-Ss. 17 & 25---Custody of minors with their maternal grand-father after suspicious death of their mother---Father failing to discharge his duties towards minors--

 P L D 2022 Supreme Court 32

Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minors---Preferential right---General principle and exceptions---As a general principle the degree of preference was confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which were essential in upbringing of the minors within four corners of law---Any deviation from the general principle, where the blood relationship had to be dislodged, there should be very strong and compelling reasons to have a contrary view which included upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom care of the minors was to be assigned---When ignoring/ bypassing the general principle there must be very strong and exceptional circumstances which must be brought forth with reference to the intent of the legislature regarding the sole purpose of "welfare of minor".

Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minors with their maternal grand-father after suspicious death of their mother---Father failing to discharge his duties towards minors---Parents of father alleged to have burnt to death mother of minors---Whether father had preferential right to custody over maternal grand-father in such circumstances---Held, that the petitioner/father was a cab driver in a foreign country---While the father was away, the mother was critically burnt for which an FIR was lodged against the parents of the father with an allegation that they had intentionally burnt to death the mother of the minors---Statement of the father recorded before the Family Court revealed that had not discharged his duties as father in any manner towards the minor children or his deceased wife; that he was most reluctant to take care of his wife or minor children because they were under the patronage of maternal grandfather and he thought of it as an opportunity to skip his moral, legal and religious duty bestowed upon him---Minor children were brought before the Court and seemed very well dressed up showing mature manners and they plainly refused to accompany their own father, rather they categorically stated to reside with their maternal grandparents---Body language of the minors clearly demonstrated a sign of hatred towards their father---Maternal grand-father of minors stated before the Court that he owned 19 acres of agricultural land which was sufficient to bear the expenses of the minor children and they were already enjoying reasonable living status in the custody of their maternal grandfather---Another important aspect of the present case was that the minors were well aware of the fact that their mother died due to unnatural consequences and it must be in the back of their minds that it was their father who was involved in the whole episode---At present stage any change in custody by the Supreme Court by handing over the minors to the father would be instrumental in impairment of their mental faculty which could have negative impact on their personality in future and that would squarely be against the dictates of "welfare of the minor" which was the prime factor under the Guardians and Wards Act, 1890---Petition for leave to appeal filed by the father was dismissed, leave was refused, and it was directed that the visitation. schedule made by the Family Court for the grandparents shall be considered to be made for the father.

Judgment

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks leave to appeal against the judgment dated 27.02.2020 passed by the Islamabad High Court, Islamabad whereby Writ Petition No.3950/2019 filed by him was dismissed.

2. The brief facts of the case are that the petitioner is working abroad in Saudi Arabia as a Cab Driver and as such the instant petition was filed through his father on the basis of the power of attorney executed by him. The petitioner got married with one Mst. Kausar Naseem (since dead) and during their wedlock respondents Nos.3 to 5 were born. It is claimed by the petitioner that he was enjoying happy matrimonial life but unfortunately on 06.11.2015 his wife sustained burns in an accident and she was admitted in the hospital. On 19.08.2016 when the wife of the petitioner was still in the hospital, respondent No.2 took away the minor children of the petitioner and as such they are in the custody of respondent No.2 till filing of the instant petition. The tragic episode of the matter is that wife of the petitioner passed away on 03.09.2016. The petitioner claimed that he made several attempts to get back the children but the efforts made by him proved futile. Hence the petitioner had no other option except to file petition under section 25 of the Guardians and Wards Act, 1890 claiming custody of the minor children from the maternal grandfather on the basis of preferential right. The Family Court after recording of evidence accepted the petition vide judgment dated 03.09.2019 and declared that under section 19 of the said Act, the father has preferential right to custody of minor children, however, the maternal grandparents were allowed to have meetings with the minors and in this regard a visitation schedule was chalked out. The judgment of the Family Court was assailed through appeal under section 47 of the Guardians and Wards Act, 1890, before the Appellate Court, which was allowed vide judgment dated 15.10.2019 by setting aside the judgment of the Family Court dated 03.09.2019 whereas the visitation schedule was kept intact. The petitioner being dissatisfied with the judgment of the Appellate Court approached the High Court in its constitutional jurisdiction but it also met the same fate vide judgment dated 27.02.2020. The crux of the judgment passed by the High Court was that the petitioner resides and works in Saudi Arabia, whereas the wife of the petitioner had died on account of incident of burning and the allegation was made against in-laws, though it ended into their acquittal but still it is not appropriate to handover the custody to the petitioner or his parents which may impair personality flaws with minors. Further it was observed by the High Court that during the course of proceedings the parents of the petitioner never showed any inclination to take the responsibility of the minor children whereas the sole criterion to decide the petition under section 17 read with section 25 of the Guardians and Wards Act, 1890 is meant for "welfare of the minor", which is sine qua non of proceedings before the court of competent jurisdiction.

3. Learned counsel for the petitioner tried to persuade us on the ground that the petitioner being the natural guardian has preferential right to enjoy the custody of the minors and in the presence of the petitioner the custody of the minor children cannot be handed over to maternal grandfather. Contends that the petitioner was residing abroad but now he has placed an affidavit on the record to take care of the minor children and that he would relinquish his stay in Saudi Arabia and will reside with the minor children in Pakistan. Further contends that the Family Court has passed the judgment in favour of the petitioner, however, the Appellate Court as well as the High Court had given contrary findings resulting into handing over of custody of the minor children to maternal grandfather against the law. Lastly, it has been contended that the petitioner has sound financial antecedents and as such he can bear the expenses of the minor children for their brought up. Thus prays for acceptance of the instant petition.

4. On the other hand, the learned counsel appearing on behalf of the maternal grandfather has vehemently opposed the contentions raised by the learned counsel for the petitioner. The crux of the arguments advanced by the learned counsel for the respondents is that in ordinary circumstances there is no denial to this fact that the petitioner has the preferential right to retain the custody of the minor children but the purpose of the legislature qua Guardians and Wards Act is "welfare of the minor". He has referred the statement of the petitioner before the Court which was read before us in detail. Lastly, contended that the preferential right of handing over of the custody of the minors to the father is not absolute in nature especially when he has re-married and there is a daughter born out of the wedlock. At the end it is argued that this Court has ample powers to take a contrary view in the spirit of law.

