Family court cannot sit as spectator if the defendant fails to file written statement. The family court can exercise its exclusive jurisdiction under the law in such eventuality.

[2010 CLC 797]

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.10---Civil Procedure Code (V of 1908), S.151 & O. VIII, R.10--Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Plaintiff filed suit for dissolution of marriage on the basis of khula---Defendant did not file written statement---Trial Court struck off defence of the defendant on non-filing of his written statement---Validity---Although the power of closing the right of written statement was not available to the Family Court but the words "if any" couched in subsection (2) of S.10 of the West Pakistan Family Courts Act, 1964 clearly postulated the intent of legislature that the Family Court was neither helpless nor supposed to act as a silent observer to the inaction and reluctance of the defendant in filing written statement---Inherent powers as provided by S.151, C. P. C. were available to the Family Court---Family Court was competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances---Suit for dissolution of marriage had been filed against the defendant but he was delaying the matter by not filing written statement---Order of the Judge Family Court closing right of filing written statement of the defendant, in circumstances, was not open to exception---Order passed by Family Court was interim/interlocutory in nature against which a constitutional petition was not maintainable---Constitutional petition was dismissed in limine.

Maqsood Ahmad v. Judge, Family Court, Burewala and 5 others 2001 CLC 567 and Mst. Naziran Bibi v. Additional District Judge and others 2003 YLR 82 ref.

Akhtar Ali Said Bcha v. Mst. Naheed Bibi PLD 2003 Pesh.63 and Zulfiqar Ahmad v. Judge Family Court 1996 MLD 1997 rel.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 10(2)---Civil Procedure Code (V of 1908), O. VIII, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition--Non-filing of written statement---Effect---If the interpretation that Family Court had no authority to close right of filing written statement of the defendant was taken as correct, it would render the West Pakistan Family Courts Act, 1964 practically unworkable placing the Family Court at the mercy of defendant---Defendant may never file written statement and in that eventuality no case would be decided---Court in such circumstances, could not and should not sit like a distant spectator to witness a legal battle, being fought before it by two adversaries---Court should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path---Such was all the more necessary and may be this was the reason for enacting a special statute conferring exclusive jurisdiction on the Family Courts to decide special family disputes.

Ghulam Murtaza v. Additional District Judge-II, D.G. Khan and 2 others 1991 CLC 81 rel.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----Preamble---Family. Court---Purpose---Scope---West Pakistan Family Courts Act, 1964 shows that the legislature has left many vacant areas but it does not necessarily mean that embargo has been placed upon the Family Court in the exercise of certain powers---Confidence has been shown in the court to proceed in the matter by exercising its inherent powers to avoid the abuse of the process of law without any hindrance of the technicalities imposed by Civil Procedure Code, 1908---Purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner---All that the Family Courts Act, 1964 has done is that it has changed the forms, altered the method of trial and empowered the court to grant better remedies---Purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage on basis of khula---Scope---Only difference between the right of divorce devolved upon the husband and the right of khula by the wife is that the husband can divorce his wife without intercession of court, while wife has to approach the court to obtain dissolution of marriage---Once wife approaches the court for dissolution of marriage on the basis of khula, then court has no option, but to accede to her request, because she is entitled to divorce on basis of khula ex debito justitiae.

Muhammad Suleman Yazdani for Petitioner.
ABDUL RASHEED VS JUDGE, FAMILY COURT, MIAN CHANNU
2010 C L C 797
[Lahore]
Before Arshad Mahmood, J
ABDUL RASHEED----Petitioner
Versus
JUDGE, FAMILY COURT, MIAN CHANNU and another----Respondents
Writ Petition No.4666 of 2009, decided on 16/06/2009.

ORDER

ARSHAD MAHMOOD, J.---Through this constitutional petition, petitioner has questioned the order dated 5-6-2009 passed by respondent No.1/Judge Family Court, Mianchannu whereby his right of filing written statement was struck off.

2. While referring to Maqsood Ahmad v. Judge, Family Court, Burewala and 5 others 2001 CLC 567 learned counsel for the petitioner contends that the learned Judge Family Court had no authority to strike off defence of the petitioner/defendant on non-filing of his written statement.

3. Heard.

4. Perusal of the impugned judgment reveal that the learned trial Court has struck off the right of the petitioner to file written statement and fixed the case for pre-trial conciliation. Relevant provisions of section 10 of the Family Courts Act, 1964 are reproduced as under:---

"10. Pre-trial proceeding.--- (1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case.

(2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their counsel." Underlining is mine.

5. There is no cavil to the proposition that power of closing the right of written statement is not available to the Family Court in so many words. But with all respect to the precedent referred to by learned counsel for the petitioner, after requiring written statement in subsection (1), the words "if any" couched in subsection (2) of section 10 of the Family Courts Act, 1964 clearly postulate the intent of legislature that the Family Court is neither helpless nor supposed to act as a silent observer to the in-action and reluctance of the defendant in filing written statement. As per the dictum of law laid down by this Court in "Mst. Naziran Bibi v. Additional District Judge and others 2003 YLR 82 inherent powers as provided by section 151, C.P.C. are available to the Family Court.

