--Family Court conditionally dissolved the marriage and passed decree for half dower in favour of wife---

 

Citation Name: 2019 PLD 218

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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.

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--

 Citation Name: 2019 MLD 758
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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.

--Husband contracted second marriage without first wife's consent---Claim of first wife for maintenance, dower and return of dowry articles-

 Citation Name: 2020 CLC 803

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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.

In Pakistan, the maintenance with regard to Muslim children is governed by the Injunctions of Islam and in other cases as per applicable personal law and the provisions of the Family Courts Act, 1964 in this regard essentially govern jurisdiction and procedure.

The jurisdiction and procedure of Family Courts in Pakistan is, inter alia Courts Act, 1964.

On perusal of section 17A(1) of the Act, it is manifest that in a suit for maintenance, the Family Court is required to pass an order fixing interim monthly maintenance for wife or a child. The use of word “shall”, on the face of it, indicates that the said requirement is imperative in character. Such an order is required to be passed on the date of the first appearance of the defendant. The purpose or object of such a mandatory requirement apparently is to ensure subsistence of wife or child till final determination of his or her entitlement qua the maintenance. The interim monthly maintenance so fixed by the Court is payable by fourteenth day of each month. A sanction has been created by the legislature in the form of striking off defence of the defendant followed by a decree to be passed to guard against failure of the defendant to pay interim monthly maintenance in compliance of the order of the Court. The striking off of the defence in the case of default in the payment of interim maintenance is mandatory and no discretion in this regard is conferred upon the Court. Likewise, the striking off of the defence in such cases is automatic (i.e. not dependent upon any order of the Court in this regard), which is reflected from the use of legislative expression “the defence of the defendant shall stand struck off”. The expression “defence struck off” means the defendant would not be entitled to rely on any defence set up by him in his Written Statement and the Court would not give any weight to the same, however, the Court has been required by the legislature to decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case. Being a clause contemplating penal consequences for failure to pay the maintenance, it has to be strictly construed, therefore, the decree passed in terms of Section 17A(1) ibid is confined to the claim for maintenance and shall not cover any other claim of the plaintiff before the Family Court.
The primary question involved in this case is whether the decree passed by the Family Court for the recovery of maintenance under Section 17A(1) of the Act can only be for the period commencing the date of decree and not prior to that? To answer that question, it is imperative to refer to certain fundamental principles governing the grant of relief in suits. For it to succeed, the claim of a party against another must be based on a cause of action i.e. infringement of a right, title or interest recognized by law of the land. Generally speaking, in civil litigation, the entitlement to any relief covers the period commencing accrual of the cause of action. Such entitlement may, however, be controlled, curtailed or restricted by an appropriate legislature by express words or necessary implications. Additionally, in cases where claimants succeed in establishing a cause of action but without proof of the exact date of accrual thereof, relief is usually granted from the date of institution of the suit. If a cause of action is recurring or continuous one, the relief is granted for the future period covering entitlement of the claimant.

W.P.No.1787 of 2022
Syed Ahmad Sher. Versus Addl. District Judge, etc.









Blocking of Cnic by family Court, Non payment of maintenance.

2019 C L C 1787
[Sindh]
Before Nadeem Akhtar, J
Mst. NOOR AFSHAN----Petitioner
Versus
MUHAMMAD GHALIB and 3 others----Respondents
C.P. No. S-285 of 2017 and C.M.A. No.8620 of 2017, decided on 19th February, 2019.

Guardians and Wards Act (VIII of 1890)---
----S.25---Custody of minor---Welfare of minor---Re-marriage of mother---Visitation---Conduct of father---Non-payment of maintenance allowance---Effect---Petitioner/mother assailed the order of Appellate Court whereby permanent custody of minor was given to the father/respondent---Appellate Court had granted the permanent custody of minor to the father on the sole ground that the mother had remarried and was now living with her second husband---Validity---Held; such ground could have been applied had the subject minor been a girl---No other justifiable reason was assigned by the Appellate Court for granting permanent custody of a male minor of tender age to his father---Observation of Family Court regarding the conduct of father being negligent and mala fide, was apparent in view of his continuous absence at the time of visitation ordered by the Family Court, impounding and blocking of his CNIC by Family Court and issuance of his non-bailable warrants by the Judicial Magistrate---Father had not complied with the decree of maintenance passed by Family Court in favour of the subject minor---Grant of permanent custody of minor to respondent/father was not in the interest and welfare of the minor---Respondent was, however, granted right of visitation, subject to certain conditions---Constitutional petition was allowed, in circumstances.
Khawaja Naveed Ahmed and Irfan Bhutta for Petitioner along with Petitioner Mst. Noor Afshan (CNIC No.42401-4414382-0) and minor Maaz Ali.

-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-

  Citation Name: 2020 YLR 188

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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.


Ss. 2(d) & 5, Sched.---dower, recovery of---suit against mother-in-law--

 Citation Name: 2019 YLR 605
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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.

