Case Laws -> S.5, Sched.---suit for maintenance--

 2021 CLC 374 P. 17-A.Wife entitled to maintenance

2021 CLC 348 p. Unregistered nikah name or deed is genuine.

2021 YLR 108. Not cross examined on special matter is admi

2021 MLD 337. 17-A

2020 old lay 160. Christian divorce on basis of cruelty

2021 MLD peshawar 109

Family Court Act.1964.Sec.5.

Sched..

Suit for maintenance allowance,etc.

Wife with held best evidence which was available with her and made her claims doubtful by virtue of this she lost some claims,

Therefore High court modified judgments of the lower court

2020 PLD 269 SUPREME-COURTBookmark this Case

FAWAD ISHAQ VS Mst. MEHREEN MANSOOR

S. 5, Sched.---Transfer of Property Act (IV of 1882), S. 41---dower (mehr), recovery of---Property mentioned in Cl.16 of Nikahnama as dower for wife---suit for recovery of said property was filed by respondent-lady against her motherin-law and father-in-law without impleading her husband---Subject property was owned by the mother-in-law---Held, that mother-in-law was not a signatory to the Nikahnama nor had executed any other document agreeing to transfer the subject property---Mother-in-law had not permitted her husband, expressly or impliedly, to transfer the property in terms of S.41 of the Transfer of Property Act, 1882---Respondent made no attempt to ascertain that the father-in-law had the power to transfer the property---suit filed by respondent was dismissed with the observation that she could still claim from her husband any part of her dower which remained unpaid.

Citation Name: 2020 CLC 380 QUETTA-HIGH-COURT-BALOCHISTANBookmark this Case

AZIZ-UR-REHMAN VS Mst. BIBI JAMEELA

S.5, Sched.---suit for recovery of dowry articles and dower---Family Court decreed the suit and appeal was dismissed by the Appellate Court---Validity---Not possible for wife to keep the record of purchased articles and prepare list of dowry articles and obtain signatures of husband and witnesses---Whosoever alleged existence of a particular fact was to prove the same---Solitary statement of wife was enough to prove dowry articles---When marriage had not been consumated then wife would be entitled to half of the fixed dower only and remaining half should be returned/restored to husband unless he waived such right voluntarily---Impugned judgments and decrees passed by the Courts below to the extent of dowry articles were modified and amount of dowry articles was reduced---Constitutional petition was disposed of accordingly.

Citation Name: 2020 YLR 2350 PESHAWAR-HIGH-COURTBookmark this Case

JEHANGIR KHAN VS Mst. SAEEDA BEGUM

S. 5, Sched.---Nikahnama, Column Nos. 17 & 20---suit for recovery of maintenance allowance and residential house--Column No. 17 of Nikahnama was silent whether residential house was given to the plaintiff-wife either in lieu of dower or as a gift---suit house had been given to the plaintiff as a part of dower or gift in consideration of marriage in circumstances---Family Court had exclusive jurisdiction in the matter---Plaintiff according to Column No. 20 of Nikahnama was entitled for maintenance @ Rs. 5,000/- per month---Plaintiff-wife had left the house of defendant due to non-payment of maintenance allowance---Courts below had rightly held that wife had not self deserted---Trial Court had rightly held that wife was entitled for maintenance @ Rs. 5,000/- per month for last three years and further maintenance allowance at the same rate till subsistence of marriage and had declined to grant maintenance beyond period of three years---Judgment and decree of Appellate Court to the extent of recovery of maintenance beyond three years with 15% increase was illegal and same were set aside and those of Family Court were restored---Constitutional petition was partially allowed.

PLD 2012 L 418. S.9 SUB 1 B favor husband conjugal right only khula can be claim . KFC has no other jurisdiction

Citation Name: 2020 YLR 1850 PESHAWAR-HIGH-COURTBookmark this Case

Mst. SANA GUL VS USMAN KHAN

S. 5, Sched.---suits for recovery of dower, maintenance allowance for wife and minors---Desertion of wife---Effect--Defendant-husband had not paid the dower claimed by the plaintiff-wife---Plaintiff-wife was entitled for recovery of entire dower in the shape of seven tolas gold ornaments---Plaintiff-wife could refuse to perform matrimonial obligation if entire dower had not been paid to her---Desertion of wife could not be considered as her disobedience, in circumstances---Defendant-husband was bound to maintain his wife until and unless he had paid the dower---Plaintiffwife had not been paid maintenance during the period of desertion and she was entitled for maintenance @ Rs. 5,000/per month from the date of institution of suit till payment of dower and provision of separate accommodation to her--If plaintiff-wife after receiving dower and provision of separate accommodation refused to honour the decree of restitution of conjugal rights then she would not be entitled to maintenance allowance---Maintenance allowance for the minors fixed by the Courts below was insufficient to meet their requirements which was enhanced to Rs. 5,000/per month for each child with further increase @ Rs. 10% per annum---Constitutional petition was disposed of, accordingly.

