نکاح کے کالم نمبر 19 میں لکھی جانے والی شرائط غیر اسلامی ہیںنکاح کے کالم نمبر میں شرائط لکھی جاتی ہیں کہ اگر شوہر طلاق دے گا یا دوسری شادی کرے گا تو پہلی بیوی کو جرمانہ یا ہرجانہ ادا کے گا تاہم اس بار اعلی عدلیہ کے بیشتر فیصلہ جات موجود ہیں جس میں کہا گیا ہے کہ ایسی شرائط غیر اسلامی ہیں اور ناقابل عملداری ہیں.ملاہذا ہوCondition of compensation mentioned in column no 19 of nikahnama in case of divorce by husband is declared againt the injunctions of islam as no embargo can be made on the right given by the islam husband to divorce his wife. MUHAMMAD AWAIS VS Mst. ZAHIDA PARVEENP L D 2012 Lahore 38P L D 2012 Lahore 38Before Syed Muhammad Kazim Raza Shamsi, JMUHAMMAD AWAIS---PetitionerVersusMst. ZAHIDA PARVEEN---RespondentWrit Petition No.16081 of 2010, decided on 25/11/2011.
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Jurisdiction of Family Court---Scope---Plaintiff (wife) filed suit in Family Court for recovery of gold ornaments on the basis that in Column No.17 ofNikah Nama, there was a condition that gold ornaments weighing eight tolas valuing Rs.2,00,000 would be given to her, but the defendant (husband) did not give said ornaments---Contention of defendant was that suit filed before Family Court was not maintainable as same was triable by civil court---Family Court dismissed the suit holding that matter was not triable by a Family Court---Appellate Court disagreed with the findings of Family Court and found that claim of plaintiff fell within the jurisdiction of Family Court and Appellate Court remanded the case for fresh trial to the Family Court---In the present case gold ornaments, in question had never changed hands from the defendant to the plaintiff---Till determination of entitlement to acquire belongings, it could not be said that the gold ornaments had become the property of the plaintiff and that she had acquired proprietary rights---Entry in Column No.17 of the Nikah Nama was still a promise of the defendant with the plaintiff, enforceable through courts of plenary jurisdiction, but on the basis of such promise, family suit was not maintainable as it fell out of the ambit of S.5 and Schedule of West Pakistan Family Courts Act, 1964---Family Court had no jurisdiction to determine the claim lodged before it by the plaintiff---Appellate Court had misinterpreted the law by holding that the claim of plaintiff was actionable before the Family Court---Impugned judgment of Appellate Court was set aside declaring same tobewithoutlawfulauthorityandofnolegalconsequence.
Muhammad Akram v Mst. Hajira Bibi PLD 2007 Lah 515; Nasrullah v District Judge PLD2004Lah.588andSyedMukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 rel.
Nasrullah v. District Judge PLD 2004 Lah 588 distinguished.
Sardar Abdul Mjeed Dogar for Petitioner
Ch. Abdul Majeed for Respondent No.1
Date of hearing: 25th November, 2011.
JUDGMENT
SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---This constitutional petition is directed against the judgment dated 21-6-2010 passed by the learned Additional District Judge, Okara whereby he accepted the appeal and remanded the case to the learned Judge, Family Court, Okara for decision afresh.
2. Facts of the case briefly stated are that the respondent Mst. Zahida Parveen instituted a suit for recovery of gold ornaments in the Family Court at Okara against the defendant on the ground that in column No.17 of her Nikah Nama, there is condition that gold ornaments weighing eight tolas valuing Rs.2,00,000/- shall be given to her which shall be her property and that the defendant did not give her ornaments thus, prayed for the decree of eight tolas gold ornaments or as alternate value of Rs.2,00,000.
3. The suit was contested by the present petitioner/defendant with an assertion that the suit was not maintainable as the claim made therein was triable by Civil Court and Family Court has no jurisdiction to entertain the suit.
4. The learned trial court after hearing the parties, while agreeing with the objection of the defendant dismissed the suit holding that the matter was not triable by a Family Court.
5. Mst. Zahida Parveen assailed the findings of the Family Court in the appeal where the learned appellate court disagreed with the findings of Family Court and held that claim of the appellant fell within the jurisdiction of Family Court thus by accepting the appeal remanded the case for fresh trial to the court of first instance. Judgment of the appellate court is subject-matter of instant constitutional petition.
6. Learned counsel for the petitioner submitted that this court in the case of Muhammad Akram v. Mst. Hajira Bibi (PLD 2007 Lahore 515) has candidly observed that only the claim of personal belongings and property of the bride could be entertained by a Family Court, the condition contained in column No.17 of the Nikah Nama, in respect of gold ornaments does not constitute personal property and belongings of the respondent thus, the learned appellate court has misdirected itself in holding that matter in hand is entertainable by a family court.
7. On the other hand, learned counsel for respondent No.1 supported the judgment of the learned appellate court and argued, that right created by Column No.17 of Nikah Nama could be enforced through a family suit. He has cited the case of Nasrullah v. District Judge (PLD 2004 Lahore 588).
8. I have considered the submissions made by the learned counsel for the parties and perused the record.
9. The case-law cited at the bar has minutely been examined and it is noticed that the Hon'ble Supreme Court in the case of Syed Mukhtar Hussain Shah v. Mst. SabaImtiaz and others (PLD 2011 Supreme Court 260) has approved the ratio of the case of Muhammad Akram (supra) and dissented with view taken by this Court in the case of Nasrullah (supra). The ratio of the reported judgment of the Hon'ble Supreme Court is that for determination of entry in the column of Nikahnama with respect to acquisition of property as personal belongings of bride, civil court is the proper forum, and family court is not competent to decide question.
10. Lending support from Syed Mukhtar Hussain Shah's case (supra), facts of instant case have been examined. It is alleged by the respondent in para 3 of her plaint that the petitioner has to give eight tolas of gold ornaments to her in view of the condition contained in column No.17 of her Nikah Nama which ornaments till the institution of the suit had not been given to her. It was further asserted that when she raised demand for giving such ornaments, the petitioner divorced her. This averment contained in the plaint necessarily shows that there was allegedly a promise of the petitioner to bequeath the gold ornaments to the respondent which was not fulfilled as such, claim for the recovery of the said gold ornaments has been lodged in the family court. It flows from the assertion that till date, those gold ornaments have not become the personal property or belonging of the respondent. Under section 5 and Schedule of West Pakistan Family Courts Act, 1964, a Family Court has jurisdiction to entertain the claim of a wife in respect of the belongings which have been given to her at the time of her marriage, not as dowry, or acquired subsequently by bride as gift. In the instant case, the gold ornaments never changed hands from the petitioner to the respondent as such, till determination of entitlement to acquire these belongings, it cannot be said that the gold ornaments had become the property of the respondent and she has acquired proprietary rights. The entry in column No.17 of the Nikah Nama is still a promise of the petitioner with the respondent, enforceable through the courts of plenary jurisdiction but on the basis of this promise, a family suit is not maintainable as it falls out of ambit of section 5 and Schedule of Act supra.
11. For what has been discussed above, I am of the firm view that the Family Court has no jurisdiction to determine the claim lodged before it, by respondent bride. The learned appellate court has misinterpreted law by holding that the claim of the respondent was actionable before the learned Family Court thus, the judgment rendered is without lawful authority.
12. For the foregoing reasons, the petition is allowed declaring the impugned judgment as without lawful authority and of no legal consequences. Resultantly, the same is set aside and the judgment recorded by the learned Judge Family Court, Okara is restored.
H.B.T./M-383/LPetition allowed.
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