The matters specified in the Schedule to the Act include maintenance as Item No.3. On matters specified under the Act, Rule 6 of the Family Court Rules, 1965 governs territorial jurisdiction of a Family Court.

 2023 MLD 914

In terms of Article 175(2) of the Constitution, no court has any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Jurisdiction of the Family Court to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the Family Courts Act, 1964 (‘Act’) is governed by Section 5 of the Act. The matters specified in the Schedule to the Act include maintenance as Item No.3. On matters specified under the Act, Rule 6 of the Family Court Rules, 1965 governs territorial jurisdiction of a Family Court. In terms of Rule 6 ibid , the Family Court which has jurisdiction to try a suit for maintenance is the one within the local limits of which the cause of action wholly or in part has arisen, or where the parties reside or last resided together.

Section 17 of the Guardian and Wards Act, 1890 requires the Court to consider welfare of the minor while appointing a guardian keeping in view the age, gender and religion of the minor.

 2023 MLD 1000

Section 17 of the Guardian and Wards Act, 1890 requires the Court to consider welfare of the minor while appointing a guardian keeping in view the age, gender and religion of the minor. Undisputedly, the parties and the minors in the instant case are Muslims by faith. In Muhammadan Law, the mother is entitled to the custody (Hizanat) of her female children until they attained puberty.

It is settled law that mother of the minor girls is entitled to their custody unless there is anything available on record to disentitle her.

Report regarding false entry in Nikahnama had no legal basis and stipulations in Nikahnama are construed on the basis of intentions of the parties irrespective of their placement in the columns of Nikahnama.

 Petitioner was held entitled to dower by reversing concurrent Judgments and Decrees of the Courts below as Inquiry Report regarding false entry in Nikahnama had no legal basis and stipulations in Nikahnama are construed on the basis of intentions of the parties irrespective of their placement in the columns of Nikahnama.

Family 38446-16
MST. ANIZA ETC. VS ADJ ETC.
Mr. Justice Abid Hussain Chattha
23-05-2023
2023 LHC 2744













Where the Judge Family Court had decreed the suit for maintenance allowance against grandfather of the minor .....

 2023 YLR 1106

Where the Judge Family Court had decreed the suit for maintenance allowance against grandfather of the minor on wrong premise by treating him as his father instead of grandfather, said judgment being against the principle of fair trial was not sustainable. Case is remanded for decision afresh.

-S. 22-A/22-B/25--Second marriage without divorce to petitioner--Dismissal of petition--Independent statutory remedy-

 PLJ 2023 Lahore 129
Present: Tariq Saleem Sheikh, J.
SHAHZAD--Petitioner
versus
EX-OFFICIO JUSTICE OF PEACE etc.--Respondents
W.P. No. 80439 of 2021, heard on 30.3.2022.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 22-A/22-B/25--Second marriage without divorce to petitioner--Dismissal of petition--Independent statutory remedy--Petitioner previously moved an application before Ex-officio Justice of Peace, Faisalabad, u/S. 22-A, Cr.P.C. for registration of FIR against Respondents No. 3 & 4 on same facts which was dismissed--principle of res-judicata postulates that when parties have litigated a claim before a Court of competent jurisdiction and it has finally decided controversy, interests of State and of parties require that validity of claim and matters directly and substantially in issue in action shall not be litigated again--Ex-officio Justice of Peace exercises quasi-judicial functions u/S. 22-A(6), Cr.P.C.--Principle of res-judicata applies to applications made to him seeking direction to officer in-charge of a police station to register FIR under Section 154, Cr.P.C.--Nevertheless, it does not bar institution of a private complaint as it is an independent statutory remedy--Petition dismissed. [Pp. 133 & 135] A, B, D & E

PLD 2016 SC 581 ref.

Principle of Res-judicata--

----S. 22-A/22-B/25--Res-judicata--Doctrine of res-judicata is based on public policy and applies to all judicial proceedings.                                                                                         [P. 134] C

AIR 1994 SC 152 ref.

Mr. Mahboob Saeed Khokhar, Advocate for Petitioner.

Mr. Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondent No. 2.

Mr. Kashif Alexander Rajpoot, Advocate, assisted Ms. Nadia Hameed, Advocate for Respondent No. 3.

In person Respondent No. 4.

Date of hearing: 30.3.2022.

Judgment

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), is directed against order dated 29.11.2021 passed by the Ex-officio Justice of Peace, Toba Tek Singh.

The factual background

2. The Petitioner and Respondents No. 3 & 4 are Christian by faith. On 09.10.2021 the Petitioner moved an application under Section 22-A, Cr.P.C. stating that in the year 2011 he married Respondent No. 3 and two children were born to them. In 2015 the lady left him and went to her parents’ house alongwith the siblings and refused to come back despite his best efforts. Lately he learnt that Respondent No. 3 had contracted second marriage with Respondent No. 4 without getting divorce from him. The Petitioner contended that Respondents No. 3 & 4 had committed a cognizable offence and prayed that a direction be issued to the Respondent SHO for registration of FIR against them. The Ex-officio Justice of Peace dismissed the said application vide order dated 29.11.2021 on the ground that it was not maintainable as his earlier application on the same facts had been dismissed by the Ex-officio Justice of Peace, Faisalabad. Hence, this petition.

The submissions

3. The Petitioner contends that Respondents No. 3 & 4 have committed a cognizable offence so the Respondent SHO is obligated to register FIR against them forthwith. He further contends that he cannot be non-suited for the mere reason that he moved an application under Section 22-A, Cr.P.C. on the same facts earlier. He argues that the impugned order dated 29.11.2021 is perverse and not sustainable.

4. The Assistant Advocate General contends that the Petitioner’s first application under Section 22-A, Cr.P.C. was dismissed on merits. He did not challenge the dismissal order before any forum so it has attained finality and he is precluded from filing new application.

5. Respondent No. 3 has supported the impugned order and argues that the Petitioner has filed the above-mentioned application under Section 22-A, Cr.P.C. to harass her as she has obtained a decree for maintenance against him. She further alleges that he has committed polygamy himself which is forbidden in Christianity and an offence under the laws of Pakistan. Hence, he is liable to be prosecuted.

6. Respondent No. 4 has also termed the proceedings initiated by the Petitioner as malafide and vexatious.

Discussion

7. In the Indo-Pak sub-continent the original role of the Justice of Peace under the Code of Criminal Procedure, 1898 (the “Code” or “Cr.P.C.”), was primarily to assist the police in maintaining public order and peace and, in the event of infarction of law, to help apprehend the culprit and investigate the crime.[1] However, his role was subsequently enlarged and made more comprehensive through various amendments in the Code. On 21.11.2002, the Criminal Procedure (Third Amendment) Ordinance, 2002 (Federal Ordinance No. CXXXI of 2002)[2] added sub-section (6) in Section 22-A, Cr.P.C. and conferred additional powers on the Ex-officio Justices of Peace. The said provision reads as under:

(6) An Ex-officio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:

(i)       non-registration of criminal case;

(ii)      transfer of investigation from one police officer to another; and

(iii)     neglect, failure or excess committed by a police authority in relation to its functions and duties.

