Once it was clearly admitted by the wife that the nikahnama was registered after lapse of more than three months from date of death of her husband and copies of .................

 Once it was clearly admitted by the wife that the nikahnama was registered after lapse of more than three months from date of death of her husband and copies of the nikahnama maintained by the Union Council as well as Nikah Registrar were not produced, copy of nikahnama kept by the wife had no presumption of correctness attached to it since the same was not registered in accordance with law.

WP 173-21
JAWAD ALI SHAH ETC VS MST. SARWAT FATIMA ETC
Mr. Justice Anwaar Hussain
14-11-2024
2024 LHC 5358









پڑپوتے ، چلڈرن کے زمرے میں نہیں آتے ، لہزا وہ کسی بھی پراپرٹی جوکہ دادی کی ہو میں وراثت میں حقدار نہیں ہیں

 2022 SCMR 1131

Great grandchildren are not within the meaning of “children” for the purposes of s. 4 of the Muslim Family Laws Ordinance, 1961 (“Ordinance”)?
S.4 has been declared to be contrary to the Injunctions of Islam by the Federal Shariat Court (“FSC”) by its judgment reported as Allah Rakha and others v Federation of Pakistan and others PLD 2000 FSC 1. However, this judgment is under appeal before the Shariat Appellate Bench of this Court (C.Sh.A 1/2000 and connected cases (Tanveer Jehan v Federation of Pakistan and others, etc.)). Article 203G of the Constitution provides, inter alia, that no court including this Court itself shall, save as provided in Article 203F (which provides for appeals to the Shariat Appellate Bench), “entertain any proceeding or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the [Federal Shariat] Court”. The proviso to clause (2) of Article 203D provides, inter alia, that if an appeal has been preferred to the Shariat Appellate Bench then the decision of the FSC shall be deemed stayed pending disposal of the appeal. The position that emerges therefore is that for purposes of deciding this matter s. 4 of the Ordinance is to be regarded as being in the field but the provision must be interpreted and applied on its own footing, purely as a matter of statutory interpretation.
Now, it is a fundamental principle of the law of Muslim inheritance that the legal heirs of a person are only determined at the moment of death and not before. This rule is clearly reflected in s. 4 by use of the words “opening of succession”. The point is then reinforced by the immediately succeeding words, “the children of [the predeceased] son or daughter, if any, living at the time the succession opens” (emphasis supplied). The words emphasized impose a clear limitation: s. 4 applied only to those grandchildren as are alive at the time of death of the propositus. Had these words been absent then, perhaps, a case could be made out for the interpretation put forward by learned counsel for the leave petitioners. However, the words do exist and therefore must be given due effect. To accept the case sought to be made out would, in effect, erase them from the statute. That would be contrary to well established rules of interpretation. It is of course well known that under the rules of Muslim inheritance the legal heirs of a predeceased son or daughter do not inherit from the parent of the predeceased. Section 4 carves out a carefully constructed exception from this rule. It is not without significance that the section does not refer to the legal heirs of the predeceased son or daughter: the words used are “the children of such son or daughter” and not ‘legal heirs’. Quite obviously for the predeceased son or daughter to have children they would have to have had a spouse, who could also be alive when the parent passes away. Yet, any spouse is excluded from the applicability of s. 4. It is also to be kept in mind that some of the rules of Muslim inheritance can apply across generations, which is encapsulated in the phrases “how high so ever” and “how low so ever” used in the standard treatises. Any possibility of s. 4 having such an effect (which, in essence, is the case pleaded by the leave petitioners) is carefully excluded by use of the words emphasized above, i.e., “living at the time the succession opens”. Read as a whole, the purpose and intent behind s. 4 is clear. The exception created by it is limited and circumscribed. It applies only to those grandchildren as are living at the time of the death of the propositus. An extended meaning cannot be given to the section in terms as urged by learned counsel for the leave petitioners. They, being the great grandchildren, did not have any share in the property left behind by the propositus on the basis of s. 4.

