-Three notices of talaq were served--Non-issuance of divorce effectiveness certificate--Petitioner and respondent were resides abroad--Territorial jurisdiction of union council and chairman-

  PLJ 2024 Lahore 214
Present: Shahid Bilal Hassan, J.
MUHAMMAD ADIL NAWAZ BHATTI--Petitioner
versus
CHAIRMAN UNION COUNCIL and others--Respondents
W.P. No. 62590 of 2023, heard on 30.1.2024.

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

----Ss. 2(b) & 7--West Pakistan Rules under Muslim Family Laws Ordinance, 1961, R. 3(b)--Three notices of talaq were served--Non-issuance of divorce effectiveness certificate--Petitioner and respondent were resides abroad--Territorial jurisdiction of union council and chairman--Proceedings in District Courts Germany were not disclosed by petitioner--Challenge to-- The petitioner was permanently residing in Germany and Respondent No. 3 was also there as is evident from her Resident Card and Health Card--Union Council, which would had jurisdiction in matter would be Union Council within whose territorial jurisdiction wife was residing at time of pronouncement of divorce and in this case Respondent No. 3 was residing in Germany as had been admitted by petitioner--The petitioner did not disclose factum of initiation of proceedings before District Courts in Germany with regards to complaint against physical assault, claim for separate accommodation and maintenance, petitioner had not approached High Court with clean hands--Stance SRO had been struck down by Islamabad High Court was concerned, it was observed that said S.R.O. is fully in vogue in Punjab as no verdict as such had been passed by High Court, because a relief cannot go beyond provincial boundary and affect any other province or Area or its people--Order impugned passed by Respondent No. 1 had rightly been passed while construing law on subject, which did not need any interference by High Court--Petition dismissed.                          [Pp. 216, 217, 218 & 219] A, B, C, D & E

2009 YLR 1141 Lah., 2016 MLD 1061 Lah., 2010 MLD 989 Lah.,
 PLD 2019 Lahore 285, PLD 2017 Lahore 665 ref.

Malik Muhammad Imtiaz Mahal, Advocate for Petitioner.

Ms. Yasrab Gulzar, Advocate for Respondent No. 3.

Mian Jaffer Hussain, Deputy Attorney General for Pakistan.

Mr. Qamar Zaman Qureshi, Additional Advocate General Punjab.

Date of hearing: 30.1.2024.

Judgment

Facts, in concision, are as such that the petitioner is an Overseas Pakistani and living abroad/Germany, therefore, the instant petition has been filed through his attorney/real father; that the petitioner contracted marriage with Respondent No. 3 as per Islamic rites and rituals on 18.09.2020, however, the wedlock remained issueless. The petitioner and Respondent No. 3 went to reside in Germany after their marriage. Some family disputes occurred between the spouse and at the end the parties made a decision of separation. Allegedly, the petitioner sent first notice of divorce to the Respondent No. 1 on 03.01.2023, second notice on 03.02.2023 and third/last divorce notice on 06.03.2023 to the Respondent No. 1 through DHL which were received by the Respondent No. 1. However, the Respondent No. 1 wrote an advice letter dated 27.03.2023 to the petitioner to approach the concerned forum abroad. The petitioner through Gmail sent a request to the concerned Authority/Consulate General Pakistan in Germany on 31.03.2023. The petitioner, thereafter, moved a detailed application dated 11.04.2023 with relevant documents to the Respondent No. 1 requesting him to issue divorce effectiveness certificate. The Respondent No. 1 vide order dated 19.04.2023 declined the said request of the petitioner. Thereafter the petitioner approached the Consulate General of Pakistan regarding issuance of divorce effectiveness certificate. However, the Consulate General of Pakistan issued letter No. CG-1/3/2023 dated 14.06.2023 with the following observation:

“The Islamabad High Court on the Writ Petition No. 21 of 2021 had set-aside the notification dated 08.11.1961 (SRO 1086/61), which means that Pakistan Mission abroad may no longer act as Arbitration Councils. The applicant would have to approach Arbitration Council in Pakistan, if so advised.”

After this, the petitioner again moved a detailed application to the ADLG City Lahore with the request of issuance of divorce effectiveness certificate dated 20.06.2023 but the same was refused by the Respondent No. 1 vide impugned order dated 27.07.2023; hence, the instant constitutional petition.