Section 25, Cr.P.C. defines Ex-officio Justice of Peace as follows:

25. Ex-officio Justice of the Peace.– By virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional sessions Judges, are Justices of the Peace within and for whole of the District of the Province in which they are serving.

8. In Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) a larger Bench of the Hon’ble Supreme Court of Pakistan considered Sections 22-A and 25, Cr.P.C. and ruled as under:

(i)       Sections 22-A(6) and 25, Cr.P.C. are not ultra vires the Constitution.

(ii)      The functions of the Justice of Peace under sub- Sections (1) to (5) of Section 22-A and Section 22-B, Cr.P.C. are executive, administrative, preventive and ministerial. However, those of the Ex-officio Justice of Peace under Section 22-A(6), Cr.P.C. are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment.

(iii)     Traditionally it is the prerogative of the High Court to issue a writ. Our Constitution of 1973 also recognizes it but the legislature has lately conferred some powers on the Ex-officio Justice of Peace to provide remedy to the aggrieved people at their doorstep. The parameters laid down for the High Court for the exercise of that jurisdiction would apply to the Ex-officio Justice of Peace with the same force.

9. Admittedly, the Petitioner previously moved an application before the Ex-officio Justice of Peace, Faisalabad, under Section 22-A, Cr.P.C. for registration of FIR against Respondents No. 3 & 4 on the same facts which was dismissed vide order dated 22.09.2020 after hearing both the sides. The foremost question that requires consideration is whether second application is maintainable. In other words, whether the principle of res-judicata applies to the proceedings under Section 22-A(6), Cr.P.C.

10. The principle of res-judicata is based on two legal maxims – “interest reipublicae ut sit finis litium”,[3] and “nemo debet bis vexari pro eadem causa”.[4] Corpus Juris Secundum, Volume 50 (Edition 2009) states: “The term ‘res-judicata’ is sometimes used in a broad or generic sense to encompass or describe a group of related concepts concerning the conclusive effect of a final judgment. Used thusly, the term has been stated to encompass merger, bar and collateral estoppel, or claim and issue preclusion. So as to exclude issue preclusion, or collateral estoppel, res-judicata is sometimes used in a narrow sense. In this context, res-judicata is sometimes defined as, considered to be synonymous with, claim preclusion, and many Courts treat the two concepts as interchangeable, as by using the phrase ‘res-judicata’ or ‘claim preclusion’.”[5]

11. The principle of res-judicata postulates that when the parties have litigated a claim before a Court of competent jurisdiction and it has finally decided the controversy, the interests of the State and of the parties require that the validity of the claim and the matters directly and substantially in issue in the action shall not be litigated again by them or their representatives. In Commissioner v. Sunnen, 33 U.S. 591 (1948), the U.S. Supreme Court stated:

“The general rule of res-judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a Court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ Cromwell v. County of Sac, 94 U.S. 351, 352. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, ‘Res Judicata,’ 38 Yale L.J. 299; Restatement of the Law of Judgments, § § 47, 48.”

12. The question as to whether the doctrine of res-judicata is applicable to administrative determinations is quite contentious. Some authorities hold that it is completely inapplicable because the administrative procedures are often summary in nature, the parties are sometimes unrepresented and the dealing officers lack the training that the judges have for adjudication of disputes. The other set of legal experts opine that it depends on the legislative policy. However, the more recent view is that the applicability of the doctrine depends on the nature of the administrative tribunal involved, generally being applied where the function of the administrative agency is judicial or quasi-judicial.[6] Halsbury’s Laws of India explains:

“Although the Code of Civil Procedure 1908 does not apply to proceedings other than suits, the general principles of res-judicata govern not only the findings of Courts, stricto sensu, but also the findings of administrative tribunals and quasi-judicial authorities which are acting in judicial or quasi-judicial capacity. Thus, the plea of res-judicata is available in respect of decisions of Courts of exclusive jurisdiction as also decisions rendered by other adjudicating authorities. The rule, however, does not apply to administrative decisions, for example the policy matters of the government. The power to change, adjust or readjust policy is untrammelled.”[7]

13. In Sulochana Amma v. Narayanan Nair (AIR 1994 SC 152) the Supreme Court of India held that the doctrine of res-judicata is based on public policy and applies to all judicial proceedings, whether civil or otherwise, and to the quasi-judicial proceedings of the tribunals other than the civil Courts. Accordingly, in A.K. Muthuswamy v. Securities Exchange Board of India[8] the Madras High Court held that the Board was not competent to entertain second complaint on the same cause of action as it exercises quasi-judicial functions. Further, it could not treat that complaint even as a review petition because the statute did not confer such power on it.

14. The principle of res-judicata is applied to quasi-judicial proceedings in other jurisdictions as well. In The State Ex Rel.


Schachter v. Ohio Public Employees Retirement Board et. al., 121 Ohio St.3d 526 (2009), the Supreme Court of Ohio held:

“Res judicata, whether claim preclusion or issue preclusion, applies to quasi-judicial administrative proceedings … An administrative proceeding is quasi-judicial for purposes of res-judicata if the parties have had an ample opportunity to litigate the issue involved in the proceedings.”

Further reference may be made to Ralph Freddolino v. Village of Warwick Zoning Board of Appeals et. at., 192 A.D.2d 839 (1993); Hilltop Terrace Homeowner’s Association et. al. v. Island County et. al., 126 Wn.2d 22 (1995); County of Wayne v. City of Detroit, 590 N.W.2d 619 (1998); and James A. Bagnola v. Smithkline Beecham Clinical Laboratories and City of Chicago, a Municipal Corporation, 776 N.E.2d 730 (2002).

15. In view of the fact that the Ex-officio Justice of Peace exercises quasi-judicial functions under Section 22-A(6), Cr.P.C., in my opinion, the principle of res-judicata applies to the applications made to him seeking direction to the officer in-charge of a police station to register FIR under Section 154, Cr.P.C. Nevertheless, it does not bar institution of a private complaint as it is an independent statutory remedy.

16. The impugned order dated 29.11.2021 is based on correct application of law and does not call for interference by this Court. This petition is accordingly dismissed. The Petitioner may, if so advised, file a private complaint.

(K.Q.B.)          Petition dismissed


[1].      Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470).

[2].      PLJ 2003 Fed. St. 281.

[3].      “It is a public concern that there should be an end to litigation”.

[4].      “No one ought to be twice vexed for the same cause”.

[5].      Internal citations omitted.

