2022 MLD 1762
Sub-section (3) of Section 17A of the Family Court Act is a provision the application whereof is conditional upon failure or omission of the Family Court to prescribe the annual increase while fixing the maintenance. It is also manifest that the increase contemplated under the said provision is a mandatory one and the Court is left with no discretion in that regard. Needless to observe that any increase under the above provision is coextensive in duration with the entitlement for maintenance. Further, the increase in maintenance under Section 17A(3) of the Act is automatic in the sense that no decree is required to be passed and the same is recoverable by the executing court while enforcing the statutory obligation. The rate of annual increase in the maintenance has also been fixed by the legislature to be at ten percent each year and the base value (i.e. the maintenance fixed by the Court) to which such rate of increase applies remains constant throughout the period of application of Section 17A(3) of the Act.
Entitlement to maintenance of wife and children is not only a right recognized by law and the religion of Islam but the same is a part and parcel of rights to life and dignity, as enshrined in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Growth of children, the cost of living, change in status of the parties, change in the expenditures incurred based on needs of children are some of the factors which may provide for a fresh cause of action for the children to demand enhanced maintenance allowance. The Superior Courts of the country have ensured nourishing rights of the minors in such a manner that applications for enhancement of maintenance allowance filed subsequent to the decree have been held to be maintainable while observing that maintenance was a continuous process and a person entitled to be maintained had a right to approach the court for adequate maintenance allowance. If maintenance allowance granted by the Family Court was insufficient and inadequate, then institution of the fresh suit was held to be not necessary rather Family Court could entertain an application for enhancement of the maintenance allowance5. Therefore, there has not been any hindrance in the way of person entitled for maintenance to seek enhancement thereof in accordance with changed circumstances. However, the Provincial legislature was empathetic enough to provide an additional cushion in the form of Section 17A(3) of the Act to automatically cover the mistakes/omissions of the Court in terms of mandatory annual increase of the maintenance. The enactment of the above provision, besides making up for the judicial omission to order annual increase in the maintenance for enabling those entitled to cope up with inflation, purports to achieve the objects of reducing burden of costs, delays and toil of litigation and prevent burdening of the judicial system with adjudication in this category of cases. Section 17A(3) of the Act is, therefore, a beneficial and remedial or curative piece of legislation, which must be liberally construed.
By now, it is well settled that in the absence of any stipulation to the contrary, any change in law affecting substantive rights has prospective effect. A prospective statute operates from the date of its enactment conferring new rights. A retrospective statute, on the other hand, operates backwards and takes away or impairs vested rights acquired under existing laws. However, a statutory provision cannot be termed to have been given retrospective effect merely because it affects existing rights or because a part of the requisites for its action is drawn from a time antecedent to its passing or operation thereof is based upon the status that arose earlier.
The provision of Section 17A(3) creates a new statutory right of automatic annual increase in the maintenance fixed by the Court in cases where annual increase has not been prescribed. It does not operate backwards. The fact that statutory prerequisites under Section 17A(3) of the Act (i.e. fixation of maintenance by the Court and omission or failure of the Court to prescribe annual increase in the maintenance) may be drawn from a period prior to the enactment does not render application or operation of the said provision to be retrospective, particularly when the automatic annual increase in the maintenance takes effect from the date of enactment and not the period prior to that.
2022 MLD 1621
Ss.14 & 21A Family Courts Act --- Phrase ' a decision given ' --- Alternate remedy , availability of --- Suit for dower accompanied with application for interim injunction --- Petitioner / plaintiff / wife of the deceased claimed 5 - Marla house to be transferred to her as dower on ground that the same was specifically mentioned in Nikahnama ; that her husband had handed over the house to her in his lifetime and promised transfer of the same to be processed ; and that respondents / legal heirs of the deceased were adamant to dispossess her from her lawful possession --- Petitioner also filed application for interim order seeking protection of property which was dismissed by the Trial Court --- Held , that petitioner's application for interim injunction had been finally dismissed and had resulted into a final decision declaring the petitioner not entitled to interim relief during the pendency of her suit for recovery of dower --- Relief claimed by the petitioner under S.21 - A of the Family Courts Act , 1964 , for preservation / protection of property , subject matter of the suit had been finally decided against her by the impugned order --- Dismissal of the application under S.21A of the Act , refusing interim relief of protection of property during the pendency of Family suit was ' a decision given ' , which was appealable in terms of S.14 of the Act --- Without availing the said remedy , direct not maintainable.سامان جہیز کو، ثابت کرنے کے لیے، لسٹ سامان جہیز تیار کرنا اور سامان جہیز کی رسیدات پیش کرنا ضروری نہ ہے.
(2012 YLR 2693).
لسٹ سامان جہیز اور رسیدات کی کوئی اہمیت نہ ہے، دعوی سامان جہیز ڈگری شد.
(2013 CLC 698).
اگر مدعا علیہ، جواب دعوی میں، لسٹ سامان جہیز منجانب مدعیہ کو درست تسلیم کرے، تو دعویٰ واپسی سامان جہیز ڈگری ہوگا.
(2015 YLR 1427).
دعویٰ سامان جہیز اور طلائی زیورات کے لیے تین سال کی معیاد مقرر ہے.
(2016 CLC 313).
فیملی کیس میں قانون شہادت کا اطلاق نہ ہوتا ہے، اس لئے سامان جہیز کو ثابت کرنے کے لیے سامان جہیز کی رسیدات اور متعلقہ افراد کو بطور گواہ پیش کرنا ضروری نہ ہے.
(2017 SCMR 393).