Mere fact of re- marriage of a mother of the minor would not ipso facto disentitle her from retaining custody of minor.

Citation Name : 2018 CLC 273
LAHORE-HIGH-COURT-LAHORE
 Side Appellant : JAVED HASSAN
Side Opponent : Mst. FARKHNDA YASMIN

S. 25- - - Petition for custody of minor daughter by father
- - - Re- marriage of mother of minor daughter
- - - Effect- - - Scope
- - - Father alleged that living conditions of the mother were not appropriate for daughter
- - - Welfare of the minor
- - - Scope- - -
Father had contended that in the wake of second marriage with a person alien to the daughter, custody of a grown up daughter with mother would affect her psychological well- being
- - - mother contended that plaintiff had also contracted second marriage and daughter would have to face cruelty of step- mother
- - - Validity- - -
Record revealed that father had laid much stress on re- marriage of the mother in his evidence whereas mother deposed that she was in service being educated and daughter was also studying, moreover, she had no children from her second marriage
- - - Validity- - -
Mere fact of re- marriage of a mother of the minor would not ipso facto disentitle her from retaining custody of minor
Evidence had shown that father was a labourer and an illiterate person whereas mother was an educated lady and Hafiza- e- Quran
Father had no permanent source of income while mother was getting fixed salary working in health department
Daughter was about 16 years of age and father had failed to produce any evidence before Trial Court from which it could be inferred that living conditions of minor with her mother were not favourable for the minor
No material could be brought on record which was adverse to the interest and welfare of the minor- - - Psychological and mental well- being of the minor was directly dependant on the love and affection imparted by a mother to her daughter
Father had failed to point out any illegality or infirmity in the impugned judgments
-Constitutional petition was dismissed.

--Second marriage without permission from first wife--- Leave to Appeal against acquittal---Resident of .........

 PLD 2019 ISLAMABAD 476

S.6(5)---Rules under Muslim Family Laws Ordinance, 1961, R.21---Second marriage without permission from first wife--- Leave to Appeal against acquittal---Resident of Azad Kashmir, status of---Jurisdiction of court---Private complaint was filed against accused (husband) by his first wife on allegations of contracting second marriage without her permission---Trial Court convicted accused but Lower Appellate Court set aside conviction on grounds that provisions of Muslim Family Laws Ordinance, 1961 were not applicable to accused as he was resident of Azad Jammu and Kashmir---Validity---Accused, regardless of his place of residence, held national identity card issued to him by authority under National Database and Registration Authority Ordinance, 2000---As long as national identity card remained valid and subsisting, accused could not claim to be a person who was not a citizen of Pakistan---Marriage was contracted between parties duly registered in Islamabad and therefore, to the extent of complainant, cause of action in context of S.6 of Muslim Family Laws Ordinance, 1961 had arisen in Islamabad---Lower Appellate Court did not take into consideration legal provisions of various statutes---High Court converted petition seeking special leave to appeal filed by Complainant into appeal and judgment passed by Lower Appellate Court was set aside---High Court remanded matter to Lower Appellate Court for deciding appeal afresh---Appeal was allowed accordingly.
S.6(5)---Rules under Muslim Family Laws Ordinance, 1961, R.21---Applicability of the Act---Scope and extent---Second marriage of husband without permission from first wife---Procedure---Pre-conditions---Violation of---Consequences.

The decision of the executing court directing the judgment debtor to pay value of dowry articles instead of returning the said....................

 The decision of the executing court directing the judgment debtor to pay value of dowry articles instead of returning the said articles on refusal of respondent to receive the same amounts to a final decision which is appealable as a "decision given" in terms of Section 14 of the Family Court Act, 1964.

WP-15322-24
MUHAMMAD ASHRAF VS
JUDGE EXECUTING COURT ETC
Mr. Justice Muzamil Akhtar Shabir
15-11-2024
2024 LHC 5284






--- Dowry articles , recovery of --- Special oath --- Suit for recovery was consolidated with two other matters ( for recovery of maintenance allowance and custody of............