5. We have heard the learned counsel for the parties and gone through the record.

The framers of the law relating to Guardians and Wards Act, 1890 legislated it as a special enactment with an intent to secure the interest and welfare of the minors living within the jurisdiction while highlighting the degree of preference to establish guardianship. The sole criterion which depicts the intent of the legislature is nothing except welfare of the minors as grundnorm of the enactment. As a general principle the degree of preference is confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which are essential in upbringing of the minors within four corners of law. Any deviation from the general principle, where the blood relationship has to be departed, there should be very strong and compelling reasons to have a contrary view which includes upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom if it is assigned to take care of the minors. In short words, while ignoring/ bypassing the general principle there must be very strong and exceptional circumstances which could be brought forth with reference to the intent of the legislature regarding the sole purpose of "welfare of minor". As in the instant case, the ordinary order of preference is under question, keeping in view the facts and circumstances wherein the petitioner being the real father of all the three minors, namely, Muhammad Haseeb Ullah, Iraj Noor and Muhammad Shahmir, all aged about 06 to 09 years, claiming guardianship on the basis of the preferential right, a detailed scrutiny of the aforesaid facts and circumstances are to be adjudged in the spirit of the law relating to guardianship. The background of the instant petition is that the petitioner entered into wedlock with the deceased mother of the minors. He was a cab driver in Saudi Arabia and all the three minor children were born out of the wedlock. On 06.11.2015, the wife of the petitioner was burnt; she remained hospitalized in a critical condition and subsequently died of the said injuries. In this regard, a case bearing FIR No. 171 dated 24.6.2017 under section 302/34, P.P.C. was registered at Police Station Sihala, Islamabad against the parents of the petitioner with an allegation that petitioner's wife was intentionally burnt to death by the parents of the petitioner. The petitioner alleges that his wife was still in the hospital when his minor children were removed from the lawful custody and taken over by the maternal grandfather. The petitioner has not lodged any report in this regard to police though it is a criminal act, rather he preferred to file a petition under the Guardians and Wards Act, 1890. During the course of the proceedings before this Court, learned counsel for the respondents read before us the statement of the petitioner, Rashid Hussain (PW1) recorded before the Family Court. The relevant portion of which reads as under:-

A bare perusal of the statement of the petitioner (PW-1) clearly reflects that the petitioner had not discharged his duties as father in any manner towards the minor children or his deceased wife. It appears that he was most reluctant to take care of his wife or minor children because they were under the patronage of maternal grandfather and he thought it an opportunity just to skip moral, legal or religious duty bestowed towards him. The provisions of Section 17 of the Guardians and Wards Act, 1890 expressly reflect consideration by the court for appointing guardian. It has been clearly mentioned that welfare of the minor is of paramount consideration with reference to so many other aspects narrated above.To evaluate the contents of the provisions of Section 17, it seems advantageous to reproduce the relevant provisions which read as under:-

"17. Matters to be considered by the Court in appointing guardian.- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference."

The bare language of subsection (2) of section 17 reveals that for considering the welfare of the minor the Court has to keep in mind age, sex, and religion of the minor and the character and capacity of the proposed guardian and his nearness of kin to the minor. At the same time, the Court has to look at the wishes of a deceased parent, if any, and any existing or previous relations of the proposed guardian with the minor or his property. Subsection (3) of section 17 postulates that if the minor is old enough to form an intelligent preference, the Court may consider that preference. In the judgment reported as Khalid Mehmood v. Additional District Judge, Islamabad and 2 others (2011 CLC 889), it was held "In appointing the guardian of the minor paramount consideration for the court should be welfare of the minor. Court must see as to who was the most likely to contribute to the well being of the minor and who would be in better position to look after and take care of the minor". Similarly, in the judgment reported as Mst. Rasheedan Bibi v. Additional District Judge and 2 others (2012 CLC 784), it was held "Mere entitlement of father as natural guardian of minors would not be sufficient to decide such question. Prime consideration while deciding custody of minors would be their welfare keeping in view character and capacity of their proposed guardian". Today, the minor children were present in the Court. They were brought before the Court under the orders and they were very well dressed up showing mature manners and they plainly refused to accompany their own father, rather they categorically stated to reside with the maternal grandparents. It is not a matter of surprise that their body language clearly demonstrated a sign of hatred towards him. It only happened because the father of the minor children has not performed his legal, moral and religious obligation in the manner as it is provided in an Islamic society. Though there is no denial of this fact that the petitioner has remarried and there is a daughter born out of the wedlock but this aspect cannot be considered as a valid ground to defeat the preferential right of the father, rather it can have only persuasive value with respect to other aspects which compel deviation, if any, as per the dictates of justice and "welfare of the minor". Further, Articles 2 and 2A of the Constitution of the Islamic Republic of Pakistan, 1973 clearly envisage that Islamic social order has to be observed while leading life within the four corners of the law. In an Islamic culture, the father has been bestowed with so many responsibilities towards his children. Even the mother of the children can claim compensation of breast feeding from her husband which is well within the tenants of Islamic fiqah. Where this responsibility has been ignored, how a father while forgetting his obligations towards minor children and that too at a belated stage, can claim the guardianship on the basis of bald claims. As an abundance of caution, we have asked the maternal grandfather about his worth to which he stated that he is the owner of 19 acres of agricultural land which is sufficient to bear the expenses of the minor children and they are already enjoying reasonable living status in the custody of their maternal grandfather. Another aspect of this case is that the children are well aware of the fact that their mother died due to unnatural consequences which must be in the back of the mind of the children that it was their father who was involved in that episode. At this stage any adventure by this Court to dislodge the custody and handover the same to the father would be instrumental into impairment of the mental faculty of the minor children which could imprint negative impact on their personality in future and that would squarely be against the dictates of "welfare of the minor" which is an attire of Guardians and Wards Act, 1890.

6. In view of the facts and circumstances narrated above, this petition is dismissed. However, the visitation schedule made by the Family Court for the grandparents shall be considered to be made for the petitioner and the same shall be followed.

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---S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Ss.9 & 10---Dower (mehr)---Entries in columns Nos.13 and 16 of the Nikahnama--

 P L D 2022 Supreme Court 686

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Ss.9 & 10---Dower (mehr)---Entries in columns Nos.13 and 16 of the Nikahnama---Entries in said columns are to be interpreted on the basis of the intention between the parties rather than the headings of the columns, in particular when there is a dispute between the value of the dower and items.

Respondent (wife) instituted a suit in the Family Court wherein amongst other things she sought recovery of her dower i.e. agriculture land (mentioned in column No. 16 of her Nikahnama). Family Court observed that the dower mentioned in column No.16 of the Nikahnama was payable only if the dower specified in column No.13 i.e. seven tolas of gold worth Rs. 1,60,000/- had not been paid, and as the respondent admitted to have received the dower of seven tola gold ornaments specified in column No.13, she was not entitled to claim the dower mentioned in column No.16 of the Nikahnama. The District Court, in appeal, endorsed this finding with the observation that agriculture land mentioned in column No.16 was to be given only in lieu of seven tola gold ornaments specified as dower in column No.13 of the Nikahnama, which the respondent had admittedly received. The High Court held that the facts and circumstances of the case clearly showed that the dower mentioned in column No.16 was in addition to, not in lieu of, the one specified in column No.13 of the Nikahnama.