S. 5, Sched.---suit for recovery of dower and maintenance allowance---Principles---Payment of dower on behalf of grandfather---

 Citation Name: 2020 MLD 1091

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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.


Ss. 5, Sched. & 10(4)---suit for recovery of dower, maintenance and dissolution of marriage---Divorce pronounced by husband prior to consummation of marriage--

 Citation Name: 2019 YLR 1945

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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.

نکاح نامہ میں شوھر پر بیوی کو طلاق دینے کی صورت میں ہرجانہ کی ادائیگی کی شرط غیر شرعی اور غیر قانونی ھے۔ اور عدالت طلاق دینے کی صورت میں نکاح نامہ میں درج معاوضہ طلاق شوہر کے خلاف ڈگری نہ کرسکتی ھے

 2022 CLC 729

PLJ 2021 Lahore 485
Conditions mentioned in Column No. 16 of Nikahnama--Claim of recovery of Rs.500,000/- by the respondent/plaintiff from the petitioner/defendant on the ground of second marriage--it was mentioned in the Clause 19--Allah Almighty in Holy Qur’an has delegated uncovenanted powers to the husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds--A husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified
law--The husband has a right to divorce his wife from his free will and no condition can be imposed in this regard--The judgments of the learned Courts below to the extent of Issue No. 4 suffer from patent illegality and are liable to be set aside--

S. 5, Sched, & S.18.---Maintenance for minor and wife---Appearance through agent before Family Court---Effect--Concealment of source of income by husband---

 Citation Name:2020 PLD 343

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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.

--Father-in-law was wakeel in Nikahnama-

 PLJ 2022 Lahore 137

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

----S. 10--Deferred dower--Death of husband--Suit for recovery of dower was decreed--Dismissal of appeal--Father-in-law was wakeel in Nikahnama--Death of father-in-law during pendency of suit--Challenge to--(Father-in-law of Respondent No. 3) was party to Nikahnama and his name is clearly mentioned in Column No. 9 as “Wakeel of bridegroom”--There is no escape by father-in-law to wriggle out of his liability if being “Wakeel” of bridegroom, he had signed prescribed column of nikahnama at time of marriage--Suit filed by Respondent No. 3 for recovery of dower against her father-in-law, who had acted as a “Wakeel” of bridegroom and had signed it, is held to be competent--Counsel for petitioners has been unable to point out any illegality or irregularity in impugned Judgments, which are well founded and based on well reasoning--Petition was dismissed. [Pp. 142 & 144] C, D, E & F

PLD 2016 Pesh. 109, PLD 2010 Lah. 199, 1994 SCMR 686 and
PLD 1978 Lah. 711 ref.

Words and Phrases--

----“WAKIL” A person invested with authority to act for another.

                                                                                             [P. 140] A

Wakil--Law of Lexicon with Legal Maxims and Words and
 Phrases reprint Edition 1996 at page 1329.

Words and Phrases--

----“VAKIL” A plenipotentiary; a representative with absolute authority.          [P. 140] B

Wakil--Urdu English LAW DICTIONARY Edition 2000 published
Irfan law Book house page 515.

Mr. Muhammad Naeem Bhatti, Advocate for Petitioners.

Rao Muhammad Ashraf Idrees and Dr. Malik M. Hafeez, Advocates for Respondents.

Mr. Muhammad Javed Khan and Miss Mehwish Mahmood, Research Officers for Assistance Rendered.

Date of hearing: 21.9.2021.


 PLJ 2022 Lahore 137
[Bahawalpur Bench, Bahawalpur]
Present: Anwaarul Haq Pannun, J.
MUHAMMAD FAYYAZ, etc.--Petitioners
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P. No. 5899 of 2020, heard on 21.9.2021.


Judgment

Through the instant writ petition, the petitioners have called in question the vires of the judgment and decree dated 19.11,2019, passed by learned Judge Family Court, Hasilpur, decreeing the suit of Respondent No. 3 for recovery of dower and judgment and decree dated 27.08.2020, passed by learned Addl. District Judge, Hasilpur, whereby their appeal was dismissed.

2. The facts of the case in brief are that Respondent No. 3 claimed her deferred dower i.e. Rs. 1,00,500/- and possession of land measuring 04 Kanals or its alternate price Rs. 10,00,000/- by filing a suit against her father-in-law, the late Rahim Bux (died on 28.9.2017 during the pendency of the suit) with the averments that she was married to one Muhammad Shehzad Khan on 13.05.2005 in consideration with aforesaid dower, duly incrporated in the Nikahnama, while the late Rahim Bux acted as a Wakeel of her late husband, and thus is liable to pay the outstanding dower. Since, after the death of her husband, she is entitled to recover the dower from her father-in-law, who being signatory of the nikahnama and Wakeel of his son, is bound to pay the same. After the death of Rahim Bux, the petitioners substituted in the matter as his legal heirs. They have resisted the suit on legal as well as factual planks while denying the averments the plaint. After a thorough learned Judge Family Court decreed the suit of Respondent No. 3 vide its judgment and decree dated 19.11.2019, in the following terms:

“The plaintiff towards dower is entitled to receive Rs. 500/- and 04-K from the property of original defendant (Rahim Bux deceased) in Mouza Awal Khan, Tehsil Khairpur Tamewali or in alternative its market value prevailing on the date of death of plaintiffs husband Muhammad Shahzad Khan (05.12.2015), mode and value to be determined by the learned executing Court during execution, from the defendants (legal heirs of original defendant) as per their proportionate share in the inheritance of original defendant. No order as to costs.”

