ڈور---مطلب----دولہا دولہا کی طرف سے دلہن کو دیا گیا تحفہ ہے اور قرآن پاک دو قسم کے ڈوور پر خاموش ہے ۔ فوری اور ڈیفرڈ ڈوور ۔

 2009 SCMR 1458

ڈور---مطلب----دولہا دولہا کی طرف سے دلہن کو دیا گیا تحفہ ہے اور قرآن پاک دو قسم کے ڈوور پر خاموش ہے ۔ فوری اور ڈیفرڈ ڈوور ۔

ڈیفرڈ ڈوور (مہر میواججل)---بازیابی-- -ڈیفرڈ ڈوور کا مطالبہ-- -بیوی نے ڈیفرڈ ڈوور (مہر میوججل) کی وصولی کے لیے مقدمہ دائر کیا جس کا فیصلہ فیملی کورٹ نے اس کے حق میں کیا تھا-فیملی کورٹ کے ذریعے منظور کردہ فیصلہ اور فرمان کو لوئر اپیلیٹ کورٹ نے برقرار رکھا لیکن ہائی کورٹ نے آئینی دائرہ اختیار کا استعمال کرتے ہوئے فیصلے اور فرمان میں ترمیم کی جس میں کہا گیا کہ ڈیفرڈ ڈوور (مہر میوججل) شادی کی تحلیل کے وقت موت یا طلاق کے ذریعے وصولی کے قابل ہوگا-----شادی کی ٹائی کے دوران مانگ پر فوری ڈوور قابل ادائیگی تھا جبکہ فریقین کے درمیان مقررہ وقت پر ڈیفرڈ ڈوور قابل ادائیگی تھا-- جہاں کوئی وقت مقرر نہیں کیا گیا تھا ، موخر ڈوور صرف اس وجہ سے "فوری" نہیں ہوا کہ بیوی نے اسی کا مطالبہ کیا تھا---موجودہ معاملے میں ، ڈور کی کل رقم فوری طور پر 00.10 روپے مقرر کی گئی تھی ، 00.5 ڈالر سونے کے زیورات وغیرہ کی شکل میں ادائیگی کی گئی تھی ۔--- چونکہ Rs.5,00,000 کی موخر ڈیوور کی ادائیگی کے لئے کوئی وقت مقرر نہیں کیا گیا تھا ، یہ موت یا طلاق سے شادی کی تحلیل کی صورت میں قابل ادائیگی ہوگی---ہائی کورٹ کا فیصلہ حقائق اور حالات کی مناسب تعریف پر مبنی تھا

Dower---Meaning---Dower is gift given by bridegroom to bride and the Holy Qur'an is silent on two types of dower i.e. prompt and deferred dower .
Deferred dower (Mehr-e-Mu'wajjal)---Recovery---Demand of deferred dower ---Wife filed suit for recovery of deferred dower (Mehr-e-Mu'wajjal), which suit was decreed in her favour by Family Court--Judgment and decree passed by Family Court was maintained by Lower Appellate Court but High Court in exercise of Constitutional jurisdiction modified judgment and decree in the terms that deferred dower (Mehr-e-Mu'wajjal) would be recoverable at the time of dissolution of marriage either by death or divorce---Validity---Prompt dower was payable on demand during subsistence of marriage tie whereas deferred dower was payable on the time stipulated between parties---Where no time was stipulated, deferred dower did not become "prompt" merely because wife had demanded the same---Total amount of dower, in the present case, was fixed at Rs.10,00,000, prompt dower to the tune of Rs.5,00,000 which was paid at the time of marriage in shape of gold ornaments etc.---As no time was fixed for payment of deferred dower of Rs.5,00,000 it would be payable in eventuality of dissolution of marriage either by death or divorce---Judgment of High Court was based on proper appreciation of facts and circumstances of case as well as law governing the same

موخر ڈوور کی بازیابی---- حد بندی----موخر کرایہ عام طور پر شادی کی تقریب/نکاۃ کی کارکردگی کے وقت فوری طور پر قابل ادائیگی نہیں ہوتا ہے (جیسا کہ فوری کرایہ کی صورت ................