[6].      6 (1967) 69 W Va L Rev 244.

[7].      Halsbury’s Laws of India (2014), Vol. 7, p. 105.

[8].      https://indiankanoon.org/doc/3546452/.

Both husband and wife got recorded their statements before the court that they had settled the matter in terms of compromise deed placed on record.

 2018 CLC Note 112

Both husband and wife got recorded their statements before the court that they had settled the matter in terms of compromise deed placed on record. After five months of passing of orders for disposal of matter on basis of compromise, the husband challenged the same by denying his thumb impressions on compromise deed as well as on the sideline of court order sheet and the matter was referred to Finger Print Bureau, which reported that thumb impressions on both the documents were identical with the sample obtained from the husband. Court rightly declined to set-aside the order previously passed by the court, whereby matter had been disposed of on the basis of consenting statement of parties. Besides presumption of truth is attached to a judicial proceeding.

Stealing household articles -- Complainant was husband of the sister of the accused , and she had filed a suit for recovery of dowry articles which was decreed ex -

  2023 SCMR 967

Stealing household articles --- Pre - arrest bail , confirmation of --- Mala fide of complainant --- Complainant was husband of the sister of the accused , and she had filed a suit for recovery of dowry articles which was decreed ex - parte and in the execution proceedings , the bailiff was appointed to recover the said articles --- On the date of occurrence of present FIR , the bailiff visited the house of complainant but failed to recover the articles --- According to the bailiff , the complainant was not present in the house and he kept on waiting for two hours and thus proceedings remained unsuccessful --- While lodging the FIR , the complainant had totally suppressed the relationship of the accused with the complainant and also suppressed the fact of ex - parte decree --- Even the arrival of the bailiff had been suppressed --- All such circumstances clearly indicated the mala fide and ulterior motive on the part of the complainant --- Co accused , who was the father - in - law of the complainant was also nominated as one of the accused but during the investigation it was opined by the Investigating Officer that he was not present there and his bail was confirmed , which order was not challenged --- Case of the accused was at par with his co - accused because the role against both of them was the same , mentioned in the FIR --- Accused had also joined the investigation --- Since accused remained successful in proving the mala fide on the part of the complainant , petition for leave to appeal was converted into appeal and allowed , and pre - arrest bail already granted to the accused was confirmed .

-Concealment of second marriage by respondent---She will bear expenses of rent of house but petitioner stated that he can only keep Respondent in his village separately-

 PLJ 2023 Lahore (Note) 43
[Multan Bench, Multan]
Present: Abid Hussain Chattha, J.
ABDUL KAREEM--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, DISTRICT VEHARI and 2 others--Respondents
W.P. No. 14694 of 2022, decided on 3.10.2022.

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

----S. 14--Muslim Family Laws Ordinance, 1961, S. 9--Suit for recovery of maintenance allowance--Allegation of torture--Concealment of second marriage by respondent--Respondent had leveled allegation of torture upon petitioner and his family members--She was ready to reside with petitioner and perform her matrimonial obligations, if petitioner provided her separate residence at some distance from house of his family members--Respondent had also given an option to petitioner to reside with her--She will bear expenses of rent of house but petitioner stated that he can only keep Respondent in his village separately--Courts below rightly concluded that Respondent is legally wedded wife of petitioner and as such, latter was bound to maintain her--Petition dismissed.         [Para 5 & 6] A & B

Syed Imran Abbas Kazmi, Advocate for Petitioner.

Date of hearing: 3.10.2022.

Order

This constitutional Petition is directed against the impugned Judgments & Decrees dated 13.04.2022 and 14.07.2022 passed by Senior Civil Judge (Family Division) Vehari and Additional District Judge, Vehari, respectively.

2. Precisely, Respondent No. 3 (the “Respondent”) instituted a suit for recovery of maintenance allowance which was decreed by the Family Court and the Respondent was held entitled to recover maintenance allowance @ Rs. 7,000/- per month from institution of suit till subsistence of marriage with 10% annual increase.

3. The Petitioner filed an Appeal against the Judgment passed by the Family Court which was dismissed by the Appellate Court.

4. Learned counsel for the Petitioner contended that the impugned Judgments & Decrees passed by the Courts below are unlawful for the reason that the Respondent after getting divorce from her first husband has contracted second marriage with the Petitioner by concealing this fact. As such, the Respondent was not entitled for any maintenance allowance. Further, the Petitioner was ready and willing to rehabilitate the Respondent in a separate house but she herself refused to reside with him. The Respondent is a disobedient wife and she has her independent source of earning, therefore, the grant of maintenance allowance by the Courts below is not sustainable in the eyes of law.

5. The impugned Judgments and the evidence on record have been perused. It was established that the Respondent had levelled allegation of torture upon the Petitioner and his family members. The Respondent categorically stated that she was ready to reside with the Petitioner and perform her matrimonial obligations, if the Petitioner provided her separate residence at some distance from the house of his family members, Similarly, the Respondent had also given an option to the Petitioner to reside with her either in Ada Machiwal or Vehari and she will bear the expenses of rent of house but the Petitioner stated that he can only keep the Respondent in his village separately and until the birth of child he will never allow her to live separately from his other family members.

6. Both the Petitioner and the Respondent were educated having qualification of master degrees. The assertions of the Petitioner that he tried his level best to rehabilitate the Respondent and offered a separate accommodation were not correct. The Courts below have duly appraised each and every piece of evidence on record which does not call for any interference by this Court. The quantum of maintenance allowance was also fixed keeping in view the financial resources of the Petitioner and the same is neither exorbitant nor excessive in this era of price hike and inflation. The Courts below rightly concluded that the Respondent is the legally wedded wife of the Petitioner and as such, the latter was bound to maintain her. The issue of concealment of second marriage by the Respondent has also been dealt with in detail by the Appellate Court.

7. The impugned Judgments passed by the Courts below are unexceptional. No case for interference is made out which may warrant exercise of constitutional jurisdiction by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

8. In view of the above, this Petition is devoid of any merit and the same is dismissed.

(K.Q.B.)          Petition dismissed

--Entries in Column No. 16 of nikahnama--Amount of dower was mentioned in column No. 11--Misreading of column No. 16 by Courts below-

 PLJ 2023 Lahore (Note) 35
Present: Shahid karim, J.
ZAKIR ABBAS--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, LAYYAH etc.--Respondents
W.P. No. 13317 of 2018, decided on 26.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Entries in Column No. 16 of nikahnama--Amount of dower was mentioned in column No. 11--Misreading of column No. 16 by Courts below--Interpretation of document--Concurrent findings--Exercising of jurisdiction by Family Courts--Challenge to--Courts below have misread and misconstrued terms of column No. 16 which is closely tied in Column No. 11 and cannot be read in isolation--It is a basic rule of interpretation of documents that a document has to be read as a whole--Intention of parties can be whittled down on a reading of different parts of Nikahnama in isolation--Family Court can only exercise jurisdiction in respect of inter alia recovery of dower but not otherwise--If at all any recovery is sought in respect of assets mentioned in column No. 16, Respondent No. 3 ought to have brought a suit separately but not by way of recovery of dower before family Court--Petition allowed. 