Being dissatisfied with the aforesaid judgment and decree, the petitioners preferred an appeal, which was dismissed by learned Addl. District Judge, Hasilpur, vide its judgment and decree dated 27.08.2020. Hence, this writ petition.

3. Arguments heard and record perused.

4. The main thrust of argument of learned counsel for petitioners is that as husband of Respondent No. 3 died on 05.12.2012, she filed the suit on 02.05.2017 i.e. after lapse of more than 04 years and 05 months which ought to have been brought within a period of three years after the death of her husband, therefore, suit of Respondent No. 3 was badly time barred. They produced photocopy of Death Certificate of the deceased Muhammad Shehzad Khan (Mark-A) to substantiate their claim. On the other hand, learned counsel for Respondent No. 3 contended that since her husband died about 1½ years prior to the institution of the suit, hence the suit is well within time and to fortify her claim, she also produced Death Certificate (Exh.P-2). Exh.P-2 is certified copy while Mark-A is photocopy of Death Certificate of the deceased husband. Exh.P-2 being a public document enjoys presumption of truth qua its entries. Muhammad Imran, Secretary Union council Inayati Teshil Khairpur Tamewali (DW-1) brought the original death record register and according to him, Exh.D-1 is correct copy as per record, the particulars of Exh:P-2 and Exh.D-1 are the same and entry is available at Serial No. 18 of the register. As per Death Certificate (Exh.P- 2), Muhammad Shehzad Khan, husband of Respondent No. 3 and brother of the petitioners died on 05.12.2015. Neither the petitioners produced certified copy of Death Certificate Mark-A nor they got summoned the original record of said document, as such, Said document has no evidentiary value and is inadmissible, thus discarded. Hence, in view of the above, the suit of Respondent No. 3 is well within time.

5. The next argument of learned counsel for the petitioners is that the suit for recovery of dower against father of the husband (father-in-law) being incompetent, is not maintainable, However, suffice it is to say that the suit for recovery of dower can validly be filed against father-in-law. Under Islamic law, nikah is a civil contract which binds the parties. Such contract can be made/solemnized through agent/wakeel. According to legal and Arabic dictionary the word wakil/vakil mean and define as under:

Description: AThe law of Lexicon with Legal Maxims and Words and phrases reprint Edition 1996 at page 1329:

WAKIL: A person invested with authority to act for another.

Urdu English LAW DICTIONARY Edition, 2000 published Irfan law Book house page 515:

Description: BVAKIL: A plenipotentiary; a representative with absolute authority

اَلمُنجِد: (عربی اُردو) کے مطابق لفظ الوکیل کی تعریف یوں بیان کی گئ ہے۔

الوَکیل: وہ شخص جس پر بھروسہ کیا جائے وہ جس کو عاجز آدمی اپنا کام سپرد کر دے۔

(Page 1104)

As per Shariah, Nikah of female/parties can be solemnized through their Wakeel and all the Islamic Schools of thought recognized Nikah performed through Wakeel as valid. Maulana Mujeebullah Nadvi at page 644, Volume II of his Book—“Islami Fiqha” defined the meaning of' Wakalat’ in the following words: --

وکالت کے لغوی معنی نگرانی۔ حفاظت۔ چارہ سازی۔ وکار سازی کے ہیں۔ ۔۔۔۔۔۔ جو کام آدمی خود کر لیتا ہے یا کرسکتا ہے اس کو دوسروں سے بھی کرا سکتا ہے۔ شریعت میں اس کی اجازت ہے۔ اور اسی کو وکالت کہتے ہیں۔

At page 646 of the said Book the author observed as under:

تفویض احد اُمرہ لاخرواقامتۃ مقامہ۔

ترجمہ اردو: کسی شخص کا کسی کام کو کسی دوسرے کے سپرد کر دینا اور اس کو اپنا قائم مقام بنا دینا۔

The term "Wakalat" has further been explained at page 648 of the said Book in the following words:

"دوسرے معاملات کی طرح وکالت میں بھی موکل و وکیل کے درمیان ایک معاہدہ ہوتا ہے۔ اس لیے ضروری ہے کہ زبانی یا تحریری طور پر دونوں ایجاب و قبول کریں۔ مثلاً آپ نے کسی سے کہا یا کسی کو لکھا کہ میرا فلاں کام آپ کر دیجئے اور اس نے کہہ دیا یا لکھ دیا کہ ہاں میں کروں گا تو یہ ایجاب وقبول ہو گیا۔"