 2019 CLC 1462

موخر ڈوور کی بازیابی---- حد بندی----موخر کرایہ عام طور پر شادی کی تقریب/نکاۃ کی کارکردگی کے وقت فوری طور پر قابل ادائیگی نہیں ہوتا ہے (جیسا کہ فوری کرایہ کی صورت میں ضروری ہے) اور اسے موخر کہا جاتا ہے کیونکہ اس کی ادائیگی بعد میں کرنے کے لیے مخصوص ہے ، تاہم ، قانون یہ تجویز نہیں کرتا ہے کہ موخر کرایہ کب قابل ادائیگی ہو جائے اور قانون نے اس کا فیصلہ فریقین کے ذریعے خود کرنے کے لیے چھوڑ دیا ہے ۔طے شدہ تاریخ ، مدت کی میعاد ختم ہونے پر ، کوئی واقعہ پیش آنے پر یا نیکہنامہ میں اس کی ادائیگی کے لیے مقرر کردہ پیشگی شرط کی تکمیل پر یا دوسری صورت میں موخر کرایہ بیوی کو واجب الادا ہو جاتا ہے اور اگر نہ تو ایسی تاریخ یا مدت مقرر کی گئی ہے اور نہ ہی کوئی شرط عائد کی گئی ہے ، تو یہ موت یا طلاق کے ذریعے شادی کی تحلیل پر واجب الادا ہو جاتا ہے ۔

Recovery of deferred dower---Limitation---Deferred dower is usually not payable immediately at the time of performance of marriage ceremony/Nikah (as required in case of Prompt dower ) and is referred to as deferred because its payment is reserved to be made later on, however, the law does not prescribe as to when the deferred dower becomes payable and the law has left the same to be decided by the parties themselves---Deferred dower becomes payable to the wife on the fixed date, expiry of time period, on the occurrence of any event or fulfillment of pre-condition fixed for payment of the same in the Nikahnama or otherwise and if neither such date or period is fixed nor any condition is imposed, the same becomes payable on the dissolution of marriage by death or divorce.

"کیا" "شیعہ" "فرقے کا مشاہدہ کرنے والے میاں بیوی کے درمیان ہونے والی شادی کو خاندانی عدالت شوہر کی رضامندی اور" "سیگھوں" "کی کارکردگی کے بغیر کھولا کے ذریعے ختم کر سکتی ہے ؟"

PLD 2025 Lahore 11

"کیا" "شیعہ" "فرقے کا مشاہدہ کرنے والے میاں بیوی کے درمیان ہونے والی شادی کو خاندانی عدالت شوہر کی رضامندی اور" "سیگھوں" "کی کارکردگی کے بغیر کھولا کے ذریعے ختم کر سکتی ہے ؟"

جواب:

ایک بیوی عدالت سے کھولا کے ذریعے شادی کو تحلیل کرنے کی درخواست کر سکتی ہے چاہے اس کا شوہر اس کے لیے رضامندی نہ بھی دے ، اس کے باوجود میاں بیوی "شیعہ" فرقے کا مشاہدہ کر رہے ہیں ۔

"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 


Prime and foremost consideration is to decide the question of custody of a minor is his or her welfare and betterment. Welfare of the minor would.........

 PLD 2025 SC 47

Prime and foremost consideration is to decide the question of custody of a minor is his or her welfare and betterment. Welfare of the minor would overweigh against all other considerations. It is also apparent from the bare reading of section 17(2) of the Act that character and capacity of the proposed guardian as well as age and sex, is also an important factor to be considered while determining the welfare of the minor.
Poverty has also not been considered a valid ground for disentitling the mother from custody of the minor(s). In terms of section 7 of the Guardians and Wards Act, 1890, the paramount consideration for the court in making the order of appointment of guardian of minor is that it should be satisfied that it is for the welfare of minor. Although it is an established law that father is a natural guardian of his minor child/children, but indeed the court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. There are many factors, which may not entitle the father to the custody of minor and some of the factors could, where the father is habitually involved in crimes or is a drug or alcohol addict, maltreats his child/children, does not have a capacity or means to maintain and provide for the healthy bringing up of his child/children or where the father deliberately omits and fails in meeting his obligation to maintain his child/children. The factors noted above are not exhaustive and they may also not be considered as conclusive for that each case has to be decided on its own merit in keeping with the only and only paramount consideration of welfare of minor. Although Mohammadan Law delineates that the mother disentitles herself from the custody of minor(s) if she re-marries, however, this is not an absolute rule but one that may be departed from if there are exceptional circumstances to justify such departure and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody.
In this view of the matter, the learned Appellate Court has rightly disposed of the appeal with the observation that, ‘the arrangement for custody of minors made at this time is not absolute and is subject to reconsideration if the circumstance change.
C.P.L.A.421-P/2022
Gul Sadem Khan v. Mst. Halima and others

It is the duty of the family courts to consider the following guiding principles. a) After recording of .............

