Any declaration as to status where one party alleges marriage and other denies, it would amount to a decree for jactitation of marriage. A suit for affirmative declaration about existing or subsisting of marriage is as much as a suit relating marriage as a suit fr negative declaration....there seems no reason why a suit for jactitation of marriage will not include a suit for declaration by a person falsely posing that he is the spouse of defendant.
Where a special law is silent on a particular point, there is no bar in having recourse to the provision of general law except that the provision of general law is inconsistent with the provision of special law
1989 CLC 1805 KARACHI-HIGH-COURT-SINDH Side Appellant : MUZAFFAR ALISide Opponent : MEHRUN NISSA
West Pakistan Family Court Act 1964
S. 14--Appeal--Power to hear appeal includes impliedly if not expressly, the power to confirm or set aside the judgment of Family Court or to remand the case for retrial on any issue or to frame any other issue which arises out of pleadings, but was omitted to be framed by the Family Court, and which was necessary for proper adjudication of the case, resulting in injustice to either party-Provision of S.14 of the Act although does not specifically mention the power of remand, yet the section does not even make a mention of allowing or dismissing the appeal--Where a special law is silent on a particular point, there is no bar in having recourse to the provision of general law except that the provision of general law is inconsistent with the provision of special law --Order for a remand would be implicit in the power of hearing an appeal and deciding the case either by confirming the judgment or dismissing it or ordering for rehearing the entire case or on a particular issue.
--Sections 17-A & 17-B of the Act 1964, provided that by having used the word " may " the Legislature did not intend to make passing of decree mandatory, rather it had been left upon the discretion of the Trial Court to consider the facts and circumstances of each case
2021 C L C 1300
Family Courts Act (XXXV of 1964)---
.....................
----Ss.17-A & 17-B---Interim maintenance allowance---Non-payment---Penal consequences---Decreeing the suit forthwith---Discretion of the Court---Scope---If defendant defaulted, in making payment of interim maintenance, despite orders by the Family Court, penal action in terms of S.17-A of the Family Courts Act, 1964 ('the Act 1964') provided two separate penal consequences; first striking off the right of defence and second to decree the suit---Sections 17-A & 17-B of the Act 1964, provided that by having used the word " may " the Legislature did not intend to make passing of decree mandatory, rather it had been left upon the discretion of the Trial Court to consider the facts and circumstances of each case---Section 17-B of the Family Courts Act, 1964 further explained the circumference as well as the mode of exercising the authority in shape of making reasonable inquiry of the matter-in-question before decreeing the suit due to default i.e. the Court may issue a Commission to examine any person; make a local investigation; and inspect any property or document.
Family Courts Act (XXXV of 1964)---
......................
----S.5, Sched. & S. 17-A ---Civil Procedure Code ( V of 1908), O.VI, R.17---Interim maintenance allowance for wife and minors---Quantum and entitlement---Scope---Plaintiff-lady filed suit for maintenance allowance for minors and herself---Defendant moved application for amendment in the pleadings contending that the fact that he had divorced the mother of the minors could not be mentioned in the written-statement submitted on his behalf by his special attorney in connivance with plaintiff---Family Court fixed amount of interim monthly maintenance allowance of both the minors @ Rs.15,000/- each and Rs. 20,000/- for the mother of the minors---Family Court after failure of the defendant to deposit the interim maintenance allowance on three dates of hearing, struck off his right of defence and decreed the suit under S.17-A of the Family Courts Act, 1964---Appellate Court maintained the order of the Family Court---Both the father and mother invoked constitutional jurisdiction of the High Court to assail quantum/entitlement of the maintenance allowance---Held, that record verified the fact that there had been a default on the part of the defendant in payment of interim maintenance---Although it could not be said that the Family Court wrongly invoked the provisions of S.17-A of the Act, however, material fact regarding divorce should not have been ignored---Copy of the Divorce Deed was not only on the record but the same was also acknowledged from the fact that the plaintiff had filed a suit challenging the validity of the said Divorce Deed---Since the fate of the claim of the plaintiff for recovery of her maintenance allowance hinged upon the factum of her being in Nikah of the defendant or not, therefore, the application for amendment in the statement ought to have been decided before passing a decree---In consequence of peculiar circumstances of the present case as well as the amount of maintenance allowance demanded by the minors/ their mother, it was incumbent upon the Trial Court to have sought evidence of the parties in proof of justification concerning the quantum of maintenance---High Court set aside the decrees and judgments passed by both the Courts below and remanded the matter to the Family Court to decide the quantum of maintenance after taking evidence of the petitioner/defendant vis-a-vis his financial status---High Court directed that the Family Court shall also decide the application moved by the defendant for seeking amendment in his written-statement before passing any order regarding maintenance for the mother of the minors owing to the plea of divorce raised by the defendant ; that the Family Court shall also fix interim maintenance allowance after hearing both the parties and considering financial competency of the father who shall regularly pay the same---Constitutional petition of the mother of the minors was disposed of---Constitutional petition of the father was allowed, in circumstances.
