Ss. 491, 491(1)(b)--Custody of minor--Conversation with minor--Requirements of Section 491(1)(b)--Writ jurisdiction-- The charming child is a girl aged about nine-and-a-half years, is well spoken, confident and composed-

 PLJ 2023 Islamabad (Note) 172
Present: Sardar Ejaz Ishaq Khan, J.
FATIMA AKHTAR KHANAM--Petitioner
versus
JUNAID AKBAR and 2 others--Respondents
W.P. No. 2726 of 2023, decided on 14.9.2023.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 491, 491(1)(b)--Custody of minor--Conversation with minor--Requirements of Section 491(1)(b)--Writ jurisdiction-- The charming child is a girl aged about nine-and-a-half years, is well spoken, confident and composed--She seems quite comfortable in her father’s company--Court found child conveying her desire with a smiling face and vibrant expression to live with her father, and Court did not carry impression that she said so under any threat--Court find no reason to interfere with impugned order Court--Petition dismissed.                                                                                      

                                                                               [Para 1 & 2] A & B

2021 YLR 1267, 2022 MLD 300, 2020 YLR 1256 and
2007 Cr.LJ 758 ref.

Raja Haider Ali, Advocate along with Petitioner.

Mr. Zafran Abbas Ch. Advocate for Respondent No. 1.

Date of hearing: 14.9.2023.

Order

Responding to the observations in the last order, learned counsel for the respondent father states that the custody was handed over to the father by the learned Additional Sessions Judge after a conversation in her chamber with the child. I have carried out the same exercise in the presence of Ms. Ayesha Touqeer, Advocate, in my chamber. The charming child is a girl aged about nine-and-a-half years, is well spoken, confident and composed. She seems quite comfortable in her father’s company. Her father carries out an online business and is able to spend the entire day with her. She categorically stated that her father spent a lot of time with her and helped her with her studies. I asked her indirectly several times as to why would she not want to be with her mother, and her reply on each occasion was that she would prefer to be with her father.

2. That is the substance of the matter. The legal niceties are another matter. Whether the learned Additional Sessions Judge could hand over the custody of the minor in a petition under section 491 Cr.P.C. to the father instead remains debatable but, under the circumstances, the said order does seem to meet the requirements of section 491(1)(b), if a broader interpretation to the words “improperly detained” is given, for the child considers her residing with her father proper and, by extension, improper with her mother. While several judgments have been cited at the bar by the mother’s counsel, they do not seem to be laying down an inflexible rule of custody of the minor remaining with the mother irrespective of the specific circumstances of each case. In Mst. Basri Irshad vs. Tauqir Hayat (2021 YLR 1267), the lap of the mother was regarded as the rightful place for a three and a half year old child. In Dr. Islam Ullah Khan Lodhi vs. Capital City Police Officer and others (2022 MLD 300), a petition under Article 199, a similar conclusion was reached. However, at para 6 of the said judgment is recorded that the minor had informed the Court that the father had maltreated her and was not taking care of her basic needs. In Mst. Iffat Yaqoob vs. RPO Faisalabad and others (2020 YLR 1256), the Court handed over the interim custody of the minor to the mother in circumstances where the minor for one month prior to the date of filing of the petition under Section 491 Cr.P.C. had not been residing with her father and had not been maintained by him for the last 4 years. All the above judgments are relied on by the learned counsel for the mother to claim custody of the minor. Learned counsel for the father cites Mst. Ayesha Siddiqua vs. Station House Officer, etc. (2007 Cr.LJ 758) where, while deciding the question of interim custody of a 6 year old daughter and a 4 year old minor son kept in the custody of paternal grandmother, the Court gave preference to the childrens’ wish to live with their paternal grandmother, and dismissed the petition under section 491 to grant the custody to the father. A resume of this and the other case law shows that the Courts in such matters give due consideration to the wish of the minor children, if such children are able to express their wish in a manner that inspires confidence in the Court that they are not under any improper influence or threat. As noted above, I found the child conveying her desire with a smiling face and vibrant expression to live with her father, and I did not carry the impression that she said so under any threat. In the circumstances, I find no reason to interfere with the impugned order. Writ jurisdiction being discretionary, I do not consider the occasion calls for exercise of that jurisdiction as prayed for in this petition, and dismiss this petition with the interim custody to continue with the father. Should the mother desire to contest that interim custody, she may approach the Guardian Court. However, it is expected that the father will honour the wish of the child if at any time she desires to speak to or meet her mother.