Citation Name: 2020 YLR 188 PESHAWAR-HIGH-COURTBookmark this Case

PERVEZ ALI VS Mst. RAZIA BEGUM

S.5, Sched.---dower and maintenance allowance, recovery of---Wife filed suit for recovery of dower and maintenance allowance---Wife, filed application to the effect that she had received an amount of Rs. five lac through cheque as her maintenance allowance and rest of the claim would be settled privately---Joint statement of both the parties was recorded and suit was disposed of on 27.9.2014---Wife on 15.5.2015, filed suit for recovery of dower as husband never turned up for settlement---Said suit was partially decreed---Validity---Record revealed that the wife had sought recovery of possession of agricultural property along with a constructed house, which, as per her contention, were given to her in lieu of her dower---Husband-defendant in his written statement had admitted that he had given his share from his ancestral property to the wife along with constructed house---Factum of deed dated 16.3.1985, on the basis of which dower had been paid, was denied---Petitioner/husband had also asserted that the house was jointly owned by him with brothers and the amount to the extent of her share in the house was paid to her---Petitioner in his written statement, though, had admitted the fixation of dower, but had taken the stance that the respondent-wife to whom the property was transferred, in lieu of dower, had alienated it to another person---Respondent/wife while appearing as witness had reiterated the factum of fixation of dower and non-payment thereof, which portion of the statement remained un-rebutted, which would be considered to have been admitted---Similarly, the respondent-wife had received the amount of share in the house---Evidently, no property was ever mutated in the name of the respondent-wife, as such, she could never transfer it to other person---Petitioner/husband could not produce any evidence regarding payment of share in the house to the respondent-wife---Petitioner/ husband had failed to prove that any property either constructed or otherwise was given to the respondent-wife---Constitutional petition being without any merit was dismissed in limine.

Citation Name: 2020 MLD 1091 PESHAWAR-HIGH-COURTBookmark this Case

ABDUL ALI VS Mst. SANI

S. 5, Sched.---suit for recovery of dower and maintenance allowance---Principles---Payment of dower on behalf of grandfather---Scope---Dower deed---Proof of---Grandfather of defendant-husband promised to transfer landed property as a dower in favour of wife of his grandson through dower deed---Contention of defendant-husband was that he had not executed dower deed in favour of plaintiff-wife---suit was decreed concurrently---Validity---Scribe and marginal witnesses of dower deed had expired but plaintiff-wife had substantiated the execution of the dower deed by producing sons of said deceased witnesses---Entire dower as per dower deed was outstanding against the defendanthusband---Grandfather of defendant being his elder agreed to transfer landed property to the wife of his grandson through dower deed which had his signature and he stood surety for the same---Property which had been mentioned in the dower deed as dower for plaintiff even if it did not belong to the defendant should be transferred to the wife--Father or grandfather could transfer movable as well as immovable property as dower on the eve of marriage of his son/grandson---If anyone had stood surety or had guaranteed the payment of dower then he was as much party and liable to pay the same as bridegroom himself---Presence of wife at the time of execution of dower deed/agreement was not necessary as same was not a commercial transaction---Marriage in the present case was arranged one and its terms and conditions had been settled amongst elders of the families---Dower deed had been proved on behalf of plaintiffwife---Grandfather of defendant had expired and inheritance mutation to the extent of share of plaintiff was illegal and void---Wife had right to refuse conjugal rights of her husband in case of non-payment of dower---Desertion of plaintiff in her parents' house could not be considered as her disobedience when her dower was outstanding against the husband---Defendant was bound to maintain his children and disclose his financial status before the Family Court--Defendant had not disclosed his earning which showed that maintenance allowance fixed by the Courts below was within his means---Family Court had discretion to grant annual increase in the maintenance allowance---No misreading or non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below--Constitutional petition was dismissed in limine, in circumstances.

Citation Name: 2020 MLD 554 PESHAWAR-HIGH-COURTBookmark this Case

ISLAM GUL VS Mst. NALEEM

S. 5, Sched. & S. 7(2)---suit for dissolution of marriage and recovery of dowry articles, dower and maintenance allowance---Khula, announcement of---Procedure---Additional evidence, production of---Scope---Family Court decreed the suit against which appeal was filed wherein appellant moved an application for additional evidence but same was dismissed---Validity---Wife at her own could not announce or award khula---Family Court could dissolve marriage on the basis of khula on the request of wife---Family Court could not allow additional evidence or add names of witnesses in the schedule of witnesses---Parties with the permission of Court could call any witness at any later stage if Court considered such evidence expedient in the interest of justice---Family Court or Appellate Court could not re-open schedule of witnesses submitted by the parties---Defendant (husband) remained silent during the trial of case despite ample opportunity to produce any witness in his defence---Defendant had neglected his wife and had entered into second marriage---Father of plaintiff was businessman and delivery of dowry articles as per list annexed with the plaint could not be denied---Nothing was on record that plaintiff had taken back the dowry articles---Courts below had rightly appreciated the evidence produced by the parties and arrived at proper conclusions while passing the impugned judgments and decrees---No jurisdictional error had been pointed out in the impugned judgments and decrees passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Citation Name: 2020 PLD 173 PESHAWAR-HIGH-COURTBookmark this Case

Mst. YASMEEN GUL VS MUHAMMAD ZUBAIR

S. 5, Sched. & S. 10(4)---suit for dissolution of marriage and recovery of dowry articles---Khula---Scope---Family Court dissolved marriage on the basis of Khula---Validity---Plaintiff (wife) had produced sufficient evidence in support of her claim for dowry articles---Defendant (husband) had submitted that he himself had purchased articles but he had failed to substantiate the same---Evidence of plaintiff with regard to dowry articles was cogent and convincing as compared to the evidence produced by the defendant---Khula could be granted by the Family Court if wife had failed to establish any allegation leveled in the plaint---Family Court, in the present case, had granted Khula as reconciliation between the parties had failed---Such findings of Family Court were not based on evidence and same could not be challenged through constitutional petition---Right for dissolution of marriage on the basis of Khula was absolute and contingent upon restoration of dower to the husband---Muslim woman had been given right to get herself released from the bond of marriage, if she could not live with her husband within the limits prescribed by Allah Almighty---Wife in such event had to seek Khula by foregoing dower received by her from her husband in consideration of marriage---If husband had left his wife giving divorce then he would not be entitled to receive anything back giving by him to his spouse---If wife herself deserted her husband then she had to give something in lieu of her release---Courts below were competent to draw inference while delivering the judgments---High Court in constitutional jurisdiction could not interfere into such findings unless and until miscarriage of justice had been established---Constitutional petition was not maintainable when evidence in the case had properly been appreciated--Appellate Court had passed the decree after properly evaluating the evidence available on record---Constitutional petition was dismissed, in circumstances.

