Customary Law-- ----Recovery of dowery articles--No dowery has been given to the plaintiffs/respondent at time of marriage-

 PLJ 2006 Lahore 35

(i)  Constitution of Pakistan, 1973--

----Art. 199--Availability of remedy of writ in suit for recovery of dowery articles--Validity--As a substitute for the appeal or revision with regard to those decrees for which legislature in its wisdom, has closed remedy of appeal or revision through statutory provision--Exercise of jurisdiction under Art. 199--There must be grave injustice being done to the parties to the proceedings--Petition dismissed.       [Pp. 36 & 37] A, B & C

(ii)  Customary Law--

----Recovery of dowery articles--Contention of--No dowery has been given to the plaintiffs/respondent at time of marriage--Petitioner failed to prove the statement--Held: Parents of girl had given nothing in dowery to her daughter at the time of her marriage as it is being a custom in Pakistan which is based upon tradition of our Prophet, Muhammad (P.B.U.H)--Petition dismissed.                [P. 37] D

Malik Javed Akhtar Wains, Advocate for Petitioner.

Date of hearing : 1.12.2004.


 PLJ 2006 Lahore 35
[Multan Bench Multan]
Present: Sh. Hakim Ali, J.
MUHAMMAD RAMZAN--Petitioner
versus
JUDGE FAMILY COURT KEHROR PACCA DISTT. LODHRAN
and another--Respondents
W.P. No. 5593 of 2004, decided on 1.12.2004.


Order

Mst. Kalsoom, Respondent No. 2, had filed a suit for recovery of dowry articles or in the alternative awarding of their price amounting to Rs. 47,400/-, before the learned Judge Family Court, Kehror pacca. The suit was contested by the defendant/petitioner. Issues were framed and learned Judge Family Court passed a decree on 28.2.2004 with regard to the return of dowry articles or in the alternative to pay their price equivalent to Rs. 25,000/- in favour of plaintiff/Respondent No. 2. The aforesaid judgment and decree has been challenged through this writ petition.

2.  Petitioner's learned counsel submits that the plaintiff had not brought any dowry articles at the time of marriage. She was not able to give out the details of all the dowry articles allegedly delivered to her in her statement. There was no evidence/corroboration to the statement of the plaintiff and the evidence brought on the record was not properly appreciated by the learned Court below. Therefore, the impugned judgment and decree requires to be set aside.

3.  After considering the arguments of learned counsel for the petitioner and from the perusal of the record, it may be pointed out that the remedy of writ cannot be made available, accessible or outstretched as a substitute for the appeal or revision with regard to those decrees for which the legislature in its wisdom, has closed the remedy of appeal or revision through statutory provision. If the relief/remedy of Article 199 of the Constitution of Islamic Republic of Pakistan 1973 is extended to such decrees, it would be creative of an impression that for a decree of meager amount, an extra ordinary remedy (writ petition) is available from a superior Court (High Court) while of a decree of huge and large amount, the appeal and that before the subordinate Court can only be availed of. Meaning thereby, the intent of the legislature to grant the finality to the decision of learned Judge Family Court, especially to a decree passed up to the extent of an amount of Rs. 25,000/- with regard to the dowry articles in favour of wife would be tarnished. As the decree has been passed in the instant case to the extent of Rs. 25,000/- so, this writ petition cannot be maintained. I have got support to form this opinion from the following judgments:--

"1996 SCMR 1165 (Syed Saghir Ahmad Naqvi vs. Province of Sindh and another) and 1981 Law Notes 505 (International Food Centre Ltd. vs. Unified Bank Ltd. Etc.).

Although the above mentioned decisions were emanating from interlocutory orders yet principle would be the same.

4.  By raising an objection of incorrect appreciation of evidence, learned counsel wants this Court to evaluate and appreciate evidence brought on the record by the parties, which is not the function of this Court, to take exercise of  it, in this extra ordinary jurisdiction. There must be grave injustice being done to the parties to the proceedings, so as to attract the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Deposition of a party in a family case can be held sufficient if that statement inspires confidence. The statement of Mst. Kalsoom has raised such an impression after my examination. The other witness PW.2 Zahoor Ahmad has explicitly deposed that the dowry articles were lying with the defendant/petitioner. The question asked from that witness as to what articles were delivered by the parents of the plaintiff to the plaintiff at the time of marriage and reply of his ignorance cannot be considered as the denial of the delivery of dowry articles to the plaintiff. In fact the aforesaid witness wanted to depose that he had no knowledge about the details of dowry articles because it was a matter of concern of the ladies, but from this suggestion and reply, it cannot be inferred and held that articles of dowry were not delivered. In another place, he has clearly stated that the dowry articles were in the possession of the defendant. So, it has been corroborated from the statement of that witness that the dowry articles were delivered to the plaintiff and were lying and kept in the custody of the defendant/petitioner. In normal course, it is also not believable that parents of any girl had given nothing in dowry to her daughter at the time of her marriage as it being a custom in this Country which is based upon the tradition of our Prophet, Muhammad (P.B.U.H) So, learned Judge Family Court having appreciated the evidence with correct perception the judgment and decree passed cannot be set aside. The writ petition is, therefore, dismissed in limine.

(H.A.)  Petition dismissed

----Ss. 9(1)(b) & 10(4)--Suit for restituion of conjugal rights was filed by petitioner--Respondent filed written statement and by way of sets off claimed a decree for dissolution of marriage

 PLJ 2007 Lahore 671 

Family Courts Act 1964—

 

----Ss. 9(1)(b) & 10(4)--Suit for restituion of conjugal rights was filed by petitioner--Respondent filed written statement and by way of sets off claimed a decree for dissolution of marriage--Marriage was dissolved--Where no earlier suit for restitution of conjugal rights is pending there is no such condition in Section 9(1)(b) of the Family Courts Act which enables a wife to claim dissolution of marriage by way of set off in a suit for restitution of conjugal rights filed by husband--Proviso to S. 9(1) of Family Courts that S. 10(4) (Proviso) would apply where a decree for dissolution of marriage is to be passed--Petition dismissed.