Family Courts Act (XXXV of 1964)---
...... ........
----S.5 ,Sched. & S.17-A ---Suit for maintenance allowance for minors and wife---Interim maintenance allowance fixed by the Court---Non-payment of---Suit was decreed as penal consequence---'Decree'---Scope---Family Court ordered the defendant to deposit interim maintenance allowance of minors as well as that of wife/plaintiff fixed by the Court and after his failure to deposit the same on three dates of hearing struck of his right of defence and decreed the suit under S.17-A of the Family Courts Act, 1964---Held, Penal consequence to decree the suit provided under S.17-A of the Family Courts Act, 1964 embraced the expression of "decree" which though had not been defined in the Act, yet the decree invariably referred to judicial determination of a matter in controversy and such determination could not be done without application of mind in accordance with evidence and law on the subject---Impugned judgment , therefore, mechanically and technically upholding prayer of a suit could not be termed a decree---High Court set aside the impugned decrees and judgments passed by both the Courts below and remanded the matter to be decided afresh---Constitutional petition of the father was allowed, in circumstances.
Family Courts Act (XXXV of 1964)---
...................
----S.5, Sched. & Ss.17-A & 12-A---Maintenance allowance, grant of---Interim maintenance allowance, fixation of ---Family Court, powers of---Family Court, for grant of maintenance allowance, was to see that maintenance allowance, was indispensible right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings---Although S.17-A of the Family Courts Act, 1964 empowered the Family Court to pass order for grant of interim maintenance at any stage of the proceedings, in the normality of circumstances, the same must be passed after hearing both the parties, unless the attitude and conduct of the defendant/father was evasive---Order for grant of interim maintenance was to be made on the basis of tentative assessment of material available on file and keeping in view the social status of the parties---Both material available and social status was to be mentioned in the order for grant of interim maintenance---Quantum of interim maintenance was to be "bare minimum" to meet the day to day needs of the recipients in the narrow context---Although the Family Laws had been enacted to promote , protect and advance the rights of woman and children yet at the interim stage the version of the defendant be given a sympathetic or some-what preferable consideration because non-payment of interim maintenance allowance would cut throat of his valuable rights i.e. right to defence and inconsequential effects, children/women would be the loosers and deprived parties---High Court observed that if the case was not decided within the statutory period as given in S.12-A of the Act either party might apply to the High Court for appropriate direction, however, order for grant of interim maintenance shall hold the field unless reviewed by the High Court under S.12-A of the Act or Family Court itself reviewed the same at any stage.
"تین پوشیدنی کپڑوں میں مار پیٹ کر کے گھر سے نکال دیا" جیسے گھسے پٹے فرسودہ الزامات اب عائلی عدالتوں میں ثابت بھی کرنا ہںوں گے۔
2020 MLD 1147,
It is the duty of the family courts to consider the following guiding principles.
a) After recording of evidence by the Family Court, if it appears that any spouse who has suffered the psychological and physical injuries at the hands of other spouse covering under the offences referred in Part-II i.e. Sections 337A(i), 337F(i), 341, 342, 343, 344345, 346, 352 and 509 PPC, the learned Family Judge has to proceed against the perpetrator and award sentence in accordance with the law.
b) The Family Court while considering the offences referred in Part-II of the Schedule should give clear findings and verdict while dilating upon the evidence, even with or without framing of charge of that offence as the legislation has used the term “notwithstanding anything contained in the Code of Criminal Procedure, 1898”.
c) The Family Court can summon the evidence of expert psychiatrist, doctor, CMO or the relevant doctor who had treated the victim in such type of cases.
d) The Family Court, before pronouncement of the final judgment, if prima facie, seem the offences referred in Part-II of the Schedule, may issue a show cause to the perpetrator or the spouse accused of the offence(s) in order to justify the requirements of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 by giving full opportunity for his defence and may record his/her statement being an accused as required under Section 342 Cr.P.C. or 340(2) Cr.P.C., if so required.
e) The Family Court may also call the summary inquiry through the relevant police authorities or seek a report and treat all those reports, record and documents as part of trial and may also provide the copies of those documents to the person accused of the charge before final pronouncement of the judgment.
f) The Family Court, while deciding the issue of cruelty, may frame specific charge for the offence, consider the evidence on the touchstone and requirement of ingredients of offences referred in Part-II of the Schedule and pass a sentence simultaneously in the same judgment or may proceed separately in accordance with procedure provided under the Cr.P.C.
g) The Family Court who has not given any findings on Part-II of the Schedule (of the offences) in its judgment despite availability of evidence in the Family Court jurisdiction, shall be treated as misconduct on its part, which has to be dealt with separately by the High Court on its administrative side...!!
-Kidnapping, abduction or inducing woman to compel for marriage etc, marrying again ........