آپ کی دعاؤں کی طلبگار سیدہ تہمینہ شاہ:-
عدالت نے ایک سال کا بچہ جو والد چھین کر لے گیا تھا ماں کو واپس کردیا ۔مزید عدالت نے یہ قرار دیا کہ ماں عدالت کے حکم کے بغیر بچے کو پاکستان سے باہر نہیں لے جا سکتی ۔
2019 SCMR 116
ORDER
IJAZ UL AHSAN, J.---The petitioner had filed an application under section 491, Cr.P.C. for production of minor namely, Muhammad Rohan before the Islamabad High Court, Islamabad. She stated therein that she was a lecturer in Quaid-e-Azam University and wanted to proceed to Paris, France for pursuing her PhD degree. However, Respondent No.1 (husband) had allowed her to do so only on the condition that she applied for his visa too and in doing so he had kept the minor (who was less than a year old at that time) with him in Pakistan. She claimed that after reaching Paris she applied for a visa for her husband. However, the same was rejected. This infuriated Respondent No.l. The Petitioner claims to have quit her Ph.D program in May, 2018 in view of Respondent No.l's constant threats and the fact that the minor had been snatched by him.
2. As the couple was inter-se related, the elders of the family intervened. Upon such intervention the respondent handed over custody of the minor to the petitioner. On 03.06.2018 he visited the petitioners' residence and took away the minor from her custody. This prompted the petitioner to file an application for production of the minor before the High Court. The said application had been disposed off vide impugned order holding that respondent No.1 had taken the minor out of the territorial jurisdiction of the Islamabad High Court.
3. During the course of hearing of this case multiple notices were issued to the respondent No.l. Upon his failure to appear before this Court, bailable warrants were issued. Vide order dated 10.08.2018 all relevant agencies of the Federal as well as the Provincial governments were directed to produce/assist in producing Respondent No.1 as well as the minor before this Court.
4. On 16.08.2018 both the minor as well as respondent No.1 were produced before this Court. After hearing the parties and considering all attending circumstances, we handed over custody of the minor to the Petitioner. It was also directed on the said date that passport of the petitioner be deposited with the Registrar of this Court to obviate the possibility of the minor being removed from the territorial limits of Pakistan.
5. Having heard the learned Counsel for the parties we find that the minor was forcibly taken away from the lawful custody of his mother within the territorial limits of Islamabad. The minor was thereafter moved to Lahore and later to Karachi in order to evade the process of law. This minor is about one year old and obviously needs his mother to survive. No reason whatsoever has been alleged or pleaded that may furnish any justification to deny custody to the real mother and hand him over to Respondent No.l. Prima facie Petitioner has a right to have custody of the suckling baby. Such right is recognized by the law. We are also convinced that there are material and overwhelming factors pointing towards welfare of the minor being best served and protected, if the custody of minor is handed over to the Petitioner. We are of the opinion that Islamabad High Court erred in law in refusing to exercise jurisdiction despite the fact that the custody of the child was forcibly taken away from the Petitioner while both were residing within the territorial jurisdiction of the Islamabad High Court.
6. For the aforenoted reasons, we set aside the judgment of the High Court, convert this petition into an appeal and allow the same. The custody of the minor Muhammad Rohan which has already been handed over to the Petitioner shall continue, subject to any other order passed by a Court of competent jurisdiction in appropriate proceedings. The Respondent may however approach the Guardian Court for determination of his rights of visitation. We further direct that in accordance with our order dated 16.08.2018, appropriate legal action may be initiated against Respondent No.1 (if not already initiated). The said Respondent shall however not be precluded from asserting his rights before a Guardian Court in accordance with law.
7. In furtherance to the above, it is directed that the Petitioner shall not remove the minor out of the territorial limits of Pakistan without express permission of a Court of competent jurisdiction.
MWA/S-43/SC Order accordingly.
Edited and translated by
Syed Jalil Abbas
[3/22, 1:27 PM] Ramzan: The court may also seize the grandfather's property in case of a degree against the father while executing the expenses of the child or spouse, whether the grandfather is a party to the claim or not.
PLD 2012 Lah. P (148)
[3/22, 2:06 PM] Ramzan: اگر باپ فوت ہوجاے توپینشن کا حق بیوہ کا ہوتا ہے مگر اگرماں بھی فوت ہوجاے تو پینشن نابالغان کے درمیان برارب تقسیم ہوگی بیٹا صرف جب تک نابالغ ہوتا ہے تب تک پینشن کا حقدار ہوتا ہے
بیٹی کی جب تک شادی نہیں ہوتی تب تک باپ کی پینشن کی حقدار ہوتی ہے جبکہ طلاق یافتہ یا بیوہ بیٹی بھی پینش کی حقدار ہوتی ہے
Pension would be distributed equally amongst surviving unmarried daughters /widow daughters / divorced daughters till marriage /remarriage
2019 PLC Note 13 Page 14
[3/22, 2:17 PM] Ramzan: طلاق کے متبادل ادائیگی رقم غیر قانونی ہے.
(2008 SCMR 186).
طلاق نامہ اسٹامپ پیپر پر تحریر کرنا ضروری نہ ہے.
(2004 CLC 984).
اگر زبانی طلاق کا نوٹس چیئرمین کو نہ بھجوایا گیا ہو، تو طلاق نہ ہوتی ہے.
(PLD 2006 SC 457).
سرکاری ملازم کا منہ بولا بیٹا یا نامزد کردہ شخص، اس کی فوتیدگی کی صورت میں، اس کے واجبات لے سکتا ہے، فیملی ممبر یا قانونی وارث ہونا ضروری نہ ہے.
(2019 PLD 1 Kar).
شادی کے چھ ماہ بعد اور طلاق کے دو سال بعد تک پیدا ہونے والا بچہ سنٌی قانون کے تحت جائز تصور کیا جائے گا.
(2008 SCMR 1707).