Citation Name: 2020 CLC 1874 PESHAWAR-HIGH-COURTBookmark this Case

Mst. FARHAT IMAM VS SAJID NAZEEF

S.5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Plea of khula---Scope---Wife would lose her dower only if she seeks dissolution of marriage on the sole ground of khula and not when she urges other grounds in support of her case, unless the other grounds are not proved---Entitlement to receive dower or its retention would remain unaffected and intact, if wife proved other grounds like cruelty of the husband.

Citation Name: 2020 CLC 910 PESHAWAR-HIGH-COURTBookmark this Case

USMAN KHAN VS Mst. SHEHLA GUL

S. 5, Sched---suit for recovery of dower---Scope---Husband assailed the findings of courts below whereby wife's claim of 5-1/2 tolas gold as outstanding dower was decreed---Validity---Husband himself had admitted outstanding dower as 5-1/2 tolas against him while cross-examining the Nikah Registrar---Appellate Court had rightly held that the wife was entitled to the outstanding dower of 5-1/2 tolas of gold---Constitutional petition was dismissed.

Citation Name: 2020 CLC 910 PESHAWAR-HIGH-COURTBookmark this Case

USMAN KHAN VS Mst. SHEHLA GUL

S. 5, Sched---suit for recovery of dower---Failure to cross-examine on specific issue---Effect---Husband assailed the findings of courts below whereby wife's claim of four marla plot as dower was decreed---Husband had admitted the nikahnama in his examination-in-chief--- Wife, through her attorney, had categorically stated that it was agreed between the parties that four marla plot would be given to her as dower---Husband, during cross-examination, had not specifically questioned about the plot nor had he put any suggestion to her, as such the unchallenged/uncrossed portion of the statement had to be considered as admission of the husband---Constitutional petition, being devoid of merit, was dismissed.

Citation Name: 2020 CLC 803 PESHAWAR-HIGH-COURTBookmark this Case

SAKHAWAT HUSSAIN VS Mst. RUBINA SHAHEEN

S.5, Sched.---suit for maintenance---Second marriage by husband without consent of first wife---Effect---Plaintiff, being wife, claimed maintenance, dower and return of dowry articles---Validity---Defendant husband, was responsible to provide maintenance to his wife so that she could live a respectable life but he had failed to maintain her---Plaintiff wife was entitled to maintenance allowance, irrespective of the fact as to whether she left the house of her own choice or was compelled to do so; she was held to be entitled to the award of decree---Constitutional petition filed against the decree passed by the courts below was dismissed.

Citation Name: 2020 CLC 803 PESHAWAR-HIGH-COURTBookmark this Case

SAKHAWAT HUSSAIN VS Mst. RUBINA SHAHEEN

S. 5, Sched.---suit for recovery of dower---Entries made in nikahnama---Presumption of truth---Scope---Husband contracted second marriage without first wife's consent---Claim of first wife for maintenance, dower and return of dowry articles---Wife produced nikahnama and kabin-nama which showed that the husband, at the time of nikah, had committed and agreed to transfer certain share of the suit house and give gold ornaments to the wife in lieu of dower amount---Plaintiff wife had established her case through examination of marginal witnesses of nikahnama as well as kabin-nama---Held, when the husband gave immovable property as dower and it was incorporated in the nikahnama, such property became property of the wife---Entries incorporated in the nikahnama were equated to a registered deed---Strong presumption of truth was attached to entries made in the nikahnama---Wife was entitled to the award of decree, in circumstances---Constitutional petition filed against the decree passed by the courts below was dismissed.

Citation Name: 2020 CLC 803 PESHAWAR-HIGH-COURTBookmark this Case

SAKHAWAT HUSSAIN VS Mst. RUBINA SHAHEEN

S.5, Sched.---suit for recovery of dowry articles---Scope---Husband contracted second marriage without consent of first wife---Wife claimed maintenance, dower and return of dowry articles---Evidence led by wife in order to substantiate her claim of dowry articles was sufficient as she had appeared before the Trial Court and had also produced other witnesses who were subjected to lengthy cross-examination but they had remained consistent on material points---List of dowry articles was attached and duly exhibited in evidence, which consisted of routine articles and under no circumstances could be termed as unreasonable---Wife was held to be entitled to the award of decree---Constitutional petition was dismissed.

