Take up for comment the provisions of Article 128 ibid

Reliance is placed on the esteemed judgment passed by the Hon’ble Supreme Court of Pakistan cited as “Ghazala Tehsin Zohra versus Mehr Ghulam Dastagir” (PLD 2015 SC 327), wherein it has been observed that:-

“We first of all, take up for comment the provisions of Article 128 ibid. The Article is couched in language which is protective of societal cohisn and the values of the community. This appears to be the rationale for stipulating affirmatively that a child who is born within two years after the dissolution of the marriage between his parents (the mother remaining unmarried) shall constitute conclusive proof of his legitimacy. Otherwise, neither the classical Islamic jurists nor the farmers of the Qanun-eShahadat Order could have been oblivious of the scientific fact that the normal period of gestation of the human foetus is around nine months. That they then extended the presumption of legitimacy to two years, in spite of this knowledge, directly points towards the legislative intent as well as the societal imperative of avoiding controversy in matters of paternity. It is in this context that at first glance, clause 1(a) of Article 128 appears to pose a difficulty. It may be noted that classical Islamic Law, which is the inspiration behind the Qanun-eShahadat Order (though not incorporated fully) and was referred to by learned counsel for the appellant also adheres to the same rationale and is driven by the same societal imperative. In this regard, it is also worth taking time to reflect on the belief in our tradition that on the Day of Judgment, the children of Adam will be called out by their mother’s name. It shows that the Divine Being has, in His infinite wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall be laid bare the secrets about paternity shall not delved into or diverged.”  

Part Of Judgment
Lahore High Court
WP- Family Law
8482-16
2016 LHC 905

Litigant was supposed to establish contact with his counsel and remain in touch with him in order to find out the result of the case

 No doubt, it is the case of heavy amount of dower and maintenance but a litigant should be vigilant while conducting a case. “Litigant was supposed to establish contact with his counsel and remain in touch with him in order to find out the result of the case”. Reliance in this regard is placed on case law titled “ALTAF HUSSAIN and 2 others versus MUHAMMAD NAWAZ and 2 others” (2001 SCMR 405). 

Part Of Judgment
Lahore High Court
WP- Family Law
2280-16
2016 LHC 1487

Maintenance accrediting to section 368 of the Muhammadan Law by D.F. Mullah,

There is no cavil to the proposition that none else except the respondent is responsible to maintain her. In case reported as Humayun Hassn ..Vs.. Arslan Humayun and another (PLD 2013 Supreme Court 557) the Hon’ble Supreme Court of Pakistan has observed as under:-

“There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 368 of the Muhammadan Law by D.F. Mullah, maintenance means and include food, raiment and lodging. However, it may be observed that from the very language of above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and capacity of the father to pay.”

Part Of Judgment
Lahore High Court
WP- Family Law
4892-13
2017 CLC 794

According to section 368 of the Muhammadan Law by D.F. Mullah, maintenance means and include food, raiment and lodging

According to Section 368 of the Muhammadan Law by D.F. Mulla maintenance means and include food, clothing, lodging but the Hon’ble Supreme Court of Pakistan in case reported as Humayun Hassn ..Vs.. Arslan Humayun and another (PLD 2013 Supreme Court 557) has observed that said definition is neither conclusive nor exhaustive and laid down as under:- “

There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 368 of the Muhammadan Law by D.F. Mullah, maintenance means and include food, raiment and lodging. However, it may be observed that from the very language of above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and capacity of the father to pay.”

Part of Judgment of
Lahore High Court
WP- Family Law
1447-10
2015 LHC 8916

Appeal in case of dissolution of marriage was to protect women

The dictum laid down by the August Supreme Court of Pakistan in the case of Abid Hussain v. Additional District Judge (supra) also supports the view of this Court that if the petitioner-wife/decree-holder was aggrieved of the decree of the Family Court she could avail the remedy of appeal. In the cited case the August Supreme Court of Pakistan has observed as under:

“the object behind non-provision of appeal in case of dissolution of marriage was to protect women, an under privileged and generally oppressed section of the society, from prolonged and costly litigation, as such it aimed to put a clog on the right of husband. It would be improper to construe subsection (2)(a) in a way so as to deprive a wife from appealing from the decree refusing her relief on the grounds, which according to the Family Court have not been proved but nevertheless granting the decree of dissolution on some other ground. Such an interpretation would be in violation of the wholesome provision of appeal contained in subsection 14(1) and the very object of introducing the Family Courts Act.” 

Part Of Judgment
Lahore High Court
WP- Family Law
25336-15
2016 LHC 4629

Decreeing the suit on the basis of ‘khula’

3. Learned counsel for the petitioner contends that remedy of appeal is not available in view of section 14(2)(a) of the Family Courts Act, 1964; that the impugned order is against law and facts on record; that while decreeing the suit on the basis of ‘khula’ the learned trial Court has ignored the pleadings of the petitioner in which she had also alleged cruelty on the part of the respondent; that the petitioner has not been afforded an opportunity to prove her ground of cruelty by production of evidence, therefore, the impugned order is not sustainable in the eye of law; that though the dower was paid in cash at the time of ‘nikah’ but the same was taken back by the respondent and as such there was no occasion for the learned trial Court to order for return of the dower amount without recording evidence of both the parties in this respect; that even otherwise, in any case the amount of dower could not be ordered to be returned rather only a part amount was required to be returned under section 10(5) of the Family Courts Act, 1964 that the impugned order is liable to be set-aside to this extent. Reliance is placed on the cases of Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another (2006 SCMR 100) and Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another (2008 SCMR 186).  

Part Of Judgment
Lahore High Court
WP- Family Law
25336-15
2016 LHC 4629

Trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, rule 33, C.P.C, was not intended to apply to such an appeal.”

9. The aforesaid provision of law came up for consideration before the Hon’ble Apex Court in the case reported as Messrs S.M. Yusuf and Bros. ..Vs.. Mirza Muhammad Mehdi Pooya (PLD 1965 Supreme Court 15), and after considering the authorities cited at Bar the purpose underlying the above provision and its application to the various disputes were summarized by the Apex Court as under:-
“The term employed to confer the power are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit. The non obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the Appellate Court’s power. Here the whole decree was before the Appellate Court, but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that in the absence of a counter appeal being filed a decree against another defendant cannot be given not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule. We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi & Sons to examine the arguments there set out. Four precedent judgments are cited. From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power give by the rule is widely expressed and must be applied with discretion, where interference is required to “adjust the right of the parties in accordance with justice, equity and good conscience” or where the failure to exercise the power “would lead to impossible, contradictory and unworkable orders”. These particular considerations undoubtedly are circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts. The single case cited by the High Court with reference to its facts is that of Muhammad Khaleef Shirazi (1) which clearly shows points of difference from the present case. The fact were of a much more complicated character than they are in this case and in the result of Privy Council declined to interfere on behalf of the plaintiff to declare the liability of one of the defendants against whom his case had been expressly dismissed by the trial Court, and he had not appealed against that decision. The Judicial Committee holding that in effect, the plaintiff was moving an appeal direct to the Privy Council from the decree of the trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, rule 33, C.P.C, was not intended to apply to such an appeal.”  

Part of Judgment of
Lahore High Court
WP- Family Law
1447-10
2015 LHC 8916
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