-Family Court dismissed the suit for recovery/possession of house in lieu of dower to be paid by husband in terms of Column No. 16 of Nikahnama--

 Citation Name: 2019 CLC 1475
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SHAZIA PARVEEN VS ADDITIONAL DISTRICT JUDGE

S. 5, Sched.---Civil Procedure Code (V of 1908), O. XII, R. 6---suit for recovery of dower---Judgment on admission--
-Family Court dismissed the suit for recovery/possession of house in lieu of dower to be paid by husband in terms of Column No. 16 of Nikahnama---Plea of wife was that an agreement was executed by husband in her favour relating to transfer of house as dower--- Husband claimed that the said dower was paid in cash---Trial Court dismissed the suit on the admission of wife that dower had been received by her---Validity---Trial Court had not mentioned in what perspective such admission was made and what was the mode of payment of dower to the wife in terms of her admission---Admission of wife had been considered in piecemeal before using the same for decision---Admission had to be rejected or accepted as a whole which had not been done by the courts below---Constitutional petition was partly allowed and the matter was remanded to the Trial Court for decision afresh.

Petitioner along with his brother and counsel was present before the appellate court when the parties settled to resolve the claim of dowry articles and dower on the basis of statement of maternal uncle of the petitioner on oath---

 Citation Name: 2020 CLCN 10
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KHUBAIB KHAN VS ADDITIONAL DISTRICT JUDGE, MIAN CHANNU

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

-suit for recovery of maintenance allowance and dower---Maintenance allowance proportionate to financial status of husband/father--

 Citation Name: 2019 YLR 640
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SAIMA ASHRAF VS ADDITIONAL DISTRICT JUDGE

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

--Deferred dower---Scope---Wife sought recovery of deferred dower during subsistence of marriage-

 Citation Name: 2020 MLD 1008
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Dr. NOOR MUHAMMAD SALEEMI SAGGU VS ADDITIONAL DISTRICT JUDGE

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

-Suit for declaration and permanent injunction with regard to land given as dower--Maintainability-

 Citation Name: 2020 CLC 952
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NIAZ AHMED VS Mst. MUSHARAF SHAHEEN

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

-Defendant-husband living abroad submitted wakalatnama and written statement without his signatures-

 

Citation Name: 2019 MLD 401

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IQBAL RABBANI VS NOOR UL AIN

Ss. 5, Sched, 7, 9, 17-A & 18---Family Courts Rules, 1965, R. 4---Civil Procedure Code (V of 1908), S. 132 & O. VI,
R. 15---suit for recovery of maintenance allowance, dower and dowry articles---Appearance of parties in person---Scope---Representation through counsel/attorney---Scope---Defendant-husband living abroad submitted wakalatnama and written statement without his signatures---Striking of defence---Scope---Personal appearance of a party before Family Court---Pardanasheen lady---Appearance through agent---Exemption from personal appearance--Appointment of a counsel---Authority of agent---Irregularity in the wakalatnama---Effect---Wife filed suit against her husband who lived abroad and his father---Wakalatnama and written statement signed by the father of husband were filed but without signatures of defendant-husband---Family Court struck-off defence of defendant-husband---Validity--suit with regard to family matters could be filed before Family Court by presentation of a plaint---Court on presentation of plaint was to fix a date for appearance of defendant issue summons for appearance on the date fixed therein---If defendant received summon then he should appear before the Family Court and file written statement with list of witnesses---Pardanasheen lady/party to a family suit might be permitted to be represented by a duly authorized agent---Defendant was not bound to appear in person before Family Court---Right to be represented through counsel was a statutory right---Any person who was of the age of majority and was of sound mind might employ an agent through an express or implied authority---Said agent could perform every lawful action which was necessary in order to do such act---When a party was not required to personally appear then he could be represented through attorney or counsel---Appearance of the parties before the Court would include appearance through duly constituted attorney--Court had to confirm genuineness of pleadings/presentations and consent of parties to be represented having not been obtained by way of force, fraud or undue influence---Counsel appointed by a party to the proceedings could represent his/her client before the Court---Execution of wakalatnama was the written instrument and proof of such appointment--If from the record it was clear that party to the proceedings had appointed a counsel, mere omission of certain particulars in the wakalatnama was irregularity which would not vitiate the relations between the counsel and client--Family Court could strike-off defence if order for interim maintenance had not been complied with and decree the suit---If conduct of defendant was contumacious and he had willfully disobeyed the lawful order of Family Court then Court had jurisdiction to strike off the defence---Written statement was signed by one of the defendants and counsel in the present case---Submission of power of attorney at belated stage was not fatal---Order for striking-off defence in presence of valid written statement and that too without notice was unwarranted and not sustainable in the eyes of law---Non-signing of pleadings as well as wakalatnama were mere irregularity and said defect could be cured at any stage by allowing the party to put his/her signatures on the same---If any of the defendants had signed written statement then it would be deemed as valid written statement before the Court---If there was any defect in the power of attorney then same could be cured by filing power of attorney duly attested by the Consulate of Pakistan abroad--Defendant had been restrained from defending his case through impugned order which was against law; said order being illegal and final in nature was amenable to the constitutional jurisdiction of High Court---Defendant could be represented through duly authorized agent---Wakalatnama should be returned to the counsel for the defendant for resubmitting the same before the Trial Court---Defendant-husband was allowed to place on file the power of attorney executed in his favour---Impugned order passed by the Family Court was set aside---Constitutional petition was allowed in circumstances.