6. A cursory glance at Family Courts Act, 1964 shows that the legislature has left many vacant areas but it does not necessarily .mean that embargo has been placed upon the Family Court in the exercise of certain powers, confidence has been shown in the Court to proceed in the matter by exercising its inherent powers to avoid abuse of the process of law without any hindrance of the technicalities imposed by civil Procedure Code, 1908. The purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities. It is settled proposition of law that Judge Family Court is competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances. Reference can be made to Akhtar Ali Said Bcha v. Mst. Naheed Bibi PLD 2003 Pesh. 63.

7. There is yet another fact of the case. Suit for dissolution of marriage has been filed against the petitioner but he was delaying the matter by not filing written statement. The only difference between the right of divorce devolved upon the husband and the right of Khula by the wife is that husband can divorce his wife without intercession of Court, while wife has to approach the Court to obtain dissolution of marriage. Once wife approaches the Court for dissolution of marriage on basis of Khula, then Court has no option, but to accede to her request, because she is entitled to divorce on basis of Khula ex debito justitiae. Therefore, right to claim divorce on the principle of Khula by wife is a right equal to the right of pronouncement of Talaq by the husband except with one difference that husband can pronounce Talaq himself but the wife has to file a suit seeking dissolution of marriage on the principle of Khula in the Court of Qazi (Family Court). Therefore, in the peculiar circumstances of the case order of the learned Judge Family Court closing right of written statement of the petitioner is not open to exception.

8. Most important aspect of the case is that if the interpretation offered by learned counsel for the petitioner that Family Court has no authority to close right of written statement of the defendant is taken as correct, it would render the Family Courts Act, 1964 practically unworkable placing the Family Court at the mercy of defendant. The defendant may never file written statement and in that eventuality no case would be decided. Survey of the case-law, however, reveals that the Court in such circumstances cannot and should not sit like a distant spectator to witness a legal battle, being fought before it by two adversaries. It should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path. In the family disputes, this is all the more necessary and may be this was the reason for enacting a special statute conferring exclusive jurisdiction on the Family Courts to decide these special family disputes. Reference can be made to Ghulam Murtaza v. Additional District Judge-II, D.G. Khan and 2 others 1991 CLC 81.

9. Even otherwise, the impugned order is interim/interlocutory in nature, the perusal whereof reveals that it is just and only the defendant's right to file written statement has been struck off against which a constitutional petition is not maintainable. Reference can be made to Zulfiqar Ahmad v. Judge Family Court 1996 MLD 1997.

10. In view of the above, this petition is not maintainable and is accordingly dismissed in limine.

M.U.Y./A-306/LPetition dismissed.

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-Second marriage at Rawlapindi without prior permission of first wife by claiming unmarried-

 PLJ 2020 Cr.C. (Note) 109

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Muslim Family Laws Ordinance, 1961, S. 6(5)(b)--Pakistan Penal Code, (XLV of 1860), S. 420--Petitioner was contracted first marriage at AJK--Second marriage at Rawlapindi without prior permission of first wife by claiming unmarried--Territorial jurisdiction of concerned magistrate--Cognizance of matter--Challenge to--Petitioner-accused contracted second marriage at Rawalpindi and admittedly without prior permission of his first wife--Alleged offence was committed within the territory of Pakistan and therefore, the Court at Rawalpindi rightly took cognizance of the matter and issued process against the petitioner-accused--Needless to add that second marriage without permission of the first wife is punishable under the aforesaid penal provisions of the Muslim Family Laws Ordinance, 1961, with which the petitioner stands charged--Petition was dismissed. [Para 3] A

Mr. Makhdoom Niaz Inqlabi, Advocate for Petitioner.

Raja Shahid Mahmood Abbasi, Deputy Prosecutor General with Ms. Aisha Tasleem, Advocate for State.

Date of hearing: 11.3.2008.

PLJ 2020 Cr.C. (Note) 109
[Lahore High Court, Rawalpindi Bench]
Present: Kazim Ali Malik, J.
Syed MUJASSAM HUSSAIN SHAH--Petitioner
versus
Mst. AKHTAR SABIR and another--Respondents
Crl. Misc. 18-Q of 2007, decided on 11.3.2008.