[3/24, 1:24 PM] +92 331 9193023: نکاح نامہ میں شوھر پر بیوی کو طلاق دینے کی صورت میں ہرجانہ کی ادائیگی کی شرط غیر شرعی اور غیر قانونی ھے۔ اور عدالت طلاق دینے کی صورت میں نکاح نامہ میں درج معاوضہ طلاق شوہر کے خلاف ڈگری نہ کرسکتی ھے
PLJ 2021 Lahore 485
Conditions mentioned in Column No. 16 of Nikahnama--Claim of recovery of Rs.500,000/- by the respondent/plaintiff from the petitioner/defendant on the ground of second marriage--it was mentioned in the Clause 19--Allah Almighty in Holy Qur’an has delegated uncovenanted powers to the husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds--A husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified
law--The husband has a right to divorce his wife from his free will and no condition can be imposed in this regard--The judgments of the learned Courts below to the extent of Issue No. 4 suffer from patent illegality and are liable to be set aside--
[3/24, 1:24 PM] +92 331 9193023: انتقال ہبہ کرنے والے تحصیلدار، متعلقہ پٹواری اور شناخت کنندہ گواہان کو پیش نہ کرنے کی صورت میں ہبہ ثابت نہ ہو گا.
2020 SCMR 276.
2018 MLD 739.
ہبہ کو ثابت کرنے کے لئے، ہبہ کا وقت، تاریخ، جگہ، اور گواہان کے نام دعویٰ میں لکھنا لازم ہے، بصورتِ دیگر ہبہ ثابت نہ ہو گا.
2017 SCMR 402.
دعویٰ میں ہبہ کرنے کی جگہ، وقت یا تاریخ درج نہ تھی، دورانِ جرح فرضی تاریخ، وقت اور جگہ بتانے سے ہبہ ثابت نہ ہو گا.
2004 CLC 33.
بیٹیوں کو ان کے شرعی حق سے محروم کر کے بیٹوں کے حق میں کیا گیا، انتقال ہبہ قابلِ منسوخی ہے.
2016 SCMR 986.
قانونی اور جائز ہبہ کی Requirements
آفر،،،، قبولیت،،،، ،جائیداد کا قبضہ حوالے کرنا.
2019 CLC 859.
PLJ 2019 Isl 22
ان پڑھ مدعیہ کی مدعا علیہ سے کوئی رشتہ داری نہ تھی، مدعا علیہ نے شناخت کنندہ، ہبہ کے گواہان، اشٹام فروش، اور وثیقہ نویس کو بطورِ گواہ پیش نہ کیا، ہبہ درست ثابت نہ ہو گا.
2017 MLD 1251.
[3/24, 1:38 PM] Ramzan: Few Grounds for Dismissal of a suit for Specific Performance:
1. Handwriting expert reported that signature are forged. (2012 CLC 1699)
2. Two attested witnesses were not produced. (2006 CLC 571)
3. Agreement was written by unlicensed person. (2006 CLC 571)
4. Stamp paper was not issued by stamp vendor . (2012 MLD 535)
5. Dates of purchasing stamp paper and endorsement were different. (2011 YLR 404)
6. Purchaser of stamp paper was not produced as witness. (2011 MLD 404)
7. Stamp paper was issued on one date in favour of an unknown person and was executed on another date. (PLD 2008 Queta 01)
8. Payment of whole consideration was paid before execution. (2006 YLR 2446)
9. Scribe was not a registered Waseeqa Navees. (2006 CLC 1444)
10. Register of scribe belongs to another person wherein various pages and serial number were missing. (2006 CLC 1444)
11. Contradiction as to vanue where bargain took place. (2006 CLC 1444)
12. Contradiction as to person who obtained stamp paper. (2006 CLC 1444)
13. Plaintiff failed to produce bank record as to payment of half money. 2006 MLD 886
14. Date, Time, Month and Place of transaction was not given in pleading or evidence. (2005 YLR 2655)
15. Number of N.I.C was different from number on agreement. (2002 CLC 942)
16. Land was situated at a place whereas stamp paper was purchased from another place. (2002 CLC 942)
17. Neither vendor of stamp paper nor scribe was produced. (2001 YLR 2145)
18. Agreement was scribed on plain paper and was written by unlicensed petition-writer whereas both were available as nearby place. ( 1996 MLD 562)
19. Stamp paper was purchased at one date and executed after one week, stamp paper neither showed name of stamp vendor nor the place from where it was purchased. (1992 CLC 2193)
20. Failure to deposit balance amount. (PLD 2002 Lah 88, 2012 CLC 1392)
21. Two marginal witnesses were not produced. (2013 YLR 903, 2009 SCMR 740)
22. Payment of consideration not proved.(2006 YLR 1039 )
23. Document was not put before witness. (2006 MLD 1622)
24. One witness was not produced without any reason/ explanation. (2006 MLD 1622)
25. Scribe admitted that alleged promisor was not present at the time of execution neither he signed before him. (2006 MLD 1622)
26. Claim of plaintiff valuing 25 lac was based on a document which was not registered. (2011 CLC 309)
27. Agreement was signed twice. (2011 CLC 309)
28. Original agreement to sell not produced…loss of agreement not pleaded….no attempt was made to produce secondary evidence…plaintiff was not confronted with…Executant defendant was not identified by anyone. (2005 YLR 463)
29. National Identity Card number was not written. (2005 YLR 3163)
30. Lost of original document not proved. (1995 SCMR 1237)
31. It is doubtful that plaintiff paid whole consideration but did not insist for registered sale deed in his favour. (2006 YLR 2779)
[3/24, 2:44 PM] Ramzan: جو ریلیف دعویٰ میں نہ مانگا گیا ہو، عدالت وہ بھی عطا کر سکتی ہے،
2022 PLD 73 SUPREME-COURT
O.VII, R. 7---Relief not specifically sought in the plaint---Whether such relief could be granted by the Court---In appropriate cases, the courts could mould the relief within the scope of the provisions of O.VII, R.7 of the Code of Civil Procedure Code, 1908 ("C.P.C."), and were empowered to grant such relief as the justice may demand, in the facts and circumstances of the case.