--Husband himself had admitted outstanding dower as 5-1/2 tolas against him while cross-examining the Nikah Registrar-

 Citation Name: 2020 CLC 910

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USMAN KHAN VS Mst. SHEHLA GUL

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


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

While framing the issues and passing the order of interim maintenance, the Family Court shall take into consideration following crucial questions

 Though by virtue of Section 17-A of The Act Family Court was vested with the power to strike off the defence of the defendant and decree the suit on failure by him to pay the interim maintenance in terms of order of the Court but it will not equip the Court with unfettered powers to proceed mechanically. In no circumstances, a Court can abdicate its prime duty to foster justice as per canons of law. It is trite law that Court cannot proceed in vacuum and exercise judicial powers arbitrarily and whimsically. Before invoking a penal provision like section 17-A of The Act the Court was supposed to consider as to whether it was vested with the power to pass the order of interim maintenance, which was not done at all.

While framing the issues and passing the order of interim maintenance, the Family Court shall take into consideration following crucial questions: -
i.Who has the primary responsibility to maintain children; parents or grandparents?
ii.Whether in Christian faith, a grandfather is liable to maintain his grandchildren, especially in the presence of mother of the children? If yes, to what extent?
iii. What is the extent of a mother’s liability to maintain her children?
iv. Can the Plaintiff’s mother be categorized as “poor” and “unemployable” so as to excuse her from primary responsibility for her children’s maintenance?
Would it not be appropriate to require evidence of income of the Plaintiffs’ mother so as to determine whether she is “poor” and incapable of maintaining her children?
v. Whether, in the absence of any guidance in the Christian faith, principles of Islamic Law may be invoked in this case, and what will be the result of their application to the facts and circumstances of this case?
vi.Can it be said that the grandfather stands in loco parentis to his grandchildren when their mother has their custody and/ or guardianship?
vii.How long are the Plaintiffs entitled to receive maintenance? Issue No.1 specifically pertains to this question. However, both learned Courts below have simply held that the Plaintiffs are entitled to receive maintenance from the Defendant “till the time when they will be legally barred from being maintained by the defendant”, without categorically deciding when the legal bar will operate.
viii.If the claim of the Plaintiffs is not on the basis of minority but on basis of being poor relatives, even then, can the grandfather, who is of advanced age, be held liable for their maintenance in the presence of the mother and other relatives? If yes, to what extent?

Writ Petition-Family-Maintenance
38-14
BASHIR MASIH VS SUNEELA NADEEM ETC
Mr. Justice Mirza Viqas Rauf 29-04-2022
2022 LHC 3442













--Dissolution of Muslim Marriages Act (VIII of 1939), S.2---suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Plea of khula--

 Citation Name: 2020 CLC 1874
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Mst. FARHAT IMAM VS SAJID NAZEEF

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

-Maintenance allowance for the minors fixed by the Courts below was insufficient to meet their requirements which was enhanced to Rs. 5,000/per month for each child with further increase @ Rs. 10% per annum--

 Citation Name: 2020 YLR 1850
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Mst. SANA GUL VS USMAN KHAN

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

---Nikahnama, Column Nos. 17 & 20---suit for recovery of maintenance allowance and residential house--

 Citation Name: 2020 YLR 2350

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JEHANGIR KHAN VS Mst. SAEEDA BEGUM