Order

Syed Mujassam Hussain Shah, petitioner and Mst. Akhtar Sabir, respondent are admittedly Muslims. The petitioner contracted his first marriage with the respondent on 3.11.1995 at Mirpur, Azad Jamu and Kashmir and from this wed lock the respondent gave birth to one son and two daughters. On 15.1.2006 the petitioner contracted second marriage with Mst. Sobia Gillani at Rawalpindi without prior permission of his first wife claiming to be unmarried before the Nikah Khawan/Nikah Registrar. Mst. Akhtar Sabir, the first wife filed a complaint under Section 6(5)(b) of the Muslim Family Laws Ordinance, 1961 before the area Magistrate at Rawalpindi in whose territorial jurisdiction the petitioner had contracted second marriage. The learned trial Magistrate examined the complaint recorded her preliminary evidence and then summoned the petitioner to stand trial on the afore-said charge.

2. The petitioner-accused has sought quashment of proceedings of the complaint case on the ground that he was not liable for the charge as he contracted first marriage with the respondent-complainant at Mirpur Azad Jamu and Kashmir and that being resident of Azad Jamu and Kashmir he should not have been deemed to be a citizen of Pakistan. Reliance was placed on the case law laid down in Rehmat Ullah v. Mst. Shatnim Akhtar and another (1997 CLC Pesh. 16) and Mian Nazir Ahmad v. Abdur Rashid Qureshi (1986 CLC Azad J&K 1309).

3. I have gone through the case law cited by the learned counsel for the petitioner and would say that facts of the case in hand are altogether different from that of the precedent cases. In the case of Rehmat Ullah the wife had filed a suit for dissolution of marriage before the Court at Azad Jamu and Kashmir and had remained unsuccessful up to the august Supreme Court. Thereafter, she obtained a decree for dissolution of marriage from the Family Court at Mansehra (Pakistan) which was challenged before the Peshawar High Court which resolved the controversy with an observation that in the given circumstances the Family Court at Mansehra had no jurisdiction to entertain a Family-Court suit between the spouses, particularly when they already litigated their cause up to the Supreme Court. No such situation ever existed between the parties of the case in hand. They never approached any Court of Azad Jamu and Kashmir for resolution of their dispute. In the case of Mian Nazir Ahmad it was held that under Sections 2(6) and 46, C.P.C. a precept issued by a foreign Court would not be executable in the native country and appropriate remedy available to such decree holder would be to institute a suit on the basis of such foreign judgment and obtain decree from a Court of Azad Jamu and Kashmir against the judgment debtor. In the case in hand the petitioner-accused contracted second marriage at Rawalpindi and admittedly without prior permission of his first wife. The alleged offence was committed within the territory of Pakistan and therefore, the Court at Rawalpindi rightly took cognizance of the matter and issued process against the petitioner-accused. Needless to add that second marriage without permission of the first wife is punishable under the aforesaid penal provisions of the Muslim Family Laws Ordinance, 1961, with which the petitioner stands charged.

4. In the given circumstances, the petition in hand being without substance stands dismissed.

(M.M.R.)         Petition dismissed

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-Past maintenance wife's claim for---Scope---Wife, if unwilling without any lawful excuse, would not be entitled to such maintenance.

P L D 2011 Lahore 569

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Past maintenance wife's claim for---Scope---Wife, if unwilling without any lawful excuse, would not be entitled to such maintenance.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---West Pakistan Family Courts Rules, 1965, Rr. 5 & 6---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance and dowry articles---Suit decreed to extent of dissolution of marriage and maintenance of minor son, but plaint to extent of claim for dowry articles returned by Family Court for lacking territorial jurisdiction---Dismissal of appeal by Appellate Court---Validity---Suit categorized in Sched. of West Pakistan Family Courts Act, 1964 could be instituted in a court within whose local limits either cause of action wholly or in part had arisen or parties reside or resided together lastly---An omni bus suit could be filed combining therein causes of action of all suits mentioned in Sched. of West Pakistan Family Courts Act, 1964, and Family Court in such case could not divide plaint into causes of action falling within its territorial jurisdiction and those beyond its jurisdiction and return plaint in part for lacking such jurisdiction---Plaint could be returned as a whole for lacking territorial jurisdiction---Partial or piecemeal return of plaint like partial rejection of plaint was not envisaged by any Rule of West Pakistan Family Courts Rules, 1965 or provisions of the Act---Convenience of females would be an overriding consideration to disallow partial return of plaint in family suits---High Court set aside impugned judgment to extent of return of plaint with direction to Family Court to decide claim of dowry articles and maintenance for Iddat period of wife.

Atta Ullah and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38; EFU General Insurance Company pd. v. Zahid Jee Textile Mills Ltd: 2005 CLC 848 and Izhar Muhammad v. Messrs Memon Housin Services through Partner and another 2009 MLD 1378 rel.

(c) Civil Procedure Code (V of 1908)---

----O0. VII, R.11---Partial rejection of plaint---Scope---Plaint could be rejected as a whole but not in part---Principles.

A plaint cannot be rejected in part if it cannot be rejected in its entirety.

The rule against partial rejection of plaint is based on the rationale that it saves the parties from the unnecessary multiplicity of legal proceedings.