Family Court and District Court acted on what the heading of column 16 prima facie suggested, i.e., the mentioning of any property that is given "in lieu of the whole or any portion of the dower", without ascertaining the intent of the parties. This approach of the said Courts is not in consonance with the settled principles of construction of contracts. Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties. The High Court rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No.16 of the Nikahnama, irrespective of its placement in a particular column.It is a matter of common knowledge that the persons who solemnize Nikah or the Nikah Registrars are mostly laymen, not well-versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.

The figures (1) and (2) mentioned in columns Nos.13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column No.13 and (2) four Kanal agriculture land mentioned in column No.16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Petition for leave to appeal filed by husband was dismissed with costs throughout.

Maintenance of wife---Obligation of husband---Under Islamic law a wife's right to be maintained by her husband is absolute so long as she remains faithful to him and discharges, or is willing to discharge, her own matrimonial obligations---Muslim husband is bound to maintain his wife even if no term in this regard is agreed to between them at the time of marriage or she can maintain herself out of her own resources---Wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.

Dower, payment of---Obligation of husband---In Islam, the payment of dower to bride at marriage is an obligation that is imposed by Allah Almighty, and is thus an intrinsic and integral part of a Muslim marriage---Dower is considered an obligatory bridal gift offered by the bridegroom to the bride graciously as a manifestation of his love and respect for her---Some Muslim men compliment the obligatory bridal gift, dower, with other gifts and presents as per their financial capacity.

Judgment

SYED MANSOOR ALI SHAH, J.---"This is a male-dominated society; men since ages have always been more concerned about their rights by using religion for their own convenience, especially in matrimonial matters, but forget religion when it comes to their duty and obligation towards their women"1, this seems to hold true in the present case. This case where a husband disputes the payment of maintenance and dower to his wife, provides an occasion to underline the principles, duties and obligations of a husband towards his wife under the Islamic law with regard to maintenance and dower.

2. The respondent, Naheed Begum, instituted a suit, in the Family Court, Tangi Charsadda, for recovery of her dower i.e., 1-Jarab2 of agriculture land (mentioned in column No. 16 of her Nikahnama) and maintenance for herself and her five minor children (three daughters and two sons) against the petitioner, her husband, who had contracted a second marriage and was living with his second wife. The Family Court decreed the suit to the extent of her claim for maintenance of her minor children, but rejected her claims for recovery of her dower and maintenance. The District Court dismissed her appeal, maintaining the judgment of the Family Court. She then invoked the constitutional jurisdiction of the Peshawar High Court, under Article 199 of the Constitution of Pakistan, for redress of her grievance against the judgments of the Courts below. The High Court allowed her constitution petition, reversed the judgments of the Courts below, and decreed

her claims of dower and maintenance, vide its judgment dated 09.03.2020. It is against this judgment of the High Court that the petitioner, Haseen Ullah, has filed the present petition for leave to appeal.

3. We have heard the learned counsel for the petitioner in detail and with his able assistance, perused the record of the case minutely.

4. The High Court and the Courts below have differed on interpreting the entries of columns Nos. 13 to 16 of the Nikahnama of the parties, which are reproduced hereunder for ready reference:

English translation:

13

Amount of dower:

7-tola gold ornaments valuing Rs.1,60,000/-

14

How much of the dower is mu'ajjal (prompt) and how much is ghair mu'ajjal (deferred):

[blank]

15

Whether any portion of the dower was paid at the time of marriage, If so, how much:

Almost [all]

16

Whether any property was given in lieu of the whole or any portion of the dower, if so, its specification and price agreed to between the parties:

(2) 1-Jarab land in Kashmirabad near Khadi Kalay

The Family Court observed that the dower mentioned in column No. 16 of the Nikahnama was payable only if the dower specified in column No. 13 had not been paid, and as the respondent admitted to have received the dower of seven tola gold ornaments specified in column No.13, she was not entitled to claim the dower mentioned in column No.16 of the Nikahnama. The District Court, in appeal, endorsed this finding with the observation that four Kanal agriculture land mentioned in column No. 16 was to be given only in lieu of seven tola gold ornaments specified as dower in column No. 13 of the Nikahnama, which the respondent had admittedly received. The High Court has held that the facts and circumstances of the case clearly show that the dower mentioned in column No. 16 was in addition to, not in lieu of, the one specified in column No. 13 of the Nikahnama.

5. We find that the Family Court and District Court have acted on what the heading of column 16 prima facie suggest, i.e., the mentioning of any property that is given "in lieu of the whole or any portion of the dower", without ascertaining the intent of the parties. This approach of the said Courts is not in consonance with the settled principles of construction of contracts. Needless to say that Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/ columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties.3 The High Court has rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No. 16 of the Nikahnama, irrespective of its placement in a particular column. It is a matter of common knowledge that the persons who solemnize Nikah or the Nikah Registrars are mostly laymen, not well-versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.

6. We, on our own independent appraisal of the facts and circumstances of the case, agree with the finding of the High Court, which is not only supported by the contents of the compromise deed dated 18.12.2012 executed by both the petitioner and the respondent, but also by the contents of the entries of columns Nos. 13 and 16 of the Nikahnama. The figures (1) and (2) mentioned in columns Nos. 13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column Nos. 13 and (2) four Kanal agriculture land mentioned in column No. 16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Therefore, the finding of the High Court on the issue of dower is perfectly correct and is in consonance with the principles of law enunciated by this Court in the cases of Asma Ali4 and Yasmeen Bibi.5

7. As for the claim of the respondent for her maintenance, the Family Court and the District Court held that since the respondent is not residing with the petitioner she is not entitled to maintenance. The High Court has overturned these findings and held the respondent entitled to receive maintenance from the petitioner, while observing that the respondent showed her willingness to go with the petitioner during hearing the petition, but the petitioner, who had contracted second marriage, flatly refused to take her to his house. We find nothing wrong in the decision of the High Court. A wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.

8. As per Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962, the questions regarding dower are to be decided, subject to the provisions of any enactment for the time being in force, in accordance with Muslim Personal Law (Shariat) in cases where the parties are Muslims. It hardly needs reiterating that the Holy Quran and the Sunnah of the Prophet of Islam (pbuh) are the primary sources of Muslim Personal Law (Shariat) in Islam. The payment of dower (mahr) at the time of marriage was a customary practice in Arabia before the advent of Islam, but it was paid to the guardians of the bride, such as, her father or other male relative, as bride-price and the bride herself did not receive a penny of it. This practice of paying dower as bride-price to the male guardians of the bride was reformed by the Islam through the Quranic commands6 of paying dower as the bride-wealth to the bride herself, who becomes the sole owner of it. The Holy Quran also forbids the Believers to take back anything from their wives out of the paid dower even it be a great sum.7 In Islam, the payment of dower to bride at marriage is an obligation that is imposed by the God Almighty, and is thus an intrinsic and integral part of a Muslim marriage. It is considered an obligatory bridal gift offered by the bridegroom to the bride graciously as a manifestation of his love and respect for her. Some Muslim men compliment the obligatory bridal gift, dower, with other gifts and presents as per their financial capacity.8

9. Under the Islamic law a wife's right to be maintained by her husband is absolute so long as she remains faithful to him and discharges, or is willing to discharge, her own matrimonial obligations. A Muslim husband is bound to maintain his wife even if no term in this regard is agreed to between them at the time of marriage or she can maintain herself out of her own resources9. The Holy Quran10 enunciates that men are the protectors and maintainers of women because the God Almighty has given the one more strength than the other and because they support them from their money. And the Holy Prophet of Islam (pbuh) has instructed Muslim men to provide their wives with maintenance in a fitting manner11 and declared it to be the right of the women12.