                                                                                  [Para 4] A, B & C

Mr. Rafiq Ahmad Malik, Advocate for Petitioner.

Ex-parte for Respondents No. 3 & 4.

Date of hearing: 26.3.2019.

Order

The Respondents No. 3 and 4 have been proceeded against ex-parte vide order dated 5.12.2018.

2. The only issue in this petition revolves around Issue No. 3 which is to the following effect:

“Whether the plaintiff No. 1 is entitled to “Haq Mehr” as well detailed in head note of the plaint? OPP.”

3. Both the Courts below have rendered a concurrent finding of fact vide judgments and decrees dated 10.07.2018 and 7.1.2017 passed by the Addl District Judge, Layyah and Judge Family Court, Layyah respectively. The learned counsel for the petitioner contended that there was a gross misreading of evidence on the said issue, in that. column No. 16 of the Nikahnama was misconstrued by the Courts below. It is pertinent to mention that in column No. 11 the amount of dower has been mention as Rs.2,000/- whereas in column No. 16 piece of land measuring 1-kanal, Haveli or 9 Masha ornaments have been mentioned. The said column in vernacular reads as under:

"آیا پورے مہر یا اس کے کسی حصہ کے عوض میں کوئی جائیداد دی گئی ہے اگر دی گئی ہے تو اس جائیداد کی حرامت اور اس کی قیمت جو فریقین کے مابین طے پائی ہے۔"

4. Therefore, it is evident that the said column has to be read in conjunction with Column No. 11 relating to the amount of dower and provides that the column must contain details of property if any which has been given in lieu of the dower or any part of the dower. It is incredulous to suggest that although the amount of dower is
Rs. 2,000/- as clearly stated in column No. 11 that the property and other assets mentioned in column No. 16 would be in substitution of that amount of Rs.2000/- or any part of it. Clearly, therefore, the Courts below have misread and misconstrued the terms of the column No. 16 which is closely tied in Column No. 11 and cannot be read in isolation. It is a basic rule of interpretation of documents that a document has to be read as a whole. It cannot be urged by any stretch of imagination that the intention of the parties can be whittled down on a reading of different parts of the Nikahnama in isolation. Surely it cannot be the case of the Respondent No. 3 that the value of the assets mentioned in column No. 16 equals Rs.2000/-. If that is not the case, then the property mentioned in this column has to be a transaction unrelated to dower. Although the petitioner admits to the authenticity of the Nikahnama yet the assertion is that the mention of piece of land etc. may be intended by the parties to be a separate arrangement between the parties but was not the amount of dower which could be claimed by filing a suit before the family Court. Plainly the family Court can only exercise jurisdiction in respect of inter alia recovery of dower but not otherwise. If at all any recovery is sought in respect of the assets mentioned in column No. 16, the Respondent No. 3 ought to have brought a suit separately but not by way of recovery of dower before the family Court. Thus, the Courts below have committed a jurisdictional defect and gross illegality in the construction that these Courts put on column No. 16 so as to read that column along with Column No. 11 and to decree the suit for dower.

5.  In view of the above, this petition is allowed. The judgments and decrees of the Courts below to the extent of Issue No. 3 is hereby set aside.

(Y.A.)  Petition allowed

-Suit for dissolution of marriage, recovery of maintenance allowance and dower and dowry articles--Decreed-

 PLJ 2023 Lahore (Note) 34
[Multan Bench, Multan]
Present: Anwaar Hussain, J.
Syed MUHAMMAD IMRAN SHAHZAD--Petitioner
versus
ADDITIONAL DISTRICT JUDGE etc.--Respondents
W.P. No. 2488 of 2022, heard on 27.9.2022.

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

----Ss. 8, 9 & 10--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage, recovery of maintenance allowance and dower and dowry articles--Decreed--Appeals--Dismissed--Consolidated judgment--Prompt dower and deffered dower--Modification in judgment--Portion of dower which was determined by trial Court was not incorporated in final judgment--Principle of depreciation--Challenge to--Two tola gold ornaments were given to respondent by petitioner at time of her marriage and being so, it was prompt dower--Judgments and decrees of Courts below are modified to extent that respondent shall surrender 25% of prompt dower and 50% of deferred account of dissolution of marriage on basis of khula be determined and actualized by Executing Court while making payment of 50% of deferred dower to respondent and respondent will be entitled to dowry articles as per list Exh.Pl excluding gold ornaments or a sum of Rs. 1,050,000/- as alternate price thereof.     [Para 6 & 9] A & C

2017 SCMR 393 ref.

Constitution of Pakistan, 1973--

----Art. 199--Concurrent findings--Obligation to rectification of error—High Court is aware of fact that concurrent findings of Courts below should not ordinarily be disturbed but where guidance of superior Courts, particularly, Hon’ble Supreme Court is not followed by Courts below, this Court is not only empowered but obligated to rectify error.                                                                                        [Para 8] B

Mian Mehmood Ahmad Ansari, Advocate for Petitioner.

Ch. Muhammad Saeed Machra, Advocate for Respondent
No. 3.

Date of hearing: 27.9.2022.

Judgment

Through this single judgment, this Court intends to decide Writ Petition No. 2488/2022 filled by Syed Muhammad Imran Shahzad (“the petitioner”) and Writ Petition No. 4281/2022 filed by Syeda Mah Noor Bukhari (“the respondent”) as common questions of law and fact are involved therein and said petitions lay challenge to the same judgments of learned Courts below.

2. Brief facts of the case are that on 22.04.2020, the respondent instituted a suit for dissolution of marriage on the basis of khula, recovery of maintenance allowance, dower and dowry articles to the tune of Rs. 2,434,390/- contending that the parties entered in marital the on 02.07.2017, however, no issue was born and that the petitioner ousted her from his house on 12.09.2018 and since then, she is residing with her parents. The petitioner contested the suit by filing written statement. After failure in pre-trial reconciliation efforts, learned Family Court dissolved the marriage of the parties vide order dated 27.08.2020 and after framing of issues and recording of evidence adduced by the parties, decreed the suit of the respondent vide judgment and decree dated 15.07.2021 in the following terms:

“... the suit of the plaintiff for recovery of maintenance allowance is hereby decreed partially and she is held entitled to recover maintenance allowance @ Rs. 10,000/- per month from institution of suit till her iddat period. Suit of the plaintiff for recovery of dower is also partially decreed to the extent of cash Rs.2,00,000/- and to the extent of two tola gold ornaments is dismissed. Suit of the plaintiff for recovery of dowry articles is decreed in favour of the plaintiff and she is held entitled to get the dowry articles lying in the house of defendant except gold ornaments mentioned in list Ex.P.1 or price as Rs.7,00,000/- in alternate.”