In ‘Urdu Daaira Maarif Islamia' at page 21, Volume 23, published by Danish Gab Punjab the word ‘Wakalat’ has been defined as under:

"اردو یا فارسی میں وکالت مختیارنامہ۔ اختیار دے دینا یہ ایک قسم کا عقد (معاہدہ) ہے۔ جس کی رُو سے معاہدے کا ایک فریق (موکل) دوسرے کو اپنا وکیل بنا دیتا ہے تاکہ وہ اس  کی کوئی خدمت سر انجام دے۔"

6. The word wakeel is synonymous to English word agent. The agency may be created expressly i.e. in writing or through implications. Even it can be inferred from the circumstances of the case, the thing spoken or written or on the basis of ordinarily course of dealings. By creating agency, the principal confers certain authorities to agent and agent owes certain liabilities in exchange towards Principal. Agency remains intact unless rescinded or some act. of agent renders him incapable of continuing his authority. Normally agent is not held responsible for enforcement of contract entered by him on behalf of the Principal. However, Islamic law clearly a departure to the general rule in case pertaining to the marriage has made, particularly, where father had acted as a wakeel of his son/bridegroom. In absence of tangibly expressed repudiation of such authority the agent/wakeel cannot get rid off the liabilities imposed upon him being wakeel/father of bridegroom. The term ‘Wakeel' has not been defined in the Muslim Family Laws Ordinance, 1961. However, Wakeel is an attorney legally competent to conduct marriage on behalf of bride. The Wakeel generally is representative of the party appointing/nominating him. Registration of Nikah is mandatory under the Muslim family laws.

Description: DDescription: C7. In the present case, Respondent No. 3 and Muhammad Shehzad Khan, deceased in lieu of dower Rs. 1,00,500/- and four kanals land, situated at Mauza Awal Khan, 538/6, 23/6, Tehsil Khairpur Tamewali or its alternate price Rs. 10,00,000/-, were tied in their nuptial bond on 13.05.2005, as mentioned in the Nikahnama
(Exh.P-1). The late Rahim Bux (father-in-law of Respondent No. 3) was party to the Nikahnama and his name is clearly mentioned in Column No. 9 as “Wakeel of the bridegroom”. The Nikahnama also bears his thumb impression. There is no denial that it is primarily duty and obligation of the husband to pay dower to his wife, yet there is no bar or prohibition on another person to bind himself as a surety by way of putting his signature on the Nikah Nama, ensuring its payment and such surety cannot wriggle out from such legal obligation when a suit for the recovery of dower is brought against him by the wife, hence, there is no escape by father-in-law to wriggle out of his liability if being “Wakeel” of bridegroom, he had signed the prescribed column of nikahnama at the time of marriage. Reliance is placed upon case reported as “Gul Akbar and another vs. Jameela Afridi and 4 others” (PLD 2016 Peshawar 109). Reliance may also be placed upon case reported as “Muhammad Anwar Khan vs. Sabia Khanam and another” (PLD 2010 Lahore 119) wherein, it has been held that:

“Husband as a rule, could not give as dower property that did not belong to him but belonged, to someone else including his father--Exception to this rule could be found if it was shown that the father of the husband agreed to do so----in spire of having knowledge that his house had been given as dower in nikahnama the father of the husband never took any step to take any legal action for exclusion of the house from nikaahnama. ----House mentioned in the nikahnama as dower even though, it did not belong to the husband was liable to be transferred to the plaintiff as the father of the husband had given his consent for the same.”

The august Supreme Court of Pakistan in case reported as “Mst. Faqraz Bibi vs. Elahi Bakhsh and 2 others" (1994 SCMR 686) has pleased to observe that:

“Petitioner’s claim of ownership to house in question was based on entry in “Nikahnama” on strength of which she claimed that the house was given to her in lieu of dower at the time of marriage—Petitioner claimed that she had been exercising proprietary rights over the house in question, without let or hindrance by respondents and that both respondents (her husband and his father) had signed “Nikahnama” of petitioner in token of confirmation of stipulation contained in “Nikahnama”— Contention raised by petitioner required examination---Leave to appeal was granted in circumstances."

Family Court under Section 5 of the West Pakistan Family Court Act, 1964 had exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the said Act and there was no barring provision that while claiming dower from the husband only bridegroom/ husband could be impleaded in the suit for recovery of dower and none else- -If another person had stood surety or had guaranteed the payment of dower, he/she could lawfully be impleaded in the suit--Surety and guarantor to the dower were as much party and liable to pay dower as the bridegroom himself. It has been held in the case reported as “Khan Asadullah Khan and others vs. Sheikh Islamud Din” (PLD 1978 Lahore 711) that:

10. “As regards the second question, Mulla in Principles of Mohammadan Law reproduces the definition of dower as “a sum of money or other property which the wife is entitled to receive, from the husband in consideration of the marriage” It has further been observed “if the dower is not paid, the wife, and after her death, her heirs, may sue for it” In Baillie’s Digest of Mohammadan Law on the subject of disputes with regard to dower the following observations occur:

          “Disputes regarding the dower may take place between the married parties themselves in their lifetime, or between their heirs when both are dead, or after the death of one of them, between his or her heirs and the survivors.”

