نکاح نامہ میں کانم نمبر 16 میں جو سونے کے زیورات وغیرو درج ہوتے ہیں وہ بیوی کو شوہر کی طرف سے تحفہ کے طور پر دیئے جاتے ،وہ زیوارات قابل واپسی نہیں ہوتے
2010 Y L R 349
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Suit for dissolution of marriage on ground of Khula---Gold ornaments mentioned in Column No.16 of Nikahnama, whether returnable---Such ornaments would fall in ambit of gift and would not be returnable to husband as gift becomes property of donee-wife.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Suit for recovery of maintenance by wife---Counter suit by husband for restitution of conjugal rights--Validity---Husband instead of filing such suit should have paid maintenance to wife in order to show his good will---Principles.
A more dynamic approach is expected from the court when it comes to grant of maintenance. It has been proved time and again that the women are either thrown out of their homes or put in a situation whereby they are compelled to leave the marital abode. In either case, most of the time the women do not return to their parents' homes of their own accord, they are compelled to do so. Had their husbands been kind to them, the need for leaving the marital abodes would not have arisen. On their compelled return to their parents' homes, the husbands do not maintain them and the minors born in the wedlock, which further compels filing of suits for recovery of maintenance. This is countered by filing of suits for restitution of conjugal rights by the husbands, which is only to try to prove their bona fides and also to oust the right of maintenance of the wives. When the wives, who do not adhere to the decrees for restitution of conjugal rights passed in favour of the husbands, and file dissolution of marriage, they are immediately declared "nashizas" without taking into consideration that had the husbands really come to court with bona fide intentions where they filed suits for restitutions of conjugal rights, they could have instead shown their good will by giving the estranged wives maintenance. This is almost never done and Courts give sweeping judgments when they declare the women "nashizas", thus not entitled to maintenance.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Suit for recovery of maintenance by wife---Rate of maintenance, determination of---Earnings of husband, proof of---Wife could not be expected to have documentary evidence of income of husband---Duty of court to ascertain itself as what could be income of husband, but not to believe husband stating to be destitute or virtually pauper---Principles.
Hardly any woman collects evidence against her husband during the period the parties are together, so far courts to expect the wives to comp-up with documentary evidence of the earnings of their spouses is a fallacy. Courts must exercise their discretionary powers. The parties are before them and they are litigating which is not an inexpensive business. The Courts must go to great lengths to ascertain for themselves as to what could be the income of the husbands and not take them for their word that they are destitute or virtually paupers.
Javed Akhtar Bhatti for Petitioner.
Raja Israr Mehmood Bhatti for Respondent.
TARIQ MEHMOOD VS Mst. FARAH SHAHEEN
2010 Y L R 349
[Lahore]
Before Jamila Jahanoor Aslam, J
TARIQ MEHMOOD---Petitioner
Versus
Mst. FARAH SHAHEEN---Respondent
Writ Petition No.224 of 2009, decided on 27/04/2009.
ORDER
JAMILA JAHANOOR ASLAM, J.---The events leading-up to the filing of present writ petition are that the petitioner and respondent No.1 married on 8-8-2004 and petitioner No.2 was born in this marriage, who is a babe in arms. Soon after the marriage, petitioner No.1 discovered that respondent No.1 had been married twice and had divorced both the previous wives. She also discovered that respondent No.1 and his brother were involved in nefarious activities and were compelling her to be part of the same activities. On her refusal, respondent No.1 became incensed and whilst she was in the family way, threw her out of the marital abode and she gave birth to petitioner No.2 in her parents' home, expenses of the delivery were borne by her parents.
2. Subsequent to this ejection from her home, petitioner No.1 filed a suit for recovery of maintenance allowance, gold ornaments, personal belongings and dissolution of marriage. She claimed the maintenance for herself and petitioner No.2 @ Rs.10,000 per month since January 2005 for both. She averred that respondent No.1 owns two tractors, and he purchases animals and that his income was Rs.50,000 per month. Her claim for the delivery expenses was Rs.25,000 and the value of the gold ornaments given to her was Rs.50,000. Respondent No.1 contested the suit and claimed that a decree for restitution of conjugal rights had been passed in his favour meaning thereby that petitioner No.1 was a "nashiza" thus not entitled to maintenance. He also denigrated the claim of delivery expenses stating that petitioner No.2 was born in the Rural Health Centre, Kallah Kahar and that it was a natural delivery thus no expenses were involved. He also asserted that he is a poor labourer and is ready to pay Rs.200 per month only to petitioner No.2. He further stated that the gold ornaments were in the possession of petitioner No.1 and if she wants the marriage dissolved on grounds of khula, she would be bound to return the dower amount in the shape of gold ornaments as the fact of payment of dower is apparent from perusal of column 16 of the Nikah Nama.