 2020 - MLD - 1147

It is the duty of the family courts to consider the following guiding principles.
a) After recording of evidence by the Family Court, if it appears that any spouse who has suffered the psychological and physical injuries at the hands of other spouse covering under the offences referred in Part-II i.e. Sections 337A(i), 337F(i), 341, 342, 343, 344345, 346, 352 and 509 PPC, the learned Family Judge has to proceed against the perpetrator and award sentence in accordance with the law.
b) The Family Court while considering the offences referred in Part-II of the Schedule should give clear findings and verdict while dilating upon the evidence, even with or without framing of charge of that offence as the legislation has used the term “notwithstanding anything contained in the Code of Criminal Procedure, 1898”.
c) The Family Court can summon the evidence of expert psychiatrist, doctor, CMO or the relevant doctor who had treated the victim in such type of cases.
d) The Family Court, before pronouncement of the final judgment, if prima facie, seem the offences referred in Part-II of the Schedule, may issue a show cause to the perpetrator or the spouse accused of the offence(s) in order to justify the requirements of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 by giving full opportunity for his defence and may record his/her statement being an accused as required under Section 342 Cr.P.C. or 340(2) Cr.P.C., if so required.
e) The Family Court may also call the summary inquiry through the relevant police authorities or seek a report and treat all those reports, record and documents as part of trial and may also provide the copies of those documents to the person accused of the charge before final pronouncement of the judgment.
f) The Family Court, while deciding the issue of cruelty, may frame specific charge for the offence, consider the evidence on the touchstone and requirement of ingredients of offences referred in Part-II of the Schedule and pass a sentence simultaneously in the same judgment or may proceed separately in accordance with procedure provided under the Cr.P.C.
g) The Family Court who has not given any findings on Part-II of the Schedule (of the offences) in its judgment despite availability of evidence in the Family Court jurisdiction, shall be treated as misconduct on its part, which has to be dealt with separately by the High Court on its administrative side.

- Interim custody of minor- - - 'Parent'- - - Scope- - - Application moved by grandparent- - - maintainability - - - Respondent (grand- mother of the minor) instituted application ...........

 Citation Name : *2021 YLR 1989 LAHORE-HIGH-COURT-LAHORE*
 Side Appellant : SAROSH SIKANDER
 Side Opponent : GUARDIAN JUDGE, LAHORE

Ss. 8 & 12- - - Family Courts Act (XXXV of 1964), S. 5, Sched.- - - Interim custody of minor- - - 'Parent'- - - Scope- - - Application moved by grandparent- - - maintainability - - - Respondent (grand- mother of the minor) instituted application for interim custody and visitation rights of minor girl, whereas the petitioner (mother of the minor) filed application for rejection of the same on the ground of maintainability - - - guardian Court rejected the application of petitioner- - - Petitioner invoked constitutional jurisdiction of the High Court contending that only the parents could request for the visitation right of the minor as the 'grandmother' was not covered in the definition of 'parent'- - - Validity- - - Record revealed that parents of the minor got married to each other but , soon after the birth of minor, the divorce was effected- - - Intensity of estrangement was so high that a criminal case was got registered on the behest of father of the petitioner which though was later cancelled- - - Father of the minor was a foreign national, who came back after the birth of child to see new- born child and to reconcile but the efforts failed and he returned abroad after pronouncing divorce- - - Petitioner had referred to definition of the word 'parent' from dictionaries, which included adoptive parents, but such concept was not recognized in Islam- - - Keeping in view the fact in the present case that neither the real father of the minor had come forward with any definite plea nor the effort was made to implead him as a party, his tacit approval could be presumed- - - *Proceedings before the guardian Court were for the visitation right of the minor only, therefore, the application filed by the grandmother was competent*- - - Constitutional petition dismissed, in circumstances.