2. Heard.

3. Sections 2(b) and 7 of the Muslim Family Laws Ordinance, 1961 and Rule 3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 are necessary, in order to resolve the controversy in hand, which are to be reproduced infra:

“Section 2(b): “Chairman” means the Chairman of the Union Council or a person appointed by the Federal Government in the Cantonment areas or by the Provincial Government in other areas or by any officer authorized in that behalf by any such Government to discharge the functions of Chairman under this Ordinance.”

“7. “Talaq”. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever, contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

(3) Save a provided in subsection (5) a Talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under Sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever be later, ends.

The petitioner is permanently residing in Germany and Respondent No. 3 is also there as is evident from her Resident Card and Health Card, effective till February 2025, copy of which has been placed on record, even at the time of alleged notices of Talaq the petitioner was not available in Lahore; meaning thereby as per S.R.O. o. 1086(K)61 dated 09.11.1961 the jurisdiction for taking up the matter was with the designated officer in the Pakistan Consulate/Mission in Germany. The said S.R.O. reads:

“In exercise of the powers conferred by clause (b) of Section 2 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), the Central Government is pleased to authorize the Director General (Administration) Ministry of External Affairs to appoint officers of Pakistan Mission abroad to discharge the functions of Chairman under the aforesaid Ordinance.”

Rule 3(b) of the Rules provides:

“Rule 3. The Union Council which shall have jurisdiction in the matter for the purpose of clause (d) of Section 2 shall be as follows, namely:-

(a)      ----------------------

(b)      in the case of notice of talaq under subsection (1) of section 7, it shall be the Union Council of the Union or Town where the wife in relation to whom talaq has been pronounced was residing, at the time of the pronouncement of talaq:

                   Provided that if at the time of pronouncement of talaq such wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be--

(i)       in case such wife was at any time residing with the person pronouncing the Talaq in any part of West Pakistan, the Union Council of the Union or Town where such wife so last resided with such person; and

(ii)      in any other case, the Union Council of the Union or Town where the person pronouncing the talaq is permanently residing in West Pakistan;”

In view of the above said provisions of law, the Union Council and/or the Chairman, which would have jurisdiction in the matter would be the Union Council and/or the Chairman within whose territorial jurisdiction the wife was residing at the time of pronouncement of divorce and in this case the Respondent No. 3 was residing in Germany as has been admitted by the petitioner. Reliance is placed on Mt. Sharifan v. Abdul Khaliq and another (1983 CLC 1296) and Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee and 2 others (PLD 2019 Lahore 285). When the position is as such, as observed above, as per Notification S.R.O.No. 1086(K)61 dated 09.11.1961, officers of Pakistan Mission abroad are authorized to discharge the functions of Chairman under the aforesaid Ordinance. Meaning thereby the Chairman, Union Council No. 116-EME, DHA-12, ADLG Multan Road, Lahore has no authority to deal with the matter in hand in respect of divorce. This Court in judgment reported as Mian Irfan Latif through Special Attorney v. Nazim/Chairman Union Council No. 100 and another (2009 YLR 1141-Lahore), has held:

“Since both the parties are permanent resident of U.K. and as such as per Notification No. SRO No. 1086(K)/61 the function of Chairman Arbitration Council under the Muslim Family Laws Ordinance, 1961 are to be performed by an appointed offer of the Pakistan Mission abroad.”

The same view was reaffirmed and reiterated in judgments reported as Mst. Sana Asim Hafeez v. Administrator/Chairman, Arbitration and Conciliation Court (2016 MLD 1061-Lahore), Syeda Wajiha Haris v. Chairman, Union Council No. 7, Lahore (2010 MLD 989-Lahore) and Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee and 2 others (PLD 2019 Lahore 285).

In addition to the above, the petitioner did not disclose the factum of initiation of proceedings before the District Courts in Germany with regards to complaint against physical assault, claim for separate accommodation and maintenance, meaning thereby the petitioner has not approached this Court with clean hands.