Feeling aggrieved, both sides preferred appeals, which were dismissed by learned Appellate Court below through consolidated Judgment and decree dated 29.01.2022.

3. Learned counsel for the petitioner has confined his arguments to the extent of dower amount with the contention that on 27.08.2020, the suit for dissolution of marriage instituted by the respondent was decreed on the basis of khula and it was held by the learned Family Court that the respondent would surrender 25% of the prompt dower and 50% of the deferred dower, however, the said aspect has not been incorporated in the final judgment, therefore, the impugned judgments and decrees of learned Courts below to the said extent are not sustainable. Adds that maintenance allowance has already been paid to the respondent. Concludes that he does not lay challenge to the grant of dowry articles as according to him, the petitioner is ready to return the dowry articles or pay the alternate value determined by the learned Courts below to the respondent.

4. Learned counsel for the respondent acknowledges that the maintenance allowance has been paid to the respondent. He, however, submits that respondent’s claim for grant of dower to the extent of 2 tola gold ornaments duly recorded in column No. 15 of the nikahnama has been wrongly declined. As regards claim of dowry articles, learned counsel submits that evidentiary resume has not been properly appreciated and the value of gold ornaments has illegally been excluded while granting alternate price of the dowry articles. Concludes that depreciation of articles has also been done against settled principles without conducting any inquiry.

5. Arguments heard. Record perused.

6. Record reveals that learned Trial Court vide order dated 27.08.2020 itself held that respondent would surrender 25% of the admitted prompt dower and 50% of the deferred dower but as per contention of the petitioner side, this order was not incorporated in the final judgment and decree erroneously which finding was also upheld by learned Appellate Court below unlawfully. On the other hand, learned counsel for the respondent has taken plea that the said observation was given when neither issues were framed nor evidence was recorded and after framing of issues and recording of evidence, learned Family Court reached the conclusion otherwise.

7. Column No. 15 of the nikahnma reads as under:

 

"15۔ آیا مہر کا کچھ حصہ شادی کے موقع پر ادا کیا گیا اگر کیا گیا ہے تو کس قدر

2 تولہ سونا طلائی زیورات

Perusal of above clearly indicates that two tola gold ornaments were given to the respondent by the petitioner at the time of her marriage and being so, it was prompt dower. Mubashir Ali, who happened to be father of the respondent appeared as PW.2, and during cross- examination, he admitted as under:

"مدعیہ کو دو تولہ زیور ڈالا تھا۔"

This is categorical admission by father of the respondent that prompt dower in shape of gold ornaments was given to her which contradicts the assertion of the respondent that she did not receive her prompt dower in form of gold ornaments. Perusal of the plaint as well as affidavits of the respondent as well as her father Mubashir Ali (PW.2) reveals that it is nowhere mentioned that the said gold ornaments were ever snatched by the petitioner from her. Even otherwise, it is presumed that the gold ornaments remain in the possession of the ladies, as such, the claim of the respondent to this extent was rightly declined. Regarding surrender of some portion of the dower, learned Family Court, vide order dated 27.08.2020, while dissolving the marriage of the parties held as under:

“As pre-trial reconciliation proceedings ended in failure, Section 10(5) of The Punjab Muslim Family Laws (Amended) Act, 2015 describes the procedure to dissolve the marriage on basis of Khula. Thus, in attending circumstances, suit of plaintiff to the extent of dissolution of marriage under Section 10(5) of The Punjab Muslim Family Laws (Amended) Act, 2015 is hereby decreed on the basis of Khula. Plaintiff would surrender 25% of the admitted prompt dower and 50% of deferred dower in lieu of Khula.”

(Emphasis supplied)

Bare reading of above order makes it crystal clear that the learned Trial Court while dissolving marriage of the parties on the basis of khula categorically held that the respondent would surrender 25% of the prompt dower (i.e., out of 02 tola gold ornaments) and 50% of the deferred dower (i.e., Rs. 200,000/-) and this order should have been incorporated in the final judgment and decree. When confronted with, learned counsel for the petitioner could not refute and candidly conceded that the respondent while seeking dissolution of marriage on the basis of khula was bound to return some portion of the dower, * wnich has been determined by the learned Trial Court below but not incorporated in the final judgment. Therefore, this Court is inclined to modify the judgments and decrees of learned Courts below to the extent that the respondent shall surrerider 25% of the prompt dower and 50% of the deferred dower on account of dissolution of marriage on the basis of khula which will be determined and actualize by the learned Executing Court while executing the decree regarding payment of 50% of the deferred dower to the respondent.

8. As regards dowry articles, learned Courts below have only excluded the gold ornaments from the list of dowry articles. There is a plethora of judgments that the gold ornaments usually remain in the custody and possession of the ladies and keeping this in view, the respondent is not entitled to the same coupled with the fact that she has not alleged that the same were snatched from her. Reliance is placed on law laid down in case reported as “Mst. Saniya Iqbal Butt v. Rehan Zafar, etc” (2012 CLJ 218). Learned Trial Court has rightly excluded the value of gold ornaments, i.e., Rs. 1,130,000/- from total value of dowry articles, i.e., 2,434,390/- and then on the remaining articles have applied the principle of depreciation. If the said aspect is taken into account and value of gold ornaments (i.e., Rs. 1,130,000/-) is excluded from the total value of the dowry articles claimed, (i.e., 2,434,390/-), a sum of Rs. 1,304,390/- is left whereas only Rs.700,000/- as an alternate price of dowry articles has been granted by the learned Trial Court after applying the principle of depreciation and wear and tear by holding as under:

“24. To determine the value of the said articles it is quite normal that with the span of time the value of articles diminishes due to wear and tear. Therefore, plaintiff is held entitled to get the dowry articles lying in the house of defendant except gold ornaments or its price as Rs.7,00,000/- in alternate. This issue is decided in favour of plaintiff accordingly.”