2020 YLRN 53 Gilgit-Baltistan
WALI KHAN VS State
S. 497---Penal Code (XLV of 1860), Ss.365-B, 494, 495, 193, 202 & 114---Kidnapping, abduction or inducing woman to compel for marriage etc, marrying again during lifetime of husband or wife, same offence with concealment of former marriage from person with whom subsequent marriage was contracted, punishment for false evidence, intentional omission to give information of offence by person bound to inform, abettor present when offence committed---bail, grant of---Further inquiry---Accused was neither directly nominated in the FIR nor any specific role had been attributed to him---Ex-husband of alleged abductee had filed an affidavit , wherein, he stated that he had already divorced her in the year 2014 and after about 4/5 months of divorce, she had contracted second marriage--- Principal accused had already been granted bail---Rule of consistency was applicable to the case of accused---Case of the accused required further inquiry into his guilt---bail was granted, in circumstances.
Talaq by husband residing abroad
Procedure.
PLD 2020 Lahore 679
Where husband is not a Pakistani National or even if both husband and wife are not Pakistani national they can get divorce in Pakistan provided that the marriage is registered in Pakistan by adopting following procedure, in case of husband:-
1. Husband will send a power of attorney to his lawyer;
2. Power of attorney should be attested from the Pakistani embassy or consulate of the country where he is residing;
3. Where a lawyer receives the power of attorney, he will proceed according to law;
4. Proceedings of overseas divorce in Pakistan are conducted in Arbitration council
5. Minimum 90 days proceedings will be conducted by lawyer in arbitration council;
6. After the proceedings of overseas divorce in Pakistan, a divorce certificate will be issued by NADRA through arbitration council and this certificate is considered as sole and only proof of divorce.
--Validity of Nikkah/marriage where girl had obtained puberty--
PLD 2021 LAHORE 21
Child Marriage Restraint Act (XIX of 1929)---
----Ss. 8 & 2(b)---Validity of Nikkah/marriage where girl had obtained puberty---Scope---Petitioner, who stated that she had contracted marriage on her own free-will, impugned order of Magistrate whereby it was ordered that she either remain in custody of Dar-ul-Aman or be allowed only to be handed in custody of her natural guardian and should not be allowed to go with her alleged husband---Validity---Medical Board constituted by Court had in its report stated that petitioner was 14/15 years of age and had obtained puberty---Girl who had attained puberty may contract marriage with a man of her choice and was not necessary for such girl to obtain consent of her Wali/ Guardian, and in such a case, contention that such marriage/Nikkah should not be recognized under Child Marriage Restraint Act, 1929 had no force---Constitutional petition was allowed, accordingly.
PLD 2021 LAHORE 21
Before Tariq Saleem Sheikh, J
MUHAMMAD KHALID---Petitioner
Versus
MAGISTRATE 1ST CLASS and 2 others---Respondents
Writ Petition No. 13208 of 2019, decided on 9th October, 2019.
ORDER
TARIQ SALEEM SHEIKH, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner has challenged the vires of order dated 31.7.2019 passed by Magistrate Ist Class, Multan and seeks release of his wife Mehvish Bibi from Dar-ul-Aman, Multan.
2. Brief facts of the case are that on 18.4.2019 Mehvish Bibi daughter of Respondent No.3 contracted marriage with the Petitioner without the blessings of her family. Respondent No.3 lodged FIR No.242/2019 dated 22.6.2019 at Police Station Saddar Shujabad, District Multan, for an offence under Section 365-B, P.P.C. Thereafter, she filed Writ Petition No.9705/2019 before this Court seeking direction to SHOs of Police Stations New Multan, Saddar Shujabad and Saddar Lodhran to refrain from harassing her which was disposed of vide order dated 25.6.2019 and the CPO, Multan, was directed to look into the matter. Mehvish Bibi then filed Writ Petition No.10785- Q/2019 for quashing of FIR No.242/2019, supra, which was disposed of as not pressed vide order dated 18.7.2019 when the Investigating Officer made a statement that he would finalize the investigation expeditiously. On 15.7.2019 Mehvish Bibi moved an application before Magistrate Ist Class, Multan (Respondent No.1), praying that she may be sent to Dar-ul-Aman because she was apprehending danger to her life. The Magistrate accepted the application vide order dated 15.7.2019. A week later, on 23.7.2019, she moved another application before the Magistrate for her release from Dar-ul-Aman. On 31.7.2019, she was produced before the Magistrate and she got recorded her statement to the effect that she did not feel threat to her life any more and wanted to leave the sanctuary. Respondent No.3 produced her Form-B showing that she was 13 years old minor and urged the Magistrate to hand over her custody to him as he was her natural guardian. The Magistrate agreed and vide order dated 31.7.2019 directed the Superintendent, Dar-ul-Aman, to hand over the girl's custody to the natural guardian or the guardian appointed by the Court and, if she refused to go with him, keep her in Dar-ul-Aman in accordance with law till further orders. Hence, this petition.