3 Disposed of.

(Y.A.)  Petition dismissed

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

 2022 MLD 416

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

Suit for recovery of deferred dower---Limitation---Husband (defendant) resisted suit contending that he having pronounced a valid Talaq to the..........

 2005 Y L R 1518

Suit for recovery of deferred dower---Limitation---Husband (defendant) resisted suit contending that he having pronounced a valid Talaq to the plaintiff three years before institution of the suit, suit filed by her was barred by time---Family Court decreed suit in favour of plaintiff, but Appellate Court reversed judgment of Family Court and found that suit was barred in view of Art.104 of Limitation Act, 1908---Validity---Prior to present suit, plaintiff had filed suit for recovery of maintenance allowance and defendant in his written statement had pleaded that he had pronounced divorce on plaintiff on 8-1-1990---Plaintiff, admittedly was not present at the time of alleged pronouncement, of divorce by defendant and written statement in the suit was filed by defendant on 16-7-1990 and judgment in the suit was pronounced on 24-11-1992---Pronouncement of divorce on 8-1-1990 was not proved to be backed by any notice of divorce or to have become effective through Arbitration Council---Divorce on plaintiff at the most would become effective on the date of pronouncement of judgment in the case which was 24-11-1992---Mere plea taken by defendant in written statement that divorce had been pronounced some time in the past, could not, by itself, be treated as effecting Talaq on the date of delivery of copy of written statement to plaintiff wife---Art.104 of Limitation Act, 1908 for deferred dower, had provided period of three years from date when marriage was dissolved by divorce and marriage would be considered to be dissolved only when it came to notice of plaintiff wife---Judgment in earlier suit was pronounced on 24-11-1992 in which Court had found that plaintiff had been divorced---Plaintiff having accepted said judgment, period of limitation provided under Art.104 of Limitation Act, 1908 would run from the said date 24-11-1992---Present suit filed by plaintiff on 14-6-1994 which was within prescribed period of three years, was within time.

ناں و نفقہ کے سالانہ اضافہ سے متعلق لاہور ہائیکورٹ کا نہایت اہم فیصلہ

 اگر فیملی کورٹ ناں و نفقہ کی ڈگری میں یہ واضح طور پر یہ نہیں قرار دیتی کہ سالانہ اضافہ کب سے لاگو ہوگا تو اس صورت میں سالانہ اضافہ تاریخ ڈگری سے لاگو ہوگا

Although a family court while decreeing a suit qua recovery of maintenance allowance apart from determining the quantum of maintenance allowance will also suggest the annual increase however if the annual increase has to be made applicable retrospectively (as the relevant provision does not lay any embargo in this regard), keeping in view the evidence of the parties, it has to give a categoric finding in this regard justifying the applicability of the increase from a particular date otherwise if the increase is not suggested from a particular date or no increase is suggested, the same shall be deemed to be applicable from the date of decree.

WP 8786/21
Samia Zaman Vs Asad Zaman etc
Mr. Justice Faisal Zaman Khan
15-11-2023
2023 LHC 5893










--Suit for grant of visitation rights--Application for recording of statement of minor to her willingness--Dismissal of suit on ground of maintainability-

 PLJ 2023 Peshawar 16
Present: Ijaz Anwar, J.
HAQ NAWAZ--Petitioner
versus
ZEBA RASHEED and others--Respondents
W.P. No. 4928-P of 2021, decided on 21.3.2022.

Family Courts Act, 1964 (XXXV of 1967)--

----S. 5 r/w entry 5 Part-I of schedule--Constitution of Pakistan, 1973, Art. 199--Suit for grant of visitation rights--Application for recording of statement of minor to her willingness--Dismissal of suit on ground of maintainability--Inherent right of parents--It is inherent right of parents to have visitation rights with their children and depriving any of spouce of such visitation right, will certainly have an effect on personality of minor--High Court is not appreciating order of Judge, Family Court, whereby, even gift, given by petitioner, was returned--Both the orders of Courts below are against law and cannot be sustained--Petition allowed.