 2023 MLD 483

Family Courts Act ( XXXV of 1964 ) , S. 17 ( 2 ) --- Powers of Attorney Act ( VII of 1882 ) , S. 2 --- Dowry articles , recovery of --- Special oath --- Suit for recovery was consolidated with two other matters ( for recovery of maintenance allowance and custody of minors ) pending adjudication before Family Court and in consequences additional issues were framed --- During cross - examination , an offer was made by petitioner's counsel qua decision of the matter through special oath on the Holy Quran by petitioner ;of her which offer was not accepted by Respondent / wife , instead , signified her willingness to state on respondent / wife ... oath by putting her hands on the Holy Quran and on the heads children that her dowry articles were lying at defendant's house , which proposal was accepted by the petitioner's counsel - On the adjourned date petitioner moved an application that he did not instruct his counsel to make offer to respondent / wife for taking her special oath and that such offer was under misconception --- Petitioner's application was dismissed and the statement of respondent / wife was recorded under special oath and her suit for recovery of dowry articles no contended that was consequently decreed --- Petitioner specific direction was given by him to his counsel for resolution of the controversy qua dowry articles through special oath ; that his counsel was not authorized either to make any offer to other side or to accept any such offer ; that whole proceedings regarding offer and so - called acceptance by his counsel took place in his absence ; and that procedure adopted by learned trial court for taking special oath was against the law --- Held , that document of the power of attorney contained the phrase :
Such vernacular expression beyond an iota of ambiguity evinced the intention of petitioner conferring the power to his counsel for making statement qua decision of matter on oath --- Petitioner was bound by an act / undertakiing.

-- Powers of Attorney Act ( VII of 1882 ) , S. 2 --- Dowry articles , recovery of --- Special oath --- Suit for recovery was consolidated with two other matters ( for recovery of maintenance allowance and custody of ...................

 2023 MLD 483

Family Courts Act ( XXXV of 1964 ) , S. 17 ( 2 ) --- Powers of Attorney Act ( VII of 1882 ) , S. 2 --- Dowry articles , recovery of --- Special oath --- Suit for recovery was consolidated with two other matters ( for recovery of maintenance allowance and custody of minors ) pending adjudication before Family Court and in consequences additional issues were framed --- During cross - examination , an offer was made by petitioner's counsel qua decision of the matter through special oath on the Holy Quran by petitioner ;of her which offer was not accepted by Respondent / wife , instead , signified her willingness to state on respondent / wife ... oath by putting her hands on the Holy Quran and on the heads children that her dowry articles were lying at defendant's house , which proposal was accepted by the petitioner's counsel - On the adjourned date petitioner moved an application that he did not instruct his counsel to make offer to respondent / wife for taking her special oath and that such offer was under misconception --- Petitioner's application was dismissed and the statement of respondent / wife was recorded under special oath and her suit for recovery of dowry articles no contended that was consequently decreed --- Petitioner specific direction was given by him to his counsel for resolution of the controversy qua dowry articles through special oath ; that his counsel was not authorized either to make any offer to other side or to accept any such offer ; that whole proceedings regarding offer and so - called acceptance by his counsel took place in his absence ; and that procedure adopted by learned trial court for taking special oath was against the law --- Held , that document of the power of attorney contained the phrase :
Such vernacular expression beyond an iota of ambiguity evinced the intention of petitioner conferring the power to his counsel for making statement qua decision of matter on oath --- Petitioner was bound by an act / undertakiing.

"Whether a marriage interse spouses observing "Shia" sect can be dissolved by the Family Court through khula without consent of husband and performance of "Seeghas"?"

Answer:

A wife can seek dissolution of marriage by way of khula from the court even if his husband does not give consent for the same, nevertheless spouses are observing “Shia” sect.
WP-2521-22
SYED SHOUZAB IMRAN KAZMI ETC VS SYEDA IFFAT BUKHARI ETC
Mr. Justice Mirza Viqas Rauf
31-10-2024
2024 LHC 5108
























---Custody of minors----Plea raised by mother of minors was that under the provisions of West Pakistan Family Courts Act, 1964, she could file application for...............