10. We note that the petitioner, instead of paying the maintenance and giving the dower to the respondent willingly and graciously, has been evading his legal as well as moral obligation on one and the other pretext, as he first totally denied to have agreed to, and mentioning in Nikahnama, the term of giving four Kanal agriculture land as dower to the respondent, in his written statement, and later started opposing it with the argument that it was an alternate to be given only if seven tola gold ornaments mentioned in column No. 13 had not been paid. It is regrettable that the petitioner, an educated person who belongs to the noble profession of teaching, does not realize his obligation to pay the dower agreed upon by him at the time of marriage with the respondent, not only under the law of the land but also under the commandments of the God Almighty given in the Holy Quran to persons who proclaim to be Muslim. He has by his such conduct forced his wife to fight for her right to receive her maintenance and dower in four courts, from the Family Court to the Supreme Court. His such conduct is highly deplorable.

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S. 491---Habeas corpus---Custody of minor---Right of hizanat---Scope---Petitioner being mother of minor, aged about 2 years, sought his recovery from the illegal and improper detention of minor's father-

 2020 M L D 1891

S. 491---Habeas corpus---Custody of minor---Right of hizanat---Scope---Petitioner being mother of minor, aged about 2 years, sought his recovery from the illegal and improper detention of minor's father---First right of hizanat regarding custody of minor laid with the petitioner---Petitioner had claimed that the minor was snatched from her custody---Petitioner had also appended her affidavit along with the petition but no counter affidavit by the respondent was filed---Petition was allowed and the custody of minor was handed over to the petitioner, in circumstances.

Guardians and Wards Act (VIII of 1890), S. 25---Habeas corpus---Custody of minor---Pendency of petition before Guardian Court---Effect---Guardian court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain the custody while the matter is sub judice before a Guardian Court---High Court, in exercise of its power under S. 491, Cr.P.C. has to exercise parental jurisdiction and is not precluded, in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of breakdown of family tie between the parents.

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--Petitioner mother impugned orders passed under S.491, Cr.P.C. and S.25 of Guardians and Wards Act, 1890 whereby custody of her minor children was given to father and stepmother-

 2021 M L D 957

Guardians and Wards Act (VIII of 1890)---

----Ss.25 & 12 ----Criminal Procedure Code (V of 1898), S.491---Custody of minors---Habeous corpus---Welfare of minors, determination of---Petitioner mother impugned orders passed under S.491, Cr.P.C. and S.25 of Guardians and Wards Act, 1890 whereby custody of her minor children was given to father and stepmother---Contention of petitioner, inter alia, was that welfare of minors could only be assured if custody was given to mother---Validity---No ground for disqualification of mother to have custody of children, under Islamic Law, was attracted in the present case and father of minors was admittedly living abroad and thus it could not be presumed that he could take care of them on his own---No one could be a better guardian than a mother, and thus custody of minors should be with mother---Impugned orders were set aside and High Court directed respondents to handover custody of minors to petitioner/mother---

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Ss. 4, 6 & 7---Parents' right to Evict children---Trial---Appeal---Scope---Under subsection (2) of S. 4, if a child had failed to vacate the house a written complaint ................

 PLD 2022 Lahore 559

Ss. 4, 6 & 7---Parents' right to Evict children---Trial---Appeal---Scope---Under subsection (2) of S. 4, if a child had failed to vacate the house a written complaint can always be filed before the Deputy Commissioner by such parent and upon receipt of such complaint, the Deputy Commissioner after his satisfaction and hearing the parties to the effect that ownership vests with parent shall pass an order of Eviction of the house by a child, irrespective of the defence put up by the child including defence that he had constructed the house or purchased through funds of the child---Said order passed under subsection (5) as well as under subsection (2) of S.4 is appealable under S. 7---Order passed under subsection (5) does not need any recording of evidence as envisaged under Chap. XX of the Code of Criminal Procedure, 1898 but an order under subsection (2) which is a penal provision, the said procedure relatable to trial under Chap. XX of Code of Criminal Procedure, 1898 will be attracted---Under S. 6 the trial is to be conducted of a person who has been arrested or appeared or is brought before the Magistrate.

S. 4---Parents' right to Evict children---Scope---Parent may Evict a child, his spouse or offspring, from a house owned or rented by such parent---If a child, his spouse or offspring, had failed to vacate the house after seven days of service of written notice of Eviction by the parent, he may be punished with simple imprisonment for a term which may extend to thirty days or with fine of Rs. 50,000/-.

S. 4---Parents' right to Evict children---Pendency of civil litigation---Scope---Father (respondent) filed application before the Deputy Commissioner alleging therein that the son (petitioner) forcibly stopped his entry in the house owned by the former---Petitioner appeared before the Deputy Commissioner; contended that the respondent used to live separately in another house and that civil litigation in respect of the house was pending adju

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Columns No.13 and 16 of the Nikkahnama to be interpreted on the basis of the intention between the parties rather than the headings of the columns, in particular when there is a dispute between the value of the dower and items.

 PLD 2022 Supreme Court 686

Needless to say that Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties. The High Court has rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No.16 of the Nikahnama, irrespective of its placement in a particular column. It is a matter of common knowledge that the persons who solemnize Nikah or the Nikah Registrars are mostly laymen, not well-versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.

We, on our own independent appraisal of the facts and circumstances of the case, agree with the finding of the High Court,

which is not only supported by the contents of the compromise deed dated 18.12.2012 executed by both the petitioner and the respondent, but also by the contents of the entries of columns No. 13 and 16 of the Nikahnama. The figures (1) and (2) mentioned in columns No.13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column No.13 and (2) four Kanal agriculture land mentioned in column No.16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Therefore, the finding of the High Court on the issue of dower is perfectly correct and is in consonance with the principles of law enunciated by this Court in the cases of Asma Ali and Yasmeen Bibi. As for the claim of the respondent for her maintenance, the Family Court and the District Court held that since the respondent is not residing with the petitioner she is not entitled to maintenance. The High Court has overturned these findings and held the respondent entitled to receive maintenance from the petitioner, while observing that the respondent showed her willingness to go with the petitioner during hearing the petition, but the petitioner, who had contracted second marriage, flatly refused to take her to his house. We find nothing wrong in the decision of the High Court. A wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.