[3/26, 1:43 PM] +92 331 9193023: PLJ 2021 SC 50
Contract Act, 1872 (IX of 1872)--
----S. 25--Constitution of Pakistan, 1973, Arts. 9, 14, 25 & 212(3)--Guardian and Wards Act, (VIII of 1890), S. 25--Application for custody of minor--Agreement between husband and wife--Physical disability of mother--Concurrent judgments--Mother was give up custody of minor--Public policy--Principles of policy--Right to hizanat--Rules of hizanat--Determination for custody of minor--Direction to--Constitutional mandate--Muslim personal law prescribes rules of hizanat (custody); a mother in whom hizanat vests cannot be compelled to surrender it nor can such surrender constitute consideration for an agreement of khula--Custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can husband demand such surrender--Agreement to extent that mother surrendered custody of her child or which stopped mother to claim his custody is not lawful consideration; it is contrary to Islamic principles governing hizanat and law determining custody of minors and thus forbidden--Welfare of minor cannot be relegated to personal interest of father and such a clause or condition is against public policy--Father dragged out proceedings and then unnecessarily invoked constitutional jurisdiction of High Court--There was no reason for High Court to exercise its constitutional jurisdiction in terms of Art. 199 of Constitution and to set aside perfectly well-reasoned and legal judgments--Appeal allowed. [Pp. 54, 55 & 59] A, B, D & E
Contract Act, 1872 (IX of 1872)--
----S. 23--Public policy--Object of agreement--What considerations and objects are lawful and what not--consideration or object of an agreement is lawful, unless - it is forbidden by law; or is of such a nature that, if permitted, it would defeat provisions of any law; or is fraudulent; or involves or implies injury to person or property
of another; or Court regards it as immoral, or opposed to public policy--Consideration or object of an agreement is said to be unlawful--Every agreement of which object or consideration is unlawful was void. [P. 54] C
Ms. Jamila Jahanoor Aslam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.
Mr. Arshad Hussain Yousafzai, Advocate Supreme Court along with Respondent No. 1 in person.
Child, Muhammad Rayan, produced pursuant to Court order.
Date of hearing: 9.7.2020.
PLJ 2021 SC 50
[Appellate Jurisdiction]
Present: Mushir Alam and Qazi Faez Isa, JJ.
Mst. BEENA--Petitioner
Versus
RAJA MUHAMMAD and others--Respondents
C.P. No. 4129 of 2019 and C.M.A. No. 10406 of 2019,
decided on 17.7.2020.
(On appeal against the judgment dated 16.09.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1903-P of 2019).
Order
Qazi Faez Isa, J.--The petitioner was married to the Respondent No. 1 (‘the mother’ and ‘the father’ respectively) and they had one son, Muhammad Rayyan, born in October 2012 (‘the child’). The mother sought the physical custody of her son and the learned Family Judge granted it to her. The father challenged the decision by filing an appeal, which was dismissed. The learned Chief Justice of the Peshawar High Court exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan[1] (‘Constitution’) set aside the judgments and decrees of the learned Judges of the Family Court and of the Appellate Court.
2. The High Court set aside two concurrent judgments by a pithy three-page judgment and the reason for doing so is contained in its paragraph 4, reproduced hereunder:
Perusal of the record reveals that marriage between the parties was solemnized some seven (07) years ago, out of the wedlock, minor Rehan was born. Record further reveals that Respondent No. 1 is a crippled / disable lady, who took ‘Khula’ from the petitioner at her own will by waiving off her dower, coupled with the fact that the minor Rehan would also remain in the custody of Respondent No. 1/father and in this regard, a deed was executed on 16.03.2018, which is available on file, but this fact has been overlooked by both the Courts below while deciding application of Respondent No. 1. The only reason given by Respondent No. 1 for taking custody of minor is that petitioner is a bad character person but this fact has not been proved through cogent evidence. Moreover, Respondent No. 1 is a crippled/disabled lady having no source of income except receiving special investment package, which had been given to the widow of the village as alleged in para-5 of the application/ suit while the petitioner is a Rikshaw driver and having earned enough would take care of his son very well; hence, keeping in view the above facts and circumstances of the case, both the Courts below have wrongly allowed the custody of minor Rehan to Respondent No. 1 and the same are, thus, liable to be set aside.
3. Ms. Jamila Jahanoor Aslam, the learned counsel representing the petitioner-mother, submits that the mother was compelled to obtain khula (dissolution of marriage) from her husband by foregoing her haq mehr, which comprised of a house constructed on 5 marlas of land and 4 tolas of gold by signing on the dotted line of an agreement dated 16 March 2018 (‘the agreement’). This agreement also provided that the mother would not claim the custody of her son. The learned counsel states that the clause of the agreement whereby the mother gave up the custody of her child is contrary to public policy and without consideration, therefore, void under the Contract Act, 1872[2] (‘the Contract Act’). She also relies on the judgment of this Court in the case of Razia Rehman v. Station House Officer.[3] The learned counsel next submits that in the impugned judgment the physical disability of the mother was mentioned to deprive her of the child’s custody which is contrary to law. Mere disability is not a ground to disentitle a mother to raise her child and deny the child of the love, care and upbringing that only a mother can provide, submits the learned counsel. The mother at the time of her marriage and when the child was born was suffering from a physical disability, yet carried her child for nine months and nurtured him. It is further submitted that the resilience and determination of the lady is such that she rose to the challenge life had thrown her way and supports herself by working in an embroidery centre. In any event, learned counsel submits, ‘receiving special investment package’ has nothing to do with a mother’s right to hizanat. Concluding her submissions, the learned counsel states that since in law the primary responsibility for maintaining a child is of the father it is immaterial whether the mother is financially capable to maintain the child.