Citation Name: 2020 PLD 343 LAHORE-HIGH-COURT-LAHOREBookmark this Case

SAIF ULLAH BAJWA VS Mst. SAJIDA MANZOOR

S. 5, Sched, & S.18.---Maintenance for minor and wife---Appearance through agent before Family Court---Effect--Concealment of source of income by husband---Effect---suit for recovery of dower articles and maintenance of wife and minor was decreed concurrently---Contention of petitioner / husband, inter alia, was that impugned orders did not take into account that the husband/petitioner no longer had any source of income and furthermore that wife had not personally appeared before Family Court to substantiate her contentions---Validity---Evidence showed that husband/petitioner had concealed his sources of income and there existed contradictions on behalf of petitioner and his father, who was a witness, regarding his sources of income---Husband, if he fails to disclose his salary, or financial earnings, then adverse inference was to be drawn against him---No bar existed in wife being represented before Family Court by her authorized agent, therefore contention that wife did not appear before Family Court to substantiate her contentions was not tenable since her appearance was made through her authorized agent, who was her father---No illegality existed in impugned order---Constitutional petition was dismissed, in circumstances.

Citation Name: 2020 MLD 1008 LAHORE-HIGH-COURT-LAHOREBookmark this Case

Dr. NOOR MUHAMMAD SALEEMI SAGGU VS ADDITIONAL DISTRICT JUDGE

S. 10---dower---Deferred dower---Scope---Wife sought recovery of deferred dower during subsistence of marriage--Validity---Prompt dower was payable on demand during subsistence of the marriage tie whereas the deferred dower was payable on the time stipulated between the parties, but where no time was stipulated, it was payable on dissolution of marriage either by death or divorce---Deferred dower did not become "prompt" merely because the wife had demanded it---High Court observed that the wife was not entitled to recover her dower at this stage and her suit was premature---Constitutional petition was allowed, in circumstances.

Citation Name: 2020 CLCN 10 LAHORE-HIGH-COURT-LAHOREBookmark this Case

KHUBAIB KHAN VS ADDITIONAL DISTRICT JUDGE, MIAN CHANNU

S. 5, Sched.---suit for recovery of dower and dowry articles---Consent decree---Appeal---Scope---Petitioner assailed judgment and decree passed by the appellate court---Validity---Petitioner along with his brother and counsel was present before the appellate court when the parties settled to resolve the claim of dowry articles and dower on the basis of statement of maternal uncle of the petitioner on oath---Appellate court had passed the impugned order and decree on the basis of statement of petitioner's uncle---Status of impugned order and decree was that of consent decree, which was not appealable---No illegality as jurisdictional error was pointed out in the impugned order warranting interference by the High Court in exercise of extraordinary constitutional jurisdiction---Constitutional petition was dismissed.

Citation Name: 2020 CLC 952 HIGH-COURT-AZAD-KASHMIRBookmark this Case

NIAZ AHMED VS Mst. MUSHARAF SHAHEEN

O. VII, R. 10---Specific Relief Act (I of 1877), Ss. 42 & 54---Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5, Sched.---suit for declaration and permanent injunction with regard to land given as dower--Maintainability---Plaint, return of---Plaintiff-wife filed a suit for declaration and permanent injunction regarding land given to her as dower---Trial Court returned the plaint for presentation before Family Court---Validity---Family Court had exclusive jurisdiction to entertain and adjudicate all the matters which fell within the Schedule of Azad Jammu and Kashmir Family Courts Act, 1993---If dispute was between the spouses then Family Court was the right forum but if it was between the spouses and third party with regard to property given in lieu of dower then Civil Court had jurisdiction to resolve the said controversy---Dispute, in the present case, was between the widow and the third party i.e. brothers and sisters of her deceased husband---Civil Court was the appropriate forum to decide the present matter--Impugned orders passed by the Courts below were set aside and suit was transferred to the Court of Senior Civil Judge for its decision on merits---Revision was allowed, in circumstances.

Citation Name: 2019 MLD 576 SUPREME-COURT-AZAD-KASHMIRBookmark this Case

Syed IQBAL SHAH VS Syeda TAHIRA BIBI

S. 42---Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5---suit for declaration regarding land given as dower---Maintainability---Plaintiff-wife filed suit for declaration with regard to the land given to her as dower and also challenged therein the gift deed relating to the said land executed in favour of a third party---suit was decreed concurrently---Validity---Entries of Nikahnama had presumption of truth vis-à-vis oral evidence---suit land given as dower had not been abandoned by the wife---In case of controversy regarding payment of dower in respect of any property between the spouse and third party the civil court was an appropriate forum for determination of the matter--No misreading or non-reading of evidence had been pointed out in the impugned judgments passed by the courts below---Appeal was dismissed, in circumstances.

Citation Name: 2019 YLR 1945 PESHAWAR-HIGH-COURTBookmark this Case

NISAR VS Mst. FAUZIA

Ss. 5, Sched. & 10(4)---suit for recovery of dower, maintenance and dissolution of marriage---Divorce pronounced by husband prior to consummation of marriage---Effect---Dower, payment of---Scope---Family Court dissolved marriage on the basis of khula and found that defendant-husband was entitled for recovery of seven tolas gold as dower from the plaintiff-wife---Appellate Court modified the said judgment and held that wife was entitled for the half of the dower fixed at the time of Nikah---Validity---Marriage, in the present case, had not been consummated and dissolved prior to valid retirement---If Talaq was pronounced by the husband prior to consummation then wife was entitled for half of the dower fixed at the time of Nikah---Where Talaq was pronounced on the demand of wife then she was not entitled to half of dower---Marriage was dissolved by defendant-husband on phone, therefore, he was bound to pay half of the fixed dower to the wife---Wife, in the present case, was bound to return half of the dowered ornaments to the husband---Judgment of Family Court was rightly modified by the Appellate Court---Constitutional petition was disposed of accordingly.