4. So far as the stance that the S.R.O. ibid has been struck down by the learned Islamabad High Court is concerned, it is observed that the said S.R.O. is fully in vogue in Punjab as no verdict as such has been passed by this Court, because a relief cannot go beyond the provincial boundary and affect any other province or Area or its people, as has already been held by this Court in a judgment reported as Hassan Shahjehan v. FPSC through Chairman and others (PLD 2017 Lahore 665) that:

“As a corollary, the relief granted or the writ issued by the High Court also remains within the territorial jurisdiction of this Court and can only benefit or affect a person within the territorial jurisdiction of the Court. The relief cannot go beyond the Provincial boundary and affect any other Province or Area or its people. So for example, if a federal law or federal notification is struck down by Lahore High Court, it is struck down for the Province of Punjab or in other words the federal

law or the federal notification is no more applicable to the Province of Punjab but otherwise remains valid for all the other Provinces or Area. Unless of course the Federation or the federal authority complying with the judgment of the Lahore High Court, make necessary amends or withdraw the law or the notification.”

5. In view of the above, it is concluded that the order impugned dated 27.07.2023 passed by the Respondent No. 1-Chairman Union Council No. 116-EME, DHA-12, ADLG, Multan Road, Lahore has rightly been passed while construing law on the subject, which does not need any interference by this Court. Resultantly, with the above said observations, the constitutional petition in hand having no force and substance stands dismissed.

(Y.A.)  Petition dismissed

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The principle of welfare of a minor cannot be considered in absolute terms rather the same is a relative consideration and, at times, the same may have to be seen and considered through the prism of what is.....

 The principle of welfare of a minor cannot be considered in absolute terms rather the same is a relative consideration and, at times, the same may have to be seen and considered through the prism of what is least detrimental for the minor, which implies that the Court may have to select a guardian out of the rival contestants who is least detrimental to the upbringing and welfare of the minor. In the present case, the fundamental question which requires adjudication by this Court is to determine the appointment of guardian of a minor between a mother who is accused of murder of her husband and father of the minor, and the paternal grandmother of the minor boy who has been dealing with the property of the minors without being appointed as the guardian thereof. The petitioner's custody was given to the petitioner-mother by restoring the order of the Guardian Judge by holding that the totality of the circumstances on record is to be considered. Had the conduct of the respondent grandmother who was appointed as guardian by the Appellate Court below been aboveboard while seeking the appointment in general and after the appointment in particular, in this case, she could have been preferred by this Court over the petitioner until the latter is acquitted of the charge against her, however, the fact that after being appointed as guardian of person of the minor, the respondent-grandmother fled away with the minor from the Court and started dealing with the property of the minor, without authority, is a material fact which cannot be ignored. Moreover, the minor boy, who has already lost his father, will be deprived of the love of his mother while he will be in the custody of respondent-grandmother who in instant case has been dealing with property of the minor without authority, in a clandestine and suspicious manner.

Family.3513/23
Hina Imtiaz Vs ADJ etc
Mr. Justice Anwaar Hussain
24-05-2024
2024 LHC 2451

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Polygamy---Contracting second Nikah during subsistence of marriage---Private complaint filed by first/existing wife--

 2024 M L D 786
[Lahore]
Mst. SIDRA-TUL-MUNTAHA Versus ADDITIONAL SESSIONS JUDGE, LAHORE
Writ Petition No.84511 of 2023

Polygamy---Contracting second Nikah during subsistence of marriage---Private complaint filed by first/existing wife---Ingredients of the alleged offence, non- existence of---Unlawful act and criminal intent---First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and secretary Union Council---Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter, and secretary/registrar Union Council)---Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court---Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents accused of facilitating the offence---Validity---Complaint filed against any accused must state the facts disclosing existence of both the unlawful act and the criminal intent so that the Court may be satisfied regarding existence of every ingredient of the alleged offence---Court is not required to casually accept the written complaint until it has satisfied itself that prima facie the case has been made out against the persons who have been accused of the criminal offence---In order to arrive at just evaluation, the Court ordinarily examines the complainant and the witnesses as cursory evidence---Purpose behind that practice is to protect the public from false and frivolous complaints filed against them in criminal Courts---Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction---

Polygamy---Contracting second Nikah during subsistence of marriage---Private complaint filed by first/existing wife---Ingredients of the alleged offence, non-existence of---Punishment or penalty---Inchoate offence---First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and Secretary Union Council---Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter and Secretary/Registrar Union Council)---Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court---Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents accused of facilitating the offence---Validity---Provisions of S.6 of the Muslim Family Laws Ordinance, 1961 ('the Ordinance 1961') manifest that S. 6 neither makes the registration of another marriage contracted without permission of the Arbitration Council an offence nor the Ordinance prescribes any inchoate offence in relation to polygamy such as attempt, solicitation or conspiracy---Section 6 of the Ordinance 1961 does not prescribe any punishment or penalty against anyone other than the husband who contracts another marriage without permission of the Arbitration Council concerned---Enactments prescribing an offence are to be construed strictly and the words used therein cannot be extended by construction---Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction---