                                                                              [Pp. 19 & 20] A & B

2020 CLC 1353, 2020 YLR 401 and 2019 MLD 804 ref.

Mr. Muhammad Tariq Afridi, Advocate for Petitioner.

Mr. Iftikhar Ahmad Siddiqui, Advocate for Respondents.

Date of hearing: 21.3.2022.

Judgment

This writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-

"It is, therefore, most humbly prayed that on acceptance of this writ petition, this Hon'hie Court may graciously be pleased to:-

1.       Declare the impugned orders of the Respondents No. 3 and 4 as illegal, without lawful authority, ultra-vires and of no legal effect and claim of the petitioner may kindly be declared with cost throughout".

2. Facts leading to the institution of this writ petition are that initially petitioner has filed a suit family suit alongwith an application for interim relief against the Respondent No. 1 for visitation with his daughter/Respondent No. 2 before the learned Judge, Family Court, Peshawar. Respondent No. 1 was summoned by the learned Family Court who appeared and contested the suit and application by filing written statement and written reply, besides, also submitted an application for recording the statement of Respondent No. 2/minor with regard to her willingness or otherwise for meeting with the petitioner. The aforesaid application was replied by the petitioner, however, vide order dated 30.06.2021, the learned Trial Court issued direction for the production of minor. On 03.07.2021, the learned Family Court recorded the statement of the minor in Chamber and dismissed the suit of the petitioner on the ground of maintainability. Being aggrieved, petitioner filed appeal before the learned District Judge, Peshawar who entrusted the same to the learned Additional District Judge­ III, Peshawar for its disposal and vide the impugned judgment dated 06.10.2021, the same was also dismissed. Hence, this writ petition.

3. Arguments heard and record perused.

4. Perusal of the record reveals that petitioner has filed a suit for the grant of decree for visitation rights in respect of Respondent No. 2/minor, being his real daughter before the learned Judge, Family Court, Peshawar in terms of Section 5 of the Family Courts Act read with Entry 5 of the Part-I of the Schedule. Interestingly, when an application was filed for the dismissal of suit of the petitioner on the ground of maintainability, the learned Judge, Family Court vide order dated 19.05.2021 dismissed the same and held the suit as maintainable under the Family Courts Act, 1964, however, again, on interviewing the minor namely Malalai aged about 14 years in the chamber, dismissed the suit of the petitioner holding that allowing visitation to the petitioner is not in the welfare of the minor. Appeal filed there against was also dismissed by the learned Additional District Judge-III, Peshawar vide judgment dated 06.10.2021.

5. This Court considered the orders of the learned Courts below as unprecedented and infact against the interest of minor.

6. The Hon'ble Sindh High Court, in the case of Mst. Abeera Khan, held that "real parents have an inherent right to meet and visit their children".[1]

7. The apex Court, in the case,[2] has given a comprehensive plan, though with the consent of parties, with regard to custody, visitation rights, maintenance of minors and obligations of both parents.

8. The Single Judge of the Hon'ble Sindh High Court, in Mst. Muneeba Raheel's case, while commenting upon the rights of a father to visit his minor children, held that "real father could not be deprived of his right to meet his daughter and/or spend time with her--Such restraint would lead to/cause emotional deprivation of the minor daughter on both sides--Child not only needs love, affection, care and attention of a mother but also that of a father'.[3]

9. The Hon'ble Lahore High Court (Multan Bench), in Mst. Ayesha Abdul Maleek's case, has held that "intelligence preferences of a minor can be looked into in cases of custody of minor. Though. the minor has shown her aversion towards the petitioner but the petitioner cannot be denied to have company of her minor daughter. because the same cannot be denied to a mother/father vice versa'.[4]

10. The Hon'ble Sindh High Court (Hyderabad Bench), in the case of Mst. Hira, held that "Muhammad Arif is real father of minors namely Dua and Muhammad Ashir and his visitation rights involving the rights of minors/awards towards their father. whose fatherly supervision, channelizing their activities. which would be beneficial for the welfare of the minors/wards, cannot be denied'.[5]

11. The Hon'ble Lahore High Court, in the case of Shaukat Khalid, held that "it may be mentioned that although preference of the minor may. in such cases, be taken into consideration but it is not always relevant because the minor is not the best Judge as to where his (or her) welfare lies. We have noticed generally that a child is apt to prefer to continue living with the parents or relative with whom he/she has been allowed to live for sometime as such person is in a position, be it the father or the mother, to brainwash the child against the other claimant to the child's custody".