3. The learned counsel for the Petitioner submits that Mehvish Bibi contracted marriage with the Petitioner with her own free will and Respondent No.3 lodged a false FIR against him that he had abducted her. Mehvish Bibi had admitted the factum of her marriage even before this Court during the course of hearing of Writ Petition No.10785- Q/2019 when the Investigating Officer had recorded her statement under Section 161, Cr.P.C. She could not be kept in Dar-ul-Aman against her will and should be released. The learned Assistant Advocate General has supported these contentions.
4. On the other hand, the learned counsel for Respondent No.3 has vehemently opposed this petition. He contends that Mehvish Bibi is a minor so her marriage is invalid in view of the restrictions imposed by the Child Marriage Restraint Act, 1929. In any case, Respondent No.3 being her natural guardian is entitled to her custody. He adds that since she is not willing to live with him, she should not be released from Dar-ul-Aman and be kept there till she attains majority. He has prayed for dismissal of this petition.
5. Arguments heard. Record perused.
6. This Court, vide order dated 17.9.2019, constituted a Medical Board to determine as to whether Mehvish Bibi has attained puberty. The Medical Board has submitted its report dated 5.10.2019 which states that her age is about 14 - 15 years and she is a pubert.
7. The marriage between the Petitioner and Mehvish Bibi is not disputed. In Muhammad Iqbal v. The State (PLD 1983 FSC 9) the Federal Shariat Court ruled that a girl who has attained puberty may contract marriage with a man of her own choice and it is not necessary for her to obtain the consent of her Wali. Reference in this respect may be made to Zarjuma alias Jamna Bibi v. Station House Officer, Police Station Saddar District Bhakkar and 4 others (PLD 2009 Lah. 546) wherein this Court held:
"The contents of the Nikahnama have been admitted by Respondents Nos.3 and 4. The statement of the abductee Mst. Zarina Mai as well as the presence of the Nikahnama belies the prosecution story as narrated in the FIR, which cannot be believed. When the Nikah has been admitted by Respondents Nos.3 and 4, law does not permit others to challenge the validity of Nikahnama when its contents are admitted by the husband and wife. In this regard, reliance is placed on the case of Dr. Ghulam Mustafa Solangi and 5 others v. The State (2005 PCr.LJ 1638). Moreover, the Nikah of an adult girl is not invalid for want of permission of Wali and further marriage is not invalid on account of the alleged absence of the consent of Wali. Reliance in this behalf is placed upon the case of Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308) and Hafiz Abdul Waheed v. Mrs. Asma Jahangir and another (PLD 2004 SC 219)."
8. The contention that this Court should not recognize the marriage between the Petitioner and Mehvish Bibi being in violation of the Child Marriage Restraint Act, 1929, has no force. In Mauj Ali v. Syed Safdar Hussain Shah and another (1970 SCMR 437) the Hon'ble Supreme Court of Pakistan held:
"Mr. A.G. Choudhri, learned counsel for the Petitioner, has contended that the High Court should not have accepted the application filed by the Respondent under Section 491, Cr.P.C. Mst. Musarrat being a minor girl should have been ordered to go with her father. He further contended that as a case was pending against Respondent No. 1 under Sections 363/366, P.P.C., the High Court should not have entertained an application under Section 491, Cr.P.C. The contention of the learned counsel has not impressed us. It is not disputed that Mst. Musarrat has attained the age of puberty and she had married with Respondent No.1 of her own free will. Such a marriage is valid according to Muhammadan Law. It was urged that such marriage is invalid under the Child Marriage Restraint Act and, therefore, it should not have been recognized by the High Court. This contention also has no force. Since the marriage is valid under the Muhammadan Law, Respondent No.1 is the guardian of Mst. Musarrat and the High Court was perfectly justified in allowing her to go with her husband."
The above view was reiterated in Mst. Bakhshi v. Bashir Ahmad and another (PLD 1970 SC 323) and followed in Zarina Khatoon v. District Magistrate, (South), Karachi and 5 others (PLD 1978 Kar. 374), Mst. Rani v. Roshan Masih and another (1986 PCr.LJ 1404) and Allah Bakhsh v. Safdar and others (2006 YLR 2936).
9. In view of the foregoing, Mehvish Bibi cannot be kept in Dar-ul-Aman. Accordingly, impugned order dated 31.7.2019 is set aside and Mehvish Bibi is ordered to be released and is allowed to go wherever she likes.
10. This petition stands allowed.
KMZ/M-149/L Petition allowed.