S. 5, Sched.---Nikahnama, Column Nos. 17 & 20---suit for recovery of maintenance allowance and residential house--Column No. 17 of Nikahnama was silent whether residential house was given to the plaintiff-wife either in lieu of dower or as a gift---suit house had been given to the plaintiff as a part of dower or gift in consideration of marriage in circumstances---Family Court had exclusive jurisdiction in the matter---Plaintiff according to Column No. 20 of Nikahnama was entitled for maintenance @ Rs. 5,000/- per month---Plaintiff-wife had left the house of defendant due to non-payment of maintenance allowance---Courts below had rightly held that wife had not self deserted---Trial Court had rightly held that wife was entitled for maintenance @ Rs. 5,000/- per month for last three years and further maintenance allowance at the same rate till subsistence of marriage and had declined to grant maintenance beyond period of three years---Judgment and decree of Appellate Court to the extent of recovery of maintenance beyond three years with 15% increase was illegal and same were set aside and those of Family Court were restored---Constitutional petition was partially allowed.
PLD 2012 L 418. S.9 SUB 1 B favor husband conjugal right only khula can be claim . KFC has no other jurisdiction

Suit for dissolution of marriage on basis of Khula---Return of Dower -

 2022 CLC 634

Suit for dissolution of marriage on basis of Khula---Return of Dower ---Scope---No legal requirement exists in a suit for dissolution of marriage to restore to the husband the Haq Mehar received by wife in consideration of marriage at the time of Nikah---In terms of S. 10(5) of the Family Courts Act, 1964 the surrender of Dower by wife in a case of dissolution of marriage through khula is no more mandatory or a matter of course rather it is discretionary---Such surrender is not automatic but depends upon direction of the Family Court---Surrender by the wife under S. 10(5) is only a part of the Dower and not the whole of it---Scope of discretion of the Family Court in this regard covers not only whether or not to direct surrender of the Dower by the wife but also how much or what part of the prompt or deferred Dower ---Such direction for surrender has to be within the ceiling prescribed by the legislature in either case i.e. up to fifty percent of the deferred Dower or up to twenty five percent of the admitted prompt Dower ---Any direction by the Family Court to the wife for the surrender of Dower has to be part of either of the two, namely deferred Dower or admitted prompt Dower and not both---In the decree for dissolution of marriage, in case whole or part of the deferred Dower is outstanding, subject to S. 10(5), it is mandatory for the Family Court under S. 10(6) to direct the husband to pay the same to the wife

Maintenance of minors, enhancement of---Appeal/adequate alternate remedy, availability of-

 2022 MLD 634

Maintenance of minors, enhancement of---Appeal/adequate alternate remedy, availability of---Constitutional petition---Maintainability---Contention that appeal was not available against Maintenance allowance for minor---Held, that settled law was that non-provision of appeal under S. 14(2) of the Family Courts Act, 1964, was to protect under-privileged/generally oppressed section of society from prolonged/costly litigation---Minor, indeed fell within that category, hence denial of appeal under S. 14(2) of the Act, was for the protection of the minor and not vice versa---Any other interpretation of S.14(2) of the Family Courts Act, 1964, would defeat the very purpose/object of the said Act and would frustrate the beneficial nature of the said provision---Remedy of appeal/adequate alternate remedy was available to the petitioner/minor for the enhancement of Maintenance allowance--

Maintenance , re-fixation of---Determining factor---Financial status---Principle---Family Court had exclusive jurisdiction relating to Maintenance allowance and matters connected therewith-

 2022 MLD 731

Maintenance , re-fixation of---Determining factor---Financial status---Principle---Family Court had exclusive jurisdiction relating to Maintenance allowance and matters connected therewith---If the granted rate for per month allowance was insufficient/inadequate, institution of fresh suit was not necessary, rather the Family Court may entertain any such application---Court may increase/decrease the Maintenance after considering financial status of husband/father---For enhancement of Maintenance allowance on behalf of minors, application could be filed by the person having custody of minors---If Maintenance allowance was fixed without considering the financial status of person who had been burdened with such future financial liability, he could file application for re-fixation of Maintenance allowance.

گارڈین کیس وہاں دائر کیا جائیگا جہاں پر بچہ رہتا ہو۔ گارڈین کیس میں بچہ کی ویلفیئر دیکھی جای گی

 The provision of Section 9 of the Guardian & Wards Act relates to jurisdiction of the Court to entertain guardian petitions, clearly provides that an application with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

T.A. No.12276 of 2021
Mst. Shabnam Bibi
Date of Hearing: 21.04.2022






Suit for recovery of Maintenance allowance---Appeal---Constitutional petition---Maintainability---

 2022 CLC 634

Suit for recovery of Maintenance allowance---Appeal---Constitutional petition---Maintainability---Scope---Award of Maintenance allowance at the rate of Rs.5000/- per month---Husband/petitioner challenged such award in Constitution jurisdiction of High Court---High Court observed that the same had already been considered by legislature to be too meager even to allow an appeal under S. 14 of the Family Courts Act, 1964, therefore, entertaining a writ petition would tantamount to defeating the legislative intent and purpose of restricting the challenge to such decree Constitutional petition was dismissed

