--Condition written in column No.17 of Nikahnama was to the effect that in case the petitioner/husband had conducted/contracted second marriage, he would be liable to pay Rs. 1,00,000-

2010 Y L R 423

Muslim Family Laws Ordinance (VIII of 1961)---

----S.5---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of Rs. 1,00,000 by wife written in column No.17 of Nikahnama---Condition written in column No.17 of Nikahnama was to the effect that in case the petitioner/husband had conducted/contracted second marriage, he would be liable to pay Rs. 1,00,000---Such condition did not come under the purview of matrimonial matters, which were within the jurisdiction of Family Court---Matter regarding damages envisaged in column No.17 of the Nikahnama was not amendable to the jurisdiction of the Family Court, but could only be pursued before the civil court of general jurisdiction---Impugned judgments and decrees passed by the courts below, were set aside, in circumstances.

Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007, Lahore 515 ref.

Malik Javed Akhtar Wains for Petitioner.

Mian Zahoor Amjad Qureshi for Respondents.

 MUHAMMAD AMJAD VS AZRA BIBI
2010 Y L R 423
[Lahore]
Before Ch. Naeem Masood, J
MUHAMMAD AMJAD---Petitioner
Versus
AZRA BIBI and 2 others---Respondents
Writ Petition No.913 of 2008, decided on 04/05/2009.

ORDER

CH. NAEEM MASOOD, J.---This writ petition is directed against the judgment and decree dated 21-9-2006, passed by the learned Judge Family Court, Jalalpur Pirwala and the judgment and decree dated 29-2-2008, passed by the learned Additional District Judge, Multan.

2. Brief facts of the case are that the parties, i.e. the petitioner and respondent No.1, have been litigant drawn in the matrimonial disputes of recovery of maintenance, recovery of dower, restitution of conjugal rights and suit for recovery of Rs.1,00,000. The present controversy is confined to the recovery of Rs.1,00,000 arising out of the Suit No.21-F/2006. Both the learned lower Courts after appraising the evidence have come to the conclusion that the petitioner is liable to pay Rs.1,00,000.

3. The learned counsel for the petitioner vehemently contends that Rs.1,00,000 is a condition written in column No.17 of the Nikahnama to the effect that in case the petitioner had conducted/contracted second marriage, he would be liable to pay Rs.1,00,000 and that this condition of damages does not come under the purview of matrimonial matters to be brought before the Family Court.

4. The learned counsel of respondent No.1, however, supports the impugned judgments and decrees.

5. I have heard the parties at length and have perused the record minutely.

6. It is a fact that the damages of Rs.1,00,000 in case of re-marriage of the petitioner is written in column No.17 of Nikahnama. By now, the law is well-settled that such a condition does not come under 13 the purview of matrimonial matters, which are within the jurisdiction of Family Court. It has been clearly laid down in PLD 2007, Lahore 515 titled "Muhammad Akram v. Mst. Hajra Bibi and 2 others" which reads as under:-

"---S.5 & Sched.---Transfer of Property Act (IV of 1882), Ss.130 and 3-Constitution of Pakistan, 1973 Art. 1999---Constitutional petition---Column No.17 of the Nikahnama contained the stipulation that in case of sour relations between the spouses or divorce by the husband, a sum of Rs.1,00,000 shall be paid to the wife---Suit of wife for dissolution of marriage was decreed, whereafter she brought the suit for recovery of Rs.1,00,000 which was dismissed by the Family Court holding that her suit was not maintainable before the Family Court and she was liable to file ordinary civil suit for the recovery of the said amount---Appellate Court, however, found that matter fell within the purview of Entry No.9 of the Schedule to S.5, West Pakistan Family Courts Act, 1964 and suit was competent---Validity--Held, Entry No.9 of the Schedule to S.5, West Pakistan Family Courts Act, 1964 did not cover any amount which was not yet the `property of the wife' and she only had a claim to recover the amount from the husband on the basis of any special condition incorporated in the Nikahnama---Such claim could not be equated as a `personal property belonging to wife'---Amount in question was also not covered under the rule of `actionable claims' as envisaged by S.130, Transfer of Property Act, 1882---Family Court in circumstances, had no jurisdiction in the matter and the suit in that behalf before the said Court was not competent-Principles."

7. The issue involved in the case by now has been settled by this Court. The matter regarding the damages envisaged in column No.17 of the Nikahnama is not amendable to the jurisdiction of the Family Judge. The matter can only be pursued before the Civil Court of general jurisdiction.

8. The writ petition is, therefore, accepted and the impugned judgments and decrees, passed by the learned lower Courts, are hereby set aside.

H.B.T./M-420/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.