11. In the Mohammadan Law of Inheritance by Almaric Russay on the subject of posthumous claims of dower it has been observed:

          “It has been seen already that the right to dower is not extinguished by the death of husband or wife or both and it is in fact distinctly laid down that a claim of dower may be maintained by the wife against the husband’s inheritors, by the wife’s inheritors against the husband,


          or by the wife’s inheritors against the husband’s inheritors.”

12. It is clear, therefore, that the right to sue survives the death and the heirs can continue the proceedings and their claim in the proceedings continues to be for the dower.

Description: FDescription: E8. For what has been discussed above, the suit filed by Respondent No. 3 for recovery of dower against her father-in-law, who had acted as a “Wakeel” of the bridegroom and had signed it, is held to be competent. The learned trial Court after appraisal of the material available on record has rightly passed the impugned judgment and decree. The findings and observations of learned trial Court have been maintained and upheld by the learned appellate Court after reappraisal of the evidence available on record. The learned counsel for the petitioners has been unable to point out any illegality or irregularity in the impugned Judgments, which are well founded and based on well reasoning. Resultantly, the instant writ petition having no substance, is dismissed.

9. I also duly appreciate the assistance rendered by the Research Officers of this Bench to deal with the issue discussed and dealt with hereinabove.

(Y.A.)  Petition dismissed

S. 5, Sched. & S. 7(2)---suit for dissolution of marriage and recovery of dowry articles, dower and maintenance allowance---Khula, announcement of-

 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.

S. 5, Sched---suit for recovery of dower---Failure to cross-examine on specific issue--

 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.

--Suit for maintenance---Second marriage by husband without consent of first wife---

 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.

--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-

 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.

S.5, Sched.---suit for recovery of dowry articles and dower---Family Court decreed the suit and appeal was dismissed by the Appellate Court--

 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.

-Suit for declaration--Starting point of limitation--Under Art. 120 the suit for which no period of limitation is provided elsewhere in the schedule can be filed within six years when the right to sue accrues-

 PLJ 2010 Karachi 25
Present: Nadeem Azhar Siddiqi, J.
Mst. ROEEBA KHATOON (WIDOW) and others--Petitioners
versus
M.Y. BUTT and another--Respondents
IInd Appeal No. 10 of 2006, decided on 31.3.2009.

Limitation Act, 1908 (IX of 1908)--

----Art. 120--Civil Procedure Code, (V of 1908)--S. 100--Suit for declaration--Starting point of limitation--Under Art. 120 the suit for which no period of limitation is provided elsewhere in the schedule can be filed within six years when the right to sue accrues--When a right to sue accrues in suit for declaration will depend upon the facts and circumstances of each case and right to property is a subsisting right and the right to bring a declaratory suit is a continuing right.   [P. 27] A

1995 SCMR 284 & PLD 2000 Lah. 385, ref.

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

----S. 100--Second appeal--Grounds--High Court in second appeal can interfere on the ground of error of law or an error in the procedure--High Court can also interfere if the decision is contrary to law and contrary to usage being force of law.          [P. 28] B

Mr. Muhammad Aziz Khan, Advocate for Appellants.

Mr. Saifuddin, Advocate for Respondent No. 2.

Date of hearing: 31.3.2009.

Order

By filing this IInd Appeal the appellants have challenged the Judgments and Decrees passed by the trial Court and Appellate Court, dismissing the suit of the appellants.

In short, the facts of the case are that the appellants are the successors of late Marghoob Ahmed, who has acquired the property in question from the Respondent No. 1 on 9.5.1966 against consideration. The said Marghoob Ahmed expired on 22.4.1986 leaving the appellants as his legal heirs. The Appellant No. 1 submitted an application to the Respondent No. 2 for mutation, but the same was refused on the ground that she has no title document in her favour. The appellants filed suit for declaration and mutation in record of PECR Society. The suit was dismissed. The appellants preferred appeal, which was also dismissed.