      [P. 672] A & B

Mr. Mazhar Masood Khan, Advocate for Petitioner.

Date of hearing: 25.1.2007.


 PLJ 2007 Lahore 671
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
SHAUKAT HAYAT--Petitioner
Versus
JUDGE FAMILY COURT, FATEH JANG DISTT. ATTOCK
and another--Respondents
Writ Petition No. 162 of 2007, decided on 25.1.2007.


Order

On 18-2-2006, petitioner filed a suit for restitution of conjugal rights against Respondent No. 2. She filed a written statement and by way of set off claimed a decree for dissolution of marriage on the ground of Khula. The efforts for reconciliation between the parties were made which failed. The statement of the lady was recorded and the marriage was dissolved. She gave up her claim to dower and maintenance etc.

2.  Learned counsel for the petitioner argues that since a suit for dissolution  of  marriage already filed by the respondent on 5-1-2006 was pending, a set off could not have been claimed. He refers to Section 9(1) (a) of the Family Courts Act, 1964. Further contention is that the provisions of Section 10(4) are applicable only to a regular suit for dissolution of marriage and not to the set off.

3.  I have given some thoughts to the said contention and found the same to be without any force. The provision being relied upon by him applies to a claim of set off by a husband in a suit of his wife for dissolution of marriage wherein it has been stated that the set off can be claimed where no earlier suit for restitution of conjugal rights is pending. However, there is no such condition in Section 9(1)(b) of the Family Courts Act, which enables a wife to claim dissolution of marriage by way of set off in a suit for restitution of conjugal rights filed by the husband. The proviso to Section 9(1) of the said Act lays down that Section 10(4) (proviso) shall apply where a decree for dissolution of marriage is to be passed in said circumstances. Writ petition is accordingly dismissed in limine.

(M.S.)      Petition dismissed.

 

 

Challenged the vires of order passed by Judge Family Court--Consolidated suit for dowry articles, maintenance and dower amount against petitioner's son--Maintainability-

 PLJ 2008 Lahore 513

 

Constitution of Pakistan, 1973—

 

----Art. 199--Constitutional petition--Challenged the vires of interim order--Maintainability--Constitutional petition is not maintainable against the interim order.   [P. 515] A

 

West Pakistan Family Courts Act, 1964 (XXXV of 1964)—

 

----S. 17--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Challenged the vires of order passed by Judge Family Court--Consolidated suit for dowry articles, maintenance and dower amount against petitioner's son--Maintainability--Wife was facilitated to consolidate her claim as provided by law in one suit--No other option but to file a collective suit regarding her claims--Held: If the independent suit's are filed, the Judge Family Court would have no option but to consolidate the same and Family Courts have been given powers to regulate its own proceedings in the interest of justice if the situation so required--Matter pending before Family Court is being delayed by different tactics, hence not entitled for any equitable relief--Petition was dismissed.  [P. 515] B

Mr. Basharat Ullah Khan, Advocate for Petitioner.

Mrs. Sarkar Abbas, Advocate for Respondents.

Date of hearing: 14.4.2008.


 PLJ 2008 Lahore 513
[Rawalpindi Bench Rawalpindi]
Present: Ali Akbar Qureshi, J.
Mst. KANEEZ FATIMA--Petitioner
versus
JUDGE FAMILY COURT and another--Respondents
W.P. No. 830 of 2006, decided on 14.4.2008.


Order

Through this Constitutional petition, the petitioner has challenged the vires of the order dated 17.3.2006 passed by the learned Judge Family Court on an application filed by the petitioner. The Respondent No. 2, who has been divorced by the son of the petitioner, filed a consolidated suit for dowry articles, maintenance and dower amount etc. against the petitioner's son namely Muhammad Arshad. The present petitioner, who is mother of the ex-husband of the Respondent No. 2, has filed the instant petition being the attorney. The petitioner submitted the written statement and during the proceedings on 15.3.2006, filed an application before the learned Judge Family Court to the effect that the suit filed by the Respondent No. 2 is not maintainable as the collective claim regarding maintenance, dower and dowry articles can only be filed in a suit for dissolution of marriage and not otherwise. The learned Judge Family Court after receiving the reply of the said application heard the arguments and dismissed the application vide order dated 17.3.2006, hence this Constitutional petition.

2.  The learned counsel for the petitioner contended that the collective claim asked by the Respondent No. 2 in one suit excluding the suit for dissolution of marriage is not maintainable in view of Section 17 of the West Pakistan Family Courts Act, 1964. Next contended that the order passed by the learned Judge Family Court is without jurisdiction and violative of the provisions of Section 17 of the Act ibid. Thus the findings recorded to this effect are not sustainable in law. Reliance is placed on Abdul Majeed vs. Judge Family Court, Kehror Pacca and 2 others (2003 YLR 884).