Polygamy---Contracting second Nikah during subsistence of marriage---Private complaint filed by first/existing wife---Abetment---Scope---Inchoate offence---First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and secretary Union Council---Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter, and Secretary/Registrar Union Council)---Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court---Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents being accused of facilitating the offence---Validity---Muslim Family Laws Ordinance, 1961 ('the Ordinance, 1961') is a special statute; in the absence of any specific provision in the Ordinance, 1961 permitting applicability of the Pakistan Penal Code, provisions such as S. 109 of the P.P.C. for the offence of abetment cannot be read into and made applicable to broaden scope of the offence prescribed under S.6(5) of the Ordinance, 1961---Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction---Petitioner had not been able to point out what offence, if any, disclosed in the complaint filed by the petitioner, was prima facie made out against other respondents---

ORDER

The petitioner has invoked constitutional jurisdiction of this Court to challenge the orders dated 03.06.2022 and 31.10.2023 passed by the learned Judge Family Court, Lahore and the learned Additional Sessions Judge, Lahore respectively whereby her private complaint under section 6(5) of Muslim Family Laws Ordinance, 1961 ('Ordinance') was entertained to the extent of respondent Feroz Usmani and dismissed to the extent of remaining respondents and the criminal revision preferred there-against was dismissed.

2. The facts giving rise to the titled petition briefly are that the petitioner filed a complaint under section 6(5) of the Ordinance accusing respondent Feroz Usmani of contracting second marriage with respondent Aniqa Azam during subsistence of marriage with her whereas respondents Younas Ahmad, Muhammad Bashir Ahmad and Muhammad Kashif were accused of being facilitators and respondents Hafiz Dilawar and the Secretary, Union Council were accused of facilitating the offence being Nikah reciter and registration of the Nikah. The Judge Family Court, Lahore after recording cursory evidence of the petitioner, summoned the accused Feroz Usmani and dismissed the complaint to the extent of remaining respondents vide order dated 03.06.2022. Feeling aggrieved, the petitioner preferred criminal revision before the Additional Sessions Judge, Lahore which was dismissed vide order dated 31.10.2023 impugned herein.

3. While dismissing criminal revision of the petitioner, the Additional Sessions Judge, Lahore recorded following reasons: -

"3. Application of mind by the Magistrate before issuance of process means that Magistrate has to satisfy himself while going through the available record that trial of respondents is necessary and only then further proceedings are to be undertaken against the respondents then the Magistrate would issue process to summon the respondents. Courts cannot be expected to act like silent spectators, rather, precedents of the Honourable Superior Courts of Pakistan impel subordinate Courts to nip the evil in the bud. Mere institution of private complaint and recording of cursory evidence does not absolve complainant to bring on record the sufficient material justifying the summoning of record. No incriminating material is available on record against the respondents to summon them. Private complaint and the cursory statements do not support the version of complainant to the extent of involvement of respondents in the instant case. Impugned order is well-reasoned and unexceptionable."

4. Learned counsel for the petitioner contends that the impugned orders are against the law and facts of the case. He maintains that sufficient evidence in the shape of second Nikahnama was available to proceed against the respondents/accused but the same has been ignored by both the Courts below. He further contends that no solid reason has been recorded in the impugned orders explaining refusal to summon the respondents-accused except Feroz Usmani.

5. Heard.

6. The complaint filed against any accused must state the facts disclosing existence of both the unlawful act and the criminal intent so that the Court may be satisfied regarding existence of every ingredient of the alleged offence. The Court is not required to casually accept the written complaint until it has satisfied itself that prima facie the case has been made out against the persons who have been accused of the criminal offence. In order to arrive at just evaluation, the Court ordinarily examines the complainant and the witnesses as cursory evidence. The purpose behind that practice is to protect the public from false and frivolous complaints filed against them in criminal Courts.

7. The subject of polygamy is governed by the provisions of section 6 of the Ordinance. In order to properly adjudicate upon the plea taken by the petitioner, it would be advantageous to refer to the text of the relevant provisions of the aforementioned section which are reproduced herein below: -

"6. Polygamy. (1) No man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.

(2) …….

(3) …….

(4) …….

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall,

(a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and

(b) on conviction upon complaint be punishable with the simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both."