Citation Name: 2019 YLR 734 PESHAWAR-HIGH-COURTBookmark this Case

ANWAR ALI VS Mst. NAHEED

S. 5, Sched--- suit for recovery of dower, dowry articles maintenance allowance and custody of minors by the exwife/mother---Payment of gold ornaments in lieu of dower at the time of marriage---Scope---Non-production of receipts of purchase of dowry articles---Effect---Welfare of minors---Scope---Trial Court had held that payment for claimed dower/gold ornaments had already been paid to the ex-wife/petitioner to which she was entitled to retain--Petitioner/ex-wife contended that Trial Court had wrongly held so as she was minor at the time of her marriage and sister of the respondent (husband) had skillfully taken the said gold ornament on the next day of the marriage; Trial Court had not rightly discarded few items like furniture from list of her dowry articles while passing decree in her favour---Respondent (husband) contended that at the time of leaving his house, petitioner (wife) had taken away the dower/gold ornaments---Validity---No proof was provided by the respondent that petitioner had taken gold ornaments along with her while leaving his house---Female who had been given in Nikah to the respondent being minor at that time, it was more plausible to believe that on the next day of marriage, the sister of the respondent had taken the gold ornaments from her as the same had been temporarily arranged at the time of marriage by the sister of respondent who demanded its return just after the marriage was solemnized---Where there was a list of dowry articles which included household articles such list was to be believed---Normally it was not possible for bride to keep the record of purchase of dowry articles and obtain signature on the list of articles from the bridegroom side, all the dowry articles as per list were either returnable or payment of one third of its value in the alternate---Record revealed that during subsistence of trial, Session Court, on application under S. 491, Cr.P.C, gave children to the custody of mother--Mother/petitioner being natural guardian could best take care of the children; father having had contracted second marriage---Constitutional petition of ex-wife/mother was allowed accordingly.

Citation Name: 2019 YLR 605 PESHAWAR-HIGH-COURTBookmark this Case

FAWAD ISHAQ VS Mrs. MAHREEN MANSOOR

Ss. 2(d) & 5, Sched.---dower, recovery of---suit against mother-in-law---Concurrent findings of two courts below--suit was filed by plaintiff against her ex-husband and ex-mother-in-law for recovery of dower in shape of constructed house which was in name of her mother-in-law---Family Court and Lower Appellate Court concurrently decreed suit and appeal in favour of plaintiff---Validity---Nikahnama was signed by father-in-law of plaintiff as guarantor and consented that house in question would be given to plaintiff in lieu of dower---House in question was in ownership of ex-mother-in-law of plaintiff---dower in shape of cash amount and gold ornaments was already paid to plaintiff by her husband---Remaining part of her dower concerned the defendant (mother-in-law)---Plaintiff had rightly filed suit against her mother-in-law for recovery of dower---Family Court had jurisdiction to try and adjudicate upon such suit filed by plaintiff---Judgments of two courts below were well-reasoned and were based on proper appreciation of evidence and law on the subject---Defendants failed to point out any jurisdictional defect or violation of any law in judgments passed by two courts below---High Court, in exercise of its Constitutional jurisdiction maintained judgments and decrees passed by two courts below---Constitutional petition was dismissed in circumstances.

Citation Name: 2019 MLD 401 PESHAWAR-HIGH-COURTBookmark this Case

IQBAL RABBANI VS NOOR UL AIN

Ss. 5, Sched, 7, 9, 17-A & 18---Family Courts Rules, 1965, R. 4---Civil Procedure Code (V of 1908), S. 132 & O. VI,

R. 15---suit for recovery of maintenance allowance, dower and dowry articles---Appearance of parties in person---Scope---Representation through counsel/attorney---Scope---Defendant-husband living abroad submitted wakalatnama and written statement without his signatures---Striking of defence---Scope---Personal appearance of a party before Family Court---Pardanasheen lady---Appearance through agent---Exemption from personal appearance--Appointment of a counsel---Authority of agent---Irregularity in the wakalatnama---Effect---Wife filed suit against her husband who lived abroad and his father---Wakalatnama and written statement signed by the father of husband were filed but without signatures of defendant-husband---Family Court struck-off defence of defendant-husband---Validity--suit with regard to family matters could be filed before Family Court by presentation of a plaint---Court on presentation of plaint was to fix a date for appearance of defendant issue summons for appearance on the date fixed therein---If defendant received summon then he should appear before the Family Court and file written statement with list of witnesses---Pardanasheen lady/party to a family suit might be permitted to be represented by a duly authorized agent---Defendant was not bound to appear in person before Family Court---Right to be represented through counsel was a statutory right---Any person who was of the age of majority and was of sound mind might employ an agent through an express or implied authority---Said agent could perform every lawful action which was necessary in order to do such act---When a party was not required to personally appear then he could be represented through attorney or counsel---Appearance of the parties before the Court would include appearance through duly constituted attorney--Court had to confirm genuineness of pleadings/presentations and consent of parties to be represented having not been obtained by way of force, fraud or undue influence---Counsel appointed by a party to the proceedings could represent his/her client before the Court---Execution of wakalatnama was the written instrument and proof of such appointment--If from the record it was clear that party to the proceedings had appointed a counsel, mere omission of certain particulars in the wakalatnama was irregularity which would not vitiate the relations between the counsel and client--Family Court could strike-off defence if order for interim maintenance had not been complied with and decree the suit---If conduct of defendant was contumacious and he had willfully disobeyed the lawful order of Family Court then Court had jurisdiction to strike off the defence---Written statement was signed by one of the defendants and counsel in the present case---Submission of power of attorney at belated stage was not fatal---Order for striking-off defence in presence of valid written statement and that too without notice was unwarranted and not sustainable in the eyes of law---Non-signing of pleadings as well as wakalatnama were mere irregularity and said defect could be cured at any stage by allowing the party to put his/her signatures on the same---If any of the defendants had signed written statement then it would be deemed as valid written statement before the Court---If there was any defect in the power of attorney then same could be cured by filing power of attorney duly attested by the Consulate of Pakistan abroad--Defendant had been restrained from defending his case through impugned order which was against law; said order being illegal and final in nature was amenable to the constitutional jurisdiction of High Court---Defendant could be represented through duly authorized agent---Wakalatnama should be returned to the counsel for the defendant for resubmitting the same before the Trial Court---Defendant-husband was allowed to place on file the power of attorney executed in his favour---Impugned order passed by the Family Court was set aside---Constitutional petition was allowed in circumstances.