3.  Conversely, the learned counsel for the respondent contended that the Respondent No. 2 has already been divorced so the collective claim in one suit prayed by the Respondent No. 2 is not violative of Section 17 of the Act ibid. Further contended that the Section 17 confers ample powers to the Family Court to regulate its own proceedings and has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law and Family Court can exercise its own powers to prevent the course of justice being deflected from the path particularly in the circumstance when the West Pakistan Family Courts Act, 1964 is a remedial statute and its enactment is actuated with beneficial object behind it, for expedited the matrimonial and family disputes by simplifying the procedure and curtailing the technicalities of the procedure law. Next contended that in any case in the claims prayed by the Respondent No. 2, the parties would be same and has to be decided by the same learned Judge Family Court obviously by consolidating the same so no illegality was committed by the courts below. The reliance has been placed on Shahid Bakhsh v. Mst. Shazia Bibi and another (2004 CLC 703) Arif Sana Bajwa v. Additional District Judge, (Mushtaq Ahmed Tarar), Lahore and 4 others (2004 MLD 794) and Mst. Naziran Bibi v. Additional District Judge and others (2003 YLR 82). In response of the contention raised by the learned counsel for the petitioner that the mother of the ex-husband of the Respondent No. 2 cannot be impleaded, the learned counsel for the respondent has placed reliance on Muhammad Anwar and another v. Additional District Judge, Lahore (Miss Uzma Akhtar Chughtai) and 2 others (2003 YLR 365) wherein it is ruled that if the dowry articles are in the custody of the father of the husband, the father may also be impleaded as party and can be considered as necessary party.

4.  I have heard the learned counsel for the parties and perused the record.

5.  The instant Constitutional petition has been filed against an interim order passed by the learned Judge Family Court on an application filed by the petitioner and this is settled proposition of law that the Constitutional petition is not maintainable against the interim order. This proposition was confronted to the learned counsel for the petitioner, the learned counsel could not address this issue nor cited any judgment so the Constitutional petition is dismissed on this score alone. While dealing  with the other issue involved in this matter, that the learned Judge Family Court has rightly observed that while inserting Section 17 by the legislature in the Family Courts Act, 1964, the wife has been facilitated to consolidate her claim as provided by law in one suit whereas in this case admittedly the Respondent No. 2 has already been divorced by the son of the petitioner so the Respondent No. 2 had no other option but to file a collective suit regarding her claims. Even otherwise, if the independent suits are filed, the learned Judge Family Court would have no option but to consolidate the same and the Family Courts have been given powers to regulate its own proceedings, in the interest of justice if the situation so required. It is also observed that the attitude of the son of the petitioner and also the petitioner is so contumacious that the matter pending before the learned Judge Family Court is being delayed by different tactics, hence not entitled for any equitable relief.

6.  In these circumstances, this petition is dismissed with costs of Rs. 10,000/- which would be paid to the Respondent No. 2 before the learned Judge Family Court, who shall record the event of paying the costs as ordered by this Court and the learned trial Court shall dispose of the matter expeditious preferably within a period of two months.

(R.A.)      Petition dismissed.

 

Custody of minor---Tender Years, doctrine of---Applicability---Petitioner and respondent were husband and wife inter se and petitioner sought recovery of his minor children who were with their mother i.e. the respondent-

 PLD 2022 ISLAMABAD 120

S. 491---Constitution of Pakistan, Arts. 9 & 199(1)(b)(i)---Constitutional petition---Habeas corpus, writ of---Custody of child---Scope---Jurisdiction of a Court adjudicating a habeas corpus petition in relation to a child cannot be confused with an ordinary habeas corpus petition where focus of Court is on recovery of the person illegally detained in order to uphold his right to life under Art. 9 of the Constitution---In case of a minor, his rights to liberty under Art. 9 of the Constitution entails a right to be in the custody of the person who ought to have the custody of the minor in accordance with law, till such time the minor attains age of majority he/she has a right to be taken care of whether by parents or relatives or the State---Focus of Court in a habeas corpus petition filed on behalf of a child is not just on illegal detention but on ensuring that interim custody of minor pending its determination by a Guardian Court is being dealt with in accordance with law.
Custody of minor---Tender Years, doctrine of---Applicability---Petitioner and respondent were husband and wife inter se and petitioner sought recovery of his minor children who were with their mother i.e. the respondent---Validity---Habeas corpus petition filed for lawful treatment of a minor was not to be confused with abduction or illegal detention of an adult---Consideration in such matter was welfare of minor---Court could not turn a blind eye to the circumstances in which shared custody of children was transformed into sole custody---For the purposes of S.491, Cr.P.C., it was not for the Court to sit in judgment over as to who was at fault in matrimonial dispute but how would welfare of a child was best preserved in interim when joint custody of child shared by both parents was not an option---"Tender Years, doctrine of" guided exercise of discretion by Court s in custody matters, where Court s assumed that healthy development occurred when young children were raised by their mothers---Contemporary psychological and sociologically research questioned assumption that mother was necessarily the best parent for raising a child in all circumstances---Guardian petition was filed by petitioner before Guardian Court and it was for such Court to determine wherein the welfare of children lied for granting custody in the event that petitioner and respondent were unable to resolve their matrimonial disputes---High Court directed Guardian Court to decide question of custody in accordance with law---Constitutional petition was disposed of accordingly

O. VII, Rr. 10 & 11--West Pakistan Family Courts Act, 1964, S. 17--Constitution of Pakistan, 1973, Art. 199-Question of--Cause of action--Application was rejected--Assailed-

 PLJ 2008 Lahore 165

Civil Procedure Code, 1908 (V of 1908)--

----O. VII, Rr. 10 & 11--West Pakistan Family Courts Act, 1964, S. 17--Constitution of Pakistan, 1973, Art. 199-Question of--Cause of action--Application was rejected--Assailed--No illegality--Cause of action had arisen in favour of respondent/plaintiff--Maintainability of suit--Provisions of CPC are not applicable before Judge Family Court which functions under West Pakistan Family Court Act, 1964--Section 17 of this Act specifically bars the application of provisions of CPC except Section 10 and 11 of CPC--Judge Family Court functions as a tribunal and a wisdom of a legislators to oust the provisions of CPC is to provide speedy mechanism to decide the matrimonial disputes--Therefore, application under Order 7 Rule 11 of CPC filed by petitioner was not maintainable--Constitutional petition is not competent against the rejection of application under Order 7, Rule 11 of CPC.   [P. 166] A, B & C

Sh. Muhammad Babur Riaz, Advocate for Petitioner.

