S.5-Muslim Family Law Ordinance
(a) Supreme Court Rules, 1980---
----O.XIII, R.2---West Pakistan Family Courts Act (XXXV of 1964), S.5---Filing of petition for leave to appeal---Limitation---Condonation of delay---Wrong advice of counsel---Wife, in the matter of recovery of dowry articles and past maintenance, being dissatisfied from the judgment of High Court, filed petition for leave to appeal which was barred by 27 days---Plea raised by the wife was that delay was due to wrong advice of counsel who consulted a diary published by Punjab Bar Council---Wife produced affidavit of the counsel and also copy of the diary relied upon---Validity---Party should not be made to suffer or prejudiced on account of wrong advice of counsel provided it was tendered bona fide---Supreme Court, in larger interest of justice extended period for filing of petition for leave to appeal under the provisions of O.XIII. R. 2 of Supreme Court Rules, 1980.
Rajendra Bahadur v. Rajeshwar Bali AIR 1937 PC 276; Nazar Muhammad v. Shahzada Begum PLD 1974 SC 22 and Abdul Raid v. Khurshid Ali 1992 SCMR 592 rel.
(b) Affidavit---
----Admissibility---Procedure---Deponent not subjected to cross examination---Effect---Trial Court illegally accepted affidavit on its face value merely because deponent had been living abroad and was not readily available in Pakistan---Such approach on the part of Trial Court and endorsed by Appellate Court apart from being without legal backing was repugnant to settled principles of law---Affidavit, without an opportunity of cross-examination to opposite party did not constitute legal and valid evidence and must be excluded from consideration.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5---Limitation Act (IX of 1908), S.13 & Art.120---Recovery of past maintenance---Limitation---Husband was living abroad and wife filed suit for recovery of past maintenance---Wife was non-suited on the ground that suit was filed beyond the period of three years when the cause of action had accrued to her---Validity---Claim for past maintenance would be governed by Art.120 of the Limitation Act, 1908, which prescribed a period of six years in a suit for which no period was provided elsewhere in the Act, from the date when the right to sue had accrued---In computing period of limitation prescribed for any suit, by reason of S.13 of Limitation Act, 1908, time during which defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of the Central Government would be excluded---Even if period of limitation for such suit would be three years, in view of absence of husband from Pakistan, period of his absence from Pakistan would be excluded for reckoning the period of limitation---Suit filed by wife was not barred by limitation.
Muhammad Nawaz v. Khurshid Begum PLD 1972 SC 302; Mst. Bushra Qasim v. Dr. Abdul Rasheed and others 1993 CLC 2063; Mst. Zaibun v. Mehrban PLD 2004 SC (AJ&K) 25 and Mst. Anar Mamana and another v. Misal Gul and 2 others PLD 2005 Peshawar 194 rel.
(d) Islamic Law---
--Maintenance-Responsibility-In absence of any proof of dissolution of marital tie, it is legal, moral as well as social duty of husband under Islamic principles to provide adequate maintenance for respectable living of wife---In law, husband cannot neglect to maintain his wife during subsistence of marriage tie.
(e) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5---Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 9---Recovery of past maintenance---Plea of oral divorce---Validity---Husband was required to send notice of divorce to Arbitration Council under Muslim Family Laws Ordinance, 1961 and also to send copy of such notice to wife by registered post---No such proceedings having been ever conducted, oral allegation of Talaq would neither be effective nor valid and binding on wife, who was legally entitled to past maintenance.
(f) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5---Recovery of past maintenance---Affidavit attested by Pakistan. Embassy abroad---Non-appearance of deponent---Wife filed suit for recovery of past maintenance at the rate of Rs.10,000 per month, against her husband who was living abroad---Family Court relying on affidavit of husband, duly attested by Embassy and contents of written statement, dismissed the suit---Judgment and decree passed by Family Court was set aside by Appellate Court and the suit was partly allowed but, High Court in exercise of constitutional jurisdiction restored the judgment and decree passed by Family Court---Validity---Amount of maintenance claimed by wife was neither excessive nor unreasonable in view of inflation in the cost of living and the amount of probable income earned by husband---Claim of wife was justified by all canons of justice and reason---Judgments of two Courts below as well as of High Court suffered from serious error of law by misreading of record and exclusion of material piece of evidence from consideration which had resulted in gross miscarriage of justice---In fact written statement could not be considered as substitute of evidence on oath---Affidavit of husband attested by Pakistan Embassy abroad would not constitute legal evidence as he did not appear for his cross-examination before the Family Court---Husband did not endeavour to appear even before Appellate Court at any point of time---I. n-rebutted version of wife would, therefore, be considered as valid and legal to all intents and purposes, particularly when it remained uncontroverted---Interference of High Court in the matter in its constitutional jurisdiction was beyond the scope of Art.199 of the Constitution and judgment of High Court must not be allowed to remain in field---Supreme Court set aside the judgments of High Court and Family Court and suit was decreed in the sum of Rs.10,000 per month as claimed by the wife---Appeal was allowed.