The learned Court in case of Shaukat Khalid supra further held that the preference expert doubt, relevant, but not final or binding on the Courts. It has to be judged with reference to the welfare of the minor. The minor being under the direct influence of the petitioner and apparently tutored rather brainwashed by her, has levelled wild allegations against her own parents and even stated that she would die rather than go to her parents. Immature as she is she cannot visualise the hazards of life and exercise sound discretion qua her welfare. It is the duty of the Court while exercising its parental jurisdiction, to judge the welfare of the minor in the context of the facts and circumstances of each case".[6]

12. Same view was further expressed by the Hon'ble Islamabad High Court in the case titled "Mst. Isbah Rashif vs. Additional District Judge, Islamabad-West and others (2021 CLC 1089)".[7]

13. The Hon'ble Lahore High Court (Rawalpindi Bench), in the case of Mst. Shahida Adnan, held that "as regard chalking of meeting schedule of minor with the Respondent No. 3 is concerned, the learned Guardian Judge has rightly passed the judgment because the father could not be denied right of access to his minor daughter nor would he be considered an alien enemy to her. The minor/daughter would not only need love, affection, care and attention of her mother but also the company and guiding hand of father. Therefore, negating father of his right to meet his daughter would lead to emotional deprivation. Hence, the learned Courts below have rightly chalked out reasonable visitation/meeting schedule of the minor with the father in light of the dictum laid down by the Hon’ble Supreme Court of Pakistan in the judgment cited as "Mst. Madiha Younus v. Imran Ahmed" (2018 SCMR 1991).[8]

14. This Court also subscribes to the above and is also of the view that it is the inherent right of the parents to have visitation rights with his/her children and depriving any of the spouce of such visitation right, will certainly have an effect on the personality of the


child/minor. Admittedly, the minor shall carry the parentage with her throughout her life and such relation shall remain throughout as neither Islam nor the land laws allow such renunciation.

15. This Court is not appreciating the order of the learned Judge, Family Court, whereby, even the gift, given by the petitioner, was returned. Both the orders of the learned Courts below are against the law and cannot be sustained. Accordingly, they are struck down and the case is remanded to the learned Judge, Family Court, Peshawar to first pass an interim order allowing the visitation rights to the petitioner and thereafter in accordance with the judgment of the Hon'ble Supreme Court of Pakistan in the case of Mst. Madeeha Younus (supra) to chalk out a comprehensive plan pertaining to the visitation rights and other obligations of both parents.

16. This writ petition is allowed in the above terms.

(Y.A.)  Petition allowed


[1].      Mst. Abeera Khan vs. Adnan Jamel and another (2019 CLC 1478).

[2].      Mst. Madeeha Younus vs. Imran Ahmed (2018 SCMR 1991).

[3].      Mst. Muneeba Raheel vs. Raheel Taufiq Feroz and another (2020 CLC 1353).

[4].      Mst. Ayesha Abdul Maleek vs. Additional District Judge, Sahiwal and 2 others (2020 YLR401).

[5].      Mst. Hira vs. 7th Additional Sessions Judge, Hyderabad and another (2019 MLD 804).

[6].      Mrs. Shaukat Khalid vs. Additional District Judge, Rawalpindi (1989 CLC 1377).

[7].      Jehangir Siraj Dogar vs. District Judge and another (2021 YLR 1299).

[8].      Shahida Adnan vs. Additional District Judge and others (2021 YLR 1915).