Maintenance allowance.--child born to a woman during the subsistence of valid marriage or within two years after its dissolution is conclusive proof of his legitimacy, provided that ..............

 Article 128 of QSO.

Birth during marriage----Conclusive proof of legitimacy.----
Application for DNA analysis during a suit for recovery of maintenance allowance.
As per Article 128 of the Qanun-e-Shahadat Order, 1984, a child born to a woman during the subsistence of valid marriage or within two years after its dissolution is conclusive proof of his legitimacy, provided that the woman remains unmarried after the divorce. Said fact was regarded as a „conclusive proof‟ and no evidence could be admitted to refute the same.
Article 2(f)(9) of the Qanun-e-Shahadat Order, 1984, provides that “when one fact is declared by this order to be conclusive proof of another, the Court was, on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it”. The stipulation in Article 128 of the Qanun-eShahadat Order, 1984 is that the birth of a child within the period specified in said Article is conclusive proof that he is a legitimate child. Once the relevant facts as to commencement of dissolution of marriage and the date of birth of a child within a period envisioned in Article 128 are proved and the date of birth is within the period specified in Article 128(1), then the Court cannot allow evidence to be given for disproving the legitimacy of a child born within the aforesaid period. Article 128 (1)(a) provides that although birth during continuance of a valid marriage or within two years after its dissolution is a conclusive proof of legitimacy but under certain circumstances the husband can disown the paternity of a child. Now, the question is when the husband can deny the parentage. Stage of such denial is of paramount consideration. Section 02 of the West Pakistan Muslim Personal Law (Shariah) Application Act, 1962 (Act V of 1962) stipulates that "notwithstanding any custom or usage, in all questions regarding ... legitimacy or bastardy ... the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims". Since both parties are Muslims and section 2 aforesaid specifically refers to legitimacy or bastardy, resort must be made to the Muslim Personal Law (Shariat) for the purpose of reconciling what may appear to be conflicting provision of Article 128 of the QSO. For this purpose, it is necessary to ascertain the rules of Muslim Personal Law when a person denies that he is the natural/biological father of children born within the period stipulated in Article 128 ibid. The Muslim Personal Law (Shariat) is clear and well-settled on the subject. Firstly, it provides that legitimacy/paternity must be denied by the father immediately after birth of the child as per Imam Abu Hanifa and within the post natal period (maximum of 40 days) after birth of the child as per Imam Muhammad and Imam Yousaf. There can be no lawful denial of paternity after this stipulated period. The Hedaya, Fatawa-e-Alamgiri and other texts are all agreed on this principle of Shariat.
It is for the honour and dignity of women and innocent children as also the value placed on the institution of the family, that women and blameless children have been granted legal protection and a defence against scurrilous stigmatization. It is becoming a common practice in our society that whenever a suit for recovery of maintenance allowance is filed against a person he comes forward to the Court and challenges the legitimacy of the child by moving an application requesting for conducting DNA analysis of the child. Ethically, questioning the paternity of a child during a maintenance suit can be seen as a tactic to evade responsibility rather than a legitimate claim based on evidence. It often reflects a desire to avoid financial obligations and may be motivated by personal animosity or financial concerns. Such practice should be discouraged and dealt with an iron hand because encouraging such practices would only serve to erode trust in the family unit and the legal system that is designed to protect the interests of vulnerable children. When a parent questions the legitimacy of the child, it creates an atmosphere of doubt and insecurity. This practice undermines the child‟s sense of identity, dignity, and belonging, which can have long-lasting psychological effects. It is crucial that courts focus on the child's needs and emotional welfare, rather than allowing a parent to challenge paternity without valid justification. The use of DNA tests to challenge paternity, while scientifically valid, should not be viewed as a tool for harassment or delay in matters of child maintenance.

WP 22286/23
Sakhawat Hussain Vs ADJ Bhalwal etc
Mr. Justice Ahmad Nadeem Arshad
27-11-2024
2024 LHC 5579











--Custody of minor---Leave to appeal was granted by Supreme Court to consider whether second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, had overriding effect on S.9(1) of Guardians and ..............