Learned counsel for the appellants states that in this matter Article 120 of the Limitation Act is applicable which provides a period of six years from the date when the right to sue accrues. He then submits, that the right to sue accrues to the appellants on the day when the Respondent No. 2 has refused the mutation of their names. He further submits that the learned Trial Court as well as learned Appellate Court without considering the material available on record and without determining the date of start of limitation have come to the erroneous conclusion and thus, failed to exercise the jurisdiction vested under it properly and in accordance with law. Learned counsel has relied upon the following reported cases:--

1.             Wali & 10 others Vs Akbar & 5 others (1995 SCMR 284);

2.             Mst. Zakia Begum Vs Niaz Ahmad (1999 MLD 3156);

3.             Saleem Akhtar Vs Nisar Ahmad (PLD 2000 LAHORE 385); AND

4.             Mst. Samina Sheikh Vs Vice Chancellor University of Punjab (PLJ 1996 LAHORE 1389).

Learned counsel for the Respondent No. 2 has conceded the above legal position and states that both the Courts below should have discussed the specific article of the Limitation Act under which the suit was barred and has endorsed his no objection for remand of the case to the trial Court for deciding the same afresh on merits after providing the opportunity to the parties to led further evidence if they so desired.

From the perusal of both the judgments it appears that both the Courts below have dismissed the suit on the point of limitation. In the judgment dated 20.7.2004 passed by the learned trial Court it has been observed as under:--

"As it is evident from the record that Margoob Ahmed the father of Plaintiffs No. 2 to 10 and husband of Plaintiff No. 1 allegedly purchased the suit plot on 9-5-1966 and the present suit was filed on 17-12-2002 after lapse of 36 years which clearly shows that present suit is hopelessly time barred and plaintiff side has not been able to advance any plausible explanation for such delay. Hence in my humble view that the present suit is hopelessly time barred and not maintainable."

From the above quoted portion of the judgment it appears that the trial Court has not stated which article of Limitation Act is applicable and what was the starting point of limitation.

The Judgment of the trial Court was upheld, by the learned Appellate Court. While dismissing the appeal, the learned Appellate Court has observed as under:--

"Margoob Ahmed the father of Appellants/Plaintiffs No. 2 to 10 and husband of Appellant/Plaintiff No. 1 allegedly purchased the suit plot on 9-5-1966 and the suit was filed on 17-12-2002 after lapse of 36 years which clearly shows that it is hopelessly time barred and appellants have not been able to advance any plausible explanation for such delay. Hence I am of the opinion that the learned trial Court has rightly held that the suit is not maintainable."

From the above quoted judgment of the learned Appellate Court it is apparent that the same error has been committed by the learned Appellate Court by not dealing, with the specific article of the Limitation Act by which the suit was barred. The Appellate Court has also not discussed the starting point of limitation and has merely stated that the husband of Plaintiff No. 1 allegedly purchased the suit plot on 9.05.1966 and the present suit was filed on 17.12.2002 after lapse of 36 years.

In this matter it appears that Article 120 of First Scheduled of the Limitation Act is applicable. The said article provides that the suit for which no period of limitation is provided elsewhere in the schedule can be filed within six years when the right to sue accrues. The question when a right to sue accrues in suit for declaration will depend upon the facts and circumstances of each case and right to property is a subsisting right and the right to bring a declaratory suit is a continuing right.

In the reported case of Wali Vs Akbar (1995 SCMR 284) the Hon'ble Supreme Court has held as under:--

"In such cases Article 120 of the Schedule to the Limitation Act applies and time runs from the date when the plaintiff feels aggrieved."

In the reported case of Saleem Akhtar Vs Nisar Ahmad (PLD 2000 LAHORE 385) the Lahore High Court has held as under:

"Article 120 Limitation Act provided limitation for filing a suit for declaration six years only from the date of right to sue. The right  to  sue  would  accrue  to  the  plaintiff  when his right was denied by the defendant/respondent. The right of the plaintiff is a continuous right. There can be no right to sue until there is an accrual of right asserted in the suit and its infringement or its clear unequivocal threat to infringe that right by the defendant against whom the suit is instituted."

The High Court in second appeal can interfere on the ground of error of law or an error in the procedure. The High Court can also interfere, if the decision is contrary to law and contrary to usage being force of law. Apparently by not discussing the relevant provisions of the Scheduled of the Limitation Act and by not determining the date from which the limitation starts running both the Courts below have committed error in law and have failed to exercises the jurisdiction vested under them properly and in accordance with law.

In view of the above position, both the judgments of the Courts below are set aside. The case is remanded to the trial Court for deciding the same afresh on merits. The parties are at liberty to lead further evidence and to produce further documents in support of their claims, if they so desired. The learned Trial Court shall proceed with the matter expeditiously and shall dispose of the matter within four months.

In the above circumstances, the parties are left to bear their own cost.

This IInd Appeal is disposed of accordingly.

(S.K.A.)  Appeal disposed of.