As per Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962, the questions regarding dower are to be decided, subject to the provisions of any enactment for the time being in force, in accordance with Muslim Personal Law (Shariat) in cases where the parties are Muslims. It hardly needs reiterating that the Holy Quran and the Sunnah of the Prophet of Islam (pbuh) are the primary sources of Muslim Personal Law (Shariat) in Islam. The payment of dower (mahr) at the time of marriage was a customary practice in Arabia before the advent of Islam, but it was paid to the guardians of the bride, such as, her father or other male relative, as bride-price and the bride herself did not receive a penny of it. This practice of paying dower as bride-price to the male guardians of the bride was reformed by the Islam through the Quranic commands6 of paying dower as the bride-wealth to the bride herself, who becomes the sole owner of it. The Holy Quran also forbids the Believers to take back anything from their wives out of the paid dower even it be a great sum. In Islam, the payment of dower to bride at marriage is an obligation that is imposed by the God Almighty, and is thus an intrinsic and integral part of a Muslim marriage. It is considered an obligatory bridal gift offered by the bridegroom to the bride graciously as a manifestation of his love and respect for her. Some Muslim men compliment the obligatory bridal gift, dower, with other gifts and presents as per their financial capacity. Under the Islamic law a wife’s right to be maintained by her husband is absolute so long as she remains faithful to him and discharges, or is willing to discharge, her own matrimonial obligations. A Muslim husband is bound to maintain his wife even if no term in this regard is agreed to between them at the time of marriage or she can maintain herself out of her own resources. The Holy Quran enunciates that men are the protectors and maintainers of women because the God Almighty has given the one more strength than the other and because they support them from their money. And the Holy Prophet of Islam (pbuh) has instructed Muslim men to provide their wives with maintenance in a fitting manner and declared it to be the right of the women.

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Consideration where custody is concerned is the welfare of the minor, that is to consider what is in the best interest of the child.

 Time and again, Supreme Court has held that the paramount consideration where custody is concerned is the welfare of the minor, that is to consider what is in the best interest of the child. The court’s jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents’ ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents’ ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child. Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets. Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional wellbeing of the child. The United Nations Convention on the Rights of the Child, 1989 (UNCRC) is an international treaty which sets out the rights of children, be it economic, social, health or family. The UNCRC was ratified by Pakistan in 1990 with reservations that it will adopt the Convention, subject to the requirements of the Islamic Law. However, in 1997, the ratification became absolute as the reservation was withdrawn. The UNCRC recognizes that the child should grow up in an environment of love, happiness and understanding. Article 3 provides that in all actions concerning children whether by courts of law or public, or private welfare institution amongst others, the best interest of the child shall be a primary consideration. Article 7 provides that every child has right to be cared for by their parents and Article 9 requires that in the event of separation between the parents, the child should be in contact with both parents unless either one can cause any harm. Article 12 provides that a child.

CIVIL PETITION NO.240 of 2021
Raja Muhammad Owais Versus Mst. Nazia Jabeen and others
05-10-2022

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-S. 4--Children of predeceased son---Right to inherit--Only orphaned grandchildren had been granted right to inherit from their grandparents.

 PLJ 2022 Islamabad 143

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

----S. 4--Children of predeceased son--Right to inherit--Preliminary decree--Family registration certificate--Question of whether widows of pre-deceased children of propositus could be extended benefit under Section 4 of MFLO by granting them rights of inheritance from estate of parents of their pre-deceased spouses--Intention to protection of litigation--Deprivation of respondents--Direction to--No order had been passed by this Court for requisitioning record of trial Court--Only a preliminary decree was passed--This implies that suit is still pending and commission is supposed to discharge its obligations in accordance with directions issued by trial Court in preliminary decree--Requisitioning of record without a specific order by this Court for doing so unnecessarily protracted proceedings before trial Court--Desire of appellants for fresh issues to be framed by trial Court is indicative of their intention to protract litigation with Respondents No. 1 and 2 and also to deprive respondents of possession of their respective shares in suit house--It is obligation of Court to impose exemplary costs on parties who deprive persons of their due rights of inheritance in property--Appeal dismissed. [Pp. 153 & 154] C, D, E & F

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

----S. 4--Right to inherit--Only orphaned grandchildren had been granted right to inherit from their grandparents.     [P. 147] A

Constitution of Pakistan, 1973--

----Art. 203-D(2)(b)--Decision of Federal Shariat Court--A decision of a Federal Shariat Court declaring a law or any provision thereof to be repugnant to injunctions of Islam does not take effect before disposal of an appeal preferred before Hon'ble Supreme Court against decision.               [P. 149] B

Mr. Asif Naseem Abassi, Advocate for Appellant.

Mr. Asad Hussain Ghalib, Advocate for Respondents No. 1
& 2.

Mr. M. Muzammil Hussain Shah, Advocate for Respondents No. 3 to 7, 7a(i) to (iv) & 7(c),

Mr. Daniyal Hassan, Advocate for Respondent No. 8.

Date of Hearing: 23.06.2022

 PLJ 2022 Islamabad 143
Present: Miangul Hassan Aurangzeb, J.
SHEHNAZ AKHTAR and another--Appellants
versus
Mst. ZEENAT TARIQ and others--Respondents
R.F.A. No. 619 of 2021, decided on 26.7.2022.

Judgment

Through the instant regular first appeal, the appellants, Mst. Shehnaz Akhtar (Defendant No. 1) and her son Junaid Tariq (Defendant No. 2), impugn the judgment and preliminary decree dated 30.06.2021 passed by the Court of the learned Civil Judge, West-Islamabad, whereby the suit for declaration, partition, rendition of accounts, recovery of mesne profits, and permanent injunction instituted by Respondents No. 1 and 2 was partially decreed and a local commission was appointed with the direction to visit House No. 887, Sector I-10/4, Islamabad (“the suit house”) and determine whether the same is partitionable, and, if so, what would be the mode of partition. The local commission was also required to determine the current market value of the suit house if the same was not partitionable.

2. The record shows that the suit house was owned by Major (Retd.) Raja Tariq Mehmood Abbasi (“Major Abbasi”), who died on 05.08.1992. Major Abbasi was survived by his mother, Mst. Maroof Sultana, two widows, Mst. Zeenat Tariq (Plaintiff No. 1) and Mst. Shehnaz Akhtar (Defendant No. 1), two sons, Raja Arsham Tariq (Plaintiff No. 2) and Junaid Tariq (Defendant No. 2). Plaintiff No. 2 is the son of Plaintiff No. 1 whereas Defendant No. 2 is the son of Defendant No. 1. Major Abbasi had pre-deceased his mother, Mst. Maroof Sultana, who died on 26.04.2011.