Date of hearing: 20.7.2007.


 PLJ 2008 Lahore 165
Present: Hasnat Ahmad Khan, J.
Sheikh ABDUL KARIM--Petitioner
versus
ATTA MANSOOR, LEARNED JUDGE FAMILY COURT, LAHORE and another--Respondent
W.P. No. 7144 of 2007, decided on 20.7.2007.


Order

The petitioner has challenged the order dated 29.6.2007 passed by the learned Judge Family Court Lahore, whereby the application under Order 7 Rule 11 CPC filed by him, has been dismissed.

2.  Brief facts of the case are that Huma Naseem, Respondent No. 2/plaintiff filed a suit for recovery of dower and dowery articles against the petitioner. During the pendency of the said suit, the petitioner instead of filing written statement submitted an application under Order 7, Rule 11 CPC for rejection of the plaint (copy of which has not been attached with this petition).

3.  Learned counsel has contended that the application under Order 7, Rule 11 CPC filed by the petitioner had illegally been dismissed by the Judge Family Court, Lahore; that mere perusal of the plaint would show that gold ornaments weighing 25-tollas delivered to the Respondent No. 2 by the petitioner at the time of marriage were in possession of the said respondent and that during a dacoity ornaments of gold were robbed. Lastly learned counsel argued that the suit filed by the Respondent No. 1/plaintiff was without any cause of action.

4.  I have heard the learned counsel and perused the record annexed with this petition. Para No. 1 of the plaint shows that the gold ornaments of the Respondent No. 1/plaintiff were deposited in a locker of UBL (jointly operatable by the parties) which statedly was in possession of the defendant/petitioner. It is a case of the petitioners that said ornaments had been burgled by some bandits. In the exercise of Constitutional jurisdiction of this Court it cannot be determined as to in whose possession was the key of the locker or whether any party had drawn the said articles from the locker, as it requires recording of evidence. Similarly, an FIR whose lodger is petitioner himself, cannot furnish a ground for rejection of plaint at initial stage.

5.  The contention of the learned counsel that the plaint does not disclose any cause of action, prima facie, does not hold ground. The very perusal of the plaint clearly discloses that cause of action had arisen in favour of the Respondent No. 2/plaintiff. For the correct decision of application under Order 7, Rule 11 CPC normally assertions/averments contained in the plaint are to be seen and unless proved otherwise are to be presumed to be correct. Reliance is placed on Prince Aziz-ur-Rashied Abbasi vs. Begum Katherine Abbasi and 4 others; (2005 MLD 1940). Besides, the provisions of CPC are not applicable before the Judge Family Court which functions under West Pakistan Family Court Act, 1964. Section 17 of said Act specifically bars the application of provisions of CPC except Sections 10 and 11 of CPC. The Judge Family Court functions as a Tribunal and the wisdom of the legislators to oust the provisions of CPC is to provide speedy mechanism to decide the matrimonial disputes. Therefore, application under Order 7, Rule 11 CPC filed by the petitioner was not maintainable. See Ghulam Murtaza vs. Additional District Judge (II), D.G. Khan and 2 others; (1999 CLC 81). Apart from it, constitutional petition is not competent against the rejection of application under Order 7, Rule 11 CPC. In this regard, reliance is placed on a case of Mirza Allah Ditta alias Mirza Javed Akhtar vs. Amna Bibi and 2 others; (2005 CLC 1478). Even otherwise writ petition is not maintainable against an interim order. To fortify my view reliance is placed upon Khan Muhammad vs. Khizer Hayat and others; (2005 MLD 67) and Muhammad Naveed vs. Deputy District Officer (Revenue) and 4 others; (2005 PLC (C.S.) 129). No illegality or procedural irregularity in the impugned order has been pointed out. This petition has no merit and is dismissed in limine.

(N.F.)      Petition dismissed.

 

--Art. 199--Family matter--Constitutional jurisdiciton--Question of facts and findings--No patent illegality---No patent illegality has been pointed out by poetitioner's counsel in the impugned judgments of Courts below--

 PLJ 2008 Lahore 104 

Constitution of Pakistan, 1973—

 

----Art. 199--Family matter--Constitutional jurisdiciton--Question of facts and findings--No patent illegality--High Court cannot interfere in concurrent findings of facts arrived at by Courts below after proper appraisal of evidence on record in exercise of its Constitutional jurisdiciton in the absence of any illegality or any other error of jurisdiction committed by Courts below--Where the question of facts which has been statedly discussed and appraised, High Court should decline to interfere with findings of family Court--No patent illegality has been pointed out by poetitioner's counsel in the impugned judgments of Courts below--Petition dismissed.     [P. 106] B

Jurisdiction--

----Concurrent findings of facts--High Court has no jurisdiction to substitute its own findings in place of concurrent findings of facts of Courts below.      [P. 106] A

2000 YLR 2637; 2001 CLC 863 and 2002 CLC 113 rel.

Mr. Muhammad Rehan, Advocate for Petitioner.

Date of hearing: 30.7.2007.


 PLJ 2008 Lahore 104
Present: Iqbal Hameed-ur-Rehman, J.
ZULFIQAR ALI--Petitioner
veruss
JUDGE FAMILY COURT--Respondent
W.P. No. 7251 of 2007, decided on 30.7.2007.