It is unclear as to what rate of depreciation was applied by the learned Trial Court. Certainly, there is no yardstick for analyzing depreciation unless recourse to an evaluator is resorted which has not been done. However, percentage of annual depreciation of such articles has been settled by the Hon’ble Supreme Court of Pakistan in case titled “Shqfique Sultan v. Mst. Asma Firdous-and others (2017 SCMR 393), which has not been followed in the instant case. In case of Shafique Sultan supra, for determination of alternate value of the dowry articles, the period for which marriage subsisted was taken into account and in that particular case after subsistence of marriage for 6½ years, 65% of the value granted by learned Courts below was ratified by the Apex Court which brings out that 6% annual depreciation was applied. In the instant case, admittedly, the marriage subsisted for about three years and alternate price of dowry articles excluding gold ornaments has been awarded to the tune of Rs.7,00,000/- which means that only 55% of value of dowry articles has been awarded. In this view of the matter, there is some force in the argument of learned counsel for the respondent inasmuch the principle of depreciation was not properly dealt with. Though this Court is aware of the fact that concurrent findings of Courts below should not ordinarily be disturbed but where guidance of the superior Courts, particularly, the Hon’ble Supreme Court is not followed by the learned Courts below, this Court is not only empowered but obligated to rectify the error. Seeking guidance from the case of Shafique Sultan supra regarding quantification of depreciation on value of daily use articles, this Court is inclined to enhance the alternate value of dowry articles from Rs.700,000/- to Rs. 1,050,000/- which is the approximate value of the dowry articles by applying depreciation at the rate of 6% per-annum, i.e. the rate of depreciation upheld by the Apex Court.

9. For what has been discussed above, the judgments and decrees of learned Courts below are modified to the extent that the respondent shall surrender 25% of the prompt dower and 50% of the deferred dower on account of dissolution of marriage on the basis of khula which will be determined and actualized by the learned Executing Court while making payment of 50% of the deferred dower to the respondent and the respondent will be entitled to dowry articles as per list Exh.Pl excluding gold ornaments or a sum of Rs. 1,050,000/- as alternate price thereof.

10. Both the writ petitions in hand are disposed of in above terms.

(Y.A.)  Petition disposed of

Suit for dissolution of marriage --- Grounds for decree for dissolution of marriage --- Divorce on the basis of khula -

 PLD 2023 ISLAMABAD 135

Suit for dissolution of marriage --- Grounds for decree for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Where the wife had stated in her plaint that she had faced agony at the hands of the husband and that it was not possible for her to live with him while abiding by the limits of Allah ; the parties had been living separately for years ; the pre trial reconciliation proceedings had not succeeded in the Family Judge's own opinion , High Court observed that such factors were sufficient grounds for the grant of a decree for dissolution of marriage by way of khula in order to avoid a hateful union even if the grounds alleged by the wife for dissolution of marriage were not proved through evidence in the opinion of the Family Court as no woman could be forced to live with a man without her consent or liking .
Dissolution of Muslim Marriages Act ( VIII of 1939 ) , S. 2 --- Suit for dissolution of marriage --- Grounds for decree for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Decree for khula may be granted even where no ground for dissolution of marriage as alleged by the wife exists and the wife has omitted to demand khula , if the Court is of the opinion that in the event that decree for dissolution of marriage is not granted , it will give birth to a hateful union and the spouses may not be able to live with each other within the limits prescribed by Allah .
S. 5 , Sched .-- Dissolution of Muslim Marriages Act ( VIII of 1939 ) , S. 2 ( ii ) --- Suit for dissolution of marriage --- Grounds for decree for dissolution of marriage --- Scope --- Failure to maintain the wife even if for less than the statutory period which entitles a wife to a decree for dissolution of marriage under S. 2 ( ii ) of the Dissolution of Muslim Marriages Act , 1939 , would at the very least show that the wife has approached the Court for dissolution of marriage on account of fault of the husband , in which case , the wife is entitled to recovery of outstanding dower .
S . 5 , Sched .--- Suit for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Contention that in case of khula , the wife ipso facto should return the benefits is not correct --- If a wife seeks khula without pointing any fault of the husband and the Court finds it proper to grant khula then the wife should be ordered to return all the benefits received by her and also forego such rights under which she can claim any benefit .
S . 5 & Sched .--- Suit for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Husband can refuse to give ' Talaq ' but at the same time it would create an environment causing the wife to seek khula , which would entitle him to the benefit of retaining deferred dower and / or getting back prompt dower property / amount --- Thus , where the Court through legal . cogent and convincing evidence comes to the conclusion that the husband has compelled the wife to ask for dissolution of marriage on the ground of khula then the Court shall have the power to refuse the return of the prompt dowered property amount to husband or to release him from the liability of payment of deferred dower . ----
S . 5 , Sched .--- Suit for dissolution of marriage --- Divorce the basis of khula --- Scope -- Deferred dower does not mean that it cannot be considered while granting khula --- It is obligatory on Courts granting khula to take into consideration dower regardless of whether it is prompt or deferred .
Divorce on he basis of khula --- Scope --- Khula is a right given to a woman as the right to divorce is vested in a man with the difference that khula can be obtained only through a decree of Court and on payment of such consideration as may be fixed by Court .
S. 5 , Sched .-- Suit for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Woman can release herself from consideration of which the husband has to give her khula --- the tie of marriage by giving up some property in return in Khula is repudiation with the consent and at the instance of the wife in which she agrees to give consideration to the husband for her release from the marital tie --- However , the Court cannot on its own deprive a lady of her dower and cannot order her to relinquish the same because the dower is the right of the woman given by Shariah .
Appeal --- Scope --- Decree of dissolution of marriage by way of Ss . 5 , Sched . & 14 --- Suit for dissolution of marriage ... khula is neither revocable nor appealable --- Having said that there is no cavil to the contention that a decree of khula constitutes one divorce and as such the husband and wife are at liberty to remarry each other by performing Nikah if they wish not require any to reunite --- However , the parties do pronouncement from the Court for the said purpose nor can the Court direct the parties to do so .

--Suit for recovery of maintenance allowance--Decreed--Deprivation from previous maintenance allowance--Suckling baby-

 PLJ 2023 Lahore 154
Present: Safdar Saleem Shahid, J.
Mst. FARIDA BIBI etc.--Petitioners
versus
JUDGE FAMILY COURT etc.--Respondents
W.P. No. 18625 of 2016, heard on 13.1.2022.

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

----S. 9--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance--Decreed--Deprivation from previous maintenance allowance--Suckling baby--Modification in judgment--Entitlement of petitioner for maintenance allowance for period of feeding of minor--Enhancement in maintenance allowance--Challenge to--After separation, lady can live in house of her ex-husband for purpose of feeding in case she had a suckling baby, within limits prescribed by Almighty Allah--Maintenance of mother who had been feeding a child cannot be stopped in any way--Neither child nor lady can be deprived from maintenance allowance in any away--Judgment and decree passed by Judge Family Court, is modified to extent that Plaintiff No. 1 is held entitled for maintenance allowance for period in which she had been feeding minor--Plaintiff had been feeding minor till 13.07.2014 and for that period Respondent No. 2 is duty bound to pay maintenance allowance to plaintiff--Judge Family Court has rightly fixed maintenance allowance of plaintiffs--Petition partially allowed.