Atta Ullah and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38; EFU General Insurance Company Ltd. v. Zahid Jee Textile Mills Ltd. 2005 CLC 848 and Izhar Muhammad v. Messrs Memon Housin Services through Partner and another 2009 MLD 1378 rel.

Rana Rashid Akram Khan for Petitioner.

 Syeda ADRISH VS Syed ANWAR-UL-HAQ

P L D 2011 Lahore 569

Before Asad Munir, J

Syeda ADRISH and another---Petitioners

Versus

Syed ANWAR-UL-HAQ and 2 others---Respondents

Writ Petition No.1525 of 2009, decided on 22/06/2011.

ORDER

ASAD MUNIR, J.---This writ petition calls into question the judgments/decrees dated 29-3-2008 and 13-9-2008, passed by the Judge Family Court, Toba Tek Singh and the Additional District Judge, Toba Tek Singh, respectively, whereby the petitioner No.1's plaint to the extent of recovery of her dowry articles has been returned and her claim for maintenance has also been dismissed.

2. Facts in brief are that the marriage between petitioner No.1 and respondent No.1 was solemnized in Lahore on 21-5-2004 whereafter a son, petitioner No.2, was born to the couple on 7-5-2005. However, the marriage broke down with the result that petitioner No.1 and petitioner No.2 on 7-11-2006 filed against respondent No.1 a suit whereby petitioner No.1 sought the dissolution of her marriage, the return of her dowry articles valued at Rs.904,001 and the recovery of maintenance for petitioners Nos. 1 and 2. Upon failure of reconciliation between the parties, the suit was on 7-7-2007 decreed by the Judge Family Court, Toba Tek Singh, to the extent of dissolution of marriage under section 10(4) of the West Pakistan Family Courts Act, 1964. On the same date i.e. 7-7-2007, the Judge Family Court framed the following issues:

(i)???????? Whether the plaintiffs are entitled to receive maintenance from the defendant, if so, at what rate and for what period? OPP

(ii)??????? Whether the plaintiff No.1 is entitled to recover dowry as per list annexed with the plaint or in alternative Rs.904,001 as prayed for? OPP

(iii)?????? Whether the defendant delivered Rs.200,000 as a prompt dOwer to the plaintiff No.1 at the time of marriage, if so, then its effect? OPD

(iv)?????? Relief

3. Oral as well as documentary evidence was produced by the petitioner but respondent No.1 did not produce any evidence and was also proceeded against ex parte vide Judge Family Court's order dated 8-3-2008. The suit was disposed of by judgment/decree dated 29-3-2008, whereby the Judge Family Court, allowed monthly maintenance of Rs.2,000 to petitioner No.2 with effect from November, 2006 with 10 per cent increase after every two years but did not grant any maintenance to petitioner No.1. As regards the petitioner's claim for the return of her dowry articles, the Judge Family Court found that he lacked territorial jurisdiction and ordered the return of the plaint for its presentation before the proper court having territorial jurisdiction. Against the judgment and decree dated 29-3-2008, the petitioners filed an appeal which was dismissed by the learned District Judge's Toba Tek Singh by his judgment/dated and decree dated 13-9-2008.

4. While challenging the aforesaid judgments/decrees, passed by the learned court below, it has been contended by the learned counsel for the petitioner that the partial return of the plaint is unlawful and is not visualized under the law including Rule 6 of the West Pakistan Family Courts Rules, 1965. It is also contended that the petitioner No.1 is entitled to maintenance while she remained in the wedlock of respondent No.1 and until the marriage was dissolved by the Family Judge on 7-7-2007.

5. Notices were issued to the respondent No.1 through ordinary modes as well as through a citation published in daily Nawa-i-Waqt but appearance was not entered by him or upon his behalf with the result that by this Court's order dated 24-11-2010, ex parte proceedings were ordered against respondent No.1.

6. I have heard the learned counsel and have also with his assistance gone through the available record. I have no reason to disagree with the concurrent findings of the courts below that the petitioner is not entitled to any past maintenance for not being a willing wife without any lawful excuse. However, there is no discussion or explanation in the impugned judgments as to why petitioner No.1 is not entitled to any maintenance for the iddat period.

7. The important issue involved in this case is the legality of the impugned judgments with regard to the return of the plaint in respect of and to the extent of the claim of dowry articles made therein. It would be right to say that a part of the plaint has been returned on the ground of lack of territorial jurisdiction as other claims in the plaint for the dissolution of marriage and the recovery of maintenance have been found by the Family Court to be within its territorial jurisdiction.