Suit for recovery of past maintenance---Husband through compromise arrived at during earlier proceedings undertook to pay to wife past maintenance for period more than three years-

 2005 Y L R 106

Suit for recovery of past maintenance---Husband through compromise arrived at during earlier proceedings undertook to pay to wife past maintenance for period more than three years---Wife on basis of such compromise claimed past maintenance for such period, which was decreed by Family Court and upheld by Appellate Court---Plea of husband was that past maintenance could not be allowed for period beyond three years---Validity---Wife while appearing as witness had denied to have been paid maintenance---As per said compromise, husband was responsible to pay such maintenance, thus, onus to prove its payment was on him, which he had failed to discharge---Husband had failed to comply with undertaking given by him---High Court repelled such plea of husband as he had voluntarily signed compromise after stating that amount for such period was payable by him to wife as maintenance.

- بیوی کے لیے خریدی گئی چیزوں کا ریکارڈ رکھنا اور جہیز کے سامان کی فہرست تیار کرنا اور حاصل کرنا ممکن نہیں شوہر اور گواہوں کے دستخط -

 2020 CLC 380

فیملی کورٹ نے مقدمے کا فیصلہ سنایا اور اپیل کورٹ کی طرف سے اپیل خارج کر دی گئی--- موزونیت--- بیوی کے لیے خریدی گئی چیزوں کا ریکارڈ رکھنا اور جہیز کے سامان کی فہرست تیار کرنا اور حاصل کرنا ممکن نہیں شوہر اور گواہوں کے دستخط --- جس نے کسی خاص حقیقت کا الزام لگایا ہو اسے ثابت کرنا تھا --- بیوی کا تنہا بیان جہیز کے مضامین کو ثابت کرنے کے لئے کافی تھا --- جب شادی مکمل نہیں ہوئی تھی تو بیوی نصف کی حقدار ہوگی۔ مقررہ مہر صرف اور بقیہ آدھا شوہر کو واپس / بحال کیا جانا چاہئے جب تک کہ وہ رضاکارانہ طور پر اس حق سے دستبردار نہ ہو --- جہیز کے آرٹیکلز کی حد تک نیچے کی عدالتوں کے ذریعہ منظور شدہ غیر قانونی فیصلوں اور حکمناموں میں ترمیم کی گئی تھی اور جہیز کے مضامین کی مقدار کو کم کیا گیا تھا --- اس کے مطابق آئینی درخواست نمٹا دی گئی۔
QUETTA-HIGH-COURT-BALOCHISTANBookmark this Case
AZIZ-UR-REHMAN VS Mst. BIBI JAMEELA
S.5, Sched.---suit for recovery of dowry articles and dower---Family Court decreed the suit and appeal was dismissed by the Appellate Court---Validity---Not possible for wife to keep the record of purchased articles and prepare list of dowry articles and obtain signatures of husband and witnesses---Whosoever alleged existence of a particular fact was to prove the same---Solitary statement of wife was enough to prove dowry articles---When marriage had not been consumated then wife would be entitled to half of the fixed dower only and remaining half should be returned/restored to husband unless he waived such right voluntarily---Impugned judgments and decrees passed by the Courts below to the extent of dowry articles were modified and amount of dowry articles was reduced---Constitutional petition was disposed of accordingly.

اگر فیملی کورٹ عورت کا دعوٰی تنسیخ نکاح بربنائے خلع بشرط واپسی حق مہر ڈگری کرتی ہے تو شوہر اسی ڈگری کی بنیاد پر حق مہر کی واپسی کیلئے اجرا دائر کرسکتا ہے

 2023 C L C 1285

Return/recovery of dower---Execution petition---Maintainability---Scope---Suit for dissolution of marriage on the basis of Khula was decreed subject to return of dower---Four tolas of gold ornaments was fixed as dower duly entered in Column of Nikah Nama---Executing Court turned down the objection of respondent/ex-wife that execution petition for recovery of Zar-e-Khulla was not maintainable---Appellate Court accepted the version/objection of respondent by allowing her revision petition---Held, that the decision of dissolution of marriage in terms of S.10(4) of the Family Courts Act, 1964, was compound, which on the one hand dissolved the marriage inter se parties and, on the other, said dissolution was made subject to return of dower---Manner and form of decree was prescribed in Rr. 16 and 17 of the Family Courts Rules, 1965, in light of which dissolution of marriage, on the basis of Khula subject to return of dower was a decree for all intent and purposes under S.13 of the Family Courts Act, 1964, and thus was executable---

