintenance allowance. Submits that on attaining the age of majority petitioners approached the court through suit which could not be dismissed on the ground that earlier suit was compromised by their mother when they were minors. Learned counsel further submits that maintenance is a recurring cause of action which will continue to accrue in favor of the petitioners till the marriage of petitioner No.1, for petitioner No.2 till the age of majority or himself becomes an earning hand. Submits that respondent No.1 is liable to pay the maintenance to the petitioners from date of compromise between the mother and respondent No.1 and in this regard referred to the judgment of the Hon’ble Supreme Court reported as “Abdul Ghafoor Vs. Mehmood Ahmad alias Asghar and others” (2003 SCMR 764). Learned counsel also relied upon “Muhammad Shafi Vs. Suraya Begum & 7 others” (2001 S.L.R 203) to state that under the law, father is bound to maintain the daughters till such time they are married. Learned counsel for the petitioners while relying upon the judgment “Mehmood Asif Butt Vs. District Judge, Gujranwala and 2 others” (PLJ 2003 Lahore 1704) states that second suit for recovery of maintenance is maintainable. 

Part of Judgment : 

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

Children to demand enhanced maintenance allowance

11. Similarly in “Muhammad Akram Vs. Additional District Judge and others” (PLD 2008 Lahore 560), this Court held that:- 

“Section 11 of the CPC in relation to the cause of action of suit codifies the doctrine of res-judicata which operates when there is a judgment between the same parties and it prevents a fresh suit between them regarding the same matter.” 

It was also held in the said judgment that:- 

“The growth of the children, the cost of living, any change in the status of the parties, change in the expenditures to be incurred on day to day needs of the children etc. are the factors which either introduce a change of the cause of action or may make out even a fresh cause of action for the children to demand enhanced maintenance allowance. Thus the application of the rule of res-judicata to the case of maintenance allowance has a peculiar complexion and by now it is will settled position of law that under the changed circumstances and the needs of the minor children fresh proceedings for maintenance allowance were maintainable before the Family Court having jurisdiction in the matter.” 

 Part of Judgment : 

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

Solitary statement of wife is sufficient to prove the claim of dowry articles.

9. It has been held in Mst. Shakeela Bibi Vs. Mohammad Israr and others (2012 MLD 756) that the solitary statement of wife is sufficient to prove the claim of dowry articles. It was further held that this notion is misconceived that the wife while making the claim for dowry articles was required to prove the case in terms of requirements of Qanun-e-Shahadat Order, 1984. West Pakistan Family Courts Act, 1964 is a special law and provisions of Qanun-e-Shahadat Order, 1984 have been excluded through section 17 of the Act, 1964. 

Part of Judgment : 

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

Duty of the court to safeguard the interest of the minors

18. Similarly, in “Salahuddin Vs. Mst. Zohra Begum and 6 others” (2008 CLC 75) Sind High Court at Karachi held as under: - 

“It is duty of the court to safeguard the interest of the minors. Rule 7 CPC prohibits any agreement or compromise without the express leave of the court. In Sindh provision of Order XXXII, Rule 7(IA) laid down a detailed procedure. Before entering into compromise the leave of the court is necessary which is lacking in the matter. The compromise decree was passed without protecting the interest of minors and they were deprived from the valuable properties owned by their late father.” 

It is clear from the above that before entering into a compromise, petitioners’ mother was required to obtain permission from the Guardian Court which had not been obtained by her, therefore, that was not a valid compromise and petitioners were not bound by the same.

Part of Judgment : 

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