4. The learned counsel for the father submits that the parties had entered into the agreement which the father abided by but which the mother violated in seeking the custody of the child, and in doing so unnecessarily dragged the father into different Courts. The learned counsel states that as a consequence of the agreement the mother obtained khula from the father and having done so cannot be permitted to violate the other terms of the agreement, including, for the purposes of the present case, seeking the child’s custody. It is further submitted by the learned counsel that the paramount consideration in custody matters is the child’s welfare which in the present case lies with the father as the mother is not physically able to take care of the child’s needs as she is wheelchair bound. The learned counsel concluding his submissions states that, the child was unwilling to go to his mother and pointed out in Court that the child clung to the father and did not want to even look at his mother, which self-evident reason was sufficient to deny the mother custody of the child.
5. We have heard the learned counsel for the parties and with their assistance examined the documents on record. It has come on record and confirmed by the father that he has three children, two elder children aged nine and ten years from a previous marriage who, we were told, reside in his father’s house. The Respondent No. 1 lives in a separate house which is at some distance from his father’s.
6. The learned Family Judge, Ms. Sidra Jalal, recorded the evidence of both the parties and after hearing them came to a considered decision that, the child’s welfare lay in the mother having his physical custody. She further held that the mother’s disability was not a factor that could deprive her of custody. And, even if the mother was financially incapable to provide for the child, it was not her responsibility to do so but that of the father to maintain the child. On each of these three points the learned Family Judge was factually and legally correct. The judgment of the learned Family Judge was upheld by the learned Judge of the Appellate Court. However, these two concurrent judgments were set aside by the High Court by relying on the agreement between the parties, and the clause therein stipulating that the mother could not claim the custody of her son. The High Court held that the mother’s physical condition meant that she was not able to look after her child and further held that she was not financially independent. All three of the reasons which prevailed with the learned Judge these were extraneous to the law and shariah, pertaining to the personal law of Muslims.
Description: A7. Through the agreement the mother obtained her release from her matrimonial bond by foregoing her dower (haq mehr) and obtained khula. Muslim personal law prescribes rules of hizanat (custody); a mother in whom hizanat vests cannot be compelled to surrender it nor can such surrender constitute consideration for an agreement of khula. The custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can the husband demand such surrender. The Constitution mandates[4] that all laws must conform with the Injunctions as laid down in the Holy Qur’an and Sunnah and no law shall be enacted which is repugnant to such Injunctions. The Holy Qur’an, which enables khula,[5] does not contemplate surrendering a child’s custody to secure khula nor that it can constitute valid consideration for it. To insert such a condition in an agreement of khula is contrary to the law and the Injunctions of Islam.
Description: B8. In the agreement under consideration the petitioner in order to obtain khula not only surrendered her dower (haq mehr) but also agreed to forego the custody of her son. The agreement to the extent that the mother surrendered the custody of her child or which stopped the mother to claim his custody is not lawful consideration; it is contrary to the Islamic principles governing hizanat and the law determining the custody of minors and thus forbidden. An agreement the object or consideration of which is against public policy is void, as stipulated in Section 23 of the Contract Act, reproduced hereunder:
What considerations and objects are lawful and what not. The consideration or object of an agreement is lawful, unless - it is forbidden by law; or
Description: Cis of such a nature that, if permitted, it would defeat the provisions of any law; or
is fraudulent; or
involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
Description: DThe welfare of the minor cannot be relegated to the personal interest of the father and such a clause or condition is against public policy. The clause in the agreement whereby the mother agreed to give up her son’s physical custody and/or not claim it is also without consideration. The welfare of a minor cannot be subsumed by the interest of his father, and if this is done it will be against public policy, and such clause or condition will be void. Such a stipulation will also be void under Section 25 of the Contract Act because it is without consideration.
9. We are indeed surprised that the High Court overturned two concurrent decisions, and did so without quoting law, shariah or precedent to support the decision. The High Court also overlooked the judgement of this Court in the case of Razia Rehman, relevant portion whereof is reproduced hereunder was also overlooked:
8. ... It is also an un-deniable fact that according to the law of the land, any agreement reached between the two parents, inter alia, regarding the custody of the minor children is neither valid in law nor even enforceable. Therefore, even if it be presumed that the petitioner-lady had, through some alleged compromise which she is however, denying, waived her right of HIZANAT, the said compromise or agreement had no binding force in the eyes of law.[6]
10. It also pains us to state that the High Court was not very sensitive in dealing with the case. By referring to the petitioner as a, ‘crippled/disabled lady having no source of income’. In determining the welfare of the child and his custody neither the mother’s physical condition nor her income were determinative factors. It was also inappropriate to refer to the mother as crippled or disabled. The petitioner has a physical disability; she should not be called a cripple or disabled. The mother has not resorted to beggary; she works and earns an honest living. To denigrate such a lady was wholly inappropriate. Instead she should be admired for demonstrating remarkable determination and perseverance. Chief Justice Syed Mansoor Ali Shah, as his lordship then was, in the case of Asfandyar Khan Tareen v Government of Punjab,[7] held:
13. Dignity has its roots in the simple idea that justice consists of the refusal to turn away from suffering. Most central of all human rights is the right to dignity. Dignity unites the other human rights into a whole. The right to dignity reflects the ‘recognition that a human being is a free agent, who develops his body and mind as he wishes, and the social framework to which he is connected and on which he depends. Human dignity is therefore the freedom of the individual to shape an individual identity. It is the autonomy of the individual will. It is the freedom of choice. Human dignity is infringed if a person’s life or physical or mental welfare is harmed’.