From perusal of above provisions of law, it is manifest that according to subsection (1) of section 6 ibid, no man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under the Ordinance whereas subsection (5) of section 6 of the Act provides penalties for contracting another marriage making the man liable to pay immediately the entire amount of the dower, whether prompt or deferred, due to existing wife or wives, if not so paid, recoverable as arrears of land revenue and on conviction be punishable with simple imprisonment which may extend to simple imprisonment of one year, or with fine which may extend to five thousand rupees, or with both. It is pertinent to note that section 6 ibid neither makes the registration of another marriage contracted without permission of the Arbitration Council an offence nor the Ordinance prescribes any inchoate offence in relation to polygamy such as attempt, solicitation or conspiracy. Section 6 of the Ordinance does not prescribe any punishment or penalty against anyone other than the husband who contracts another marriage without permission of the Arbitration Council concerned.

8. It is a cardinal principle of interpretation of criminal statutes that enactments prescribing an offence are to be construed strictly and the words used therein cannot be extended by construction. In the case of Mirza Shaukat Baig and others v. Shahid Jamil and others (PLD 2005 Supreme Court 530), the Supreme Court of Pakistan quoted with approval the following passage of lord Halsbury from the English judgments reported as (1891) AC 107 and (1952) AC 189:

"It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you are at liberty to go outside of the code so created, because before the existence of that code another law prevailed. In the construction of statute the duty of the Court is limited to interpret the words used by the legislature and it has no power to fill in any gaps disclosed. To do so would we do use of the function of the legislature".

9. For being a special statute, in the absence of any specific provision in the Ordinance permitting applicability of the Pakistan Penal Code, provisions such as section 109 of the P.P.C. for the offence of abetment cannot be read into and made applicable to broaden scope of the offence prescribed under section 6(5) of the Ordinance. Reliance in this regard is placed on the cases of Ex-Lance Naik Mukarram Hussain and others v. Federal Government, Ministry of Defence through Chief of Army Staff and others (2017 SCMR 580) and Basharat Iqbal v. Nargis Rehana (1993 MLD 571).

10. The complaint in hand does not disclose commission of any offence, much less the offence prescribed under section 6(5) of the Ordinance allegedly committed by any of the respondents except Feroz Usmani who, being accused of contracting another marriage without permission of Arbitration Council, has been lawfully summoned by the Court of competent jurisdiction. Learned counsel of the petitioner has not been able to point out what offence, if any disclosed in the complaint filed by the petitioner, is prima facie made out against other respondents.

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بچے کی ولدیت کے تعین کیلیے فریقین کی رضامندی کے بغیر ڈی این اے ٹیسٹ نہ کرایا جاسکتا ہے

 Physiognomy, a best circumstantial evidence to assess paternity of a child.

Consent of the parties is essential to decide claim of the parties with respect to paternity of the child. If the parties do not give consent for such DNA examination, then learned trial Court can draw adverse inference as per Article 129 (g) of Qanun-e-Shahadat Order, 1984 and shall proceed to decide the question of paternity on the basis of evidence produced by the parties. In this respect, Court can also take help from Quranic verses and Hadith of Holy Prophet.

WP 75322/22
Kaneez Fatima and 1 other Vs Senior CIvil Judge etc
Mr. Justice Muhammad Amjad Rafiq
15-05-2024
2024 LHC 2358

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-Appeal, filing of---Condonation of delay----Maintenance allowance for minors, enhancement of--

 2016 S C M R 1821
[Supreme Court of Pakistan]
Present: Iqbal Hameedur Rahman, Manzoor Ahmad Malik and Ijaz-ul-Ahsan, JJ
Lt. Col. NASIR MALIK---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents
Civil Petition No. 1428-L of 2016, decided on 14th July, 2016.
(On appeal against the order dated 30-3-2016 passed by the Lahore High Court, Lahore, in W.P. No.7222 of 2016)

(a) Limitation Act (IX of 1908)---

----S. 5---Appeal, filing of---Condonation of delay---Sufficient cause---Counsel for appellant out of country for performance of Hajj---Appeal was filed with a delay of 144 days---Each day of delay had to be explained---Delay in filing present appeal was not 30/40 days during which Hajj was performed, rather it was a delay of 144 days, therefore, the Appellate Court had rightly dismissed the appeal on limitation.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), S. 151---Maintenance allowance for minors, enhancement of---Family Court, powers of---Scope---Order for maintenance allowance for minors was passed by Family Court---Mother of minors sought enhancement in maintenance allowance through filing an application under S. 151, C.P.C. before the Family Court---Objection of father that enhancement in maintenance allowance could only be sought by filing a separate suit---Validity---Provisions of Civil Procedure Code, 1908 were not stricto sensu applicable to the proceedings under the Family Courts Act, 1964, as such the Family Court was competent to adopt its own procedure---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--- Objection was rejected accordingly.