8. Under section 5 of the West Pakistan Family Courts Act, 1964, read with its' Schedule, the family suits have been categorized as suits for (i) dissolution of marriage (ii) recovery of dower, (iii) recovery of maintenance (iv) restitution of conjugal rights (v) custody of children (vi) guardianship (vii) jactitation of marriage and (viii) recovery of personal property and belongings of a wife. Under Rule 6 of the West Pakistan Family Court Rules, 1965, any of the aforesaid family suits can be filed in a court within whose local limits the cause of action wholly and in part has arisen or the parties reside or have last resided together. In the case of suits for dissolution of marriage and recovery of dower, the proviso to Rule 6 gives additional choice to a wife to file such suits within the local limits of the court where she ordinarily resides. Obviously, the proviso to Rule 6 does not apply to suits other than those for the dissolution of marriage or for the recovery of dower.

9. There is no prohibition against the joinder of causes of action under the West Pakistan Family Courts Act, 1964. Resultantly, a wife can file an omni bus suit wherein she can combine her causes of action of dissolution of marriage, maintenance, recovery of dower, dowry and personal property and custody or guardianship of children. Likewise, a husband can, in the same snit, seek restitution of conjugal rights or jactitation of marriage along with custody and guardianship of the children. In such an event, a Family Court cannot divide the plaint into causes of action that fall within its territorial jurisdiction and those which fall beyond it nor can the Family Court split the -plaint to separate and return a part of the plaint for lack of territorial jurisdiction. In ease of lack of jurisdiction, a plaint can only be returned as whole. It is also so provided under Rule 5 of the West Pakistan Family Court Rules, 1965, which does not envisage any piecemeal or partial return of the plaint.

10. It is settled law that 'a plaint cannot be rejected in part if it cannot be rejected in its entirety. If any authority be needed in support of this proposition, reference may be made to Atta Ullah and 6 others v., Sanaullah and 5 others (PLD 2009 Karachi 38) and EFU General Insurance Company Ltd. v. Zahid Jee Textile Mills Ltd. (2005 CLC 848). In Izhar Muhammad v. Messrs Memon Housing Services through Partner and another (2009 MLD 1378), it was held that "plaint could only be rejected where all the reliefs claimed by the plaintiff were barred by any law, however where some of the reliefs claimed are barred, the plaint could not be rejected as a plaint could only be rejected as a whole and not in piecemeal". The rule against partial rejection of plaint is based on the rationale that it saves the parties from the unnecessary multiplicity of legal proceedings. There is no reason not to apply the rationale of this rule to the return of plaint by disallowing its partial return particularly in the cases of family suits where the convenience of females is an overriding consideration.

11. In the instant case, the Judge Family Court, Toba Tek Singh, has found petitioner No.1's claim/cause of action for dissolution of marriage and maintenance to be within his territorial jurisdiction but has split the plaint and returned the plaint in part in respect of petitioner's claim for dowry which has been found to be beyond his territorial jurisdiction. As discussed above, the partial return of the plaint like the partial rejection of plaint is not contemplated under the law including the provisions of the West Pakistan Family Courts Act, 1964, or the Rules framed thereunder.

12. For the foregoing reasons, the impugned judgments are declared illegal and are set aside to the extent of return of plaint in respect of petitioner No.1's claim for dowry articles as well as her claim for maintenance for the iddat period with the direction to the learned Judge Family Court, Toba Tek Singh, to adjudicate upon these claims in accordance with law.

S.A.K./A-163/L?????????????????????????????????????????????????????????????????????????????????? Petition accepted.

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The Muslim Family Laws (Amendment) Act, 2021 bill introduced in National Assembly of Pakistan.

 

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List of dowery articles not exhibited. Suit decreed.

2015 MLD 11

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 20---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance for child---Obligation of father---Mother was capable of earning---Father was extremely poor and was not in a position to pay maintenance allowance to the child---Effect---To maintain his child was obligation of the father and his responsibility could not be absolved merely on the basis that the mother was an earning-hand---Neither the father was stated to be poor nor incapable of earning.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Grant of maintenance allowance for children---Intent and purport---Quantum of maintenance allowance---Determination.

Intent and purport of maintenance allowance to a minor child is to enable her/him to continue living at least, in the same state of affairs as the child was used to live prior to separation/divorce amongst the parents and it would be quite unjust and against the norms of propriety if due to separation amongst the parents the child has to relegate to a lower level of living standard or he/she is declined the level or standard of education which was achieved by him/her prior to such happening i.e. separation of parents. At the same time, there is no escape from the fact that financial status of the father is also to be taken into consideration while awarding maintenance.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance for children---Annual enhancement in maintenance allowance---Trial Court granted annual enhancement in maintenance allowance at the rate of 30%---Petitioner challenged annual enhancement being against statutory provisions---Validity---Keeping in view the increase in day to day needs of the minor vis- -vis inflationary trend in the country there existed strong factual basis for grant of annual increase in the maintenance of the child.

Khadiija Bibi and others v. Abdul Raheem and others 2012 SCMR 671 distinguished.

Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 rel.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of dowry articles---Trial Court decreed the claim in favour of wife---Appellate Court allowed the appeal and prayer of recovery of dowry articles was declined---Non-exhibition of list of dowry articles---Effect---Petitioner/husband in his written statement had not categorically denied factum of delivery of dowry articles and simply stated that no articles were shifted to his house---Stance of the petitioner was not acceptable as from the evidence of the parties it was established that after marriage the wife resided in his house---Dowry articles given to her by her parents in natural course would have been shifted to petitioner's house---Ground urged regarding non-exhibition of list of dowry articles could not be made basis for non-suiting the wife for recovery of dowry articles particularly when the factum of delivery of dowry articles was not categorically denied by the husband---Family Court, after due appreciation of the evidence available on the record found on the issue of dowry articles, which had illegally been disturbed by the lower Appellate Court---Findings of the lower Appellate Court was set aside by High Court.

(e) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5, Sched.---"Maintenance"---Meaning---Expression "maintenance" had not been defined in the West Pakistan Family Courts Act, 1964---Dictionary meaning of maintenance was financial support given by one person to another, usually paid as a result of legal separation or divorce; especially alimony.

Malik Qamar Afzal for Petitioner.

Muhammad Ilyas Sh. for Respondents Nos. 1 and 2.

KHALID BASHIR VS Mst. SHAMAS-UN-NISA
2015 M L D 11
[Lahore]
Before Muhammad Farrukh Irfan Khan, J
KHALID BASHIR---Petitioner
Versus
Mst. SHAMAS-UN-NISA and others---Respondents
Writ Petition No.3266 of 2010, decided on 28/11/2012.

ORDER

MUHAMMAD FARRUKH IRFAN KHAN, J.---By means of this order, I propose to decide the aforementioned writ petition as well as Writ Petition No.5056/10 filed by respondent No.1 Mst. Shamas-un-Nisa as both these arises out of the single judgment of the learned lower appellate court. Hereinafter Khalid Bashir shall be referred to as petitioner, whereas, Mst. Shamas-un-Nisa shall be referred to as respondent.

2.Briefly the facts of the case are that the respondent filed two suits one for recovery of maintenance allowance and other for recovery of dowry articles against the petitioner. The learned Judge Family Court after appreciating the evidence available on record proceeded to decide both the suits through consolidated judgment and decree dated 22-7-2009 in the following terms:--

"In view of my findings on the above issues, the suit of the plaintiff No.1 to the extent of maintenance is dismissed, except Iddat period at the rate of Rs.8000 per month in gross Rs.24,000, whereas, plaintiff No.2 at the same rate of Rs.8000 per month since 25-7-2005 with annual increase of 30% starting from 16-1-2008 whereas her claim of dowry articles is decreed to the effect that she is entitled to collect her dowry articles, if available in original and if not available then the price of the same after deduction of 30% depreciation costs except seasonal articles as mentioned in the heading of cloths from Sr.Nos.1 to 6 and 16 to the extent of make up articles and that claim to the extent of jewellery is dismissed."

3.Being aggrieved the petitioner filed appeal which was partially accepted by the learned lower appellate court vide judgment and decree dated 3-5-2010 whereby the findings of the learned Judge Family Court was maintained to the extent of maintenance allowance, whereas, prayer of respondent for recovery of dowry articles was declined.

4.Being dissatisfied both the parties filed aforesaid constitutional petitions.

5.Learned counsel for the petitioner submits that the learned courts below erred in law while awarding maintenance allowance to the minor at such an exorbitant rate; that the petitioner is not in a position to pay maintenance allowance to the minor at such high rate; that the learned Judge Family Court also passed order for annual enhancement at unjustifiable rate of 30% which has illegally been upheld by the learned lower appellate court; that there is no provision in the Family Courts Act, 1964 for imposition of annual increase in the maintenance allowance. Relies on Khadija Bibi and others v. Abdul Raheem and others (2012 SCMR 671); that respondent is Homoeopathic doctor by profession and can maintain the minor on her own.

6.Conversely, learned counsel for respondent submits that the judgment and decree of the learned lower appellate court to the extent of non-suiting the respondent from recovery of dowry articles is result of misreading and non-reading of the evidence; that the respondent has proved the factum of delivery of dowry articles by her parents as per list Mark A through confidence inspiring evidence; that the stance of the petitioner in this respect is full of contradiction; that learned lower appellate court was not justified in declining the decree for recovery of dowry articles merely on the ground of non-exhibition of list of dowry articles.

7.I have heard the arguments of the learned counsel for the parties and gone through the record.

8.First of all I would like to dilate upon the question of maintenance allowance. The word 'Maintenance' has not been defined in the Family Courts Act, therefore, one has to look at its dictionary meaning. Various dictionaries define it as under:--

Black's Law Dictionary (8th Edition)

(v)Financial support given by one person to another, usu. Paid as a result of legal separation or divorce; esp. Alimony. Maintenance may end after specified time or upon the death, cohabitation, or remarriage of the receiving party."