16. The use of the terms or words like “disabled”, “physically handicapped” and “mentally retarded” characterize and label a person on the basis of an impairment, which negates reasonable accommodation as they deny persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. These words also amount to discrimination on the basis of disabilities as they have the effect of impairing or nullifying the recognition, enjoyment or exercise of persons with disabilities, on an equal basis with others, of all human rights and fundamental freedoms. These words, labels and characterization seriously offend the right to be a person thereby infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Articles 9, 14 and 25 of the Constitution.
20. In addition to the above the Federal Government, as well as, the Government of the Punjab is directed to discontinue the use of these words in official correspondence, directives, notifications and circulars and shift to persons with disabilities or persons with different abilities.
We endorse and approve his lordship’s observations that pejorative words, like crippled or disabled, ‘seriously offend the right to be a person thereby infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Articles 9, 14 and 25 of the Constitution.’ We may add that the Constitution permits ‘the State from making any special provision for the protection of women and children’[8] but does not permit discrimination.
11. The Principles of Policy[9] (‘the Principles’) set out in the Constitution is the path, and the destination, that the nation has set for itself. The Principles require that, ‘Steps shall be taken to ensure full participation of women in all spheres of national life’.[10] If women with physical disabilities are considered not able to take care of their children they would stand excluded from participation in family life and excluded from the much higher proclaimed objective of participation in all spheres of national life. The Principles also require that the State shall protect ‘the mother and the child’.[11] If a child is taken away from the mother, deprived of her love and the benefit of her upbringing the mother and the child’s relationship is fragmented.
12. Another of the Principles provides that Muslims must be enabled to live their lives ‘in accordance with the fundamental principles and basic concepts of Islam’[12] and ‘to promote unity and the observance of the Islamic moral standards’.[13] The religion of Islam gives a high status to expectant ladies and mothers. When performing the Hajj and Umrah pilgrimages, Muslims run between the mounts of Safa and Marwah (Sa’ee) in the footsteps of the lady Haajar to emulate her when she desperately searched for water for her child, Ismail (peace be upon him). Haajar the esteemed mother is commemorated in perpetuity by incorporating her actions as an integral component in the performance of Hajj and Umrah of the Islamic Faith. A mother-child bond and a mother’s agony instituted a religious obligation, a rare if not the only example, in world religions. The mother of Islam’s progeny, lady Haajar is buried next to her son, the Prophet Ismail (peace be upon him), in the Hateem, the crescent shaped enclosure adjacent to one of the walls of the Holy Ka’ba, also known as Hijr Ismail, the shelter constructed by Prophet Ibrahim (peace be upon him) for his wife and child. Pilgrims from all over the world circumambulate the Holy Ka’ba, including the Hijr/Hateem.
13. The high status of motherhood is reflected in the naming of a chapter of the Holy Qu’ran after Maryam[14] (Mary), peace be upon her, the only chapter named after a woman. Almighty Allah recalls her qualities and bestows on her a number of titles: a purified (tahharaki) and chosen (istafagi) one,[15] a sign (ayatan) of God,[16] truthful (siddiqatun)[17] and devoutly obedient (qanitina).[18] The lady Maryam (peace be upon her) is mentioned 34 times in the Holy Qur’an. The mother of the Prophet Isa (peace be upon him) faced the pangs of childbirth alone. She, like the lady Haajar, overcame formidable odds to care for her child. These great ladies are acknowledged and incorporated into the Faith, enriching Islam’s glorious tradition. It is for believers to ponder and reflect upon their lives, and to derive lessons from it. To be financially underprivileged, to be weighed down with a child, to give birth or to have a disability is not something to be derided. For a mother to bear the pain of childbirth, the greatest human natural pain, but then to have her child wrested away from her on the pretext that she is incapable of taking care of the child is insensitive in the extreme, and may also be characterized as hypocritical.
14. In regards to the rights of the mother and child the law, Islam and the Constitution are often violated. However, it is inexcusable when constitutional office holders, who take an oath to uphold the Constitution and are paid to do so, undermine such rights. Disregarding the Principles is contrary to the express language of the Constitution, which provides that, ‘it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority’.[19]
15. The Principles of Policy are contained in ten Articles[20] and these were given by the people to themselves through their chosen representatives when the Constitution was written. The importance of the Principles is such that the President of Pakistan is required to submit an annual report to Parliament and similarly the Governors to their respective Provincial Assemblies,[21] ‘on the observance and implementation of the Principles of Policy’.[22]
16. During the hearing the learned counsel for the father submitted that the right of hizanat of the child vesting in the mother is nearly over. In response to our query we were told that the judgments of the learned Family Judge and the learned Appellate Judge were not abided by, as the father retained the custody of the child. Therefore, we cannot accept such a preposterous contention because in doing so we will be rewarding those who take the law into their own hands and violate the decisions of Courts vested with jurisdiction. Every judgment must be abided by unless it is suspended and/or set aside by
Description: Ea higher Court. The father dragged out the proceedings and then unnecessarily invoked the constitutional jurisdiction of the High Court. There was no reason for the High Court to exercise its constitutional jurisdiction in terms of Article 199 of the Constitution and to set aside perfectly well-reasoned and legal judgments. As regards the learned counsel for the father, contending that the child has an aversion to the mother, just goes to show that the father has filled the child’s innocent mind with fear and/or dread, and demonstrates that he has not been fair to either the child or the mother.