Dower‑‑‑‑Withdrawal of suit ‑‑‑Limitation‑‑­Petitioner filed suit in Civil Court for declaration of title to property allegedly given to her in dower and as such was recorded in the "Nikah Nama"‑‑

 2005 M L D 376

Dower‑‑‑Exclusion of jurisdiction‑‑‑Withdrawal of suit ‑‑‑Limitation‑‑­Petitioner filed suit in Civil Court for declaration of title to property allegedly given to her in dower and as such was recorded in the "Nikah Nama"‑‑‑Suit was resisted by the defendant and he objected to jurisdiction of the Court along with other objections‑‑‑Trial Court dismissed the suit and appeal also failed‑‑‑Suit was withdrawn by the petitioner with permission to file fresh suit in revisional proceedings in the High Court‑‑‑Petitioner filed fresh suit in the Family Court‑‑‑Suit was decreed by the Family .Court‑‑‑Appellate Court dismissed the suit expressing its view that Article 104 of the Limitation Act, 1908 was applicable and suit , was barred by time and provision of section 14 of the Limitation Act was not applicable‑‑‑Validity‑‑‑Earlier suit was withdrawn under Order XXIII, Rule 1, C.P.C.‑‑‑Order XXIII, R.2 was not applicable to the suits filed under West Pakistan Family Courts Act 1964 because section 17 of the West Pakistan Family Courts Act barred it‑‑‑Even applying Order XXIII, Rule 2, C.P.C., words used in the said rule "Law of Limitation" include sections and Articles to be applied‑‑­Section 14 of the Limitation Act excludes the period spent in previous litigation‑‑‑Respondent had raised objection about jurisdiction and had consented to withdrawal and grant of permission to file fresh suit‑‑‑Suit was competent before the Family Court‑‑‑Petitioner's suit was declaratory in nature regarding affirmation of rights with consequential relief of possession‑‑‑Articles 103 and 104 of the Limitation Act, 1908 were not applicable rather Article 120 of the said Act was applicable‑‑­Judgment and decree of Appellate Court was declared to be illegal and unlawful , and suit of the plaintiff was decreed with costs in circumstances.
Dower‑‑­Limitation‑‑‑Law of Limitation was applicable to suits before Family Court‑‑‑Not only the Articles but also the sections of the Limitation Act, 1908 were to be applied unless expressly or impliedly barred by any provision of law‑‑‑Mere influx of time could not be the causation of removing the law from the book of statutes‑‑‑Suit filed by petitioner was not for the recovery of Dower prompt or deferred, but was for declaration of ownership of property given over to wife at time of marriage‑‑‑Wife's right of ownership was denied/refuted by her husband‑‑‑Such suit would be declaratory suit regarding the affirmation of rights in property along with the consequential relief of possession‑‑­Articles 103 and 104 of the Limitation Act, 1908 were not applicable and residuary Article 120 of the Limitation Act, 1908, would apply.
Return of suit‑‑­Withdrawal of suit from Court having no jurisdiction‑‑‑Consent of the opposite party to withdrawal and permission‑‑‑Petitioner was working under bona fide belief that the Civil Court was competent when she instituted her suit in the Civil Court‑‑‑Respondent had raised objection that suit was not competent in Civil Court‑‑‑Acting upon that objection suit was withdrawn with the consent of respondent and was filed in the Family Court‑‑‑Court had not returned the suit‑‑­Suit withdrawn from Court having no jurisdiction, benefits of section 14 of the Limitation Act. 1908 were available to the petitioner.
Entries in "Nikah Nama"‑‑‑Entries in "Nikah Nama" are sufficient proof of transfer of the property and it requires no registration or any other document for completion.
Lis Pendens, principle of‑‑‑Bona fide‑‑‑Transfer of suit property made during pendency of suit could not beheld to be bona fide.