3. Defendants No. 3 to 7 are the legal heirs of Raja Sajid Mehmood Abbasi (late), who was Major Abbasi’s brother. Defendants No. 7(a) to 7(c) are Mst. Maroof Sultana’s children i.e., the siblings of Major Abbasi and Raja Sajid Mehmood Abbasi. Mst. Maroof Sultana’s third son, namely Mehmood Abbasi (Defendant No. 7(a)), had died during the pendency of the suit after which his legal heirs were impleaded as Respondents No. 7(a)(i) to (v).

4. On 27.08.2016, the plaintiffs (Mst. Zeenat Tariq and Raja Arsham Tariq) instituted a suit for declaration, partition, rendition of accounts, recovery of mesne profits and permanent injunction against Defendants No. 1 and 2 and the legal heirs of Raja Sajid Mehmood Abbasi, who were impleaded as Defendants No. 3 to 7, before the Court of the learned Civil Judge, Islamabad. In the said suit, it was pleaded inter alia that possession of the suit house was with Defendants No. 1 and 2, who had rented out a portion of it to the legal heirs of Raja Sajid Mehmood Abbasi i.e., Defendants No. 3 to 7. The plaintiffs in the said suit had inter alia sought a declaration to the effect that the plaintiffs and Defendants No. 1 and 2, as the legal heirs of Major Abbasi, were entitled to inherit their respective shares in the suit house. The plaintiffs had also sought rendition of accounts so that they could be paid their shares out of the rent paid by Defendants No. 3 to 7 to Defendants No. 1 and 2.

5. The said suit was contested by the defendants by filing written statements. From the divergent pleadings of the contesting parties, the learned trial Court framed the following issues:-

“1.      Whether the plaintiffs are entitled to get a decree for declaration, recovery of possession, mesne profit, partition of the suit property and permanent injunction as prayed for? OPP

2.       Whether the suit of the plaintiffs is not maintainable in its present form? OPD

3.       Whether the plaintiffs have not come to the court with clean hands? OPD

4.       Whether the suit of the plaintiffs is time barred? OPD

5.       Whether the suit of the plaintiffs is false, frivolous and vexatious hence, liable to be dismissed? OPD

6.       Whether the suit of the plaintiffs is bad for mis-joinder and mon-joinder of parties? OPD

7.       Relief.”

6. The defendants, before the learned trial Court, admitted that the plaintiffs were amongst the legal heirs of Major Abbasi but took the position that the plaintiffs had relinquished their shares in the suit house in lieu of a plot in the Defence Housing Authority which was allotted to Plaintiff No. 1 on account of being Major Abbasi’s widow. In the proceedings before the learned trial Court, the defendants had not been able to substantiate their claim as to the relinquishment of the plaintiffs’ shares in the suit house. In the proceedings before this Court, the appellants abandoned their claim as to such relinquishment.

7. On 30.06.2021, the learned trial Court issued a preliminary decree to the effect that the children of Mst. Maroof Sultana’s pre- deceased sons in addition to her third son and two daughters who had outlived her, to be her legal heirs with the right to inherit her 1/6th share in the suit house. It was also declared that the legal heirs of Mst. Maroof Sultana are entitled to be given possession of their respective shares in the suit house through partition. The children of Mst. Maroof Sultana’s predeceased sons had been granted the right to inherit from her 1/6th share in the suit house in accordance with Section 4 of the Muslim Family Law Ordinance, 1961 (“MFLO”).

8. The learned trial Court also appointed a local commission with the direction to visit the suit house and submit a report on whether the suit house was partitionable and if so, what was to be the mode of partition. The local commission was also directed to determine the current market value of the suit house if the same was not partitionable. The said judgment and preliminary decree has been assailed by the appellants in the instant appeal.

9. Along with the instant appeal, the appellants filed an application for the suspension of the preliminary decree dated 30.06.2021. Vide interim order dated 21.10.2021, this Court did not interfere with the directions issued by the learned trial Court to the local commission, but restrained the learned trial Court from passing the final decree.

10. On 10.05.2022, learned counsel for Respondents No. 1 and 2 informed the Court that proceedings could not be conducted by the local commission since the record of this case had been requisitioned by this Court. Since this Court had not passed any order requisitioning the record, the record was remitted back to the learned trial Court vide order dated 10.05.2022.

11. Vide order dated 17.03.2022, this Court proceeded ex-parte against Respondents No. 3 to 7 since Office had reported that the said respondents had been served yet they did not tender appearance either personally or through counsel. As regards Respondent No. 7(a)(i) to (v), 7(b) and 7(c), this Court vide order dated 17.03.2022 directed notices to be issued to them through courier as well as registered A.D. Despite the issuance of such notices, no one appeared for the said respondents. Therefore, vide order dated 10.05.2022, this Court directed notices to be issued to the said respondents through publication in the “Daily Jang”. The publication appeared in the newspaper was made and its copy has been brought on the record. Since Respondents No. 7(a)(v) and 7(b) did not appear after the said publication, they are proceeded against ex-parte.

12. Learned counsel for the appellants, after narrating the facts leading to the filing of the instant appeal, submitted that the learned trial Court has correctly given the benefit of Section 4 of the MFLO to the children of Mst. Maroof Sultana’s two pre-deceased sons but such benefit should also have been given to all the widows of the pre-deceased sons; that the two widows of Major Abbasi (i.e., Appellant No. 1 and Respondent No. 1) as well as the widow of Raja Sajid Mehmood Abbasi should have been given inheritance rights out of Mst. Maroof Sultana’s 1/6th share in the suit house; that Appellant No. 1, being the widow of Major Abbasi, was seeking inheritance rights in Mst. Maroof Sultana’s 1/6th share in the suit house, which she inherited from Major Abbasi and not in any other property of Mst. Maroof Sultana; that Section 4 of the MFLO ought not to be literally interpreted so as to confine the benefit of inheritance to the sons and daughters of the pre-deceased child of the propositus; and that in the case of Mian Mazhar Ali vs. Tahir Sarfraz (PLD 2011 Lahore 23), the Hon'ble Lahore High Court had interpreted Section 4 of the MFLO so as to give inheritance rights to the widower of the predeceased daughter to the propositus. Learned counsel for the appellants prayed for the instant appeal to be allowed and for the matter to be remanded to the learned trial Court with the direction to decide the matter after framing new issues.