17. Therefore, for the reasons mentioned above we have no hesitation in setting aside the impugned judgment of the High Court dated 16 September 2019. Consequently, the Respondent No. 1 is directed to hand over the physical custody of the minor, Muhammad Rayyan, to the petitioner within seven days from the date of this order, failing which the concerned police officer and the social welfare officer will ensure compliance; a copy of this order be sent to the learned Advocate-General, Khyber Pakhtunkhwa for onward transmission of this order to the concerned and to oversee compliance. In view of the important issues decided in this petition with regard to the custody of minors the Registrar of the Peshawar High Court is directed to provide copies of this order to all family/guardian judges and Judges of the Peshawar High Court. This petition is converted into an appeal and allowed in the above terms.
(Y.A.) Appeal allowed
[1]. The Constitution of the Islamic Republic of Pakistan, 1973.
[2]. Section 23 and 25 of the Contract Act, 1872, respectively.
[3]. PLD 2006 Supreme Court 533.
[4]. Article 227 of the Constitution of Islamic Republic of Pakistan, 1973.
[5]. Surah Al-Baqarah (2) verse 229 and surah An-Nissa (4) verse 35.
[6]. Razia Rehman v. Station House Officer, PLD 2006 Supreme Court 533, 53.
[7]. PLJ 2018 Lahore 508.
[8]. Article 25(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
[9]. Chapter 2 of the Constitution of the Islamic Republic of Pakistan, 1973.
[10]. Article 34 of the Constitution of the Islamic Republic of Pakistan, 1973.
[11]. Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973.
[12]. Article 31(1) of the Constitution of the Islamic Republic of Pakistan, 1973.
[13]. Article 31(2)(b) of the Constitution of the Islamic Republic of Pakistan, 1973.
[14]. Surah Maryam, the 19th Chapter of the Holy Qur’an.
[15]. Surah Al-Imran (3) verse 42.
[16]. Surah Al-Muminum (23) verse 50.
[17]. Surah Al-Maidah (5) verse 75.
[18]. Surah Al-Tahrim (66) verse 12.
[19]. Article 29(1) of the Constitution of Islamic Republic of Pakistan, 1973.
[20]. Articles 31 to 40 of the Constitution of Islamic Republic of Pakistan, 1973.
[21]. Article 29(1) of the Constitution of Islamic Republic of Pakistan, 1973.
[22]. Article 29(3) of the Constitution of Islamic Republic of Pakistan, 1973.
[3/29, 1:18 PM] Ramzan: گلی یا سڑک وغیرہ میں تجاوزات کی صورت میں دعویٰ حکم امتناعی، دعویٰ ہر جانہ یا دعویٰ استقرار حق دائر کیا جا سکتا ہے ۔
(2011 CLC 1379)
کوئی بھی حق صرف قبضہ ہونے کی وجہ سے حاصل نہ ہو گا اس کی بابت ملکیت کا ثابت کرنا ضروری ہے ۔
(2010 CLC 642)
اگر سمنوں کی تعمیل کسی بھی شخص کے ذریعہ کروائی گئی ہو تو اچھی تعمیل تصور ہو گی۔
(2012 CLC 1762)
محکمہ سی-آئی-اے کو قانونی طور پر اختیار حاصل نہیں کہ وہ کسی مقدمہ کی تفشیش کرے بلکہ اس کا کام ڈسٹرکٹ پولیس کی مدد کرنا اور جرائم کی روک تھام کرنا ہے ۔
(2018 PCrLJ 590 Lah)
زبانی طلاق کا نوٹس چیرمین کو نہ دیا، طلاق نہ ہے ۔
(PLD 2006 SC 457)
[3/29, 1:19 PM] Ramzan: تمام بچے جن کی پیدائش پاکستانی باپ سے ہو، پاکستانی شہری تصور ہوں گے.
2020 PLD 716 Lah.
بلاوجہ طلاق دینے کی صورت میں اتنا معاوضہ خاوند ادا کرے گا، نکاح نامہ کی یہ شرط غیر قانونی ہے.
2012 CLC 837.
خرچہ نان و نفقہ کا فیصلہ کرتے وقت خاوند کی معاشی حالت کو نظر انداز نہ کیا جا سکتا ہے.
2014 YLR 1563.
والد کے فوت ہونے کے بعد دادا خرچہ نان و نفقہ دینے کا پابند ہے.
PLD 2012 Lah 148 + 392.
والدین کی طرف سے قبضہ کے لئے بیٹے کے خلاف دائر کردہ دعویٰ ڈگری ہوا.
PLD 2014 Pesh 21.
[3/30, 11:22 AM] Ramzan: نکاح کےوقت مقرر کردہ وکیل نکاح کا گواہ نہیں بن سکتا ۔۔۔
کیونکہ اس نے ایجاب و قبول کی ساری کاروائی دیکھنی ہوتی ہے ۔۔۔
2022CLC24
[3/30, 11:58 AM] Ramzan: Forged Document obatined by consent. Suit for cancellation of that document is maintainable not declaration suit.
2021 SCMR 1986
If the documents are prepared with consent based on fraud, fraud, fraud, or in vain influence, then the claim of the establishment of the right will be unimportant, rather in this case, filing a claim revocation document.
It is necessary.
پنشن کا حقدار کون ہوگا کب کیسے اور کس وارث کو ملے گی
2019 PLC Note 13 Page 14
2019 MLD 112
If father dies then only mother is entitled for pension and if
[3/5, 11:06 AM] Ahsan Naqvi: فیملی کورٹ یا اپیلیٹ کورٹ فہرست گواہان کی لسٹ میں ترمیم نہ کر سکتی ہے.
(2020 MLD 554).
فیملی کیس میں ضابطہ دیوانی یا قانون شہادت کا اطلاق نہ ہوتا ہے، اس لئے عورت بزریعہ اٹارنی، پیروی مقدمہ کر سکتی ہے، اور عورت کا خود بطورِ گواہ پیش ہونا ضروری نہ ہے.