 PLD 2012 SUPREME-COURT 66

S. 7(2), second proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Guardians and Wards Act (VIII of 1890), S.9(1)---Constitution of Pakistan, Art. 185(3)---Custody of minor---Leave to appeal was granted by Supreme Court to consider whether second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, had overriding effect on S.9(1) of Guardians and Wards Act, 1890; whether in the matters of custody of minors where question of Territorial jurisdiction was involved, which of the said two provisions of law either second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, or S.9(1) of Guardians and Wards Act, 1890, would be applicable; whether in view of second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, filing of suit for dissolution of marriage was sine qua non for including claims relating to dowry, maintenance, dower, personal properties and belongings of a wife, custody of children etc. in one plaint or independent suits to claim that relief could be filed notwithstanding filing of suit for dissolution of marriage.
Ss. 5 & 7(2), second proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Guardians and Wards Act (VIII of 1890), Ss. 9(1), 12 & 25---Custody of minor---Territorial jurisdiction---Determination---Minors were permanently residing with their father at place "M" and their mother filed application for their custody before Guardian Judge at place "L"---Guardian Judge as well as Lower Appellate Court held that the courts at place "M" had Territorial jurisdiction over the matter but High Court declared that proceedings initiated by mother of minors, at place "L" were maintainable---Validity---Minors were residing with their father at place "M", where they were admitted to school---Mother had failed to prove that she had brought them to place "L" and was deprived of their custody from there, on account of which the cause of action could arise in her favour at place "L"---Was not established, if before parting, the parties hereto were residing at place "L" so as to attract R.6(b) of West Pakistan Family Courts Rules, 1965---High Court had fallen in error while declaring the suit maintainable at place "L"---Supreme Court set aside the judgment passed by High Court and those of Guardian Judge and Lower Appellate Court were restored---Appeal was allowed.

Divorce‑‑‑Iddat‑‑‑Period of Iddat starts from date of judgment and decree of the Court.

1999-CLC-514
[Lahore]
Before Mrs. Fakhar‑un‑Nisa Khokhar, J
Mst. MAHPARA‑‑‑Petitioner
versus
S. ARSHAD MAHMOOD and another‑‑‑Respondents
Writ Petition No.5974 of 1997, heard on 8th October, 1998

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Supervisory jurisdiction of High Court‑‑‑Scope‑‑‑High Court has no supervisory jurisdiction on Special Tribunals of Family Court as provided by West Pakistan Family Courts Act, 1964--While sitting over judgment passed by Special Tribunals under Family Courts Act, High Court Acts as Family Court under West Pakistan Family Courts Act, 1964.
(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 17‑‑‑Civil Procedure Code (V of 1908), Preamble ‑‑‑Procedure‑‑ Applicability' of Civil Procedure Code‑‑‑Settlement of matrimonial affairs between spouses‑‑‑Procedure in family suits is made more easier by deviation from procedure of Civil Procedure Code, 1908.
(c) Muhammadan Law‑‑‑
‑‑‑‑ Divorce‑‑‑Iddat‑‑‑Period of Iddat starts from date of judgment and decree of the Court.
(d) West Pakistan Family Courts Rules, 1965‑‑‑
‑‑‑‑R. 13‑‑‑Limitation to file application for setting aside ex parte decree starts from date of judgment and decree of dissolution of marriage‑‑‑Ex pane‑‑‑Notice to Chairman, Arbitration Council by petitioner for getting certificate of effectiveness of divorce‑‑‑Respondent husband appeared before Chairman, Arbitration Council and expressly gave consent to issue a certificate of effectiveness of divorce which was issued by the Chairman‑‑‑Petitioner got remarried to some other person and in that wedlock a child was born‑‑‑Ex parte decree was set aside by Trial Court‑‑‑Respondent, husband who had knowledge of proceedings and had given consent to Chairman, Arbitration Council to issue certificate of effectiveness of divorce filed application for setting aside ex parte decree thereafter‑‑‑Limitation‑‑‑Period of limitation to set aside ex parte decree starts from date of judgment and decree or from date of knowledge‑‑‑Application for setting aside the ex parte decree was dismissed being time‑barred in circumstances.
Pervaiz Ahmad v. Tahra Shaheen alias. Balquees Shahzadi 1988 CLC 1444; Ainuddin Karikar v. Salatanness Bibi PLD 1953 Dacca 216; Mst. Fahmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694 and Muhammad Shamim Siddiqui v. Mrs. Kausar Aziz and others 1982 CLC 1972 ref.
(e) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 21(2)(3)‑‑‑Divorce‑‑‑Certificate of effectiveness of divorce‑‑‑Husband had given consent for issuance of such certificate‑‑‑Such certificate having not been challenged before Competent Authority had attained finality.
Qamar Zaman Qureshi for Petitioner.
Ch. Shazib Saeed for Respondent No.2
Date of hearing: 8th October, 1998