Order

Through the instant petition the petitioner seeks setting aside the impugned judgments and decrees dated 26.2.2007 and 3.7.2007 passed by the learned Judge Family Court and the learned Addl. District Judge, Sheikhupra, respectively.

2. Briefs facts of the case are that Respondent No. 3 was married with the petitioner on 26.4.2003 in consideration of Rs. 500/- as dower, a plot measuring 03-Marlas worth of Rs. 75,000/- and golden ornaments weighing two tolas and no issue was born out of the said wedlock and it was only after 3/4 months  of the marriage that the relations between the spouses became strained and then Respondent No. 3 was expelled from the house and later on divorced by the petitioner. Respondent

No. 3 filed a suit for recovery of dowery articles and dower amount against the petitioner, which was initially decreed vide judgment and decreed dated 31.7.2006. On appeal the same was remanded to the learned Judge Family Court, Sheikhupura, only to the extent of determining the territorial jurisdiction of the case in hand. After remand Issue No. 3-A was framed:

"Whether this Court has no territorial jurisdiction to adjudicate the matter in hand because of the residence of the plaintiff at District Nankana Sahib? OPD

The issue of jurisdiction was decided in favour of Respondent No. 3 while the earlier findings of the learned Judge Family Court vide its judgment and decree dated 31.7.2006 were maintained on other issues. The suit was decreed in favour of Respondent No. 3 vide judgment and decree dated 26.11.2006. The petitioner preferred an appeal in the Court of learned District Judge, Sheikhupura, which was dismissed vide impugned judgment and decree dated 3.7.2007. Both the impugned judgments and decrees of the Courts below have been assailed through the instant writ petition.

3.  The learned counsel for the petitioner contended that Respondent No. 3 has not been able to substantiate her claim for the recovery of dowery articles as well as dower amount through substantial evidence regarding the same before the learned Judge Family Court.

4.  Arguments heard, record perused.

5.  The learned Addl. District Judge held that evidence of both the parties shows that the findings of the learned Judge Family Court, does not suffer from any illegality or any sort of irregularity and the findings of the learned Trial Court does  not deserve any interference as the dowry articles are always the ownership of the lady and the learned Trial Court has accepted the matter regarding the depreciation of value of the articles and maintained the findings of the learned trial Court. In Issue No. 2 it was further held that according to Nikah Nama Ex.P. 3 which is a registered document established the relationship between the parties and according to Column No. 13 of the Nikah Nama Ex. P. 2 the dower was fixed as Rs. 500/- and according to Column No. 14 it was prompt. According to Column No. 15 the same was paid by the appellant. However, under Column No. 16 the plot of measuring 03-Marlas of worth Rs. 75,000/- and golden ornaments weighing two tolas have also been mentioned by the petitioner to be the ownership of Respondent No. 3. It was also held that Column No. 17 of the Nikah Nama reveals that Rs. 1000/- maintenance allowance was also fixed by the petitioner for Respondent No. 3. The evidence of both the parties reveals that the petitioner himself pronounced the divorce in favour of Respondent No. 3 and the plot and golden ornaments mentioned in Column No. 16 have not been delivered to the respondent which has been proved by Respondent No. 3. The learned Judge Family Court while deciding Issue No. 1 has held that Respondent No. 3 has been able to produce the oral as well as documentary evidence that has not been refuted by the petitioner through the cross-examination of the witnesses of Respondent No. 3 except Respondent No. 3/plaintiff, therefore, the claim of the plaintiff/Respondent No. 3 was accepted as true. The perusal of Ex.P. 1 it reveals that these are the articles which are ordinarily given to a bride at the time of her marriage. Moreover, Column No. 16 of the Nikha Nama depicts that 03-Marlas plot valuing Rs. 75000/- was also written as consideration for the marriage as dower alongwith 2-tolas golden ornaments while the prompt dower of Rs. 500- was paid at the time of marriage. The learned Appellate Court after proper appreciation of the evidence on record upheld the findings of the learned Judge Family Court. Both the Courts below have given concurrent findings, which are based upon substantial evidence and the petitioner has not been able to controvert the same during the trial, as such, the petitioner has failed to show any illegality or irregularity committed by the Courts below in the impugned judgments so as to warrant interference by this Court in exercise of its extra-ordinary constitution jurisdiction. Reliance in this context can be placed to the cases of Muhammad Nawaz vs. Mst. Doulan and 2 others (2000 YLR 2637) and Lahore Development Authority through Director General vs. Shakil Ahamd Naser and 2 others (2001 CLC 863) that this Court has no jurisdiction to substitute its own findings in place of concurrent findings of facts of the Courts below. Moreover, this Court cannot interfere in the concurrent findings of facts arrived at by the Courts below after proper appraisal of evidence on record in exercise of its Constitutional jurisdiction in the absence of any illegality or any other error of jurisdiction committed by the Courts below as per law laid down in the case of Mst. Khair-un-Nisa vs. Abdul Majeed and others (1989 MLD 1945). Where the question of facts which has been statedly discussed and apprised, High Court should decline to interfere with the findings of the Family Court. Reliance in this context can be placed to the case of Adnan Aziz vs. Civil/Family Judge, East Karachi (2002 CLC 113). No patent illegality has been pointed out by the learned counsel for the petitioner in the impugned judgments of both the Courts below.

5.  For the foregoing reasons, I do not find any force in this writ petition which is dismissed in limine.

(N.F.)      Petition dismissed.