Citation Name: 2019 PLD 218 PESHAWAR-HIGH-COURTBookmark this Case

AJMAL KHAN VS Mst. FALAK NEGAR BIBI

S. 5, Sched---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---suit for dissolution of marriage and recoveryof dower---Rukhsati having not been effected---Effect---Family Court conditionally dissolved the marriage and passed decree for half dower in favour of wife---Validity---Wife would be entitled to whole dower upon consummation of marriage or death of the husband and valid retirement---Wife could not ask for her dower before rukhsati---When husband had divorced his wife before consummation, he had to pay half of the dower but said principle was not applicable when before consummation wife was asking for dower---Wife before consummation was not entitled to ask for dissolution of marriage on the grounds provided in S.2 of Dissolution of Muslim Marriages Act, 1939---Wife was not entitled for dower before rukhsati and valid retirement---No ground existed for the wife to ask for dissolution of marriage in circumstances---Impugned judgments passed by the Courts below were against law---When parties were not ready to settle and live their lives in accordance with Islam, their marriage was dissolved on the basis of khula--Impugned judgments and decrees passed by the Courts below were set aside---Constitutional petition was allowed, in circumstances.

Citation Name: 2019 PLD 218 PESHAWAR-HIGH-COURTBookmark this Case

AJMAL KHAN VS Mst. FALEK NEGAR BIBI

S. 5, Sched---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---suit for dissolution of marriage and recovery of dower---Rukhsati having not been effected---Effect---Family Court conditionally dissolved the marriage and passed decree for half dower in favour of wife---Validity---Wife would be entitled to whole dower upon consummation of marriage or death of the husband and valid retirement---Wife could not ask for her dower before rukhsati---When husband had divorced his wife before consummation, he had to pay half of the dower but said principle was not applicable when before consummation wife was asking for dower---Wife before consummation was not entitled to ask for dissolution of marriage on the grounds provided in S.2 of Dissolution of Muslim Marriages Act, 1939---Wife was not entitled for dower before rukhsati and valid retirement---No ground existed for the wife to ask for dissolution of marriage in circumstances---Impugned judgments passed by the Courts below were against law---When parties were not ready to settle and live their lives in accordance with Islam, their marriage was dissolved on the basis of khula--Impugned judgments and decrees passed by the Courts below were set aside---Constitutional petition was allowed, in circumstances.

Citation Name: 2019 YLR 640 LAHORE-HIGH-COURT-LAHOREBookmark this Case

SAIMA ASHRAF VS ADDITIONAL DISTRICT JUDGE

S. 5 & Sched.---suit for recovery of maintenance allowance and dower---Maintenance allowance proportionate to financial status of husband/father---Scope---Dower---Scope---Petitioner (wife) contended that she was entitled for maintenance allowance proportionate to the financial status of her husband and the dower amount as per entry in Nikahnama--- Validity--- Record revealed that respondent was a retired person getting monthly pension of Rs. 7000; he also owned some agricultural as well as urban land in addition to some cattle---Appellate Court, while dilating upon the issue of maintenance allowance, had taken into account the assets of husband and that he had three wives, including the petitioner---Husband had to maintain all three of them---Maintenance allowance to wife /children by a husband/father was governed by Injunctions of Islam---Appellate Court had determined the issue of maintenance allowance of the petitioner quite reasonably---Column No. 17 of Nikahnama showed that dower amount was only to be given to the petitioner in case of divorce by the husband, whereas marriage between the parties was still intact---No illegality or infirmity having been found in the impugned judgments and decrees passed by the two Courts below constitutional petition was dismissed.

Citation Name: 2019 YLR 84 LAHORE-HIGH-COURT-LAHOREBookmark this Case

Mst. RUKHSANA MAJEED VS ADDITIONAL DISTRICT JUDGE

S. 5 & Sched.---suit for recovery of dower---Gold ornaments and a constructed house was incorporated in the

Nikahnama as "dower" at the time of marriage---Execution of exhibited agreement admitted by the party---Effect--Petitioner/ ex-wife contended that Appellate Court had wrongly set aside the decree passed by the Family Court as written agreement exhibited by the respondent/ex-husband was disbelieved by the Family Court---Respondent contended that petitioner had waived off the right incorporated in Nikahnama in light of agreement between the parties duly written on stamp paper---Validity---Record revealed that petitioner/plaintiff (ex-wife) had admitted the fact that she purchased the stamp paper, mentioning certain serial number and date, which contained her signature as well as thumb impression; she also admitted that she signed the stamp paper after the same was written---Record revealed that document exhibited by the respondent bore the serial number and date as referred to by the petitioner--Respondent produced not only attesting witnesses and the scribe of said exhibited document , but also one witness to prove the purchase of exhibited stamp paper---Witnesses proved the fact that the petitioner had waived her dower in favour of the respondent while she admitted the execution of the document exhibited by the respondent---Appellate Court had rightly appreciated the evidence on record---High Court upheld the impugned decree and judgment passed by the Appellate Court----Constitutional petition was dismissed accordingly.