(2019 YLR 1900).
فیملی ایکٹ کا اطلاق، مسلم اور غیر مسلم دونوں پر ہو گا.
(2010 YLR 2711).
(PLJ 2017 Lah 732).
عدالتِ اجراء ،نکاح نامہ میں درج، بیوی کی منقولہ جائیداد کو Attach نہ کر سکتی ہے.
(2016-SCMR-2170).
نکاح نامہ کی یہ شرط ،کہ خاوند بلاوجہ طلاق دینے کی صورت میں، اتنا معاوضہ ادا کرے گا، غیر قانونی ہے.
(2012 CLC 837).
[3/5, 11:06 AM] Ahsan Naqvi: طلاق دینے بارے شوہر پر کوئی شرائط لاگو نہیں
یہ اس کا ایبسولیٹ رائیٹ ہے
2022 CLC 242022 CLC 24Pension would be distributed equally amongst surviving unmarried daughters /widow daughters / divorced daughters till marriage /remarriage.
2015 PLC (CS) 1255 Peshawar High Court
☆ Judgment apply on Khalida bibi case
Term Gratuity Define
Shahda package define
Word family define
Widow entitled for all benefits
2013 CLC 370 Karachi High Court
One widow withdrawal amount which after that divided among legal heirs.
2012 PLC 419
Only widow is entitled for pension.
2007 PLD 35 Supreme Court
Immediate action against department,
Pension should be divided as early as possible.
2006 PLC (CS) 631
Punjab Civil Servants Rule 1963
Widow is entitled for pension and other dues towards department.
2005 PLC (CS) 399 Lahore High Court Lahore
Rule 4.10
Two widows entitled for pension
In case of death of one the other one get whole pension.
2002 PLC (CS) 634 Lahore High Court Lahore
Widow and other family entitled for pension.. family define in this judgement.
Also entitled for gratuity
1999 MLD 703
Benevolent Fund, Group Insurance and Pension are not heritable.
1996 Pcrlj 1127 Karachi High Court
Widow and family is entitled for pension.
1994 PLC (CS) 176
Pension-cum- Gratuity Scheme 1954
Widow is entitled for pension, gratuity and group insurance and other benefits divide into legal heirs in case of issueless widow.
1993 MLD 2171
G.P Fund heritable
Muslim Family Laws Ordinance (VIII of 1961)---
----S. 6(5)(b) [as amended by Punjab Muslim Family Laws (Amendment) Act (XIII of 2015)]---Second marriage contracted by husband without permission of first wife---Fine, reduction in---Scope---Sessions Court reduced the imprisonment of accused/petitioner (husband) to that of already undergone, however, maintained sentence of fine of Rs. 5,00,000/- passed by the Judicial Magistrate---Question was whether the sentence of fine imposed against the petitioner could be reduced in consideration of the circumstances weighed by Appellate Court while reducing the quantum of sentence of imprisonment---Held, that sentence of fine stipulated in S.6(5)(b) of Muslim Family Laws Ordinance, 1961, was amended by the Legislature, through Punjab Muslim Family Laws (Amendment) Act, 2015 by substituting, "or with fine which may extend to five thousand rupees, or with both" with "and with fine of five hundred thousand rupees"---Legislature had thus withdrawn the discretion of Court with regard to quantum of fine itself, which transpired its intention---Imposition of fine of Rs. 5,00,000/- to a convict under S. 6(5)(b) of Punjab Muslim Family Laws (Amendment) Act, 2015, was mandatory---Though discretion with regard to the quantum of sentence of imprisonment was provided, yet no such space was given in case of sentence of fine---No illegality, jurisdictional error or impropriety was found in the judgments passed by the Courts below with regard to the question of law involved---Criminal revision was dismissed, in circumstances.
2020 SCMR 203
رجسٹرڈ ڈیڈ سے متعلق دعویٰ میں سب رجسٹرار کو فریق مقدمہ بنانا ضروری ہے
2021 YLR 570 PESHAWAR-HIGH-COURT
ZAHID AKHTAR VS Mst. SAIMA ZIA
S. 5, Sched.---Suit for dissolution of marriage on the basis of khula---Gift of gold ornaments---Scope---Respondent brought a suit against the petitioner for dissolution of marriage on the basis of khula and recovery of monthly maintenance allowance for the minors---Decree for dissolution of marriage on the basis of khula was granted in favour of the wife in lieu of dower i.e. house and ten tolas gold ornaments---Appellate Court partially allowed the respondent's appeal by modifying the judgment of trial court to the extent that the respondent was not liable to return ten tolas gold ornaments to the petitioner---Validity---House mentioned in the nikahnama was sold by the petitioner and the amount of sale consideration was received by him and not by the respondent---Gold in question was given to the respondent besides dower, meaning thereby that the same was given to her as a gift and that it could not be reclaimed once given with free will and consent---Monthly maintenance allowance of minors was kept intact however, its annual increase was reduced from 20% to 10%---Constitutional petition was disposed of accordingly.
2021 MLD 288 PESHAWAR-HIGH-COURTBookmark this Case
MUHAMMAD JAMAL VS Mst. AYESHA KAUSER
S. 5, Sched.---Suit for dissolution of marriage, recovery of dower, dowry articles and maintenance---Scope---
Petitioner/ husband assailed the judgments and decrees passed by courts below---Validity---Bone of contention between the parties was an iqrarnama whereby respondent/wife had returned the gold ornaments which were earlier handed over to her---Scribing of the iqrarnama and its contents were duly proved---Petitioner had failed to rebut that he had treated the respondent with cruelty and that she had left his house of her own volition---Petitioner had
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