 

نکاح نامہ کے کالمز اور بالخصوص کالمز نمبران 13،14،15،16 کے اندراجات سے متعلق لاہور ہائیکورٹ کا تازہ ترین فیصلہ۔

 2022 MLD 416

How various columns of the nikahnama deal with the dower and its kinds, keeping in view the scope of Section 10 of the Ordinance, and in the light of the examination thereof, whether house referred against column No. 16 of the nikahnama constituted part of prompt or deferred dower?
Entries under columns No. 13 to 16 of the nikahnama envisage reflection and manifestation of the parties as to amount/Raqm and other articles and/or property given or to be given by husband to wife as the dower overall.
In the context of Muslim marriage, dower is an obligation under Holy Quran and Hadith. It is the amount of some monetary value to be paid by the husband to the wife at the time of marriage, part of which can be delayed or deferred according to what has been agreed between them. It may be specified (Mahr Musamma) or unspecified (Mahr al-Mithl) . When the dower is unspecified, it would still be an obligation and the law will award it on the demand of the wife. In such case, the amount would be determined keeping in view factors such as dower of the females of her class or of her father’s family, the financial position of the groom, the social status of the bride, the prevalent custom of the time and place, and the agreement that the bride and the groom can reach over the amount. 5 Similarly, the dower can be Prompt (Mu’ajjal) or Deferred (Ghair Muajjal or Muwajjal). Prompt dower is to be paid either at the time of marriage or on demand whereas Deferred dower is to be paid at such date or time as may be mutually agreed between the parties and in the absence of the same, it is to be paid at the dissolution of marriage. It is pertinent to point out that under Shariah there is no specification as to the nature, scope and extent of dower to be given. The Prophet, P.B.U.H said to a man, "Marry, even with (a Mahr equal to) an iron ring.” 6Similarly, there is no upper limit for the fixation of dower in Islam. The inherent idea behind dower is that it is an obligation imposed upon the husband.
Under the Ordinance, marriage is regarded as a civil contract and Section 5 thereof makes it necessary that the marriage shall be registered and the parties can settle their terms and conditions of marriage including dower, through said contract, for which Form II, used as nikahnama, is prescribed in terms of Rule 10 of the West Pakistan Rules made under the Ordinance. The relevant entries in this regard can be incorporated by the parties in columns No. 13 to 16, which relate to dower. Any entry, by way of an amount or an undertaking related to transfer of any property or other valuable such as ornaments etc., is the dower or part thereof.
Here it is relevant for the present purposes to traverse through the wording of columns No. 13 to 16 of the nikahnama. In column No. 13, the word “Raqm (مقر)” (amount) has been used; column No.14 also uses the word “Raqm (مقر)” (amount) whereas columns No. 15 and 16 use the word “Mahr” (dower) that also reveals the intention of the legislature with regard to amount of dower, which can be incorporated and settled by the parties, under columns No.13 and 14 and other valuables as dower under columns No. 15 and 16. Entries in columns No.13 to 16 together become ‘dower overall’. Thus, entry in column No. 13 of the nikahnama is to contain the amount of dower, entry 14 envisages the break-up of such amount of dower spelled out by the parties by virtue of entry under column No. 13 into prompt and deferred whereas entry in column No. 15 may contain anything given or paid out of the amount envisaged under entry 13 or in addition thereto forming as part of the dower overall. In the same strain, entry under column No.16 is to also form part of the dower overall in addition to the amount/cash which may be stipulated by way of entry under column No.13 and also in addition to anything else given by way of entry under column No. 15. Therefore, entries under columns No. 13 to 16 of the nikahnama envisage reflection and manifestation of the parties as to amount/Raqm (مقر) and other articles and/or property given or to be given by husband to wife as the dower overall. Therefore, anything other than an amount, forming part of dower overall and incorporated under columns No. 15 and/or 16 has also to contain the time and mode of payment and giving of the same by husband to wife. Failure to spell out the mode and time of dower contained in entry 15 and/or 16 would entail the attraction and applicability of Section 10 of the Ordinance.
It is also important to examine as to under or against which column of the nikahnama, such amount or property is mentioned. It is entry in column No. 14 of the nikahnama, if incorporated, will indicate the true intention of the parties in relation to the extent of amount (only) fixed as prompt and/or deferred dower. For other valuables such as gold or property, mode/time of payment is to be specified in corresponding entries/columns. If no detail about the mode of payment of the dower is specified in the nikahnama,Perusal of Section 10 of the Ordinance, brings forth the legislative fiat that where no details about the mode of payment of dower has been spelled out by the parties to confer certainty to it under the marital contract, the omission or failure of the parties to fill in and/or reflect their intention in a perspicuous manner, the legislature has stepped in to fill in such omission of the parties through Section 10 of the Ordinance which clearly states that, in such like situations, the entire amount of the dower shall be presumed to be payable on demand. The statutory presumption embodied under Section 10 of the Ordinance is rebuttable; however, the same has to be rebutted through positive evidence.

-Special power of attorney in favour of special attorney can be rectified and cured by personal appearance--Legality--Power of attorney was written on simple paper without payment of stamp paper--

 PLJ 2009 Lahore 472

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Special power of attorney in favour of special attorney can be rectified and cured by personal appearance--Legality--Power of attorney was written on simple paper without payment of stamp paper--Not verified by Oath Commissioner--Document was found defective in law--Reservation on signature of petitioner--Validity--Irregularity or illegality in execution of special power of attorney in favour of special attorney can be rectified and cured by personal appearance before trial Court--Case was remanded to trial Court.      [P. 473] A

Raja Jahanzeb Akhtar, Advocate for Petitioner.

Respondent No. 2 proceeded ex-parte.

Date of hearing: 11.3.2009.


 PLJ 2009 Lahore 472
Present: Rana Zahid Mehmood, J.
Mst. AMINA SAEED KHAGA--Petitioner
versus
JUDGE FAMILY COURT, LAHORE and another--Respondents
W.P. No. 3649 of 2008, decided on 11.3.2009.