نکاح نامہ میں شوھر پر بیوی کو طلاق دینے کی صورت میں ہرجانہ کی ادائیگی کی شرط غیر شرعی اور غیر قانونی ھے۔ اور عدالت طلاق دینے کی صورت میں نکاح نامہ میں درج معاوضہ طلاق شوہر کے خلاف ڈگری نہ کرسکتی ھے
PLJ 2021 Lahore 485
Muslim Family Laws Ordinance, 1961 (VII of 1961)--
----Ss. 7 & 10--“Talaq” & “Dower”--Condition of divorce mentioned in Nikahnama--Suit for recovery of dower to the extent of 5-Tolas gold ornaments of Respondent No. 3 was dismissed and house measuring 05-Marlas was decreed and suit for recovery of Rs.5,00,000/- as per stipulation mentioned in Nikahnama was also decreed--Conditions mentioned in Column No. 16 of Nikahnama--Claim of recovery of Rs.500,000/- by the respondent/plaintiff from the petitioner/defendant on the ground of second marriage--it was mentioned in the Clause 19--Allah Almighty in Holy Qur’an has delegated uncovenanted powers to the husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds--A husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified
law--The husband has a right to divorce his wife from his free will and no condition can be imposed in this regard--The judgments of the learned Courts below to the extent of Issue No. 4 suffer from patent illegality and are liable to be set aside--Writ petition is hereby partly accepted.
[Pp. 487, 488 & 490] A, B, C, D, E, F & G
Ayat Nos.227-228 of Surah Al- Baqarah, 01st Ayat of Surah At-Talaq, the Sunnah of Holy Prophet from Hadith No. 235 of Bukhari Sharif, Section 105 Chapter XII of the Code of Muslim Personal Law (written by Dr. Tanzil-ur-Rahman, Ex-Judge of Sindh High Court, Volume 1) the Delegation of right of Divorce (Tafwid at-Talaq)
2008 SCMR 186 ; 2012 CLC 837; 2018 CLC 1844
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----Ss. 7 & 10--“Talaq” & “Dower”--Condition of divorce mentioned in Nikahnama--A husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified law. [P. 490] E
2008 SCMR 186
Malik Javed Akhtar Wains, Advocate for Petitioner.
Jam Ghulam Asghar, Advocate for Respondent No. 3.
Date of hearing: 8.2.2021.
PLJ 2021 Lahore 485
[Multan Bench, Multan]
Present: Ch. Muhammad Iqbal, J.
versus
ADJ etc.--Respondents
W.P. No. 1802 of 2019, heard on 8.2.2021.
Judgment
Through this writ petition, the petitioner has challenged the validity of consolidated judgment and decree dated 20.10.2017 only to the extent of dower passed by the learned Judge Family Court, Jalalpur Pirwala and consolidated judgment and decree dated 05.05.2018 passed by the learned Addl. District Judge, Jalalpur Pirwala who partly accepted the appeal of Respondent No. 3 and dismissed the appeal of the petitioner.
2. Brief facts of the case are that Respondent No. 3/plaintiff contracted marriage with the petitioner/defendant on 07.02.2016. Respondent No. 3 filed three suits for recovery of maintenance allowance and dowry articles valuing Rs.5,52,000/-, dower weighing 05-Tola gold ornaments and 05- Marlas constructed house as well as recovery of Rs.5,00,000/- against the petitioner in which the petitioner appeared and filed contesting written statement as well as also filed suit for restitution of conjugal rights. As many as 9 issues were framed which are as under:--
1. Whether the plaintiff is entitled for recovery of maintenance allowance from the defendant as prayed for, if so, on what grounds? OPP
2. Whether the plaintiff is entitled for recovery of dowry articles as prayed for from the defendant, if so, on what grounds? OPP
3. Whether the plaintiff is entitled to recover dower from the defendant as prayed for, if so, on what grounds? OPP
4. Whether the plaintiff is entitled to recover Rs.5,00,000/- from the defendant because of defendant’s second marriage without permission of plaintiff? OPP
5. Whether the suits of the plaintiff are false, frivolous, and concocted, the same are liable to be dismissed? OPD
6. Whether the plaintiff has not come to the court with clean hands and estopped by her words and conduct, if so, on what grounds? OPD
7. Whether the plaintiff has filed suits just to harass and blackmail the defendant, if so, on what grounds? OPD
8. Whether the defendant is entitled to the decree for restitution of conjugal rights as prayed for, if so, on what grounds? OPD
9. Relief.”
3. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.
16۔ پانچ مرلہ پلاٹ محلہ حافظ آباد میں مکان پختہ بنوا کر دونگا۔
The other copy of Nikahnama (Exh.P-3) of the petitioner with Mst. Rehana Mai Column No. 16 whereof also contains stipulation as under:-
16۔ 5 مرلہ مکان بستی ٹھار والی میں مکمل بنوا دیں گے جلال پور پیر والامحلہ حافظ آباد میں مکمل بنوا دونگا۔
But copy of Nikahnama (Exh.P-2) does not contain any cutting or tempering whereas copy of Nikahnama (Exh.P3) of the spouses contain certain cutting and interpolation but in this regard neither objection was raised in the written statement nor objected when it was got exhibited in the evidence by the petitioner whereas both aforementioned documents almost contain the same stipulation regarding Column No. 16 of the Nikahnama. It is also proved on record that house/plot measuring 05-Marlas situated at Hafizabad was settled between the parties. With regard to existence of cutting in Column
No. 16 of Ex.P3 Saeed Ahmad Nikah Khawan/ Registrar (PW-3) has clarified in his statement that in first leaf five marla constructed house situated at Basti Tharwali was mentioned in Nikahnama but later on same was crossed/cancelled and Mohalla Hafizabad City Jalapur Pirwala was mentioned with mutual consent of parties and this part of his statement has not been questioned/shaken in cross-examination which deposition is deemed to be correct/ admitted. As such, the learned courts below rightly passed the impugned judgments & decrees and no illegality has been committed.