Tarka---Legal heirs, entitlement of---Special oath, administration of---After death of civil servant, petitioner applied for issuance of............

 2024 MLD 1156
Rehana Shafqat Vs
 Afira Butt

Tarka---Legal heirs, entitlement of---Special oath, administration of---After death of civil servant, petitioner applied for issuance of succession certificate about pensionary benefits of her deceased husband, who was an employee in the Pakistan Telecommunication Company Limited---Petitioner contended that deceased had already Divorced his second wife/respondent No. 1, therefore she was not entitled to any pensionary benefits---Such claim was resisted by the respondents---Trial Court held the two wives and children entitled for pensionary benefits---Petitioner being aggrieved preferred an appeal---Appellate Court modified the order and entitled both wives only for pensioner benefits---Matter was decided on Special Oath---Held that nothing was on record to divulge that the petitioner was prompted by the respondents or by the Trial Court to arrange the disposal of lis on the basis of special oath, rather it was her sweet will to get decided the matter in terms of Special Oath--- Therefore, said offer being made voluntarily and accepted by the respondent No. 1 was binding upon the petitioner---Offer so made by the petitioner to the respondent No. 1 was binding upon her and she could not resile from the same, and she had to face the consequence of the same---
Tarka---Legal heirs, entitlement of---After death of civil servant, petitioner applied for issuance of succession certificate about pensionary benefits of her deceased husband, who was an employee in the Pakistan Telecommunication Company Limited---Petitioner contended that deceased had already Divorce d his second wife/respondent No. 1, therefore she was not entitled to any pensionary benefits---Such claim was resisted by the respondents---Trial Court held the two wives and children entitled for pensionary benefits---Petitioner being aggrieved preferred an appeal---Appellate Court modified the order and held both wives only entitled for pensionary benefits---Validity---Petitioner took a stance that deceased Divorce d the respondent No.1 through Talaq-e-Bian on 13.12.2002 but as per observations of the Appellate Court, there were two Divorce deeds of different dates on record of the concerned Union Council: one was issued on 13.12.2002 and other one issued on 03.09.2004 by the deceased in presence of two witnesses but the petitioner could not produce both the said witnesses in support of her contention especially after a categorical denial and special oath by the respondent No. I in pursuance to the offer of the present petitioner---Other aspect of keeping the purported proceedings of issuance of certificate of Talaq for a considerable period of seven years also spoke volumes of the authenticity and veracity of the same, as the first notice of Talaq was issued on 28.05.2011 and Divorce effectiveness certificate was issued on 05.10.2011---Moreover, it was also not clear that on which Divorce deed the same was issued, because the Appellate Court found two Divorce deeds of different dates in the record of Union Council---

The utmost priority of the Court in determining the custody of a minor is to see his/her welfare and well-being. This is the reason, law provides a parental .......

 The utmost priority of the Court in determining the custody of a minor is to see his/her welfare and well-being. This is the reason, law provides a parental jurisdiction to the Guardian Judge in such cases. The objective of the law is not just handing over the custody of the minor, but to examine all the aspects which are ancillary to it. The power and duty of the Court while considering the question of custody of a minor is to thoroughly and comprehensively take into consideration the minor's welfare. The word "welfare" in such cases is to be taken in its widest sense, which includes not only the monetary expenses of the minor but also his mental and physical health, educational needs, psychological well-being, religious and moral values. The Courts are duty bound to consider such cases in the best interest and healthy up-bringing of the minor which sometimes may yield the rights of the parents. No doubt according to certain Muslim jurists, custody of a minor son till the age of seven years may remain with the mother and in the case of minor daughter till she attains the age of puberty and thereafter, normally their custody should be restored to the father. However, it is an established principle of law that the paramount consideration in all such situations would be the betterment of the minor and even a mother may be deprived of the custody of a minor if circumstances of the case so allow. In the cases, concerning the custody of a child, the Guardian Court is not required to go into the intricacies/technicalities of the matter, rather is obliged to confine itself to the extent of the welfare of the child/minor, which is a paramount consideration.