-Petitioner/husband assailed award of Maintenance allowance to the respondent/wife on the ground that she herself had left his house of her own volition--

 2022 CLC 634

Suit for recovery of Maintenance allowance---Scope---Petitioner/husband assailed award of Maintenance allowance to the respondent/wife on the ground that she herself had left his house of her own volition---Validity---Respondent levelled allegations of bad and disrespectful behaviour on part of the petitioner towards her and she deposed in her evidence that on account of torture inflicted by the petitioner upon asking for Maintenance , she had left the house of the petitioner and to that extent her testimony was not discredited in cross-examination by the petitioner---Respondent had left the house of the petitioner under compelling circumstances to reside with her parents and the petitioner could not prove any attempt on his part to reconcile with her---Defence witnesses had admitted the date of desertion as well as the fact that the petitioner had not paid any amount of Maintenance from the said date till dissolution of the marriage---Decree for Maintenance was rightly passed in favour of the respondent-

S.5, Sched.---Suit for recovery of Maintenance , delivery charges and dowry articles-

 2022 MLD 731

S.5, Sched.---Suit for recovery of Maintenance , delivery charges and dowry articles---Petitioner/plaintiffs (wife) claimed that respondent (husband) behaved cruelly and ousted the petitioner from his house (in 4th month of marriage); that minor was born out of wedlock; that respondent was working abroad and owned land and could pay Maintenance of Rs.30,000/- per head/per month; that he pronounced divorce; that he had refused to pay Maintenance and delivery charges of Rs.40,000/- incurred by petitioner---Respondent, in written statement, alleged that petitioner left his house nearly 4 years after marriage and refused to rehabilitate; that on petitioner's demand, he pronounced divorce on 20/05/2013; and that he was ready to return dowry articles as per his list attached with written statement---Trial Court decreed suit holding the wife entitled to recover of Rs.7000/- per month as Maintenance till the period of Iddat, whereas minor was held entitled to Rs.7000/- per month from the said date; and suit to the extent of recovery of delivery expenses was dismissed---Appeals filed by both parties were dismissed by District Court---Held, that matter regarding recovery of dowry articles was settled during pendency of suit---Petitioner/wife admitted in cross-examination that minor was born in hospital through normal delivery; that she had no proof regarding financial income of respondent---Courts below had concurrently fixed the Maintenance allowance @ Rs.7000/- per month after due consideration of the needs/requirements of minor andby taking into account financial status of respondent-

--Gold ornaments and a constructed house was incorporated in the Nikahnama as "dower" at the time of marriage-

 Citation Name: 2019 YLR 84
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Mst. RUKHSANA MAJEED VS ADDITIONAL DISTRICT JUDGE

S. 5 & Sched.---suit for recovery of dower---Gold ornaments and a constructed house was incorporated in the Nikahnama as "dower" at the time of marriage---Execution of exhibited agreement admitted by the party---Effect--Petitioner/ ex-wife contended that Appellate Court had wrongly set aside the decree passed by the Family Court as written agreement exhibited by the respondent/ex-husband was disbelieved by the Family Court---Respondent contended that petitioner had waived off the right incorporated in Nikahnama in light of agreement between the parties duly written on stamp paper---Validity---Record revealed that petitioner/plaintiff (ex-wife) had admitted the fact that she purchased the stamp paper, mentioning certain serial number and date, which contained her signature as well as thumb impression; she also admitted that she signed the stamp paper after the same was written---Record revealed that document exhibited by the respondent bore the serial number and date as referred to by the petitioner--Respondent produced not only attesting witnesses and the scribe of said exhibited document , but also one witness to prove the purchase of exhibited stamp paper---Witnesses proved the fact that the petitioner had waived her dower in favour of the respondent while she admitted the execution of the document exhibited by the respondent---Appellate Court had rightly appreciated the evidence on record---High Court upheld the impugned decree and judgment passed by the Appellate Court----Constitutional petition was dismissed accordingly.

Art. 104---suit for recovery of deferred dower---Limitation-

 Citation Name: 2019 CLC 1008
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MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE

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

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--

 Citation Name: 2019 PLD 218
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AJMAL KHAN VS Mst. FALAK NEGAR BIBI

S. 5, Sched---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---suit for dissolution of marriage and 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.


-Family Court dissolved marriage on the basis of Khula----Wife in such event had to seek Khula by foregoing dower received by her from her husband in consideration of marriage--

 Citation Name: 2020 PLD 173
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Mst. YASMEEN GUL VS MUHAMMAD ZUBAIR

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

--Record revealed that during subsistence of trial, Session Court, on application under S. 491, Cr.P.C, gave children to the custody of mother--

 Citation Name: 2019 YLR 734

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ANWAR ALI VS Mst. NAHEED

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