Whether the plaintiff is entitled to recover Rs. 5,00,000/- from the defendant because of defendant’s second marriage without permission of plaintiff? OPP
227. But if their intention Is firm for divorce, Allah heareth And knoweth all things. | اور اگر ارادہ کر لیں طلاق کا تو بیشک اللہ ہر بات سننے والا، سب کچھ جاننے والا ہے۔ |
228. Divorced women Shall wait concerning themselves For three monthly periods. Nor is it lawful for them To hide what Allah Hath created in their wombs, If they have faith In Allah and the Last Day. And their husbands Have the better right To take them back In that period, if They wish for reconciliation. And women shall have rights Similar to the rights Against them, according To what is equitable; But men have a degree (Of advantage) over them. And Allah is Exalted in Power, Wise. (translation by Abdullah Yusuf Ali) | اور طلاق یافتہ عورتیں روکے رکھیں اپنے آپ کو تین حیض تک۔ اور نہیں جائز ہے ان کے لئے یہ کہ چھپائیں وہ اس کو جو کچھ پیدا کیا ہے اللہ نے ان کے رحم میں اگر وہ ایمان رکھتی ہیں اللہ پر اور آخرت کے دن پر۔ اور ان کے خاوند زیادہ حقدار ہیں انہیں لوٹا لینے (اپنی زوجیت میں) اس (مدت) میں اگر وہ چاہیں صلح کرنا۔ اور عورتوں کے بھی حقوق ہیں ویسے ہی جسے ان پر ہیں۔ (مردوں کے) دستور کے مُطابق البتہ مردوں کو عورتوں پر ایک درجہ حاصل ہے۔ اور اللہ غالب ہے بڑی حکمت والا ہے۔ (اردو ترجمہ): مرتبہ: مولانا سید شبیر احمد |
Further in 01st Ayat of Surah At-Talaq, Allah Almighty says as under:-
O Prophet! when ye Do divorce women, Divorce them at their Prescribed periods, And count (accurately) Their prescribed periods : And fear Allah Your Lord: And turn them not out Of their houses, nor shall They (themselves) leave, Except in case they are Guilty of some open lewdness. Those are limits Set by Allah : and any Who trans gresses the limits Of Allah, does verily Wrong his (own soul: Thou knowest not if Perchance Allah will Bring about thereafter Some new situation. (translation by Abdullah Yusuf Ali) | اے نبی! جب طلاق دو تم عورتوں کو تو طلاق دو تم انہیں اس طرح کہ وہ عدت شروع کر سکیں اور ٹھیک ٹھیک شمار کرو عدت (کے زمانہ) کا۔ اور ڈرو اللہ سے جو تمہارا رب ہے۔ اور نہ نکالو تم انہیں ان کے گھروں سے اور نہ وہ خود نکالیں الایہ کہ ارتکاب کریں وہ کسی کھلی بد کاری کا۔ اور یہ اللہ کی (مقرر کردہ) حدیں ہیں۔ اور جو تجاوز کرے گا اللہ کی مقرر کردہ حدود سے تو درحقیقت وہ ظلم کرے گا اپنی ہی جان پر۔ نہیں جانتے تم شاید کہ اللہ پیدا کردے اس کے بعد بھی (موافقت کی) کوئی صورت۔ (اردو ترجمہ) مرتبہ: مولانا سید شبیر احمد |
Further guidance in this regard can be taken from the Sunnah of Holy Prophet from Hadith No. 235 of Bukhari Sharif, which reads as under:-
اسماعیل بن عبداللہ، مالک، نافع، عبداللہ بن عمر سے روایت کرتے ہیں کہ انہوں نے اپنی بیوی کو رسول اللہ صلی اللہ علیہ وسلم کے عہد میں بحالت حیض طلاق دیدی حضرت عمر رضی اللہ تعالیٰ عنہ نے نبی ﷺ سے اس کے متعلق پوچھا، تو آپ نے فرمایا کہ اس کو رجوع کرنے کا حکم دو پھر وہ اسکو روکے رکھے، یہاں تک کہ پاک ہو جائے پھر حیض آئے پھر پاک ہو جائے پھر اگر چاہے تو صحبت کرنے سے پہلے طلاق دے یہی وہ عدت ہے جس کے لئے عورتوں کو طلاق دیئے جانے کا حکم اللہ تعالیٰ نے دیا ہے۔
Section 105 Chapter XII of the Code of Muslim Personal Law (written by Dr. Tanzil-ur-Rahman, Ex-Judge of Sindh High Court, Volume 1) the Delegation of right of Divorce (Tafwid at-Talaq) is described which is reproduced as under:
Delegation of the right of divorce: It is lawful for the husband to delegate to the wife the right of effecting divorce. In that event, however, his own right of effecting divorce shall not lapse.
