O.XIII, R.2---West Pakistan Family Courts Act,
S.5---Filing of petition for leave to appeal
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.
P L D 2006 Supreme Court 457
Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ
Mst. FARAH NAZ---Appellant
Versus
JUDGE FAMILY COURT, SAHIWAL and others-Respondents
Civil Appeals Nos. 1336 and 1337 of 2005, decided on 6th March, 2006.
(On appeal from judgment of Lahore High Court, Mutlan Bench dated 15-12-2005 passed in Writ Petitions Nos. 3179 and 4259 of 2004).
(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.
(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.
(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.
Judgment
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.
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