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....
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,...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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