M. Abdus Sattar Chughtai, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

Aish Bahadur Rana, Advocate Supreme Court for Respondents Nos.2 - 4.

Date of hearing: 14th July, 2016.

JUDGMENT

IQBAL HAMEEDUR RAHMAN, J.---Through this petition for leave to appeal, the petitioner has called in question the order dated 30.03.2016 passed by the Lahore High Court, Lahore, in W. P. No.7222/2016, whereby the said writ petition filed by the petitioner has been dismissed in limine.

2. The concise facts giving rise to the instant petition are that minors respondents Nos. 3 and 4 (hereinafter to be referred as "the respondents") filed a suit for recovery of maintenance allowance in the year 2008 which was decreed by the Family Court vide order dated 24.02.2010 and they were held entitled to maintenance allowance @ Rs.8,000/- per month each w.e.f. June, 2007. The maintenance allowanced was allowed to respondent No. 3 till he attains the age of majority and to respondent No. 4 till she is married, along with 10% annual increase. Against the said order, the petitioner preferred an appeal before the appellate Court, which was dismissed vide judgment dated 25.02.2011. Thereafter, the respondents filed an application before the Family Court in the year 2012 and sought enhancement of their maintenance allowance on the ground that they are now grown ups and studying in Beacon House School in class 5 and 3 respectively and their actual 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. It was further asserted in the application that the petitioner is serving in the Pakistan Army as a Major and is getting a salary of Rs.81,311/- per month and he could easily afford the increase sought for by the respondents. In addition to the same the respondents also prayed in the application that a direction may be issued to the petitioner/judgment debtor to pay balance decretal amount (arrears of maintenance allowance i.e., Rs.972,184/-) without further delay. Upon filing of the said application, summons were issued to the petitioner in accordance with law as well as through publication in the newspaper daily "Pakistan", but inspite of the same he did not appear. Consequently, he was proceeded ex parte on 06.07.2014 and the learned Family Court after recording ex parte evidence of the respondent allowed the said application vide judgment dated 16.04.2015 by holding as under:-

"7. Perusal of the record transpires that in support of her claim mother of the petitioners also produced pay slip of respondent/judgment debtor as Ex.P-2 perusal of same transpires that it is written upon pay slip that gross salary/total pay and allowance of respondent/judgment debtor in 2014 is Rs.1,13,442/- and after certain monthly deductions i.e. Rs.32,538/- his net salary is Rs.80,904/-. Record further demonstrates that mother of petitioners submitted fee slips of minors/petitioners as Ex.P-3 and Ex.P-4 which established that minors/petitioners are students of Beacon House School System and fee of two months of Malahat Nasir is Rs.22,880/- and fee of two months of Wasim Malik is Rs.24,240/-. Record demonstrates that previous decree was passed on 24.02.2010. Perusal of order/judgment and decree dated 24.02.2010 shows that maintenance allowance of minors was fixed @ Rs.8,000/- per month per head with 10% annual enhancement. Now the petitioners have come to this court on the ground of raising inflation and prayed for enhancement of maintenance allowance as per present commodity ratio. Record further transpires that minors are school going children and 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 along with educational necessities and it is duty of the father to brought up his children as per his financial status. I relied upon "2005 CLC 1913" it was held by the Worthy Appellate Court that enhancement was granted upon the rising inflation, hence relying upon above citations and evidence produced by the petitioner, petitioner has successfully succeed to prove her contention through oral as well as documentary evidence. Hence maintenance allowance decreed in favour of petitioners Nos. 1 and 2 @ Rs.8,000/- per month per head with 10% annual increase vide judgment and decree dated 24.02.2010 is hereby enhanced to the tune of Rs.15,000/- per month per head with from filing of this petition till his attaining of age of majority of petitioner No. 1 and till her marriage of petitioner No. 2 with 10% annual enhancement. 10% enhancement shall be calculated after passage of one year of date of decision."