Chambers Dictionary (Page 827)

"Maintenance: a money paid by one person to support another, as ordered by a court of law, e.g. money paid to an ex-wife and/or children, following a divorce."

WORDS and PHRASES Permanent Edition Vol. 26 West Publishing Co. (page 97)

"Maintenance" has been defined as a word of general welfare and comprehends food clothing and medical care."

9.In case reported as Abdul Rauf and others v. Mrs. Shereen Hassan (PLD 2001 Supreme Court 31) it is provided:--

"The word 'maintenance' has been defined in Concise Oxford Dictionary, as "1. the process of maintaining or being maintained; 2. the provisions of the means to support life." Liberally interpreting the word 'maintenance', it would be a moral obligation upon the parents to provide the means to support the life of their children."

In case reported as Muhammad Asad v. Humera Naz (2000 CLC 725) it has been defined as under:--

"The definition of maintenance in Islam is Nifka, in the language of law it signifies all those things which are necessary to the support of life, such as food, clothes and lodging."

10.At page 607 Fatawa Alamgiry Vol. 2 Qanuni Kutab Khana Lahore it has been stated that "if father is not disabled but is extremely poor to maintain his children then mother may be ordered to maintain the minor and amount so spent will be debt against father."

11.Section 370 of Muhammadan Law by D.F. Mullah provides as under:--

"370. Maintenance of Children and grandchildren.---(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S.325) does not relieve the father from the obligation or maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property."

12.In the above backdrop, it is quite evident that to maintain his child is obligatory on the father and his responsibility cannot be absolved merely on the basis that the mother is an earning hand. In this case neither the petitioner is stated to be poor nor incapable of earning by his own labour, therefore, he cannot be allowed to shed off his responsibility merely on the basis that the mother of the minor is a homoeopathic doctor and thus capable of earning livelihood.

13.Now coming to the quantum of maintenance allowance. The intent and purport of maintenance allowance to a minor child is to enable her/him to continue living at least, in the same state of affairs as the child was used to live prior to separation/divorce amongst the parents. It would be quite unjust and against the norms of propriety if due to separation amongst the parents the child has to relegate to a lower level of living standard or he/she is declined the level or standard of education which was being achieved by him/her prior to such unfortunate happening i.e. separation of parents. It is noted from the record that the minor/respondent was admitted in Beaconhouse School System in December 2006 while the divorce took place in 2007 and in spite of meagre interim maintenance allowance of Rs.1500 per month paid by the petitioner the respondent No.2 continued her study at the said school, admittedly being financed by her mother/ respondent No.1 and is still getting her education in the same school, therefore, while awarding her maintenance the above consideration should have been given paramount importance. However, at the same time, there is no escape from the fact that financial status of the father is also to be taken into consideration while awarding maintenance. Respondent in her pleadings has stated and proved through evidence that the petitioner belongs to a well off family and is a tax payer besides having substantial family property which he will ultimately inherit. Further, the petitioner also owns a life insurance policy which he is maintaining regularly. However, she has not been able to prove the exact scale of earning of the petitioner. A minute perusal of the evidence and pleadings of the parties also shows that the petitioner's stance throughout has been evasive as to his financial status and he has not disclosed before the Court his exact income. He has claimed that he is merely a salesman and doing a private job but at the same time he has failed to controvert the evidence on record that he has an income tax number and is tax payer which leads to the conclusion that the petitioner has either some other private business in addition to his job or if that is not so then his salary/ income surely exceeds such a level so as to bring him in the net of income tax payees. For the reasons discussed above, this Court is convinced that maintenance allowance of the minor @ of Rs.8,000 per month fixed by the learned Judge Family Court and affirmed by the learned lower appellate court is neither harsh nor exorbitant.

14.So far as its annual enhancement at the rate of 30% is concerned, the learned counsel for the petitioner while relying upon the case reported as Khadeeja Bibi and others v. Abdul Raheem and others (2012 SCMR 671) has laid a lot of stress that annual enhancement is against the statutory provisions of law. The relevant extract of the above esteemed judgment is reproduced as under:--

"The other question as to automatic annual increase in the maintenance for the minor children has been dealt with by the High Court in para 7 of the impugned judgment. At present, there appears to be no factual basis brought on record to justify such annual increase. The learned counsel for the petitioner, however, states that he will be in a position to lead evidence in the form of financial statistics including the Sensitive Price Index ("SPI") to persuade the trial Court to grant annual increase in line with such statistical data."

