Provisions of Qanun-e-Shahadat Order, 1984 and Civil Procedure Code would not apply to prove the claim of dowry articles

A similar view has also been expressed in the case reported as “Muhammad Iqbal v. Mst. Zahida and 2 others”(2013 MLD 800), that provisions of Qanun-e-Shahadat Order, 1984 and Civil Procedure Code would not apply to prove the claim of dowry articles-----Section 17 of West Pakistan Family Courts Act, 1964 made it abundantly clear that provisions of Qanun-e-Shahadat Order, 1984 were excluded. It has been laid down in the case reported as “Muhammad Islam v. Mst. Rashidah Sultana and 4 others”(2013 CLC 698) that intent of the legislature was clearly to simplify the procedure and the law-makers were aware of the fact that in cases relating to dower, the lists were seldom prepared and receipts were very rarely kept intact as everyone made arrangements for marriage of one’s daughter with the hope and prayer that she would lead a happily married life.

Part Of Judgment
Lahore High Court
Writ Petition-Family-Dower
8446-14
2017 LHC 579

The provisions of the Civil Procedure Code have been excluded by section 17 of the Family Court Act, 1964,

Further reference may be made to case titled Dr.Asma Ali vs. Masood Sajjad and others (PLD 2011 SC 221). The relevant portion of the judgment is reproduced herein below :-

“The provisions of the Civil Procedure Code have been excluded by section 17 of the Family Court Act, 1964, to proceedings under it. And it has been consistently held that such provisions are not stricto sensu applicable to the proceedings before the Family Court. However, as the Family Court Act is not an all-encompassing legislation and the principles of certain provisions of the Code of Civil Procedure have at times been invoked when necessary to give effect to the Family Court Act.”

Part Of Judgment
Lahore High Court
Writ Petition-Family-Dowry Articles
6867-16
2016 LHC 3015

It was necessary to direct for DNA test

3. Learned counsel for petitioner argues that the impugned orders passed by learned Judge Family Court, Multan are against law, facts and liable to be set aside; that it has failed to be appreciated that petitioner took stance in written statement that respondent No.3 and 4 were not born out of the marriage of petitioner with Mst. Shamim Mai, respondent No.1 and to prove this fact, it was necessary to direct for DNA test and also to summon the Doctor/Pathologist of Noor Clinical Laboratory; that the impugned orders have been passed by learned Judge Family Court, Multan merely on the ground that petitioner had divorced respondent No.1 on 3.9.2012 and examination was conducted after two years of divorce. He places reliance on the judgments reported as “Mst. Shamshad Bibi v. Bushra Bibi and 3 others”(PLD 2009 Islamabad 11), “Naseer Ahmed v. Mst. Azrah and another”(PLD 2010 Karachi 61).

Part Of Judgment
Lahore High Court
Writ Petition-Family-Miscellaneous
9730-15
2017 LHC 238

Strike off defence of the husband and pass the decree for recovery of dower amount.

In case titled Faiz-ul-Hassan vs. Mst. Jan Sultan and 2 others (2001 SCMR 1323), it has been held by the Hon’ble Supreme Court of Pakistan that where the husband participated in the proceedings but did not file written statement as directed, the Family Court is competent to strike off defence of the husband and pass the decree for recovery of dower amount.

Part Of Judgment
Lahore High Court
Writ Petition-Family-Dowry Articles
6867-16
2016 LHC 3015

Provided that birth of a child within the period stipulated

6. Petitioner in his written statement has himself pleaded that plaintiff No.1 was not divorced by him and that plaintiffs are not entitled to maintenance allowance as legitimacy of plaintiffs Nos.3 &4 had been disputed by him and as far as question of legitimacy is concerned to ascertain question of legitimacy, though no special procedure has been provided in West Pakistan Family Courts Act, 1964. However, guidance may be sought from Article 128 of the Qanun-e-Shahadat Order, 1984 which has provided that birth of a child within the period stipulated in the said Article was conclusive proof that he was a legitimate child. Once the relevant facts as to commencement and dissolution of marriage and the date of birth of a child within the period envisaged in Article 128 of the Act (ibid) were  proved and the date of birth was within the period specified in the same Article, then the Court could not allow evidence to be given for disproving the legitimacy of a child born within the said period. Petitioner himself has not denied that respondents Nos.3 &4 were born when marriage between parties subsisted and under the Muslim Personal Law, legitimacy/paternity must be denied by the father immediately after birth of the child and after birth of the child, no lawful denial of paternity could be made after stipulated period. Law has not given a free licence to individuals and particularly unscrupulous fathers to make unlawful assertions and thus to cause harm to children as well as their mothers made after said stipulated period while for the honour and dignity of women and innocent children as well as the value placed on the institution of the family, women and blameless children have been granted legal protection and a defence against scurrilous stigmatization. To strengthen this point, reliance can be made to the judgment reported as “Ghazala Tehsin Zohra vs. Mehr Ghulam Dastagir Khan and another”(PLD 2015 Supreme Court 327).

Part Of Judgment
Lahore High Court
Writ Petition-Family-Miscellaneous
9730-15
2017 LHC 238

In absence of valid receipts of purchase of said articles, suit could not have been decreed

In the case reported as “Muhammad Habib v. Mst. Safia Bibi and others”(2008 SCMR 1584), it has been observed by apex court as under:- 

“Contention of the husband was that no such list of dowry articles was prepared at the time of marriage, same was fabricated subsequently and in absence of valid receipts of purchase of said articles, suit could not have been decreed and that Appellate Court was not legally justified to modify the decree passed by the Family Court and enhance the amount---Validity----List of articles revealed that those were ordinarily given to a bride at the time of her marriage---No illegality or irregularity had been pointed out in the concurrent findings of fact recorded by the two courts below and upheld by the High Court assigning cogent and sound reasons calling for interference by Supreme Court---Impugned order did not suffer from any legal discrepancy nor any substantial question of public importance was involved in the petition against such order---Leave to appeal was declined by the Supreme Court.” 

Part Of Judgment
Lahore High Court
Writ Petition-Family-Dower
8446-14
2017 LHC 579

Suit for recovery of dowry articles

It has been observed in the case reported as “Muhammad Anwar and another v. Additional District Judge, Lahore(Miss Uzma Akhtar Chughtai) and 2 others”(2003 YLR 365) as under:- 

“Term ‘party’--- Connotation—Term ‘party’ is not confined only to the spouses but its meanings are wider in sense—If there is a suit for recovery of dowry articles and the dowry articles are in the custody of father of husband then even in lifetime of the husband, his father may also be impleaded as a party as the presence of the father may be considered necessary for a proper decision of the dispute. Since the dowry articles are exclusively in the ownership of wife and same are also recoverable even after the death of the husband then whosoever in possession of such articles may be impleaded as a party as due to the death of the husband the responsibility of the legal heirs for return of dowry articles is not vanished---When the suit for recovery of dowry articles is within exclusive jurisdiction of Family Court, it is to be finally disposed of by the Family Court.” 

Part Of Judgment
Lahore High Court
Writ Petition-Family-Maintenance
1216-17
2017 LHC 2413
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