Citation Name: 2019 CLC 1799 LAHORE-HIGH-COURT-LAHOREBookmark this Case

JAM MEERAN VS ADDITIONAL ADVOCATE GENERAL

Ss.13 & 5, Sched.---suit for recovery of dower---Execution proceedings---Petitioner assailed orders of executing court and appellate court whereby both the courts below in proceedings for execution of decree refused to accept some other property as dower instead of the property which was decreed---Validity---Substituting the property would amount to the executing court amending the decree, which was not permissible in law---Constitutional petition was dismissed in limine.

Citation Name: 2019 CLC 1475 LAHORE-HIGH-COURT-LAHOREBookmark this Case

SHAZIA PARVEEN VS ADDITIONAL DISTRICT JUDGE

S. 5, Sched.---Civil Procedure Code (V of 1908), O. XII, R. 6---suit for recovery of dower---Judgment on admission--

-Family Court dismissed the suit for recovery/possession of house in lieu of dower to be paid by husband in terms of Column No. 16 of Nikahnama---Plea of wife was that an agreement was executed by husband in her favour relating to transfer of house as dower--- Husband claimed that the said dower was paid in cash---Trial Court dismissed the suit on the admission of wife that dower had been received by her---Validity---Trial Court had not mentioned in what perspective such admission was made and what was the mode of payment of dower to the wife in terms of her admission---Admission of wife had been considered in piecemeal before using the same for decision---Admission had to be rejected or accepted as a whole which had not been done by the courts below---Constitutional petition was partly allowed and the matter was remanded to the Trial Court for decision afresh.

Citation Name: 2019 CLC 1462 LAHORE-HIGH-COURT-LAHOREBookmark this Case

Syed SAJJAD HUSSAIN VS JUDGE FAMILY COURT

S. 5, Sched.---suits for recovery of dowry articles by wife and for restitution of conjugal rights by the husband--Payment of deferred dower---Burden of proof---Scope---Plea of wife was that she had been divorced and husband claimed that he had not divorced the wife and had paid the deferred dower---Validity---High Court, on the basis of husband's plea that dower had already been paid, observed that the parties through their conduct had modified the condition for payment of dower on wife's demand instead of waiting for the dissolution of marriage through divorce or death---Husband was required to prove through cogent and confidence inspiring evidence that either he had not agreed to pay the deferred dower or after having agreed to pay the same had actually made the said payment---Husband was estopped by his conduct to claim that deferred dower was not payable during subsistence of marriage as he claimed to have paid the dower on wife's demand---Statement of witness, produced by husband, was sketchy and he did not state that he was a witness to said payment---Payment of dower by husband was not established on record---Trial Court was justified to decree the suit filed by wife for recovery of deferred dower---Constitutional petition, being devoid of force, was dismissed.

Citation Name: 2019 MLD 758 LAHORE-HIGH-COURT-LAHOREBookmark this Case

FAYAZ HUSSAIN VS ADDITIONAL DISTRICT JUDGE

S. 5---Qanun-e-Shahadat (10 of 1984), Art. 129, illus. (e) & Chap. VI, [Arts.102 to 110]---Exclusion of oral evidence by documentary evidence---Nikahnama, contents of---Scope---suit for recovery of house as dower filed by wife was concurrently decreed in her favour by two Courts below---Plea raised by husband was that house mentioned in Nikahnama was of 5 Marlas whereas two Courts below passed decree for house of 10 Marlas---Validity---Nikah Nama was public document and presumption of truth was attached to entries made therein---Where there was gross misreading, non-reading or jurisdictional defect flouting on the surface of record, High Court was justified to interfere with the same under its Constitutional jurisdiction to undo injustice---High Court modified judgments and decrees passed by two courts below and decreed the suit to the extent of house measuring 5 Marlas with necessary amenities or in alternate its market price---Claim of wife contrary to the terms and conditions of Nikah Nama was dismissed--Constitutional petition was allowed accordingly.

