Art. 199 -Muhammadan Law-Khula-Beauty by itself though not relevant consideration in considering khula ....

 (a) Constitution of Pakistan (1973)-

.Art. 199 -Muhammadan Law-Khula-Beauty by itself though not relevant consideration in considering khula yet considered with other circumstances ugliness, physical aversion and disparity of age, held, relevant factors for deciding khula [Muhammadan Law-Khula'].

(b) Constitution of Pakistan (1973)-

-- Art. 199 read with Muhammadan Law-Khula'---Finding reached that parties would not keep limits of Allah-No discretion left with Court not to grant khula'-[Muhammadan Law-Khula'].

Alultammad Nasrullah Qureshi for Petitioner.

MUHAMMAD NAWAZ VS GHULAM RASUL, THE JUDGE, FAMILY COURT, KABIRWALA, DISTRICT MULTAN

1979 C L C 174

[Lahore]

Before Muhammad Afzal Zullah, J

MUHAMMAD NAWAZ-Petitioner

versus

MR. GHULAM RASUL THE JUDGE, FAMILY COURT, KABIRWALA

DISTRICT MULTAN AND ANOTHER-Respondents,

Writ Petition No. 1366 of 1979, decided on 14/03/1979.

ORDER

Learned counsel has, in support of this petition, calling in question the dissolution of a marriage on ground of khula' contended that the respondent did not, in her deposition, ask for khula; that beauty and physical attraction and disparity of age are irrelevant considerations for khula'; that the respondent having failed on all other issues, could not succeed on khula'; that discretion should not have been exercised in favour of respondent because she did not approach the Court with clean hands; and lastly, that if khula' is granted liberally, as in this case, it might lead to moral degradation.

2. It was not necessary for the respondent to use the word 'khula" or any other technical expression in this behalf. Although the claim made in the plaint can also be noted for considering whether she sought khula', yet the facts stated in her deposition (read by the learned counsel from his brief) give enough indication of her claim for khula'. She also used a comprehensive .. expression in this behalf; namely. In a given case, beauty by itself might not be considered as a relevant consideration for deciding question of khula' but considered with other circumstances, as in this case,', ugliness physical aversion and disparity in age are relevant factors for deciding! whether the spouses would be able to keep the limits of Allah. I do not agree that when the wife fails on other issues, she must be refused khula also. In this case, learned trial Judge gave benefit of some so-called doubts and discrepancies to the petitioner on other issues. He also attached undue importance to omission of details from the plaint which ordinarily need not contain the details. Qua desertion, lie gave positive finding that it was due to the hatred. Thus, notwithstanding negative findings on other issues, khula' could be granted, if otherwise justified.

3. Last contentions of the ',carried counsel can be considered together. Merely because the respondent failed to convince the learned trial Judge oil other issues does not show that she approached the Court with unclean hands. And, as noted above, it was not a case of deliberate falsehood. And in any case, when a finding of fact is reached that "the parties would not keep the limits of Allah", no discretion is left with the Court not to grant khula'. Same would apply to the general 'assertion' of the learned counsel that liberal grant of khula' would be injurious to society. However, I do not g agree with him even on the question of inferential reasoning. If decision is given in a case in accordance with the enforceable Shariat Law and there is no such fatal defect in judgment, which is discoverable by human effort, the resultant dispensation shall be for the good of the society as also the individuals concerned. This, besides being an article of faith, is a principle of policy of our polity and is enshrined in our constitutional law.

4. There is no force in any of the arguments of the learned counsel. This writ petition fails and is accordingly dismissed in limine.

K. M. A.Appeal dismissed.

Moral obligation to maintain and support his minor daughter as per injunction of Islam

9. Besides the above referred guidelines, I have also gone through the judgment of the Lahore High Court reported as PLD 2016 Lahore 73 (Ali Adnan Dar v. Judge Family Court), wherein it has been held that: 

Father was under legal as well as moral obligation to maintain and support his minor daughter as per injunction of Islam. 

It has further been observed in the abovementioned case law that: 

The family court while passing the interim maintenance was required to give the bear minimum to the minor. 

Similarly, it has also been held in the same judgment that: 

Interim maintenance was sufficient to meet day to day expense of minor.

 Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Dr. Aqueel Waris VS Ibrahim Aqueel etc
Writ Petition-1475-2019 | 2020 CLC 131
Honourable Mr. Justice Mohsin Akhtar Kayani

Issue in discussion and held 'Khula' would amount to single divorce and the parties can rejoin after solemnization of Nikah.

 7.In the case of Muhammad Ayoub Khan v. Mst. Shehla Rasheed (PLD 2010 Karachi 131) similar question had arisen and Madam Rukhsana Ahmed, J (as the then She was) elaborately dilated on the issue in discussion and held 'Khula' would amount to single divorce and the parties can rejoin after solemnization of Nikah. In concluding para it was held that:--
"For the foregoing reasons, while keeping in view the authenticated observations made by the learned Scholars as well as respectfully following the decision of this Court, hold that pronouncement of Khula by the Court would amount to a single divorce until the third divorce takes place. The petitioner would be at liberty to re-marry his wife and the parties can rejoin as husband and wife on the solemnization of Nikah without intervention of third person. Resultantly, Judgment and Decree of the Court in respect of dissolution of marriage between the partieson the basis of Khula is declared annulled and is therefore set aside. In view of the above, this petition stands disposed of".

Part of judgment 

DANISH VS Mst. FOZIA DANISH, 2013 PLD-KARACHI-HIGH-COURT-SINDH 209 (2012)

Dec. 11, 2012 KARACHI HIGH COURT SINDH 2013 PLD 209
2013 PLD-KARACHI-HIGH-COURT-SINDH 209

Guidelines have been set in supra judgment regarding fixation of interim maintenance of minor,

13. I have also gone through the judgment rendered by the Hon'ble Lahore High Court reported as PLD 2016 Lahore 73 (Ali Adnan Dar v. Judge Family Court, and others), wherein it has been held that if the father found that the interim maintenance was excessive or order suffers from any illegality, irregularity or is arbitrary, fanciful, and void ab initio without jurisdiction or same had attained the status of final order, then constitutional petition is maintainable. Similarly, certain guidelines have been set in supra judgment regarding fixation of interim maintenance of minor, which plays a key role while passing such order. For ready reference, the same are reproduced as under: 

"I. Maintenance allowance is indispensable right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings.

 II. Although section 17-A of the ibid Act empowers Family Court to pass an order for grant of interim maintenance allowance at any stage of the proceedings, in the normality of the circumstances, it must be passed after hearing "both of the parties" unless the attitude and conduct of the defendant/father is evasive. 

III. The order for grant of interim maintenance is made on the basis of tentative assessment of the material available on file and keeping in view the social status of the parties. Further, both the above, material available and social status, should be mentioned in the order for the grant of interim maintenance. Further the quantum of interim maintenance should be "bare minimum" to meet the day to day needs of the recipient in the narrow context. 

IV. Although the family laws have been enacted to promote, protect and advance the rights of women and children yet at the interim stage, the version of the respondent/defendant be given a sympathetic or somewhat preferable consideration because, non-payment of interim maintenance allowance will cut throat of his invaluable right i.e. "right to defence" and in consequential effects, children/women would be the losing and deprived parties.

 V. Further, if the case is not decided within the statutory period as given in Section 12-A of the West Pakistan Family Courts Act, 1964 either party may apply to the High Court for appropriate direction. However, the order for grant of interim maintenance shall hold the field unless reviewed by High Court under section 12-A or Family Court itself reviews it at any stage as observed below. 

VI. Family Court, according to section I2-A" of the West Pakistan Family Courts Act, 1964, is under legislative direction to decide the case within six months. Although this provision is directive as no penalty/consequences are mentioned for noncompliance and in this regard reference is made to (2001 SCMR 1001). But in case the matter is not decided within six months and the delay is due to the plaintiff party, then Family Court either on its own motion or on the application of the defendant/father review its earlier order for grant of interim maintenance allowance."

Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Dr. Aqueel Waris VS Ibrahim Aqueel etc
Writ Petition-1475-2019 | 2020 CLC 131
Honourable Mr. Justice Mohsin Akhtar Kayani

The interim maintenance has been fixed only after tentative assessment status of the petitioner and expense being incurred on the education and ther necessities.