13. On the other hand, learned counsel for Respondents No. 1 and 2 submitted that the said respondents filed the suit since the appellants had deprived them of their due shares in the suit house; that under Section 4 of the MFLO, only orphaned grandchildren had been granted the right to inherit from their grandparents; that Section 4 of the MFLO does not extend such benefit to the widow of a person who pre-deceases his/her parents; that Respondents No. 1 and 2 acknowledge the fact that Major Abbasi’s mother, Mst. Maroof Sultana, inherited 1/6th share in the suit house and upon her demise, the children of her pre-deceased sons would inherit her estate along with her other legal heirs; that Mst. Maroof Sultana’s two sons, namely Major Abbasi and Raja Sajid Mehmood Abbasi, had pre-deceased her and upon her demise, her estate would devolve on the children of her pre-deceased sons but not their widows; that Respondent No. 1/Plaintiff No. 1 (Mst. Zeenat Tariq) acknowledges that she has no right of inheritance in the estate of her mother-in-law, Mst. Maroof Sultana; and that the instant appeal is vexatious and the same is liable to be dismissed with costs.

14. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 9 above and need not be recapitulated.

15. Learned counsel for Respondents No. 1 and 2 raised an objection to the maintainability of the instant appeal on the ground that the same was time barred by fifteen days. The impugned preliminary decree was passed on 30.06.2021. The certified copy of the said preliminary decree was applied for by the appellants and the same was prepared on the same day i.e., 11.10.2021. It was not until 15.10.2021 that the instant appeal was filed. The appellants, in their application for condonation of delay, have taken the ground that due to the COVID-19 pandemic, the appellants should be given benefit under Section 12 of the Limitation Act, 1908 ("the 1908 Act") and the delay in filing of the appeal ought to be condoned.

16. Due to the COVID-19 pandemic coupled with the lockdown policy of the Federal Government, this Court, vide office order No. 181/IHC/2020 dated 24.03.2020, directed that owing to the then prevailing emergency situation in the country, the period of limitation prescribed by laws for filing appeals/petitions etc. in this Court as well as in the Civil and District Courts, Islamabad shall be deemed to be condoned and the Courts shall be presumed to be closed during the period in the public interest, within the meaning of Section 4 of the 1908 Act. Since the Federal Government lifted certain restrictions earlier imposed by it, this Court directed that the said office order dated 24.03.2020 shall cease to have effect from 30.09.2021 and the period from 24.03.2020 to 30.09.2021 shall be excluded for the purpose of computing the limitation in terms of Section 12 of the 1908 Act for filing of any suit, petition and appeal. Since the period between 24.03.2020 and 30.09.2021 is to be excluded from the limitation period for filing a regular first appeal, and since the office order dated 24.03.2020 was recalled vide notification dated 30.09.2021, the delay with which this appeal was filed is liable to be condoned. Hence, the application for condonation of delay is allowed. I shall now proceed to decide the appeal on merits.

17. Allotment letter dated 10.11.1976 (Exh.D1) shows that the suit house had been allotted to Major Abbasi whereas the family registration certificate (Exh.P2) shows that Major Abbasi was survived by his mother, two widows and two sons. Since Major Abbasi’s mother, Mst. Maroof Sultana, had 1/6th share in the inheritance from her son, she became owner of 1/6th share in the suit house.

18. Two of Mst. Maroof Sultana’s sons, namely Major Abbasi and Raja Sajid Mehmood Abbasi, had pre-deceased her. Major Abbasi had died on 05.08.1992 and his brother Raja Sajid Mehmood had died on 30.09.2010, whereas Mst. Maroof Sultana died on 26.04.2011.

19. As mentioned above vide judgment and preliminary decree dated 30.06.2021, the learned trial Court declared inter alia that the children of Mst. Maroof Sultana’s two pre-deceased sons in addition to Mst. Maroof Sultana’s third son namely, Babar Mehmood Abbasi/ Defendant No. 7(a) and two daughters namely, Mst. Khalida Fiaz/ Defendant No. 7(b) and Mst. Abida Zaib/Defendant No. 7(c) would inherit Mst. Maroof Sultana’s 1/6th share in the suit house. The children of Mst. Maroof Sultana’s two pre-deceased sons had been given the benefit under Section 4 of the MFLO by the learned trial Court.

20. The appellants’ case is that the learned trial Court ought to have given the two widows of Major Abbasi and the widow of Raja Sajid Mehmood Abbasi the benefit to inherit from Mst. Maroof Sultana’s 1/6th share in the suit house.

21. The vital question that needs to be answered is whether the widows of the pre-deceased children of the propositus could be extended benefit under Section 4 of the MFLO by granting them rights of inheritance from the estate of the parents of their pre-deceased spouses.

22. Section 4 of the MFLO is reproduced herein below:

“4. Succession.--In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be would have received, if alive.”

(Emphasis added)

23. Although the Hon'ble Federal Shariat Court in the case of Allah Rakha vs. Federation of Pakistan (PLD 2000 FSC 1) had declared Section 4 of the MFLO to be repugnant to the injunctions of Islam and a direction had been issued to the President of Pakistan to take steps to amend the law so as to bring the said provision in conformity with the injunctions of Islam, the said judgment is yet to take effect. This is because under the proviso to Article 203D(2)(b) of the Constitution, a decision of a Federal Shariat Court declaring a law or any provision thereof to be repugnant to the injunctions of Islam does not take effect before the disposal of an appeal preferred before the Hon'ble Supreme Court against the decision. For the purposes of clarity, Article 203D(2) of the Constitution is reproduced herein below:-

“(2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision --

(a) the reason for its holding that opinion; and

(b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect:

Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.”

(Emphasis added)

24. Learned counsel for the contesting parties were in unison on their submission that the appeal preferred against the decision of the Federal Shariat Court in the case of Allah Rakah vs. Federation of Pakistan (supra) has till date not been disposed of by the Hon'ble Shariat Appellate Bench of the Supreme Court. Hence, it would be safe to hold that in the present circumstances Section 4 of the MFLO, which has till date not been amended by the legislature, is to be enforced.

25. Had the legislature intended for benefit under Section 4 of the MFLO not to be confined to the children/offspring of the pre- deceased children of the propositus but also to the widow or any other legal heir of such pre-deceased children, the legislature would have employed the words “legal heirs of such son or daughter” instead of “the children of such son or daughter” in the said Section. Since Section 4 of the MFLO creates an exception by altering the Islamic laws of inheritance applicable to orphaned grandchildren, the same is to be construed strictly. The meaning of the word “children” cannot be stretched to include “widows” or “any other legal heir” of the pre-deceased child of the propositus no matter which canon of statutory interpretation is adopted. Therefore, I find the contention of the learned counsel for the appellants that under Section 4 of the MFLO, the children (i.e., sons and daughters only) in addition to the widows or any other legal heir of a predeceased child of the propositus would also inherit, to be bereft of substance. In holding so, reliance is placed on the following case law:-

(i)       In the case of Saifur Rehman vs. Sher Muhammad (2007 SCMR 387), the Hon'ble Supreme Court, after making reference to Section 4 of the MFLO, held that a daughter-in-law was not entitled to any share from the property left by her father-in-law as her husband had died before the death of her father-in-law.