Citation Name: 2019 MLD 112 LAHORE-HIGH-COURT-LAHOREBookmark this Case

Mst. IRAM SHAHZADI VS MUHAMMAD IMRAN-UL-HAQ

2003 SCMR 1261, 2008 SCMR 186, 2013 CLC 276, 2016 CLC 180, 2016 CLC 765, 2017 MLD 1101, 2017 YLR 1481, PLD 2007 Lahore 515, PLD 2012 Lah. 43, PLD 2012 Lahore 43, PLD 2018 Lah. 429, PLD 2018 Lahore 429, S. 5 & Sched.---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S. 2(a)---suit for recovery of maintenance allowance, dowry articles, dower and gold ornaments---Dissolution of marriage on the basis of Khula---Entries against Serial/Column Nos.13 to 16 of the Nikahnama---Effect---Jurisdiction of the Family Court---Scope---Family Court declared the petitioner/plaintiff owner of 22-Tolas gold ornaments as per entry in Column 16 of the Nikahnama, however, Appellate Court set aside the decree to the extent of said gold ornaments---Petitioner/ex-wife contended that bridal gifts were in addition to and not in lieu of Haq Mehr (dower) thus, the same, being not part of the dower, were not liable to be returned to the respondent on the ground of Khulla---Respondent contended that Appellate Court had rightly reversed decree with regard to the said gold ornaments as Family Court had no jurisdiction to entertain claims regarding entries in Nikahnama---Validity---Held, matter in question called for the perusal of entries made at serial Nos. 13, 14, 15 and 16 of the exhibited Nikahnama which showed that Haqmahr of Rs. 5000/- fixed in the entry against serial No. 13, payment of which was deferred since the entry against serial No. 14 had been left empty---Entry against serial No. 15 showed that no part of Haqmahr was paid at the time of marriage---Entry of gold ornaments, weighing 22-Tolas, having been given to the bride by family of respondent was shown at serial No. 16 of the Nikahnama which became ownership of the petitioner---Mentioning of Rs. 5000/- as dower in column No. 13 left no doubt that gold ornaments were in addition to the Haqmahr and not in lieu thereof and did not form part of dower--Such gold ornaments were not part and parcel of dower but had to be regarded as bridal gifts in contradistinction to dower---Said gold ornaments, being bridal gifts, could not be withheld by the husband in lieu of Khulla as the same were not part of dower---Even otherwise respondent had shown his consent to return 22-Tolas gold ornaments to the petitioner while deposing before the Family Court---Section 2(a) of Dowry and Bridal Gifts (Restriction) Act, 1976 stipulated that the articles of dowry, bridal gifts, presents or all other moveable property were the belongings of the bride---Consideration for marriage was dower amount which had not been paid to the wife---Petitioner had waived her dower amount in consideration of Khulla which was enough---Family Court had the jurisdiction to entertain and adjudicate any matter arising out of the Nikahnama---High Court set aside impugned order passed by the Appellate Court and restored decree and judgment passed by the Family Court---Constitutional petition was allowed accordingly.

Citation Name: 2019 CLC 1008 LAHORE-HIGH-COURT-LAHOREBookmark this Case

MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE

S. 5 & Sched.---Limitation Act (IX of 1908), Art. 104---suit for recovery of deferred dower---Limitation--Deferred dower was payable after a specified period of time and when no period was fixed, the same had to be paid on the death of the husband or dissolution of marriage.

Citation Name: 2019 CLC 1008 LAHORE-HIGH-COURT-LAHOREBookmark this Case

MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE

S. 5 & Sched.---suits for recovery of dower, maintenance and dowry articles by wife and for restitution of conjugal rights by the husband---Wife desertion by husband---Scope---suit of wife was decreed to the extent of recovery of dowry articles---Appellate Court modified the decree and wife was held entitled to recover deferred dower---Validity--Wife had mentioned in her plaint that she was deserted by her husband, but she did not specifically mention in her examination-in-chief that she was deserted by her husband---Wife had failed to prove her forcible desertion by the husband---Filing of suit for restitution of conjugal rights demonstrated that husband was willing to rehabilitate wife but she did not want reconciliation and had obtained decree of divorce on the basis of khula---Family Court had rightly declared her disentitled to dower amount---Constitutional petition was partly allowed.

Citation Name: 2019 MLD 720 KARACHI-HIGH-COURT-SINDHBookmark this Case

ZAHID HUSSAIN VS Mst. FARHANA

Ss. 7 & 8---Family Courts Rules, 1965,R. 6---Family Courts Act (XXXV of 1964), S. 5 & Sched.---suit for dissolution of marriage---'Ordinarily resides'---Scope---Jurisdiction of Family Court---Khulla, right of---Scope---Petitioner (exhusband) contended that respondent/ plaintiff did not ordinarily reside at the address shown in her plaint and Family Court had not complied with the provisions of Muslim Family Laws Ordinance, 1961 in granting decree of khulla to the respondent---Validity---Deliberate use of the phrase 'ordinarily resides' in proviso clause of R. 6 of the Family Courts Rules, 1965 was an exception confined to the 'wife' alone---Ordinarily residence must not require proof as would be for permanent residence, such was keeping in view the agony of woman who, on being ousted by husband, sometimes did not find shelter in the house of her parents---Right to claim 'khula' as well 'dower' were absolute rights of 'wife' which legally could not be resisted if the 'wife' persisted to such claim---Such entitlement, was not subject to a proof of permanent or long residence but a claim of stay of few days even would be enough for the wife to file a suit for dissolution of marriage or dower only---Claim of 'ordinarily resides' would not require proof of the standard which normally was necessary for a disputed fact but a claim on oath shouldered by independent support would be sufficient---Record revealed that claim of wife regarding her ordinary residence was backed by an inquiry (physical verification from neighbors) made by the commissioner appointed by the Family Court on the application of the petitioner, which was rightly taken as sufficient proof to take cognizance into the matter---Temporary, even one day, residence, was sufficient to seek relief of Khulla and said proposition of law had taken status of stare decisis, hence the petitioner's objections over Khulla with regard to jurisdiction was not maintainable--- Compliance of Ss. 7 & 8 of Muslim Family laws Ordinanc e, 1961.2021 CLC 374 P. 17-A.Wife entitled to maintenance

2021 CLC 348 p. Unregistered nikah name or deed is genuine.

2021 YLR 108. Not cross examined on special