3. Issues were framed by the Family Court which are as under:---
(i) Whether the plaintiff No.1 is entitled to get maintenance, if so, at what rate and or what period? OPP.
(ii) At what rate and for what period, plaintiff No.2 is entitled to get maintenance? OPP
(iii) Whether plaintiff No.1 is entitled to recover medical expenses incurred on the birth of plaintiff No.2, if so, to what extent? OPP
(iv) Whether plaintiff No.1 is entitled to recover gold ornaments or in alternative its value Rs.50,000? OPP
(v) Whether plaintiff No.1 is entitled to get decree for dissolution of marriage? If so, on what ground? OPP
(vi) Relief?
4. Both, petitioner No.1 and respondent No.1 produced their evidence. At the conclusion of the evidence and post trial reconciliation proceedings, the Family Court vide its judgment/decree dated 4-9-2008 dissolved the marriage of the parties. However, it observed, and rightly so, that the dower amount of Rs.1,000 was paid at the time of Nikah. This is also obvious from column No.16 of the Nikah Nama. As far as the gold ornaments are concerned, the Family Court held that they were in the possession of petitioner No.1, this is also written in unambiguous terms in column 15 of the Nikah Nama. I have perused the nikanama. It is obvious that the dower amount was given to petitioner No.1 at the time of nikah and the Family Court whilst granting the decree for khula has ordered petitioner No.1 to return the dower amount of Rs.1,000, thus the dower debt has been settled. The gold ornaments as mentioned in column No.16 then fall in the ambit of gift which, under the injunctions of Islam, are not to be returned as gifts become the property of the donee.
5. Onus to prove as to whether they are entitled to recovery of maintenance at the rate claimed was on the petitioners. The Family Court has observed that petitioner No.1 was living away from respondent No.1 even after passing of decree for restitution of conjugal rights, thus she is not entitled to recovery of maintenance allowance. Also she has categorically stated that she does not wish to live with respondent No.1, resultantly the Family Court has granted her maintenance @ Rs.1,000 only for the period of iddat.
6. Many a time, I have hoped for a more dynamitic approach by the Courts when it comes to grant of maintenance. It has been proved time and again that the women are either thrown out of their homes or put in a situation whereby they are compelled to leave the marital abode. In either case, most of the time the women do not return to their parents' home, of their own accord, they are compelled to do so. Had their husbands been kind to them the need for leaving the marital abodes would not have arisen. On their compelled return to their parents homes the husbands do not maintain them and the minors born in the wedlocks, which further compels filing of suits for recovery of maintenance. This is countered by filing of suits for restitution of conjugal rights by the husbands, which is only to try to prove their bona fides and also to oust the right to maintenance of the wives. When the wives who do not adhere to the decrees for restitution of conjugal rights passed in favour of the husbands, and file dissolution of marriage they are immediately declared "nashizas" without taking into consideration that, had the husbands really come to Court with bona fide intentions where they filed suits for restitution of conjugal rights, they could have instead shown their good will by giving the estranged wives maintenance. This is almost never done and courts give sweeping judgments when they declare the women "nashizas" thus not entitled to maintenance. My opinion stated herein is not binding on the Family Court as respondent No.1 has not appealed the judgment/decree dated 4-9-2008. It has been given as food for thought for the courts below.
7. Now it comes to the issue of the rate of maintenance. Hardly any women collects evidence against her husband during the period the parties are together so far Courts to expect the wives to come-up with documentary evidence of the income of their spouses is a fallacy. Courts must exercise their discretionary powers. The parties are before them and they are litigating, which, is not an inexpensive business. The Courts must go to great lengths to ascertain for themselves as to what could be the income of the husbands and not take them for their word that they are destitute or virtual paupers. This is another morsel in the food for though I have given earlier.
8. The grant of maintenance for minor petitioner No.2 does not call for interference. The reasoning of the Family Court qua the delivery expenses is based on sound reasoning thus it is not interfered with. Both the impugned orders dated 4-9-2008 and 20-11-2008 are fair and just and not at variance. There is no call for interference by this Court.
9. Writ petition is disposed of without any interference or modification.
S.A.K./T-17/LPetition dismissed.
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