                                                             [Pp. 159 & 160] A, B, C, D & E

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

----S. 151--Jurisdiction of Family Court--Family Court has exclusive jurisdiction to pass an order on application for enhancement of maintenance allowance even after passing final judgment and decree.       [P. 160] F

2016 SCMR 1821 ref.

Miss Kashwar Naheed, Advocate for Petitioners.

Ex-parte for Respondent.

Date of hearing: 13.1.2022.

Judgment

Through instant constitutional petition, the petitioners seek enhancement of maintenance allowance, partly decreed by learned Judge Family Court, Sheikhupura, vide judgment and decree dated 15.09.2015.

2. The brief facts of the family litigation are that Mst. Farida Bibi Petitioner No. 1 and Muhammad Shahid Respondent No. 2 were married on 24.03.2011, Out of this wedlock Ammara Shahid Petitioner No. 2 was born. Differences between the parties arose and ultimately the petitioner filed the suit for past and future maintenance allowance at the rate of Rs. 30,000/- per head per month. The respondent appeared before the Court and submitted his contesting written statement. Consequently, learned trial Court vide judgment and decree dated 15.09.2015 partly decreed the suit for recovery of maintenance allowance and Petitioner No. 1 was held entitled to maintenance allowance at the rate of Rs. 15000/- only for the period of “Iddat” whereas Petitioner No. 2/minor was held entitled to maintenance allowance at the rate of Rs. 5,000/- per month from the date of effectiveness of divorce between the spouses till marriage of Respondent No. 2 (minor) with 10% annual increase. Against the
said judgment and decree the petitioners preferred instant writ petition before this Court for enhancement of maintenance partly decreed by learned Judge Family Court Sheikhupura. Hence instant writ petition.

3. The issues No. 1 & 2 were relating to maintenance allowance of the minor and the lady regarding the past as well as future period which were inter-related and inter-connected, hence the same were decided by learned trial Court simultaneously. The learned trial Court discussed the evidence of the parties and apprised that since the lady had left the house of the respondent alongwith minor out of her own will, therefore, she was not entitled to recover the past maintenance allowance. It was further held by the learned trial Court that the petitioner/lady has neither mentioned any specific ground nor mentioned specific date or month when she was expelled and the respondent had not been giving the monthly allowance to her. Relying on these observations, the lady was deprived from her previous maintenance allowance however, she was held entitled the maintenance allowance only for the period of “Iddat” as she was divorced by the respondent and divorce was effected between the spouses on 30.06.2014 vide Exh.D-4. The learned trial Court fixed the maintenance allowance of the minor at the rate of 5000/- per month from the date of divorce between the spouses till the marriage of Respondent No. 2 (minor) with 10% annual increase. The petitioner/plaintiff agitated the judgment and decree in question through instant writ petition as no other remedy was available to the petitioner with the version that the learned Judge Family Court has not decided the issues in accordance with law. It was argued by learned counsel for the petitioner/plaintiff that non-mentioning of exact date of desertion would not disentitle the petitioner from her past maintenance allowance as well as of the minor daughter of the petitioner. It was further argued by learned counsel that maintenance allowance of the minor has not been fixed by the learned trial Court in view of financial status of the respondent as the respondent was serving in Saudi Arabia and he was earning more than Rs. One lac and in this regard the petitioner produced cogent evidence regarding his source of income. It was further contended that the minor is now grown up and studying in a school and her average monthly expenditure on account of school fees, uniform, Qari Sahib fee, transport, foods and other necessities etc are higher than the maintenance allowance due to rise in inflation.

4. The respondent was summoned through summons in accordance with law but inspite of the same he did not appear; consequently he was proceeded against ex-parte.

5. Arguments heard. Record perused.

6. It has been noticed that there are many legal as well as Shari questions before this Court which are being discussed as under:-

1.       Whether the lady/plaintiff having a suckling baby with her can be deprived from the maintenance allowance?

2.       Whether the maintenance allowance of the minor can be waived by the mother or any of the blood relative?

Since very important Shari questions were involved in the instant case, therefore, learned Assistant Advocate-General was appointed as amicus curiae in order to assist this Court.

7. Perusal of record reveals document Exh. D-I is available on file which shows that an agreement/Punchayat Nama was entered into between the parties where the father of the Petitioner No. 1 had signed the said document in view of its correctness. The contents of said agreement/Punchayatnama is reproduced as under:

یہ کہ میں مسماۃ فریدہ بی بی دختر شاہ محمد حلفیہ بیان کرتی ہوں کہ میں بچی عمارہ دختر محمد شاہد کے کسی قسم کے خرچہ کا مطالبہ نہ کروںگی۔ عمارہ کو رو برو گواہان محمد شاہد کی والدہ سے حاصل کر لی ہے ۔مورخہ 16.03.2004

The aforesaid document was written on 16.03.2015 which was signed and thumb marked by the father of the petitioner namely Shah Muhammad. The petitioner/plaintiff in her statement while appearing as PW-1 has specifically refused that she had ever signed any such document.. During cross-examination she deposed that she had no knowledge regarding execution of Exh. D-1 however, she had signed and thumb marked a blank paper. She further deposed that her father Shah Muhammad had signed the document Exh. D-1 and also thumb marked. The right of the minor cannot be waived by the mother or any of the blood relative. Allah has specifically fixed the responsibility of the minor (suckling baby) to the father. The mother has been given responsibility of feeding the child, whereas the father, if the father is not alive or in a position not to pay the maintenance, then the responsibility will be shifted to mother, if can bear it or to the other family members as given in Section 370 of Muhammadan Law which is reproduced as under:

370. Maintenance of Children and Grand Children.--(1) A Father is bound to maintain his sons until they have attain the age of majority. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (Section 352 ) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

(2) If the father is poor, and incapable of earing by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

(3) If the petitioner is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.

Description: ArabicEven this particular document Exh. D-1 will not disentitle the minor from her Shari right of maintenance allowance. Here I will quote the Verse 233 of Surah Al-Baqara:

 

 

 

 

 

اور مائیں دودھ پلائیں اپنے بچوں کو (ف۴۶۶) پورے دو برس اس کے لئے جو دودھ کی مدت پوری کرنی چاہئے (ف۴۶۷) اور جس کا بچہ ہے (ف۲۲۸) اس پر عورتوں کا کھانا پہننا ہے حسب دستور (ف۴۶۹) کسی جان پر بوجھ نہ رکھا جائے گا مگر اس کے مقدور بھر ماں کو ضر ر نہ دیا جاۓ اس کے بچہ سے (ف۴۷۰) اور نہ اولاد والے کو اس کی اولاد سے (ف۴۷۱) یاماں ضرر نہ دے اپنے بچہ کو اور نہ اولاد والا اپنی اولاد کو (ف۴۷۲) اور جو باپ کا قائم مقام ہے اس پر بھی ایساہی واجب ہے پھر اگر ماں باپ دونوں آپس کی رضا اور مشورے سے دودھ چھڑانا چاہیں توان پر گناہ نہیں اور اگر تم چاہو کہ دائیوں سے اپنے بچوں کو دودھ پلواؤ تو بھی تم پر مضائقہ نہیں جب کہ جو دینا ٹھہرا تھا بھلائی کے ساتھ انہیں ادا کر دو ،اور اللہ سے ڈرتے رہو اور جان رکھو کہ الله تمہارے کام دیکھ الله رہا۔ (233)