10. Likewise, in another judgment reported as 2011 MLD 1105 Lahore (Amir Mehmood Hussain v. Niha Amir Syed), it has been held that: 

The interim maintenance has been fixed only after tentative assessment status of the petitioner and expense being incurred on the education and ther necessities.

Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Dr. Aqueel Waris VS Ibrahim Aqueel etc
Writ Petition-1475-2019 | 2020 CLC 131
Honourable Mr. Justice Mohsin Akhtar Kayani

Enhanced dower amount on the basis of an agreement after the Nikah can be claimed through family suit and not thuough civil suit

9. Both the parties relied uPon case law reported as Ameer Ali Khan Vs. Kishwar Bashir (PLD 2004 S.C 746), wherein it was held that the enhanced dower amount on the basis of an agreement after the Nikah can be claimed through family suit and not thuough civil suit. 

Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Raja Muhammad Khalil Akhtar VS Mst. Nadia Mir
Writ Petition-1490-2011 | -
Former Honourable Chief Justice Mr. Justice Muhammad Anwar Khan Kasi

Endorsed the position regarding talaq and suit for declaration

23. The section ibid provides that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right. In the present case, the petitioner seeks decree to the effect that the respondent No.3 is no more his lawfully wedded wife and that she be restrained to claim as such after the pronouncement of divorce that has become effective. The suit of the petitioner, therefore, falls within the ambit of section ibid, triable by the court of competent jurisdiction to try the said matters. The Hon‟ble Lahore High Court in case of “Mst. Sadia Khan V. Muhammad Asim Khan and another” (2001 CLC 330), endorsed the position regarding talaq and suit for declaration.

 Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Writ Petition-219-2020 | -
Author:
Honourable Mr. Justice Fiaz Ahmad Anjum Jandran

Marked difference between suit for dissolution of marriage and suit for jactitation of marriage ..

14. The Hon‟ble Federal Shariat Court in “Muhammad Anwar V. Mst. Shagufta Ahmad and 2 others” (2004 P.Cr.LJ 1071) held that:- 

“here is marked difference between suit for dissolution of marriage and suit for jactitation of marriage; whereas in the former suit existence of valid marriage is admitted by the wife and decree is sought by her for its annulment/dissolution from the Qazi/Judge, Family Court on one or more grounds, enumerated in the law i.e. Dissolution of Muslim Marriage Act; 1939, while in the latter case the Qazi is petitioned to declare that at no point of time marriage took place, thereby putting a permanent restraint on the opponent from claiming the lady, to be his lawfully wedded wife.” [Emphasis Added] 

 Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Writ Petition-219-2020 | -
Author:
Honourable Mr. Justice Fiaz Ahmad Anjum Jandran

Declaratory suits of any nature, or any other civil litigation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law.

The Hon‟ble Supreme Court of Pakistan resolved this conflict in a judgment reported as PLD 2011 SC 260 by approving the case of Mohammad Akram (supra) in the following manner:- 

“Thus the interpretation of entry No.9 ibid as provided by Mohammad 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 litigation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law.” (emphasis added) 

Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Writ Petition-219-2020 | -
Author:
Honourable Mr. Justice Fiaz Ahmad Anjum Jandran

Nikahnama is forged and has a cause of action about adjudgment of Nikahnama, would be a cause of action under Section-5 of the Act, 1964.

The Hon‟ble Lahore High Court in case of “Irshad Ahmad V. Muhammad Sharif and another (PLD 2006 Lahore 260), in an irresistible manner expounded that

 “when anyone of the parties i.e. husband/wife alleges that Nikahnama is forged and has a cause of action about adjudgment of Nikahnama, would be a cause of action under Section-5 of the Act, 1964.”

 Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Writ Petition-219-2020 | -
Author:
Honourable Mr. Justice Fiaz Ahmad Anjum Jandran

Transfer of ownership of property in inheritance is not dependent on sanction of mutation

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._989_2015.pdf 

The Court while dealing with the claim of the petitioner in the inheritance of her father observed: “[P]etitioner, claiming her share in the legacy left by her father, was on the basis of operation of law and not on the basis of any mutation. … [M]utation is not a document of title. The sole purpose of a mutation is to keep the record of rights updated and to maintain the fiscal records straight. When she being one of the legal heir of deceased Habib Khan then she becomes entitled to inherit the legacy of her father from the day her father died and as such becomes co-sharer/co-owner in the property and this entitlement of petitioner is based on operation of Mohammadan Law and the Law of Inheritance.” (Para 2)  