Being aggrieved, the petitioner filed a time barred appeal before the appellate Court on 07.09.2015 on the ground that the respondents had fraudulently and unlawfully filed the application under section 151, C.P.C. for enhancement of maintenance allowance without notice and knowledge of the petitioner during the pendency of W. P. No.7517/2011, which was filed by him and pending adjudication before the High Court, as such enhancement could not be allowed by the Family Court. The said appeal was dismissed by the appellate Court vide judgment and decree dated 21.12.2015 by holding as under:-

"6. Perusal of record shows that the appellant filed an appeal before District Judge, Lahore against judgment and decree dated 24.02.2010 which was dismissed on 25.02.2011. Thereafter appellant filed a Writ Petition No. 7517/2011 in Honorable Lahore High Court, Lahore in which Honorable Lahore High Court, Lahore passed the order with the observations:-

"Judgment and decree of learned trial court is suspended with the direction to the present appellant to deposit Rs.1,06,000/- in trial court and further to pay Rs.5,000/- to each minor per month.

7. It further shows that Hon'ble Lahore High Court, Lahore also observed that: -

"If the petitioner has not complied with the above mentioned order dated 16.06.2011 in its letter and spirit then the learned Executing Court shall proceed further in accordance with law. Anyhow, if the above mentioned order has been complied with by the petitioner, in its letter and spirit, then, interim stay already granted by this court shall continue till the next date of hearing".

8. Examination of record shows that present appellant had not deposited the maintenance allowance of the minors in executing court and he was proceeded against ex parte on 19.07.2012 and interim stay was vacated due to non deposit of maintenance and executing court issued Robkar for attachment the salary of judgment debtor. Record also shows that counsel for the judgment debtor appeared in the executing court on 20.09.2013 and submitted his fresh power of attorney. It is evident from plain reading of order sheet that on 13.12.2013 appellant appeared in person and deposited Rs.2,51,000/- with the assurance that he will regularly deposit monthly maintenance of minors in the account of mother of the minors. It is also on the record that appellant also moved an application for setting aside ex parte to proceeding order which was dismissed due to non-prosecution.

9. Perusal of record also depicts that respondent No. 2 in application under section 151, C.P.C. produced pay slip of appellant/judgment debtor as Exh.P-2 which shows that net salary of appellant/judgment debtor is Rs.80,904/-. It is further shows that respondent No. 2/mother of petitioners also produced fee slips of respondents Nos. 3 and 4/petitioners as Exh.P-3 and Exh.P-4 which clearly shows that respondents Nos. 3 and 4/petitioners are students of Beacon House School System and fee of two months of Malahat Nasir is Rs.22,800/- and fee of two months of Wasif Malik is Rs.24,240/-. Keeping in view the facts and circumstances of the case and evidence on record order of the learned trial court is in accordance with law, therefore finding of learned trial court is hereby confirmed.

10. It is pertinent to mention here that appellant moved this appeal on 07.09.2015 and also submitted an application under section 5 of Limitation Act with the contention that counsel of the appellant proceeded to perform Hajj and due to the reason he could not file the instant appeal within time.

11. From perusal of record it shows that appellant filed this appeal with a delay of 144 days from passing the impugned order and no plausible reason has been put forward for condonation of delay. Mere an assertion that counsel for the petitioner Malik Abdul Sattar Chughtai proceeded to perform Hajj and due to the reason he could not file instant appeal within time cannot constitute a plausible ground. Keeping in view section 5 of Limitation Act each day has to be explained whereas the delay of 144 days has not been explained."

Being dissatisfied, the petitioner then approached the High Court by filing W. P. No. 7222/2016, which has been dismissed in limine vide impugned order, hence this petition.

3. The learned counsel for the petitioner contended that the respondents could not have sought enhancement of maintenance allowance by filing application under section 151, C.P.C. rather they should have filed a separate suit. It was further contended that the enhancement is not in consonance with the financial status of the petitioner. It was also contended that the petitioner through his second marriage has four other children, as such the increase in the maintenance allowance of the respondents is unjustified.

4. Heard. We have gone through the impugned order as well as the judgments/orders of the Courts below and have also perused the material available on the record.