The consideration for grant or refusal of custody of minors will always be determined on the basis of their welfare, that is to consider what is in the best interest of the child. The court's jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents' ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents' ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child. Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets. Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional wellbeing of the child. Custody is about the care and comfort of the child and the right of the child to a family. Custody matters are always sensitive and require a great deal of care as the court has to weigh in all factors in order to determine where the welfare of the minor lies. In cases of remarriage, circumstances change, hence, while looking at the welfare of the child, the entire living arrangement and environment has to be reassessed in the context of the welfare of the child. Fundamental to this decision is the best interest of the child and not that of the parent.
Section 25 of the “Act” relates to transfer of the custody of minor if he leaves or is removed from the custody of a guardian of his person. Paramount and supreme consideration in custody of minor is the welfare of minor and nothing else. Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Courts on such yard stick and the Court has to record a definite finding on the point before passing any order in the matter. The Guardian Court, while passing order, has to see the age, sex, environment under which the minor is being brought up and all the attending circumstances, position of parties and also the law to which the minor is subject.

Writ Petition No.452 of 2024
Irfan Arshad V/S Mst. Zainab Noor etc.
Date of hearing: 23.12.2024

























In habeas corpus petition the Court may recover custody of the minor children from one parent and hand the same over to other parent but ............

In habeas corpus petition the Court may recover custody of the minor children from one parent and hand the same over to other parent but said jurisdiction is summary in character and neither controversies are tried nor entire evidence is recorded under ordinary substantive and procedural laws under civil and criminal jurisdiction and such a jurisdiction being extraordinary (naeem)in its very nature should be sparingly used because the plenary jurisdiction in the matter rests under other laws in other forums of special jurisdiction who should normally be allowed to exercise it in accordance with law.

WP 89/25
Hamna Fahad Vs C.C.P.O Lahore etc
Mr. Justice Muzamil Akhtar Shabir
03-01-2025
2025 LHC 1







 

At the time of Nikah, the husband agreed to give 8-tolas gold ornaments to the wife and a stipulation was imposed on the right of divorce of the present........

 At the time of Nikah, the husband agreed to give 8-tolas gold ornaments to the wife and a stipulation was imposed on the right of divorce of the present petitioner that if he divorces the respondent, he will pay Rs.500,000/- in lieu thereof.

All the witnesses have corroborated the stance of the respondent with regards to the entries made in the Nikahnama germane to gold ornaments and stipulation as well as restriction on right of divorce by the petitioner, which have been mentioned in columns No.17 and 19 of the Nikahnama. The petitioner could not lead evidence as to obtaining of his thumb impression on the Nikahnama by force and under undue influence by the respondent and even the same does not appeal to prudent mind. The Nikahnama is per se admissible in evidence and entries of the same have not been challenged by the petitioner before any forum at the relevant time. Even otherwise, the entries of the Nikahnama have been proved by the respondent by producing oral as well as documentary evidence. As against this, the petitioner could not lead evidence in rebuttal as his right to produce evidence was closed by the learned trial Court and he remained unsuccessful in getting the said order reversed by the higher Courts despite availing of the remedy provided under law. Meaning thereby the evidence of the respondent on this point is unrebutted and even during cross examination, conducted on the P.Ws. the petitioner’s side could not shake the veracity of the testimonies of the P.Ws. rather the witnesses remained firm and unscathed. Therefore, it can safely be concluded that the respondent has rightly been held entitled to recover 8-tolas gold ornaments from the petitioner as agreed by him at the time of Nikah with the respondent, by the learned Courts below. As such, the findings of the learned Courts below to this extent are upheld and maintained.

PLJ 2024 Lahore 165
2024 CLC 2129

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