دعوی سامان جہیز قانون معیاد سماعت کے آرٹیکل 49 کے تحت طلاق کے تین سال کے اندر دائر کیا جاسکتا ہے

 2016 M L D 693

Suit for recovery of dowry articles---Limitation---Divorce between the parties took place on 14-11-1983 and suit for recovery of dowry articles was filed after elapse of 26 years---Neither wife had asserted as to when for the first time she demanded the return of dowry articles nor she had stated about refusal of husband to return the same---Possession of the dowry articles became wrongful with the husband when divorce took place or when there was specific demand for return of the same which was refused by the husband---Wife had neither asserted any specific date for first denial of husband to return the dowry articles nor she could produce any evidence to substantiate her claim that dowry articles were still lying in the possession of husband---Delay in filing suit for recovery of dowry articles would give rise to a presumption of fact that same were taken back by the wife after dissolution of marriage---Suit for recovery of specific movable property could be filed within three years when the property was wrongfully taken or when the retainer's possession became unlawful---Present suit was barred by time.

Issue a certificate specifying the amount which shall be paid as maintenance by the husband

 2023 MLD 1928

Muslim Family Laws Ordinance S. 9.
Maintenance --- Scope -- Section 9 ( 1 ) of the Ordinance , 1961 , postulates that Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband --- From the word " maintenance ' it cannot be gathered that it relates to past or future rather in a wide sense it covers all kinds of maintenance payable to the wife either during subsistence of her marriage or for Iddal period , as the case may be -- Section 9 ( 1 ) of the Ordinance , 1961 in no way curtails the power of Arbitration Council to grant past maintenance to the wife - Husband's obligation to maintain his wife commences simultaneously with the creation of marital bond and being an obligation and not an ex gratia grant it is enforceable even with respect to the past period of marital life , even if the same was not claimed during that period by the wife , subject to consideration of limitation and circumstances of the case itself .

Grandfather when is affluent, then the obligation to maintain children lies on the grandfather but only when father is poor, infirm and incapable of earning by his own labour and mother is also poor.

Fixing quantum of maintenance always requires to strike a balance between needs of minors and earnings of a father as well as his other sources. The award in favour of minors should not be incompatible or inconsistent with the financial conditions of father or the one who is held to be obliged by law to take care of children. The learned Family Courts should consider the education, medical, food expenses and other day to day needs of minor(s) at one side and on the other hand, the Courts are required to determine the financial status of the father.

While doing the implementation it should also be borne in mind that the case is one of maintenance and decree should be passed after taking into account the requirements for proper upbringing of a child or children after scrutinizing income and finances of father but at the same time the order should not result into unjust enrichment of one side or operate as vexatious or oppressive to a father.

WP 27381/23
Ayesha Hashmat and 2 others Vs ADJ etc
Mr. Justice Sultan Tanvir Ahmad
01-11-2023
2023 LHC 5606














Every Muslim in the sub-continent is presumed to belong to Sunni sect, unless ‘good evidence’ to the contrary is produced by the party contesting the same.

 Every Muslim in the sub-continent is presumed to belong to Sunni sect, unless ‘good evidence’ to the contrary is produced by the party contesting the same. The judicial determination of whether the said presumption of faith of a party, positively stands rebutted, would be adjudged by the Court on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person and therefore to pass any finding thereon, the Courts are to consider the surrounding circumstances i.e. way of life, parental faith and faith of other close relatives.

There is no principle of universal application to determine the faith of a person except direct disclosure by words from the mouth of deceased, circumstantial evidence of the conduct of deceased and opinion of witnesses.

Civil Revision No.2312 of 2014
Mst. Nawab Bibi (deceased) through L.Rs. Versus Hakim Ali and others.
Date of hearing: 04.10.2023










The Holy Quran in Surah AlBaqra and Surah Talaq the delegation of right of divorce has been described in detail. Similary, section 7(1) of the Muslim Family Laws Ordinance, 1961 deals with the matter of Talaq.

 The Holy Quran in Surah AlBaqra and Surah Talaq the delegation of right of divorce has been described in detail. Similary, section 7(1) of the Muslim Family Laws Ordinance, 1961 deals with the matter of Talaq. The provision of section 105 of the Code of Muslim Personal Laws also caters this thing that a husband has an absolute right to divorce his wife. In this respect, no condition is described in Shariah as well as in the codified law.

Civil Revision No.44034 of 2019
Muhammad Awais Versus Zahida Parveen
Date of hearing:
05.10.2023









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