The wisdom mentioned in the aforesaid Verse of Surah Al-Baqara is that father is solely responsible to maintain the minor as well as the lady who is feeding his child. The document Exh. D-1 could be used for any other purpose but not to deprive the minor from her maintenance allowance and the lady who had been feeding the minor. It is legal as well as moral right of every minor/child that he be brought up in healthy atmosphere and be brought up with the feelings of self-respect alongwith educational necessities and it is duty of the father to bring up his children as per his financial status. Although learned Judge Family Court has not relied upon the document Exh. D-I but on the other hand, the learned Judge Family Court had deprived the lady/ mother of the minor from the maintenance allowance regarding the period of feeding of the minor. It is settled principle of law that nobody/parents or any blood relative can waive the right of any minor regarding his maintenance allowance which has been given by ‘Shariah’. So the document Exh. D-I has no legal value in the eyes of law and same is against the spirit of Islamic Rules, therefore, it would not create a hurdle for the fixation of maintenance allowance for the past and future of the minor as well as to the lady. Admittedly the marriage between the parties was solemnized on 24.03.2011 whereas minor daughter was born on 13.01.2012. According to the version of the petitioner/lady taken by her in plaint, she left the house of the respondent one year prior to the institution of the suit. The suit was filed on 24.07.2014, meaning thereby the lady left the house of the respondent on 24.07.2013. Mark DB dated 24.03.2014 is an important document (Talaq Nama) which was tendered by the respondent wherein it was admitted by the respondent that six months prior the lady had gone to her parents house, if said period is calculated, it means that the petitioner/lady had left the house of the respondent on 24.09.2013 whereas the petitioner/lady has claimed that she had left the house of her husband on 24.07.2013. So there is no a big difference in the dates regarding the leaving of the house of the petitioner from her husband’s house/respondent. It is clear indicative of the fact that she was residing with her parents after the aforesaid dates and during the said period neither she was paid the maintenance allowance nor the minor. The question before this Court is that a disobedient lady living separately without any reason should be refused to pay the maintenance allowance for that period she had not performed her matrimonial obligations but here this is a different situation. She had been feeding the minor during the said period. In these circumstances, the father of the minor was under obligation to provide the maintenance to the lady who was feeding his child as per Holly Verse 233 of Surah Al-Baqara: So the learned Judge Family Court has not kept in view the entitlement of the lady for having the previous maintenance allowance on this score which was very important. In all circumstances, the welfare of the miner is the supreme, though she had left the house herself or she was expelled from the house as she had been feeding the minor and maintaining his suckling baby. As per ‘Sharia’ the father is duty bound to maintain his wife who was feeding his child. This principle is established from the traditions of Arabic societies where the children were handed over to the ladies (foster mothers) for feeding and they were paid penny/reward for feeding purpose. It is also a principle that even after separation, the lady can live in the house of her ex-husband for the purpose of feeding in case she had a suckling baby, within the limits prescribed by Almighty Allah. Meaning thereby, the maintenance of the mother who had been feeding a child cannot be stopped in any way, however, after that period the Court can assess the evidence adduced by the parties and then can pass the appropriate order regarding the maintenance allowance. In the instant case, the lady had been feeding the child, therefore, neither the child nor the lady can be deprived from the maintenance allowance in any away. This Court has reason to believe that the learned Judge Family Court has not taken into consideration this aspect of the matter. The judgment and decree dated 15.09.2015 passed by learned Judge Family Court, Sheikhupura is modified to the extent that the Plaintiff No. 1 Mst. Farida Bibi/lady is held entitled for maintenance allowance for the period in which she had been feeding the minor. Under the Islamic Rules, the feeding period has been fixed by the Fiqa as 2½ years. Prima facie, the Plaintiff No.1/lady had been feeding the minor for the period of 2½-years. Ammara Shahid minor was born on 13.01.2012 and if the aforesaid period is calculated, then it comes on record that the plaintiff/lady had been feeding the minor till 13.07.2014 and for that period the Respondent No. 2 is duty bound to pay the maintenance allowance to the plaintiff/lady. As discussed above the admitted dates of desertion of plaintiff-lady from the house of the respondent was noted as 24.07.2013 & 24.09.2013, therefore, the plaintiff-lady is held entitled for the past maintenance allowance at the rate of Rs. 5,000/- per month (which was fixed by learned Judge Family Court for minor) w.e.f 24.07.2013 to 13.07.2014 with 10 % annual increase. The maintenance allowance of the plaintiff-lady for the period of Iddat fixed by learned Judge Family Court is upheld. So far as contention of learned counsel for the petitioners that maintenance allowance of the plaintiffs/petitioners was not fixed by the learned trial Court keeping in view the financial status of the respondent is concerned, I have gone through the whole evidence which shows that no such reliable document regarding the monthly income of the respondent was produced before the learned trial Court. Keeping in view the evidence available on record, the learned Judge Family Court has rightly fixed the maintenance allowance of the plaintiffs. As far as the contention of learned counsel for the petitioners for enhancement of maintenance allowance on the ground of daily growing requirement of the minor is concerned, suffice it to say that the Family Court has exclusive jurisdiction to pass an order on the application for enhancement of the maintenance allowance even after the passing the final judgment and decree. Reliance in this regard can be placed on the case titled Lt. Col. Nasir Malik vs Additional District Judge Lahore (2016 SCMR 1821) in which the Hon’ble Supreme Court of Pakistan held as follows:

“Family Court had exclusive jurisdiction relating to maintenance allowance and the matters connected therewith.


Once a decree by the Family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the Family Court may entertain any such application (under S.151,C.P.C) and if necessary make alteration in the rate of maintenance allowance”

In these circumstances, the petitioners may move the application for enhancement of maintenance allowance of the minor before the Court of competent jurisdiction.

8. For what has been discussed above, instant petition is partly accepted and impugned judgment and decree dated 15.09.2015 passed by learned Judge Family Court is modified to the extent that the plaintiff-lady is held entitled for the past maintenance allowance at the rate of Rs. 5,000/- per month (which was fixed by learned Judge Family Court for minor) w.e.f 24.07.2013 to 13.07.2014 with 10% annual increase. The maintenance allowance of the minor and the plaintiff-lady for the period of Iddat fixed by learned Judge Family Court is upheld. There is no order as to costs.

(Y.A.)  Petition partially allowed

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