Saeed Ahmad v. Mehmood Ahmad PLD 1968 Lah. 520 ref.
(g) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5---Constitution of Pakistan (1973), Art.199---Recovery of dowry articles---List containing value of dowry articles---Affidavit attested by Pakistan Embassy abroad---Non-appearance of deponent---Wife filed suit for recovery of dowry articles valuing Rs.955,038 against her husband who was living abroad---Family Court relying on affidavit of husband duly attested by Pakistan Embassy and contents of written statement, partly decreed the suit to the extent of Rs.400,000----Judgment and decree passed by Family Court was set aside by Appellate Court and the suit was decreed in favour of wife in the sum of Rs.955,038 but High Court in exercise of constitutional jurisdiction restored the judgment and decree passed by Family Court---Validity---Evidence of wife was neither contradicted nor rebutted and list of articles as well as value of articles shown in it must be accepted on its face value---Reasons recorded by Family Court did not appeal to Supreme Court and assessment of value of articles in the sum of Rs.400,000 appeared to be artificial, whimsical and arbitrary---On the other hand calculation made by Lower Appellate Court accepting claim of wife in the sum of Rs.955,038 was evidently justified and warranted by law---High Court in constitutional jurisdiction could not substitute its own findings for the findings recorded by Court of appeal after appraisal of evidence---Judgments passed by High Court as well as by Family Court were set aside and that of the Appellate Court was restored---Appeal was allowed.
S.M. Masud, Advocate Supreme Court for Appellant.
Nemo for Respondents Nos. 1 and 2.
Muhammad Asghar Bhutta, Advocate Supreme Court and Ch. Arshad Ali, Advocate-on-Record for Respondent No.3.
Date of hearing: 6th March, 2006.
JUDGMENT
RANA BHAGWANDAS, J.---Both the appeals with the leave of the Court are directed against judgment of the Lahore High Court dated 15-12-2004 setting aside judgments passed by appellate forum in the suits arising out of proceedings under West Pakistan Family Courts Act, 1964.
2. Appellant-Mst. Farah Naz was married to respondent-Inam Qadir on or about 28-12-1996. Marital relationship between the parties lasted for about one month when the respondent left for Paris leaving the appellant at her parental home in Sahiwal. Admittedly, there is no issue from the wedlock. As the respondent did not take care of appellant-wife for a pretty long time and married a second wife at Paris, she was feeling frustrated and in distress filed a suit for recovery of maintenance on or about 16-2-2002 at the rate of Rs.10,000 per month. The respondent, who had by this time settled in Paris, managed to file a written statement admitting the factum of marriage with the assertion that as the appellant was insane and of imbalanced mind, he had announced divorce to her on 13-12-1997 in presence of witnesses, therefore, she was not entitled to the relief of maintenance. Coming to know about the so-called act of divorce, appellant was persuaded to file another Suit No.133 of 2002 on 15-7-2002 for recovery of the amount of dowry articles given to her by her parents at the time of her wedding. Likewise, this suit was resisted by the respondent through a written statement from Paris and both the suits proceeded before a Family Court at Sahiwal. It is pertinent to mention here that written statements in both he suits were incompetently filed as the relevant time, was settled in Paris (France) and written statements were not got attested from the Embassy of Pakistan, France as per Article 89 of Qanun-e-Shahadat, 1984. Reference may be made to Saeed Ahmad v. Mehmood Ahmad (PLD 1968 Lahore 520). The suit for maintenance was dismissed by Family Court vide judgment dated 17-7-2003 on the premise that the appellant having been divorced on the date of suit was not entitled to her maintenance. Second suit for recovery of Rs.9,55,038, being value of the dowry articles, was decreed by the trial Court through its judgment of even date in the sum of Rs.4,00,000.