(ii)      In the case of Maqbool Begum vs. Taj Begum (PLD 1973 Note 128), the Hon'ble High Court of Sindh held that the rule of inheritance of Muslim Personal Law as altered by Section 4 of the MFLO makes only the children of a pre- deceased son or daughter of the propositus entitled to receive per stripes a share equivalent to the share which such pre-deceased son or daughter, as the case may be, would have received if alive. The widow or the husband of a pre-deceased son or daughter, as the case may be, does not come within the purview of Section 4 of the MFLO.

(iii)     In the case of Ghulam Haider vs. Nizam Khatoon (2002 YLR 3245), the Hon'ble Lahore High Court held as follows:

“6. The precise question which falls for determination in this civil revision is whether upon the text of section 4, a widow of predeceased son could also inherit alongwith children of the pre-deceased son. This matter was first considered in Kamal Khan alias Kamala v. Mst. Zainab (PLD 1983 Lah. 546), wherein it was held that it is only the children of the pre-deceased, son or predeceased daughter of propositus who would inherit in accordance with the Muslim Law sharer and that the widow of predeceased son would be excluded on the strength of the provisions of Section 4 (ibid). The remaining share of pre-deceased son would be distributed amongst the residuaries. The judgment in the case of Kamal Khan (Supra) was challenged in the Supreme Court wherein, it was ruled in case titled Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051) that the true interpretation of section 4 of the Muslim Family Laws Ordinance, 1961 would be to entitle the children of the predeceased son or daughter to claim inheritance of the propositus and that the widow of the predeceased son is not so entitled .....…”

(iv)     In the case of Muhammad Hanif vs. Muhammad Ibrahim (2005 MLD 1), the Hon'ble Lahore High Court interpreted Section 4 of the MFLO in the following terms:

          “This section relates to and deals with the right of inheritance of the issues of the predeceased son and daughter. It provides that if a person dies and leaves behind issues of such of his sons or daughters who were dead in his life time, the issues of the deceased sons and daughters will be entitled to inherit the shares that their father or the mother would have inherited had they been alive at the time of death of that person. The object and rationale behind this provision is to ameliorate the distress of those unfortunate children whose father and mother are snatched away by death in the life time of their grandfather. Such orphan grandchildren are sought to be compensated in such a way by giving the share in inheritance to which their father or the mother would have been entitled. The express and unambiguous phraseology and language of the provisions of law leaves no obscurity or doubt that the “children of such son” are only entitled to inherit and receive share which expression does not possibly within its ambit include the widow “of such son”.”

(v)      In the case of Qutab-ud-Din vs. Zubaida Khatoon (2009 CLC 1273), the Hon'ble Lahore High Court upheld the preliminary and final decrees passed by the learned trial Court whereby benefit of inheritance under Section 4 of the MFLO was given to the children of the pre- deceased son of the propositus but not to the widow of the pre-deceased son.

(vi)     In the case of Shabi-ul-Hassan Khusro vs. Asad Mustafa (2016 MLD 266), the Hon'ble High Court of Sindh explained the scope of Section 4 of the MFLO in the following terms:

          “As far as provisions of Section 4 of Muslim Family Laws Ordinance, 1961 is concerned, it is quite clear that it relates to a specific category of class of legal heirs i.e. sons and daughters of deceased which is not the case here. Since the plaintiff claims to be son of predeceased sister of deceased and quite fairly learned Counsel submits that with all due diligence that he made the provisions of Section 4 of the Muslim Family Laws Ordinance, 1961 could not be applied. However considering another limb of the plaintiff’s case as to whether any analogy of such principle of Section 4 of Muslim Family Laws Ordinance, 1961 could be applied, I am afraid that it is the wisdom of the legislature, who incorporated the predeceased sons and daughter. Had the words of legal heirs been incorporated such as “predeceased legal heirs” than the plaintiff’s case could be looked into, however the plaintiff’s case is confined to such that relates to the sons and daughters of predeceased words “sons and daughters” is used in section ibid and its horizon cannot be extended to predeceased sisters.”

(vii)    In the case of Hassan Aziz vs. Meraj-ud-Din (2021 CLC 1821), this Court, after referring to several judicial precedents including the case of Allah Rakha vs. Federation of Pakistan (PLD 2000 FSC 1), held as follows:-

          “7. The outcome of above discussion is that under the Islamic Law of Inheritance, there is no concept of grandchildren inheriting from grandfather and section 4 ibid is an exception to the said principle. The bare reading of section 4 ibid shows that only the sons and daughters (children of predeceased sons and daughters) shall inherit from grandfather /grandmother as per stripes i.e. the share which their father or mother was entitled to inherit.”

26. Now, as mentioned above, after the preliminary decree was passed by the learned trial Court, the local commission could not comply with the directions issued by the learned trial Court due to the record of the case having been sent to this Court. I have gone through the order sheet and have confirmed that no order had been passed by this Court for requisitioning the record of the learned trial Court. Where the record is requisitioned by the High Court, it operates as a stay of further proceedings before the learned trial Court and/or the learned Executing Court. In the case at hand, only a preliminary decree was passed. This implies that the suit is still pending and the commission is supposed to discharge its obligations in accordance with the directions issued by the learned trial Court in the preliminary decree. Due to the requisitioning of the record, the commission could not take further steps in compliance with the directions issued by the learned trial Court. The requisitioning of the record without a specific order by this Court for doing so unnecessarily protracted the proceedings before the learned trial Court. Therefore, Office is directed not to requisition records of cases pending before the learned trial Court where no orders are passed by the Appellate Court for such a requisition.

27. In the prayer-clause of the instant appeal, the appellants have sought the setting-aside of the impugned judgment and

preliminary decree and for the matter to be remanded to the learned trial Court with the direction to decide the matter afresh after framing new issues. The desire of the appellants for fresh issues to be framed by the learned trial Court is indicative of their intention to protract the litigation with Respondents No. 1 and 2 and also to deprive the respondents of possession of their respective shares in the suit house. It is the obligation of the Court to impose exemplary costs on parties who deprive persons of their due rights of inheritance in property. Inheritance, from the point of view of the heir, is not a matter of need but of right. It is an admitted position that ever since the demise of Major Abbasi, Respondent No. 1 and 2 have not been given possession of any portion in the suit house. This deprivation caused the respondents to invoke the jurisdiction of the learned Civil Court, and have been embroiled in the agony of litigation over the past six years. Therefore, this appeal is dismissed with costs throughout payable to Respondent No. 2. Additionally costs of Rs.1,00,000/- is imposed on each of the appellants in terms of Section 35(1)(iii) C.P.C. as amended by the Costs of Litigation Act, 2017. The said costs shall be deposited by the appellants in the National Treasury and the deposit receipt submitted to the Additional Registrar (Judicial) of this Court within a period of thirty days.

(Y.A.)  Appeal dismissed

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