 2011 CLC 146

Ss.9 & 25---West Pakistan Family Courts Act (XXXV of 1964), S.7(ii), second proviso---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minors---Territorial jurisdiction---Plea raised by mother of minors was that under the provisions of West Pakistan Family Courts Act, 1964, she could file application for custody of minors at the place of her right conferred on a wife by second proviso to S. 7(ii) of West Pakistan Family Courts Act, 1964, meant that the place of her residence would create jurisdiction in competent court for the types of claims mentioned therein that a wife might file---If procedural technicality was allowed to rule the choice of forum in such a matter then benefit conferred upon a wife or a mother by second proviso to S. 7(ii) of West Pakistan Family Courts Act, 1964, would be easily lost---Family Court at the place of residence of mother of minors had jurisdiction to entertain her application for custody of her minor children who were residing in some other city---Petition was allowed accordingly.

طلاق ، خلع ، عدت اور حلالہ کے بارے وفاقی شرعی عدالت کا تازہ ترین تفصیلی فیصلہ

PLD 2023 FSC 286

Islamic law --- Khula ' and ' Talaq ' --- Distinction between their legal effect --- ' Halala ' -- Scope --- According to Shariah , Khula operates as a single irrevocable divorce , which means that both the spouses can contract a fresh marriage with mutual consent , of course if they want to , without any intermediary marriage of the wife with another person , which is known as " Halala " --- Iddat shall be incumbent upon the wife if she wants to contract marriage with someone else after Khula --- However , when a husband pronounces divorce ( Talaq ) to his wife for the third time and that attains finality , then if he wants to remarry that lady , a Halala is required i.e. the lady marries somebody else and that marriage dissolves in normal course either by divorce or due to the death of her second husband and she becomes a widow .

Family Courts Act 1964, Ss.5 Sched Maintenance allownce for minors, Family court 7000/- per minor,.........

 PLD 2018 LHR 916,

Family Courts Act 1964, Ss.5 Sched Maintenance allownce for minors, Family court 7000/- per minor, Appellate court enhance 12000/- per minor, with 10% yearly increase, age of minors, needs of minor, earning capacity/income of Father, judgment of Appellate court set aside case remanded to Appellate court to consider all relevant facts.


This case, inter alia, involves following questions of law:

i. Whether the learned Civil Court is vested with the jurisdiction to try the declaratory suit, inter alia, regarding the reconciliation proceedings, issuance of certificate of effectiveness of divorce in the light of Section 5 of the West Pakistan Family Courts Act, 1964 ("Act, 1964")?

ii. Whether a husband loses the right to pronounce talaq, once such right is delegated to the wife?
Held: In terms of Section 5(1) of the Act, 1964 read with Entry No.1 of Part-I of the Schedule appended thereto as also Entry No.10 thereof, exclusive jurisdiction in family matters is conferred upon the Family Court, therefore, dissolution of marriage in all its modes and manners including khula and talaq-e-tafweez falls within purview of the jurisdiction of the Family Court and Civil Court had no jurisdiction to entertain the suit of the respondent.
As regards the second question, it is held that even if a husband delegates his right of talaq to the wife, the said act of the husband does not mean that the husband has denounced his own right to pronounce the talaq and intimate factum of pronouncement of talaq to the Union Council concerned, for further proceedings leading to the issuance of certificate of effectiveness of divorce in terms of provisions of the Muslim Family Law Ordinance, 1961.

WP 13290-24
SHAHZAD AKBAR VS
ADJ ETC
Mr. Justice Anwaar Hussain
17-10-2024
2024 LHC 4844












-Maintainability---Suit for recovery of maintenance allowance---Interim maintenance, fixation of---Contention of defendant-father was that...........