Even otherwise, Section 7 (1) of the Muslim Family Laws Ordinance, 1961 deals with Talaq, which is reproduced as under:
“S. 7 ‘Talaq’. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.”
6. In view of above, this writ petition is hereby partly accepted only to the extent of findings of the learned Courts below to the extent of Issue No. 4 whereas to the extent rest of the findings, the same is dismissed.
(K.Q.B.) Petition accepted
Family Courts, Family Court could not consolidate suits for restitution of conjugal rights and dissolution of marriage-
I hold that there was no limitation on the power of the learned Family Court to make an order which was necessary for the ends of justice and to prevent abuse of its process. It is not at all the case of the petitioner that consolidation of suits in the present case was not necessary for the ends of justice and that it would not have led to abuse of process of the Court if any other procedure would have been adopted.
Family Courts, Family Court could not consolidate suits for restitution of conjugal rights ant dissolution of marriage-Held not correct
151-West Pakistan Family Courts Act (XXXV of 1964), S. 17Consolidation of suits-Contention that consolidation of suits could be effected under S. 151 of Code of Civil Procedure, 1908), and such section not being applicable to proceedings before Family Courts, Family Court could not consolidate suits for restitution of conjugal rights ant dissolution of marriage-Held not correct-Civil Court consolidates two suits fn exercise of its inherent powers and not in exercise of any power specifically conferred by S. 151-Powers of Family Court to make order necessary for ends of justice and to prevent abuse of its process, such as to consolidate two suits to avoid conflict of judgments, not subject to any limitation
P L D 1975 Lahore 567
Before Muhammad Afzal Zullah, J
LAL-Petitioner
versus
Mst. INAYAT BIBI AND ANOTHER-Respondents
Writ Petition No. 2006 of 1974, decided on 31st October 1974.
Civil Procedure Code (V of 1908)---
----S. 151-West Pakistan Family Courts Act (XXXV of 1964), S. 17Consolidation of suits-Contention that consolidation of suits could be effected under S. 151 of Code of Civil Procedure, 1908), and such section not being applicable to proceedings before Family Courts, Family Court could not consolidate suits for restitution of conjugal rights ant dissolution of marriage-Held not correct-Civil Court consolidates two suits fn exercise of its inherent powers and not in exercise of any power specifically conferred by S. 151-Powers of Family Court to make order necessary for ends of justice and to prevent abuse of its process, such as to consolidate two suits to avoid conflict of judgments, not subject to any limitation.
Ch. Muhammad Anwar Bhinuder for Petitioner.
ORDER
The grievance in this writ petition, wherein the challenge is to a decree for dissolution of marriage granted by a learned Family Court in favour of respondent No. 1, is mainly on the ground that the suit of the petitioner for restitution of conjugal rights was consolidated with the suit for dissolution of marriage, without competence. To be precise, the contention raised is that the Civil Procedure Code except specified provisions does not apply to the proceedings conducted under the Family Courts Act and because section 151 ibid, under which according to the learned counsel consolidation of suits can take place, is not such a provision, therefore, the learned Family Court was not competent to consolidate both the suits.
2. It is true that section 17 of the Family Courts Act provides that "save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure, 1908, except sections 10 and 11 shall not apply to proceedings before any Family Court". But I do not agree with the learned counsel that the consolidation of suits is done ordinarily by civil Courts under any provision of the Civil Procedure Code specifically so empowering the Court. Section 151 does not confer any power. It only preserves and keeps intact the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the Court. Looked at in this light if a civil Court consolidates two suits by making reference to section 151, C. P. C., it does so in exercise of its inherent power and not in exercise o any power specifically conferred by section 151. In reality, while doing so, section 10 of the C. P. Code also comes into play at least indirectly. Instead of staying the proceedings in one suit and permitting the other to continue with possible results of conflict of judgments in respect of the same subjectmatter, inherent powers are resorted to. The question arises whether, leaving aside the nomenclature given to the exercise of such powers, the Family Court has no power to make such orders as may be necessary for the ends of justice or to prevent the abuse of its own process. If the answer is that it can make such orders, then the next question would arise whether there is anything in the Family Courts Act which prescribes some special procedure which shall be deemed to limit or otherwise affect such power of the Court. The answer to this second question obviously is in the negative. After removing the technical restrictions contained in the Evidence Act and the Code of Civil Procedure, the power of the Family Courts to make 'such orders' has been protected as without any restrictive limitations.