Order

This is a constitutional petition filed by the petitioner challenging dismissal of her suit vide judgment and decree dated 31.03.2008 passed by Respondent No. 1/learned Judge Family Court, Lahore which was a suit for dissolution of marriage with Respondent No. 2, while the suit was dismissed on the ground that special power of attorney placed on record as Mark-A was written on simple paper without payment of stamp duty and was also not verified by the Oath Commissioner, therefore, as the petitioner had not appeared before the learned Judge Family Court and suit was filed through special attorney as well, the document stated above was found defective in law, therefore, the learned Judge observed that had the petitioner appeared before him, the irregularity and the illegality stated above could be cured. It is also important to mention that the learned trial Judge had also shown his reservation on the signatures of the petitioner in favour of the special attorney.

2.  Learned counsel for the petitioner has submitted that since the petitioner is present in person in Court today and she can also appear before the learned Judge Family Court, therefore, any illegality or irregularity highlighted by the learned Judge Family Court on the special power of attorney can be cured, therefore, petition may be allowed, case may be remanded to the learned trial Court for proceeding in accordance with law and petitioner undertakes to appear before the learned trial Judge. He submitted that a direction may be given to the learned trial Court to decide the suit within 15-days.

3.  Respondent is proceeded ex-parte as notices were issued to him through TCS and the receipt is available on record, therefore, as none is present from his side, therefore, he is proceeded ex-parte.

4.  Since the petitioner is present in person before this Court today and can conveniently appear before the learned Judge Family Court and the irregularity or illegality in the execution of the special power of attorney in favour of the special attorney can be rectified and cured by her personal appearance before the trial Court, therefore, this petition is accepted and the case is remanded to the learned trial Court/Judge Family Court to proceed further in accordance with law after the petitioner appears before him in person and supports the execution of special power of attorney through her specific statement in accordance  with  law  or  may seek the indulgence of the Court by direct appearance and a power of attorney in favour of the counsel. The trial Court is directed to expedite the trial to conclude the same within 60 days.

(R.A.)      Order accordingly

--S. 14--Suit for recovery of dowry articles--Family Court was persuaded by admission of respondent during course of cross-

 PLJ 2022 Lahore (Note) 3

----S. 14--Suit for recovery of dowry articles--Family Court was persuaded by admission of respondent during course of cross-examination that she was given 109 dowry articles as per list Exh.D-I, whereas ADJ had dissented with this observation--Authenticity of list of dowry articles Exh.P-1. DW-2, close relative of petitioner, has also deposed in same fashion-Respondent’s father stood retired from Pakistan Army, is drawing pension and presently also doing private job, whereas respondent’s brothers are earning their livelihood by respectable means--Financial position of parents and family members of respondent was strong enough to give dowry articles to respondent at time of her marriage--The alternate price fixed by Addl. District Judge is not fair enough, whereas price of these articles should be excluded from alternate price of dowry articles--The respondent would be entitled to recover dowry articles as per list or in alternate price.

--Ss. 9 & 10--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowances, dower amount and delivery expenses-

 PLJ 2022 Lahore 246

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

----Ss. 9 & 10--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowances, dower amount and delivery expenses--Consolidated judgment--No evidence regarding snatching of gold ornament by petitioner--Financial status of petitioner--Courts below keeping in view needs of minors and Respondent No. 3 as well as financial status of petitioner while appreciating evidence on record have rightly fixed maintenance allowance of Respondents No. 3 to 5--Findings recorded by Courts below on this score do not call for any interference which are upheld and maintained--Gold ornaments are considered to be in possession of women folk, being their personal gifts and property as well as dear to them and when there is no evidence on record showing that same were snatched by petitioner, findings recorded by appellate Court on this point are exceptional and do not call for any interference at this stage--There appears no legal infirmity or error in impugned judgments and decrees warranting interference by High Court in exercise of extraordinary constitutional jurisdiction--Petition dismissed.     [P. 248] A, B & C

Mr. Azam Jan Muhammad, Advocate for Petitioner.

Mr. Adeel Khawar Nahra, Advocate Vice Counsel for Respondents No. 3 to 5.

Date of hearing: 9.2.2021.


PLJ 2022 Lahore 246
Present: Shahid Bilal Hassan, J.
Rana MUHAMMAD SALEEM--Petitioner
versus
ADDITIONAL DISTRICT JUDGE and others--Respondents
W.P. No. 25033 of 2014, decided on 9.2.2021.


Order

This single order will dispose of the captioned petition as well as connected W.P. No. 25670 of 2014, as in both one and the same judgments and decrees have been impugned.

2. Precisely, the Respondents No. 3 to 5 instituted a suit for recovery of maintenance allowance, dower amount, 3 tolas golden ornaments and delivery expenses of Respondent No. 5 against the present petitioner Rana Muhammad Saleem, which was duly contested by him while submitting written statement. Out of divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. The learned trial Court vide impugned judgment and decree dated 22.01.2014 in the following terms:

'------- Plaintiff No. 1 is entitled to receive maintenance allowance @ Rs. 1500/- per month from the date of her expulsion i.e. 10.04.2011 till the existence of marriage and plaintiffs No. 2, 3 are entitled to receive maintenance allowance @ Rs. 2000/- each per month from the date of their birth till the age of majority of Plaintiff No. 2 and till the marriage of Plaintiff No. 3 with 10% annual increment. Further Plaintiff No. 1 is entitled to receive Rs. 20,000/- and three tola gold ornaments as dower amount or its alternative current value. Further Plaintiff No. 1 is entitled to receive Rs. 20,000/- as delivery expenses from the defendant.'