3. Appellant challenged both judgments and decrees in appeals, which came up for hearing before an Additional District Judge, who decided the appeals by two separate judgments dated 22-4-2004. On re-evaluation of the evidence appellate Court held that by reason of divorce announced by the respondent, she would be entitled to claim maintenance with effect from 28-12-1996 to 14-4-1998 and directed the respondent to pay the same at the rate of Rs.8000 per month. In the second appeal, he enhanced the value of dowry article from Rs.4,00,000 to Rs.9,55,038 and decreed the suit accordingly. Respondent being dissatisfied with the judgments in both appeals filed two writ petitions before the Lahore High Court, Multan Bench. Learned Judge in the High Court while accepting writ petition impugning the decree for maintenance passed by appellate Court, held that the plaintiff, in law, being entitled to claim maintenance for a period of three years prior to the filing of the suit could only be awarded maintenance from 15-2-1999 but since she stood already divorced on this date, therefore, her suit for maintenance was rightly dismissed by the trial Court. By another judgment in the writ petition filed by the respondent, learned Judge proceeded to re-evaluate the evidence and substituted the findings of fact recorded by the appellant Court. Consequently, he set aside the judgment of the appellate Court and restored that of the Family Court decreeing the suit in the sum of Rs.4,00,000.
4. Both the parties being dissatisfied, filed three separate petitions for leave to appeal, in which leave was granted by this Court on 20-10-2005 to examine the question, inter alia, whether judgment passed by the High Court suffers from misreading or non-reading of record and whether the question of limitation for the purpose of past maintenance was correctly decided by the High Court in accordance with law. It may be pertinent to note that C.P:L. As in these appeals filed by the appellant were barred by 27 days respectively and leave to appeal was granted subject to the question of limitation.
5. We have heard Mr. S.M. Masood, learned Advocate Supreme Court for the appellant in both the civil appeals and Mr. Muhammad Asghar Bhutta, learned Advocate Supreme Court for the private respondent at length and gone through the record.
6. Adverting to the question of limitation in filing these petitions, it may be noted that explanation furnished by the appellant is that she is a parda observing lady and her brother Shaukat Ali Khan used to look after her affairs, but he being employed in Merchant Navy was out of country. He returned to Pakistan from Singapore on 21-1-2005 whereafter he contacted a local counsel at Sahiwal, who being not a practising Advocate of Supreme Court having consulted the latest diary published by Punjab Bar Council for the year 2005, informed him that under Article 179 of the Schedule to the Limitation Act, as mentioned at page 14 of the diary, period of 90 days was provided for filing a petition for leave to appeal from the date of decree. He advised the brother of the appellant accordingly that period for such purpose would be 90 days. In these circumstances, the appellant pleaded that she being a parda observing lady and not moving in public was misled due to wrong advice tendered by the counsel. Thus the delay, if any, was neither deliberate nor intentional. In support thereof apart from her affidavit, she has filed affidavit of Mr. Israr Ahmad Chaudhry, Advocate Sahiwal, copies of relevant pages from the diary of the Punjab Bar Council as well as copies of the entries in the passport of Shaukat Ali Khan to demonstrate that he landed at Lahore on 21-1-2005.
7. Upon hearing learned counsel for parties and examination of the aforesaid documents, which have remained un-rebutted, we are persuaded to the view that there was a sufficient cause for filing the petitions beyond the period prescribed by law.. We earnestly feel that a party shall not be made to suffer or prejudiced on account of wrong advice of a counsel provided it was tendered bona fide. We are fortified in our view by Rajendra Bahadur v. Rajeshwar Bali (AIR 1937 PC 276), A Nazar Muhammad v. Shahzada Begum (PLD 1974 SC 22) and Abdul Raud v. Khurshid Ali (1992 SCMR 592) Period for filing of leave petitions in both the appeals is, therefore, extended under the provisions of Order XIII rule 2 of the Pakistan Supreme Court Rules 1980 in the larger interest of justice.
8. Reverting to the merits of the appeals in the suit for maintenance, it may be observed that the trial Court as well as the appellate Court and the High Court fell in serious misconception of law. The first two Courts having accepted the averments of written statement of the respondent and his affidavit without proper attestation as gospel truth treated the same as legal evidence without subjecting him to the test of cross-examination. It is ironical to note that the appellant had moved an application under section 11(4) of the Family Courts Act 1964 praying the trial Court to summon the respondent for cross-examination in relation to his affidavit forwarded from Paris but the Family Court illegally rejected the said prayer and accepted the affidavit on its face value merely because the respondent had been living in Paris and was not readily available in Pakistan. This approach on the part of the trial Court and endorsed by the appellate Court apart from being without any legal backing is repugnant to the settled principles of law that an affidavit without an opportunity of cross-examination to the opposite party does not constitute legal and valid evidence and must be excluded from consideration.