 

-Plea of non-framing of issues regarding age of plaintiffs- Such plea was of no substance in as much, case was remanded by Appellate Court for very purpose and in post remand proceedings, parties were given opportunity to produce their respective evidence whereafter that point (of minority) was decided by Family Court

 PLJ 2003 Lahore 280

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

—O. XIV, R. l--Plea of non-framing of issues regarding age of plaintiffs-
Such plea was of no substance in as much, case was remanded by
Appellate Court for very purpose and in post remand proceedings, parties
were given opportunity to produce their respective evidence whereafter
that point (of minority) was decided by Family Court.                 [P. 284] E

(ii) Constitution of Pakistan 1973-

—-Art. 199-Family Courts Act (XXXV of 1964), S. 5--Jurisdiction of High
Court cannot assume role of Appellate Court for arriving at its own
conclusions after re-appraisal of evidence adduced before Family Court-­
Appraisal of evidence is function of Family Court which has been
invested with exclusive jurisdiction-Finding of fact recorded by Family
Court cannot be interfered within writ jurisdiction when same was based on mis-reading and non-reading of material evidence and reasons have  to be given in support of conclusions arrived at. [P. 285] F

(iii) Family Courts Act, 1964 (XXXV of 1964)-

—-Preamble—Object and scope of Family Courts Act 1964 explained and
illustrated. [P. 283] A

(iv) Family Courts Act, (XXXV of 1964)-

—S. 5—Minors were not bound by document of "Shariat-Nama" written on
behalf of their mother that she would not demand maintenance for her
minor children—Minor's mother was not legally competent to forego or to
contract away their rights. [P. 284] D

(v) Family Courts Act, 1964 (XXXV of 1964)--

—S. 5 Qanun-e-Shahadat (10 of 1984), Art 59-High Court's direction for
Radiological Examination of plaintiff-Age of plaintiff on basis of such
examination was determined and they were found to be minors-Trial
Court's finding was thus, found to be unexceptional and no illegality was
committed by that Court in placing reliance on medical examination of
plaintiffs whereby were found to be minors. [P. 284] C

(vi) Family Courts Act, 1964 (XXXV of 1964)-

—S. 17-Purpose, object and intention behind S. 17 of Family Courts Act
1964, was to exclude application of law of evidence to proceedings before
Family Court-Repeal of Evidence Act, 1872 and its replacement by
Qanun-e-Shahadat Order 1984, has not 'altered that position and
provisions of Qanun-e-Shahadat 1984, were still excluded to proceedings
before Family Court-Mere fact that plaintiffs did not formally prove
specified documents was of no legal consequence, particularly when no
objection was raised by petitioner defendant whan said documents were
in evidence before Family Court-Family Court was also not legally bound
to accept document produced by defendant as true and genuine merely
because same was certified copy of public record. [Pp. 283 & 284] B

PLD 1992 Karachi 46 ref.

Malik Jewed Akhtar Wains, Advocate for Petitioner.

Nemo for Respondents Nos. 2 and 3, they are, therefore, proceeded against ex-parte. Respondent No. 1, is a proforma Respondent.

Date of hearing: 5.9.2002.


 PLJ 2003 Lahore 280

[Multan Bench Multan]

Present-FARRUKH LATEEF, J.

ABDUL MAJID-Petitioner

versus

JUDGE FAMILY COURT KEHROR PACCA DISTRICT LODHRAN and 2 others-Respondents

W.P. No. 3323 of 2002 decided on 18.9,2002. 


JUDGMENT

In this Constitutional petition Abdul Majeed has called in question judgment dated 26.2.2002 delivered by Respondent No. 1, Judge Family Court Kehror Pacca, District Lodhran whereby he granted maintenance allowance to Muhammad Bilal and Muhammad Iqbal-Respondents Nos. 2 and 3 respectively who are sons of the petitioner.

2.            Briefly stated the facts are that the aforesaid minor sons of the
petitioner had through their guardian instituted a suit for maintenance
allowance against the petitioner which was decreed in their favour and they
were granted maintenance allowance at the rate of Rs. 500/- each per
month. Against the said judgment the petitioner filed a Constitutional
petition which was accepted on the ground that Family Court had given
finding without adverting to the document Ex. D. 3 produced by the
petitioner in evidence and the case was remanded to the trial Court for
deciding it afresh in accordance with law after taking into consideration the
entire evidence of the parties available on record.

3.            After the remand the learned trial Court considered the entire
evidence on record and again decreed the suit. Maintenance allowance was
granted to Respondents Nos. 2 and 3 at the rate of Rs. 500/- each per month
from the date of institution of the suit.

4.            Learned counsel for the petitioner has assailed the impugned
judgment on the following grounds:-

(i) Judge Family Court had illegally relied on the documents viz. Medical Certificate Ex. PI, School Leaving Certificate Ex. P2, and compromise deed Ex. P3 for determining the age of Respondents Nos. 2 and 3 because the aforesaid documents were not per se admissible in evidence under Qanun-e-Shahadat and that the Family Court had further erred in not placing reliance on Ex. D 3 (register of birth entry) on flimsy grounds when the said document was per se admissible in evidence and was not required to be formally proved. Reliance was placed on the case of Mst. Bakht-e-Rawida vs. Ghulam Habib and two others (PLD 1992 Karachi 46). It was urged that if documents Ex. PI, P3 are excluded then according to Ex. D3 both Respondents Nos. 2 and 3 were not minors and as such were not entitled to maintenance.