The Hon'ble Supreme Court in the aforesaid judgment in its utter wisdom set aside the orders impugned before it on the basis that there was no factual base on record before the Court to justify annual increase in the maintenance. The facts and circumstances of the case in hand are quite distinct. Here in this case admittedly minor is getting education in Beacon House School System and in the year 2007 her monthly tuition fee was Rs.3660 which in November 2012 has increased to Rs.14,450 per month. Learned counsel for the respondent has placed on record challan form reflecting current monthly tuition fee in support of his assertion. Moreover, as discussed supra, the petitioner is intentionally avoiding to disclose his actual income, whereas, after divorce respondent No.1 showed her inability to lead further evidence regarding the income of the petitioner, therefore, keeping in view the increase in day to day needs of the minor vis-a-vis inflationary trend in our country there exist strong factual basis for grant of annual increase in the maintenance of the minor. However, enhancement at the rate of 30% in my humble view is unjustified, therefore, findings of the learned courts below to this extent are modified and annual increase in the maintenance allowance of the minor is awarded at the rate of Rs.15% per year instead of 30%. While reaching to this conclusion I am fortified by the case reported as Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others (PLD 2009 Supreme Court 760).

15.As far as suit for recovery of dowry articles is concerned, the petitioner in his written statement has not categorically denied factum of delivery of dowry articles to the respondent rather in para No.6 of his written statement he denied receipt of any gift from the respondent. Even in his affidavit Ex.D1 he has not denied the factum of giving of dowry articles and simply stated that no articles were shifted to his house. This stance of the petitioner is not acceptable as from the evidence of the parties it has been established that after marriage respondent resided in petitioner's house, therefore, in natural course the dowry articles given to her by her parents would have been shifted to petitioner's house. The ground urged regarding non-exhibition of a list of dowry articles cannot be made a basis for non-suiting the wife for recovery of dowry articles in particular when the factum of delivery of dowry articles was not categorically denied by the husband. Admittedly, respondent belongs to a well to do family and it is customary in our society that parents do give dowry articles to their daughters merely as a token of love. Learned Judge Family Court after due appreciation of the evidence available on the record recorded findings on the issue of dowry articles which has illegally been disturbed by the learned lower appellate court. Resultantly, the findings of the learned lower appellate court on this issue are hereby set aside and that of the learned Judge Family Court are restored.

16.So far as claim of respondent regarding gold ornaments is concerned, her prayer to this extent was declined by the learned Judge Family Court vide judgment and decree dated 22-7-2009 against which she did not file any appeal before the learned lower appellate court as such the findings of the learned Judge Family Court to this extent have attained finality and cannot be disturbed by this Court in its Constitutional jurisdiction.

17.Resultantly, both the writ petitions are disposed of in the above terms. No order as to costs.

JJK/K-4/LOrder accordingly.

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PROCEDURE FOR DIVORCE UNDER ISLAMIC LAW: (طلاق دینے کا طریقہ کار)

Q. What procedure have to be followed/adopted for divorcing a wife under the Muslim Family laws ordinance 1961

1. Introduction:

The Muslim family laws ordinance provides the procedure which has to following for divorcing the wife by a husband. he can pronounce Talaq in any form.

2. Procedure:

I. Notice:

(a) Notice to the chairman:

The husband shall send a notice to the chairman.

(b) Notice to the wife:

A copy of the notice shall be send to the wife.

(i) Form of notice:

Notice shall be in writing.

(ii) Purpose of notice:

The purpose of notice is to inform about the dissolution of the marriage.

(iii) Time for giving notice:

Notice shall be given at the time when the husband has pronounced divorce.

II. Reconciliation between the parties:

The chairman is required to bring about reconciliation between the parties for this purpose he is to give notice to the parties to nominate their representatives. however he cannot compel any person to appear before him.

III. Effectiveness of divorce:

Divorce would not become effective unless and until period of ninety days has elapsed with effect form the date of receipt of notice of divorce by the chairman of the union council and by the wife.

(i) Essentials:

(a) Notice to the chairman.

(b) Notice to the wife.

(c) Expiry of 90 days.

3. Divorce to pregnant woman:

Divorce to pregnant woman shall be effected by the delivery of the child:

4. Re-marriage of the same parties:

Nothing shall debar a wife whose marriage has been terminated by Talaq effective form remarriage the same husband without an intervening marriage with a third person unless such termination is for the time so effective.

5. Revocation of divorce:

The husband can revoke the divorce before the expiry of ninety days.

6. Punishment:

Whoever contravenes the provision shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.

7. Commencement of iddat:

(i) In case of divorce:

If case of divorce the period of iddat commences form the date of divorce. if the marriage was consummated.

Woman has not to observe the period of Iddat. if marriage was not consummated. in such case she can marry immediately after the Divorce.

(ii) In case of death:

The period of iddat commences form the date of death of her husband. she is bound to observe the period of iddat whether the marriage was consummated or not.

8. Conclusion:

To conclude i can say that divorce is the right of husband to to dissolve the marriage. in order to divorce the wife, the husband has to follow the procedure in accordance with the rules of Muslim family laws ordinance 1961.

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