Brikhna v. Faiz Ullah 

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._989_2015.pdf 

Present Mr. Justice Mazhar Alam Khan Miankhel and Mr. Justice Qazi Muhammad Amin Ahmed

Right to custody (Hizanat) of a child cannot be surrendered: agreement containing such terms is against law, injunctions of Islam, and public policy

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._4129_2019.pdf  

The Court while dealing with the questions whether a mother can, by an agreement, give up her right to the custody (Hizanat) of her child, and whether such an agreement is valid and enforceable under the law, held: “Muslim personal law prescribes rules of hizanat (custody); a mother in whom hizanat vests cannot be compelled to surrender it nor can such surrender constitute consideration for an agreement of khula. The custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can the husband demand such surrender. … The agreement to the extent that the mother surrendered the custody of her child or which stopped the mother to claim his custody is not lawful consideration; it is contrary to the Islamic principles governing hizanat and the law determining the custody of minors and thus forbidden. An agreement the object or consideration of which is against public policy is void, as stipulated in section 23 of the Contract Act … The welfare of a minor cannot be subsumed by the interest of his father, and if this is done it will be against public policy, and such clause or condition will be void.” (Paras 7, 8)

Beena v. Raj Muhammad 

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._4129_2019.pdf 

Present Mr. Justice Mushir Alam and Mr. Justice Qazi Faez Isa

It is settled law that in absence of a jurisdictional defect this Court in the exercise of its constitutional jurisdiction normally does not interfere in concurrent findings of fact arrived at by the learned Courts below unless a case of grave miscarriage of justice is made out.

12. Needless to add that it is a case of concurrent findings of fact. It is settled law that in absence of a jurisdictional defect this Court in the exercise of its constitutional jurisdiction normally does not interfere in concurrent findings of fact arrived at by the learned Courts below unless a case of grave miscarriage of justice is made out. Reliance is placed on the judgments reported as Waqar Haider Butt v. Judge, Family Court & others (2009 SCMR 1243), Shamshad Begum v. Mst. Huma Begum & others (2008 SCMR 79), Arshad Mehmood v. Additional District Judge, Rawalpindi & 5 others (2001 SCMR 516), Haji Abdullah & 10 others v. Yahya Bakhtiar (PLD 2001 S.C. 158) and Hanif & others v. Malik Ahmad Shah & another (2001 SCMR 577). 

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
540-14
2014 LHC 11493

The schedule cannot be amended and the names of the witnesses cannot be added under section 7(2) of the Family Courts Act.

9. I have gone through the judgment cited by the learned counsel for the petitioner, which is reported as “Muhammad Ajkram v. Mst. Shakeela Bibi and others”(2003 C L C 1787) in which it was held as under:- 

“The bare reading of this section shows that the learned Judge Family Court is restrained by law not to allow additional evidence or add names of witnesses in the schedule. The provisions are mandatory. The schedule cannot be amended and the names of the witnesses cannot be added under section 7(2) of the Family Courts Act. The provisions of this section empowers the learned Judge Family Court that the parties with the permission of the Court call any witness at any later stage if Court considers such evidence expedient in the interest of justice does not mean that the Family Court will reopen the schedule and allow the parties to produce additional witnesses, therefore, the learned Judge Family Court rightly rejected the application as there was no provision to allow a Family Court to reopen he schedule submitted by the parties.”  

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
3990-14
2014 LHC 2764

Submitted Schedule/List of witnesses in terms of Section 7 of the West Pakistan Family Courts Act, 1964.....

6. In support of the petition, learned counsel for the petitioner submits that once the plaintiff/respondent No.2 submitted Schedule/List of witnesses in terms of Section 7 of the West Pakistan Family Courts Act, 1964, she stood precluded from filing amended Schedule of witnesses. In order to fortify his submissions, he has heavily placed reliance upon the judgment reported as “Muhammad Ajkram v. Mst. Shakeela Bibi and others”(2003 C L C 1787). According to him, the learned Judge Family Court exceeded his jurisdiction, warranting the interference of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. 

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
3990-14
2014 LHC 2764
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