(ii) Material piece of evidence Ex. Dl, (Affidavit of the mother of Respondents Nos. 2 and 3) and 'Sharait Nama' mark A were not considered by the trial Court wherein mother of Respondents Nos. 2 and 3 categorically undertook that she would not claim maintenance allowance in respect of her sons (Respondents Nos. 2 and 3).

(iii) That in written statement specific allegation was raised that Respondents Nos. 2 and 3 were major, therefore, were not entitled to maintenance allowance but no issue was framed on that objection; and

(iv) Ex. PI was not relied upon and could not be produced in evidence in view of Section 7(3) of Family Court Act.

5.               Arguments heard, writ petition and the annexures appended
therewith perused.

6.               Adverting to the arguments of the learned counsel for the
petitioner it may be observed that in the impugned judgment Family Court
has held Respondents Nos. 2 and 3 as minors on the basis of the following
documents:-

(i) Ex. PI, age certificate issued by M.S. D.H.Q. Hospital Lodhran on 23.1.2001 on the basis of radiological examination of Muhammad Bilal. According to this document age of the said body was between 13 and 14 years as on 23.1.2001.

(ii) Ex. ,P2 certificate issued by Head Master Government High School according to which date of birth of Muhammad Iqbal is recorded in the school register as 15.12.1990 which means that at the time of institution of suit his age w.as less then. 10 years,

(iii) Ex. P. 3 a compromise deed between the parties wherein age of the said respondents is respectively stated is 10 and 8 years. Copy of this document is not annexed with the writ petition.

7.   The impugned judgment further reveals that, document Ex. D3,
which was after remand exhibited as R. 1, was not relied upon by the Family on, law of evidence was repealed and replaced by Qanun-e-Shahadat Order 1984. In my humble view bar contained in Section 17 of the Family Courts Act, therefore, applies to the provisions of the law of evidence irrespective of the fact if it was amended repealed and replaced by subsequent legislation and was given another name.

As the provisions of Qanun-e-Shahadat Order did not apply to the proceedings before Family Court, therefore, mere fact that respondents did not formally prove documents Ex. PI to Ex. P3 was of no legal consequence, particularly in view of the fact that no objection was raised by the petitioner when the said documents were tendered in evidence before the Family Court. Similarly Family Court was not legally bound to accept document Ex. D3 (copy of register of birth entry) as true and genuine merely because of the fact that it was a certified copy of public record. Family Court could refuse to attach weight to the said document in view of other convincing evidence to the contrary and it could take notice of any material on record in connection with question of controversy between the parties and was legally competent to evaluate that evidence.

16.          For its satisfaction, this Court had also directed for the Medical
Examination of Respondents Nos. 2 and 3 for determination of their ages in
compliance whereof Respondents Nos. 2 and 3 were medically examined.
According to the Radiological Examination conducted in Nishtar Hospital
Multan age of Respondent No. 2, Muhammad Bilal was between 14 and 16
years whereas that of Respondent No. 3, Muhammad Iqbal was between 13
to 15 years as on 30.7.2002. Suit for maintenance was instituted on 5.4.2000.
Both the respondents are still minors as they have not attained the age of 18
years.

17.          The finding of the learned trial Court to the effect that both the
respondents are minors is, therefore, unexceptional and no illegality was
committed by the leaned Family Court in not placing reliance on document
Ex. D. 3 because in view of the evidence produced by the respondents the
said document did not appear to be authentic and genuine.

18.          Next contention of the petitioner's counsel that affidavit Ex. Dl
and 'Sharait Nama' Mark A were not considered by the Family Court, is
without any  substance because  vide  the  said  documents  mother  of
Respondents  Nos.   2  and   3  undertook  that  she  would   not  demand

maintenance for her minor son (Respondents Nos. 2 and 3). Minors were not bound by the said documents nor their mother was legally competent to forego or to contract away their rights.

19.   Next contention of the petitioner's counsel that issues were not
framed regarding age of the minors is without any force because the case
was remanded by the High Court for that very purpose and after remand
parties  were   given   opportunity  to   produce  their   respective   evidence
whereafter that point was decided by the Family Court.

20.        Last submission of the learned counsel for the petitioner was
that Ex. PI was not relied upon hence it could not have been tendered in
evidence in view of Section 7(3) of the Family Court Act This argument is
also without force because the said document was received in evidence by the
Family Court without any objection from the petitioner and there is no penal
provision in the Family Court Act for violation of the provisions of Section
7(3).

21.          In writ jurisdiction High Court cannot assume the role of
appellate Court for arriving at its own conclusions after re-appraisal of
evidence adduced before the Family Court.

22.          Appraisal of evidence is the function of the Family Court which
is invested to it with exclusive jurisdiction. Finding of fact recorded by it
cannot be interferred with in writ jurisdiction when it is not shown to be
based on mis-reading and non-reading of material evidence and reasons have
been given in support of the conclusions arriving at

23.          For the reasons stated above, writ petition is hereby dismissed.
(A.A)           Petition dismissed.

 

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