9. On its part, High Court also committed serious error of law by non-suiting the appellant with the observation that period for recovery of past maintenance being three years, without citing any provision of the Limitation Act proceeded to endorse the judgments of the two Courts below. Indeed the claim for past maintenance would be governed by Article 120 of the Schedule to the Limitation Act 1908, which prescribes a period of six years in a suit for which no period is provided elsewhere in this Schedule from the date when the right to sue accrues. Furthermore, by reason of section 13 of the Limitation Act 1908 in computing the period of limitation prescribed for any suit the time during which the defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of the Central Government shall be excluded. Assuming, without conceding, even if the period of limitation for such suit be three years, in view of the admitted absence of the respondent from Pakistan, the period of his absence from Pakistan shall be excluded for reckoning the period of limitation. We are supported in this view by the precedents reported as Muhammad Nawaz v. Khurshid Begum (PLD 1972 SC 302), Mst. Bushra Qasim v. Dr. Abdul Rasheed and others (1993 CLC 2063), Mst. Zaibun v. Mehrban (PLD 2004 SC (AJ&K) 25) and Mst. Anar Mamana and another v. Misal Gul and 2 others (PLD 2005 Peshawar 194).
10. On the merits of the case, we find that the appellant having been lawfully wedded to the respondent in the absence of any proof of dissolution of marital tie, it was his legal, moral as well as social duty under the Islamic principles to provide adequate maintenance for her respectable living as in law he could not neglect to maintain her during the subsistence of the marriage tie. His bald statement that he had announced Talaq to her on 13-12-1997 cannot be accepted at all as he utterly failed to substantiate it. In law, he was required to send notice to the Arbitration Council under the Muslim Family Laws Ordinance 1961 and also to send a copy of notice to the appellant by registered post. No such proceedings having been ever conducted, oral allegation of Talaq would neither be effective nor valid and binding on the appellant, who would, in all fairness, be legally entitled to past maintenance as claimed by her. In view of social status and income of the respondent, living in a highly developed country like France the amount of maintenance claimed by the appellant was neither excessive nor unreasonable in view of inflation in the cost of living and the amount of probable income earned by the respondent. Her claim, therefore, was justified by all canons of justice and reason. Two Courts below as well as the High Court, therefore, suffered from serious error of law by misreading of record and exclusion of material piece of evidence from consideration, which has resulted in gross miscarriage of justice. In fact the written statement cannot be considered as substitute of evidence on oath. Similarly, as observed earlier, affidavit of the respondent though attested by Pakistan Embassy in France would not constitute' legal evidence as he did not appear for his cross-examination before the Family Court. In fact he did not endeavour to appear even before the appellate Court at any point of time. Unrebutted version of the appellant would, therefore, be considered as valid and legal for all intents and purposes, particularly, when it stood uncontroverted. Consequently, we are of the considered view that the interference of the High Court in the matter in its constitutional jurisdiction was beyond the scope of Article 199 of the Constitution and the judgment of the High Court must not be allowed to remain in field. We, therefore, while setting aside the judgments of the High Court and the trial Court direct that in practical modification of the judgment of the appellate Court the suit of the plaintiff or maintenance be decreed in the sum of Rs.10,000 per month as claimed by her in the suit.
11. Taking up the issue of dowry articles, again the evidence of the appellant was neither contradicted nor rebutted and the list of article as well as value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles in the sum of Rs.4,00,000 appears to be artificial, whimsical and arbitrary. On the other hand calculation made by the appellate Court accepting the claim of the appellant in the sum of Rs.9,55,038 is evidently justified and warranted by law. It was none of the business of the High Court in writ jurisdiction to substitute its own findings for the findings recorded by the court of appeal after due appraisal of evidence. We would, therefore, set aside the judgment of the High Court as well as that of the Family Court decreeing the suit in the sum of Rs.4,00,000 and restore the judgment of the appellate Court accepting the claim of the appellant, as pleaded in the suit.
12. For the aforesaid facts, circumstances and reasons, both the appeals are allowed with costs.
M.H./F-7/SAppeal allowed.
0 comments:
Post a Comment