 2019 CLC 1635

Ss.5, Sched., 17-A & 14 (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Suit for recovery of maintenance allowance---Interim maintenance, fixation of---Contention of defendant-father was that interim maintenance fixed by the Family Court was exorbitant---Validity---Family Court had jurisdiction to pass interim order for maintenance at any stage of the proceedings in a suit for maintenance---Interim maintenance fixed by the Family Court was too meagre---Defendant had not made bona fide demand for the custody of his minor children---Father of minor children could not expect their mother to keep them as well as to pay all their expenses---Defendant-father was under a legal as well as a moral obligation to maintain and support his children---Impugned order passed by the Family Court was an interlocutory order---Maintenance fixed by the Family Court through impugned order was only temporary in nature---Amount fixed by the Family Court during proceedings of suit for maintenance might be modified and revisited while passing final order---Family Court could increase or decrease the quantum of maintenance after appraising the evidence produced by the parties during the trial---Constitutional petition against order for interim maintenance was not maintainable unless it was coram non judice or based on mala fide---Quantum of interim maintenance could not be made a ground for invoking constitutional jurisdiction of High Court---S.14(3) of Family Courts Act, 1964 did bar appeal or revision against an interim order passed by the Family Court---Aggrieved party could agitate his grievance before appellate forum when the interim order would merged into a final order---Constitutional petition was dismissed in limine, in circumstances.

Guardianship to mother was dismissed.

 Guardianship to mother was dismissed.
2021 MLD 817 ISLAMABAD
Side Appellant : Ms. SHAZIA AKBAR GHALZAI
Side Opponent : ADDITIONAL DISTRICT JUDGE, ISLAMABAD (EAST)

Ss.7, 17, 19 & 41---Constitution of Pakistan, Art.199---Constitutional petition---Guardian, non-appointment of---Minor (son) was of three months old when his Mother/petitioner left him and went abroad to complete her Ph.D---Minor was looked after by his father/respondent---On her return to Pakistan mother/petitioner sought guardianship of minor but the same was refused by Guardian Court and the order was maintained by Lower Appellate Court---Validity---Father of minor was his/her natural guardian and welfare of child was best served when he/she remained under father's guardianship---Question as to how welfare of child would be best served in appointing a guardian instead of father could only arise when father was either not alive or was determined by Court to be unfit as guardian--- Court was not vested with any authority to appoint a guardian in place of father when father was alive and was not unfit to be guardian--- Even where father was found to be unfit to be guardian and another person was appointed in his place, such other guardian's authority ceased once circumstances leading to father declared unfit had changed and he was no longer deemed unfit by Court--- No one could be appointed guardian in father's place unless father was found unfit to serve as guardian of his child and onus to establish that the father was unfit was on the person bringing such claim--- Father/respondent was natural guardian and welfare of the child was in vesting responsibility of guardianship in him unless he was unfit for the purpose and declared so by a Court--- Constitutional petition was dismissed, in circumstances.