3. In the light of the above discussion, I hold that there was no limitation on the power of the learned Family Court to make an order which was necessary for the ends of justice and to prevent abuse of its process. It is not at all the case of the petitioner that consolidation of suits in the present case was not necessary for the ends of justice and that it would not have led to abuse of process of the Court if any other procedure would have been adopted. For these reasons. I find no force in this petition and the same is dismissed in limine.
S. A. H. Petition dismissed.
Family Courts, Family Court could not consolidate suits for restitution of conjugal rights ant dissolution of marriage-
I hold that there was no limitation on the power of the learned Family Court to make an order which was necessary for the ends of justice and to prevent abuse of its process. It is not at all the case of the petitioner that consolidation of suits in the present case was not necessary for the ends of justice and that it would not have led to abuse of process of the Court if any other procedure would have been adopted.
Family Courts, Family Court could not consolidate suits for restitution of conjugal rights ant dissolution of marriage-Held not correct
151-West Pakistan Family Courts Act (XXXV of 1964), S. 17Consolidation of suits-Contention that consolidation of suits could be effected under S. 151 of Code of Civil Procedure, 1908), and such section not being applicable to proceedings before Family Courts, Family Court could not consolidate suits for restitution of conjugal rights ant dissolution of marriage-Held not correct-Civil Court consolidates two suits fn exercise of its inherent powers and not in exercise of any power specifically conferred by S. 151-Powers of Family Court to make order necessary for ends of justice and to prevent abuse of its process, such as to consolidate two suits to avoid conflict of judgments, not subject to any limitation
P L D 1975 Lahore 567 Before Muhammad Afzal Zullah, J LAL-Petitioner versus Mst. INAYAT BIBI AND ANOTHER-RespondentsWrit Petition No. 2006 of 1974, decided on 31st October 1974.
Civil Procedure Code (V of 1908)---
----S. 151-West Pakistan Family Courts Act (XXXV of 1964), S. 17Consolidation of suits-Contention that consolidation of suits could be effected under S. 151 of Code of Civil Procedure, 1908), and such section not being applicable to proceedings before Family Courts, Family Court could not consolidate suits for restitution of conjugal rights ant dissolution of marriage-Held not correct-Civil Court consolidates two suits fn exercise of its inherent powers and not in exercise of any power specifically conferred by S. 151-Powers of Family Court to make order necessary for ends of justice and to prevent abuse of its process, such as to consolidate two suits to avoid conflict of judgments, not subject to any limitation.
Ch. Muhammad Anwar Bhinuder for Petitioner.
ORDER
The grievance in this writ petition, wherein the challenge is to a decree for dissolution of marriage granted by a learned Family Court in favour of respondent No. 1, is mainly on the ground that the suit of the petitioner for restitution of conjugal rights was consolidated with the suit for dissolution of marriage, without competence. To be precise, the contention raised is that the Civil Procedure Code except specified provisions does not apply to the proceedings conducted under the Family Courts Act and because section 151 ibid, under which according to the learned counsel consolidation of suits can take place, is not such a provision, therefore, the learned Family Court was not competent to consolidate both the suits.
2. It is true that section 17 of the Family Courts Act provides that "save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure, 1908, except sections 10 and 11 shall not apply to proceedings before any Family Court". But I do not agree with the learned counsel that the consolidation of suits is done ordinarily by civil Courts under any provision of the Civil Procedure Code specifically so empowering the Court. Section 151 does not confer any power. It only preserves and keeps intact the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the Court. Looked at in this light if a civil Court consolidates two suits by making reference to section 151, C. P. C., it does so in exercise of its inherent power and not in exercise o any power specifically conferred by section 151. In reality, while doing so, section 10 of the C. P. Code also comes into play at least indirectly. Instead of staying the proceedings in one suit and permitting the other to continue with possible results of conflict of judgments in respect of the same subjectmatter, inherent powers are resorted to. The question arises whether, leaving aside the nomenclature given to the exercise of such powers, the Family Court has no power to make such orders as may be necessary for the ends of justice or to prevent the abuse of its own process. If the answer is that it can make such orders, then the next question would arise whether there is anything in the Family Courts Act which prescribes some special procedure which shall be deemed to limit or otherwise affect such power of the Court. The answer to this second question obviously is in the negative. After removing the technical restrictions contained in the Evidence Act and the Code of Civil Procedure, the power of the Family Courts to make 'such orders' has been protected as without any restrictive limitations.
3. In the light of the above discussion, I hold that there was no limitation on the power of the learned Family Court to make an order which was necessary for the ends of justice and to prevent abuse of its process. It is not at all the case of the petitioner that consolidation of suits in the present case was not necessary for the ends of justice and that it would not have led to abuse of process of the Court if any other procedure would have been adopted. For these reasons. I find no force in this petition and the same is dismissed in limine.
S. A. H. Petition dismissed.
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