Family Court to determine the paternity of the minor.

7. The question of paternity cannot be determined by the Judge Family Court and as such the learned District Judge in appeal could not remand the case to learned Judge Family Court to determine the paternity of the minor. Reliance is placed upon the judgment reported as “Iftikhar Hussain and another v. Muhammad Aslam and others” (1991 MLD 1500).


Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
24836-14
2015 LHC 6511

Notice of Talaq to the Chairman under section 7 of the Family Laws Ordinance

9. In a case reported as “Allah Dad v. Mukhtar and another” (1992 SCMR 1273) it was held as under:- 

“The question of the notice of Talaq to the Chairman under section 7 of the Family Laws Ordinance was also decided by all these Courts in favour of the respondents and it was held that even in the absence of such a notice, the Talaq has become effective. Reliance, in this respect, was placed on Article 2-A of the Constitution, as interpreted in the case of Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169.” 

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
RAWALPINDI BENCH, RAWALPINDI
WP- Family Law
3045-14
2015 LHC 5006

Oral Talaq even if proved is invalid since no notice under section 7 of Muslim Family Laws Ordinance, 1961

11. In another case reported as “Mst. Batool Bibi v. Muhammad Hayat and another” (1995 CLC 724) it is held that:-

 “The objection of learned counsel for respondent No.1 that oral Talaq even if proved is invalid since no notice under section 7 of Muslim Family Laws Ordinance, 1961 was given by respondent No.1 to Chairman, Union Council or to the petitioner is not sustainable. It has been held in case titled Allah Dad v. Mukhtar and another (1992 SCMR 1273) that failure to send notice to Chairman, Union Council does not render the divorce ineffective in Shariah. The same has been held in another case titled Mst. Zahida Shaheen and another v. The State and another (1994 SCMR 2098). Respondent No.1 had assailed the genuineness of the Nikahnama, however, he has not been able to lead any evidence to the effect that the Nikahnama is forged. There is a rebuttable presumption regarding the validity of public documents. Since this presumption has gone unrebutted, the Nikahnama stands as a genuine document and it is stated in the Nikahnama that the petitioner has entered into Nikah after being divorced. Respondent No.2 has not properly appraised the evidence regarding pronouncement of oral Talaq nor has he taken into consideration the fact that the genuineness of Nikahnama of the petitioner with Lal has gone unchallenged. Respondent No.2 has also not taken into consideration the fact that the petitioner was pregnant during the proceedings for jactitation of marriage. He passed the impugned order setting aside the judgment of the learned Judge, Family Court and consequence of his order would be that child born to the petitioner would be considered illegitimate. In such a situation, the law leans in favour of validity of marriage and legitimacy of a child who is innocent. This consideration was totally disregarded by respondent No.2. He also failed to take into consideration the fact that in pursuance of his judgment, the petitioner and Lal would be convicted and sentenced in the case pending against them under the Zina Ordinance.” Reliance is also placed upon the cases reported as “Ms. Roheela Yasmin v. Ms. Neelofar Hassan and 6 others” (2014 YLR 2315), “Mst. Zarina Begum v. Major Aziz ul Haq and 3 others.”(2006 CLC 1525) and “Hamid Hameed Waris v. Mst. Tehseen” (PLD 2002 Karachi 518).

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
RAWALPINDI BENCH, RAWALPINDI
WP- Family Law
3045-14
2015 LHC 5006

Oral Talaq would be effective and binding in spite

10. In a case reported as “Fida Hussain v. Mst. Najma and another” (PLD 2000 Quetta 46) relying upon “Mirza Qamar Raza v. Mst. Tahira Begum and others”, (PLD 1988 Kr. 169) and (PLD 1988 FSC 42), it was held that:- 

“In view of above position oral Talaq would be effective and binding in spite of its noncompliance with mandatory requirement of section 7 of the Muslim Family Laws Ordinance, 1961.”   

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
RAWALPINDI BENCH, RAWALPINDI
WP- Family Law
3045-14
2015 LHC 5006

Only a civil court which can adjudicate upon the paternity of minor

8. The learned District Judge, Gujrat has exceeded his jurisdiction because he can only exercise jurisdiction vested under Family Courts Act, 1964. The learned Judge Family Court as well as the court of learned District Judge is not a court of civil jurisdiction as understood in Code of Civil Procedure. It is only a civil court which can adjudicate upon the paternity of minor. Reference may be made upon a case reported as “Mst. Aziz Begum v. Faiz Muhammad” (PLD 1965 (WP) Lahore 399).

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
24836-14
2015 LHC 6511

Quran pertain to a period before the pronouncement of ‘Talaq’ or that an official or other person cannot be designated

8. In case reported as “Muhammad Sarwar and another v. The State” (PLD 1988 Federal Shariat Court 42) it was held as under:-

 “We have gone through the judgment in Mirza Qamar Raza and appreciate that the effectiveness of the ‘Talaq’ cannot be subjected to the service of notice on the Chairman. The observations of the learned Judge that the reconciliation efforts ordained in Quran pertain to a period before the pronouncement of ‘Talaq’ or that an official or other person cannot be designated in a man-made law to enforce and oversee the reconciliation proceedings in obedience to the dictates of Allah, are mere abiter dicta as these questions never fell to be decided.”

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
RAWALPINDI BENCH, RAWALPINDI
WP- Family Law
3045-14
2015 LHC 5006

The definition of “actionable claim” in the TPA

14. As far as the claim of petitioner No.1 with regard to recovery of Rs.100,000/- on the basis of condition No.16 in the nikahnama is concerned. Reliance is placed on a celebrated judgment of Hon’ble Supreme Court of Pakistan reported as “Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others.” (PLD 2011 Supreme Court 260), the relevant portion is reproduced as under:-

 “The definition of “actionable claim” in the TPA is strictly and exclusively relatable to the operative provisions of Chapter VIII of that Act, which by virtue of Sections 130 to 137 thereof inter alia, prescribes the requirements and the broad mechanism for the transfer and the assignment of the “actionable claims” so defined in section 3. It has no application beyond the Act even if any general concept emerges on account of the expression, it is restricted to the law it forms part and cannot be stretched to apply to any other law of the land, including the Family Courts Act, 1964, thus the interpretation of entry No.9 ibid as provided by Muhammad Akram v. Mst. Hajra Bibi and 2 others (supra) is the correct explication of law, which is hereby approved. However, adding thereto, it may be held that if the ratio of Nasrullah dictum (supra) which is entirely and solely founded on the noted concept / definition is taken to be correct, than a suit for Specific Performance, declaratory suits of any nature, or any other civil legislation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law. Because according to the literal approach of reading a statute, the statue has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and subtraction of a word in a statute is reading in and reading down may be pressed into service in certain cases; thus when in Entry No.9 ‘actionable claim’ has not been provided by the legislature intent and the rules of interpretation to add this express to the clause / entry. ”

Part of Judgment : 
IN THE LAHORE HIGH COURT LAHORE
RAWALPINDI BENCH, RAWALPINDI
WP- Family Law
3045-14
2015 LHC 5006
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