5. We have noticed the contumacious conduct of the petitioner from the very outset. Inspite of passing of judgment and decrees in favour of the respondents, the petitioner has avoided payment of the same, which constrained the respondents to file an application for the recovery of arrears of maintenance allowance to the tune of Rs.972,184/- as well as enhancement. Thereafter when respondents' application was accepted, the appeal of the petitioner was dismissed and he approached the High Court by filing a writ petition, a direction was given by the High Court to the petitioner, consequent thereto he made a paltry payment to the respondents. It has also been observed by us that inspite of issuance of summons in accordance with law as well as through publication in the newspaper, the petitioner avoided appearing before the Family Court as such the Family Court was constrained to proceed ex parte and allowed enhancement @ Rs.15,000/- per month per head. Thereafter, the petitioner filed a time barred appeal against the said order and the reason for the delay was stated that his particular counsel was out of country to perform Hajj due to which the appeal could not be filed in time. Such reasons have never been considered by the Courts as sufficient cause for condoning the delay. Moreover, each day of the delay has to be explained. It was not a delay of 30/40 days during which Hajj is performed, rather it was a delay of 144 days, therefore, the learned appellate Court had rightly dismissed the appeal of the petitioner on limitation as well as on merits.

6. As far as the contention of the learned counsel for the petitioner that enhancement in maintenance allowance cannot be sought through an application under section 151, C.P.C. but through a separate suit is concerned, suffice it to say that the provisions of C.P.C. are not stricto sensu applicable to the proceedings under West Pakistan Family Courts Act, 1964, as such the Family Court was competent to adopt its own procedure, therefore, the objection raised by the learned counsel is misconceived. The legislature has established the Family Courts for expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith. Under the provision of section 5 of the Family Courts Act, the Family Court is vested with the exclusive jurisdiction to entertain and adjudicate upon the matter specified in the schedule. The matter of maintenance is at serial No. 3 in the schedule. Thus, the Family Court has exclusive jurisdiction relating to maintenance allowance and the matters connected therewith. Once a decree by the Family Court in a suit for maintenance is granted thereafter, if the granted rate for per month allowance is insufficient and inadequate, in that case, according to scheme of law, institution of fresh suit is not necessary rather the Family Court may entertain any such application and if necessary make alteration in the rate of maintenance allowance.

7. Furthermore, all the Courts below have concurrently enhanced the maintenance allowance after giving due consideration to the needs/requirements of the respondents and by taking into account the financial status of the petitioner. Besides, the concurrent findings of facts recorded by all the Courts below do not suffer from any illegality, infirmity or perversity, which could convince us to interfere in the same while exercising our jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. In this regard reliance can be placed upon the case of Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through L.Rs. and others (2015 SCMR 1081), wherein it has been held as under:-

"15. There are concurrent findings of fact recorded by the learned courts below against the appellants. This Court in Muhammad Shafi and others v. Sultan (2007 SCMR 1602) while relying on case-law from Indian jurisdiction as well as from the Pakistani jurisdiction has candidly held that this Court could not go behind concurrent findings of fact "unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible." No such thing could be brought on record to warrant interference by this Court."

8. In the above perspective, we are not inclined to interfere in the impugned order of the High Court. Resultantly, leave to appeal is refused and the petition is dismissed being devoid of merits.

MWA/N-10/SC Petition dismissed.

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Ss.10 & 18---christian marriage Act (XV of 1872), S.4---Divorce, proof of---Jirga decision---Scope-......

 2021 CLC 1761
ISLAMABADBookmark this Case
Mst. SHAGZANA WALAYAT VS Mst. SHABANAM TABASSUM

Ss.10 & 18---christian marriage Act (XV of 1872), S.4---Divorce, proof of---Jirga decision---Scope---Respondent-plaintiff claimed pensionary benefits of her deceased husband and alleged that appellant-defendant was not legally wedded wife of deceased---Validity---To support validity of her marriage with deceased, appellant-defendant relied on hand written note of Jirga according to which deceased and respondent-plaintiff amicably agreed to declare divorce between themselves in presence of witnesses in Jirga---Law of divorce relating to christian marriages did not grant or authorized any individual or any Jirga to pronounce divorce between husband and wife and grant permission for second marriage without following mandates of christian marriage Act, 1872---Divorce deed relied upon by appellant-defendant issued by Jirga was illegal and unlawful document having no legal sanctity---Second marriage preformed between deceased and appellant-defendant during subsistence of first marriage was rightly declared null and void by Trial Court---christian religion strictly prohibits second marriage while the first marriage is intact--- High Court maintained judgment and decree passed by Trial Court---Appeal was dismissed, in circumstances.

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