لاہور ہائی کورٹ، لاہور کی خلع، طلاق اور تنسیخ نکاح پہ ایک خوبصورت ججمنٹ۔۔

 2021 PLD Lahore 757

خاتون نے فیملی کورٹ میں مقدمہ دائر کیا جس میں یہ موقف اپنایا گیا کہ شوہر کا تعلق میرے ساتھ ٹھیک نہیں ہے اور وہ مار پیٹ کرتا ہے وغیرہ وغیرہ لہذا مجھے میرا حق مہر جو کہ تین ملین سے زیادہ ہے اور دیگر جہیز کا سامان یہ سارا واپس کیا جاۓ اور عدالت مجھے خاوند سے طلاق دلواۓ بالفاظِ دیگر عدالت نکاح کی تنسیخ کرے۔
فیملی کورٹ نے فیصلہ کرتے ہوۓ تنسیخ نکاح کے بجائے خلع کا حکم پاس کیا اور خاتون کو حکم دیا کہ حق مہر سے دستبردار ہوجائیں۔ مذکورہ خاتون اپیل میں گئی اور اپیل میں بھی یہی فیصلہ برقرار رکھا گیا جس کے بعد خاتون کو مجبوراً ہائی کورٹ میں رٹ جوریسڈکشن میں جانا پڑا۔
معزز عدالت نے طے کیا کہ خلع بیوی کا شرعی حق ہے یہ عدالت کا اختیار نہیں ہے کہ وہ کسی کو بھی بن مانگے اس کا حق دلوانا شروع کردے اگر خاتون خلع نہیں مانگ رہی بلکہ تنسیخ نکاح کی بنیاد پہ طلاق مانگ رہی ہے تو عدالت تنسیخ نکاح کے بجائے خلع دینے کا اختیار نہیں رکھتی۔ اس صورت میں عدالت کو شہادت میں جانا ہوگا اور پراپر ٹرائل کے زریعے یہ طے کرنا ہوگا کہ آخر کن وجوہات کی بناء پر خاتون کو طلاق دی جاسکتی ہے یا نکاح کی تنسیخ کی جاسکتی ہے۔۔۔
سب سے اہم نکتہ جو معزز جج نے طے کیا وہ یہ کہ معزز جج نے صراحتا لکھا کہ خلع کی صورت میں بھی اگر خاتون خلع کے لیے راضی ہو مگر شوہر کی طرف سے اجازت نہ دی جاۓ تو یہ خلع شرعاً و قانونا جائز نہیں ہوگا کیونکہ شریعت کہتی ہے کہ خلع میں شوہر کی اجازت ضروری ہے۔
اگر خاتون خلع مانگ لے اور شوہر انکار کر دے تو شریعت و قانون میں خلع مؤثر تصور نہ ہوگا اس لیے خاوند کی اجازت یا قبول ضروری ہے (اس کے لیے دیکھیے مذکورہ ججمنٹ کا پیرا نمبر 14)
معزز جج نے مزید یہ کہا کہ خاتون جن وجوہات کی بناء پہ خاوند سے اپنا نکاح منسوخ کرانا چاہتی ہے اگر وہ وجوہات ثابت نہ ہو جاۓ تو اس صورت میں بھی عدالت خود سے خلع کا حکم نہیں دے سکتی بلکہ عدالت کو دیگر وجوہات کی طرف جانا ہوگا اور عدالت کو دیگر وجوہات کی بناء پر فیصلہ کرنا ہوگا کہ نکاح کی تنسیخ کی جاۓ لیکن خلع کی بنیاد پہ نہیں۔ (اس کے لیے دیکھیے پیرس نمبر 12)
مزید اسی پیرا سے آگے پیرا نمبر 15 میں طے پایا کہ خلع کی صورت میں عدالت یک طرفہ(ex parte) فیصلہ نہیں دے سکتی یعنی خاوند کی غیر موجودگی میں خلع کا فیصلہ نہیں کیا جاسکتا۔
اگر شوہر ان شرائط پہ خلع دینے پہ راضی نہ ہو جن پہ بیوی خلع لینا چاہ رہی ہو تو عدالت تب تک خلع کا حکم جاری نہیں کرسکتی جب تک دونوں کچھ شرائط پہ متفق ہوکر خلع کا فیصلہ نہ کردے۔
مزید یہ کہا گیا کہ اگر خاوند کی بیوی کے ساتھ نا بنتی ہو اور خاوند طلاق بھی نہ دینا چاہ رہا ہو بلکہ بیوی کو اس طرز پہ ٹریٹ کر رہا ہو کہ بیوی مجبور ہر کر خلع مانگ لے اور خاوند کو حق مہر بچ جاۓ تو اس صورت میں عدالتوں کو بہت محتاط ہونا چاہیے اور معاملہ کی تہ تک پہنچانا چاہیے کہ آخر غلطی کس کی ہے یا ظلم کون کر رہا ہے۔
مذکورہ ججمنٹ میں قرآن پاک سے اور ہدایہ سے بھی حوالہ دیا گیا ہے۔
PLD 2021 LAHORE 757.
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