Both the parties being aggrieved of the said judgment and decree preferred separate appeals. The learned appellate Court vide impugned consolidated judgment and decree dated 02.07.2014 partly allowed appeal preferred by the petitioner and set aside the judgment of learned trial Court to the extent of dower and dismissed claim of the Respondent No. 3 with regards to dower; hence, the instant constitutional petition as well as connected W.P. No. 25670 of 2014.

3. Heard.

4. In the instant constitutional petition, the petitioner has only called into question the impugned judgments and decrees to the extent


Description: Aof quantum of maintenance allowance; however, it is observed that the learned Courts below keeping in view the needs of the minors and Respondent No. 3 as well as financial status of the petitioner while appreciating evidence on record have rightly fixed the maintenance allowance of the Respondents No. 3 to 5. The findings recorded by the learned Courts below on this score do not call for any interference which are upheld and maintained.

Description: B5. So far the claim of the dower of Respondent No. 3 is concerned, the learned appellate Court considering the contents of
the Nikahnama has rightly observed that the dower was fixed as
Rs. 20,000/- and in lieu thereof 3 tolas gold ornaments were given to the Respondent No. 3 by the petitioner. The gold ornaments are considered to be in possession of the women folk, being their personal gifts and property as well as dear to them and when there is no evidence on record showing that the same were snatched by the petitioner, the findings recorded by the learned appellate Court on this point are exceptional and do not call for any interference at this stage.

Description: C6. In view of the above, there appears no legal infirmity or error in the impugned judgments and decrees warranting interference by this Court in exercise of extraordinary constitutional jurisdiction. Resultantly, the petition in hand as well as connected W.P.No. 25670 of 2014 being without any force and substance stand dismissed with no order as to the costs.

(Y.A.)  Petition dismissed

Whether the suit for recovery of dowry articles filed by sister of the deceased lady was maintainable and did she had the locus standi to file such a suit.?

 A careful reading of the preamble would show that the Act has primarily been promulgated for “expeditious” “settlement” and “disposal of disputes” mentioned in the Schedule reproduced supra which primarily cater for the disputes arising out of “marriage”, which is between the “spouses” and the “family affairs” which are outcome of marriage.

When an “issue/dispute/matter” as contemplated in the above Schedule arise to a spouse, for “disposal” of the same either of them under section 6 of the Act being an aggrieved spouse will approach the family court against a party as defined in section 2(d) of the Act, whose presence is necessary for proper decision of the case or which has been impleaded by the family court. Upon such institution, defendant shall be intimated under section 8 who upon intimation will file a written statement under section 9 whereafter under section 10 process of “settlement” will be initiated by the family court by making an effort for reconciliation between the spouses. If the reconciliation fails, issues will be framed and thereupon under section 11 parties will be put to evidence and once the evidence is concluded, under section 12 another effort for “settlement” between the spouses shall be made by the family court and in case it fails, a final decree will be passed.
Unlike the procedure provided for proceeding in a regular civil suit under the Code of Civil Procedure 1898 (CPC), for “expeditious” disposal of the family suits, under section 7 an aggrieved spouse is allowed to enjoin multifarious causes of action (as mentioned in the Schedule) in one suit and for disposal of the same section 12-A provides for a time line. To further simplify the process/procedure and for express disposal of cases, under section 17 application of Qanun-eShahdat Order 1984 and CPC has also been ousted.
Placing the afore-referred dissection of the Act in juxtaposition with the facts of the present case, it has surfaced that the jurisdiction of a family court is circumscribed and is restricted to the “matters” mentioned in the Schedule reproduced supra. A bare perusal of the Schedule would show that it does not empower a family court to adjudicate upon a claim of a party qua his/her right of inheritance or tarka.
In the above background, since the claim of the petitioner is that of her inheritance as she is asking for ½ of her share in the dowry articles being the estate/tarka of the deceased for which she has approached the family court by way of filing a suit for recovery of dowry article and since determination of share in the estate/tarka of a deceased or its distribution do not fall within the jurisdiction of the family court, hence the suit filed by her was not maintainable as she had no locus standi to approach the family court, thus, the courts below have rightly decided against the petitioner.
As discussed above since the Act revolves around the settlement and resolution of disputes arising out of marriage and family, (which is the outcome of the marriage), it is only the spouses (either of them) who under the Act can approach the family court, being an aggrieved person and file a case against the other spouse or any person whose presence is necessary for proper adjudication [see section 2(d) of the Act]. An exception to the question of locus standi is created in the cases of guardianship as in such cases the paramount consideration is the welfare of the minor [as contemplated in the Guardian and Wars Act 1890]. Similarly the Superior Court have also recognized the rights of the parents of a deceased daughter to approach the family court seeking recovery of dowry articles [since they had given the dowry articles to the deceased and their capacity to sue is recognized in section 2(d) of the Dowry and Bridal Gifts (Restriction) Act 1976].
There is no cavil to the proposition that in the cases of Mst. Nasim Sharif and Mst. Musarrat Andleeb supra, this Court has held that while determining the jurisdiction of a family court, the subject-matter has to be given precedence instead of the parties who have approached the court, however, the said judgments are distinguishable and not applicable to the case in hand for the reason that in those cases there was no claim of inheritance/distribution of assets of the deceased spouse. Moreover, in the former judgment, a suit was filed by the parents of the deceased daughter qua recovery of dowry articles, whereas in the latter, the same was filed by the wife against the successor of her deceased husband, alleging that they have usurped the dowry articles.

Writ Petition No. 156059 of 2018
(Azmat Jahan v. Additional District Judge, etc.)
08.03.2022









Subscribe to: Posts (Atom)
Powered by Blogger.

Case Law Search