All concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor.

The Hon’ble Supreme Court of Pakistan in case reported as Mst. Razia Bibi ..Vs..Riaz Ahmad and another (2004 SCMR 821) almost in the identical circumstances has observed in the following terms:- 

“It is to be noted for all concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor. The petitioner lady has been looking after her minor son since his birth and maintaining him in a good environment. The father, who is under the law to maintain his child, has not provided any maintenance till date. The minor is living since his birth with his mother and welfare of the child, in the circumstances, also lies in favour of the petitioner. It is true that non-maintenance on the part of the father would not automatically disentitle him from the custody of his child but this would one of the circumstances for determining the welfare of the minor. This certainly shows the conduct of the respondent and in the case in hand, as already stated, right from the birth of the child the respondent has not maintained his son. The respondent, as stated by the learned counsel, has contracted second marriage and the mother, on the contrary, has not contracted second marriage. She is devoting her complete attention towards the upbringing of her minor son. Furthermore, it would be harsh at this juncture to hand over the custody of the minor to the respondent leaving him at the mercy of step mother in presence of his real mother who is properly maintaining him.”

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

WP- Family Law
21752-10

2014 LHC 708

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Manifest from the reading of Order II, Rule 3 that a plaintiff can unite in the same suit several causes of action against the same defendant.

15. The Hon’ble Supreme Court of Pakistan has also allowed joinder of several causes of action against the same defendant/respondent in Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company (1992 SCMR 2375) wherein it was held; 

“It is manifest from the reading of Order II, Rule 3 that a plaintiff can unite in the same suit several causes of action against the same defendant. Needless to mention that in a suit for pre-emption the preemptor and the vendee are the only necessary parties and as such the plaintiff/pre-emptor could join against the vendee/defendant several causes of action. The impugned transaction though on behalf of different persons and finalized through two different mutations were sanctioned on the same date. The plaintiffs/appellants rightly joined the two sale transactions in a single suit because if he had filed separate suits, even then they had to be consolidated as common questions of law and fact regarding right of pre-emption of parties and determination of market value would have been involved . As such the joining of two transactions in one suit was more proper and convenient than filing of separate suits”.

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

WP- Family Law
19091-09

2014 LHC 5328

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Rules of personal law would be subservient to the welfare of the minor.

 13. For the above discussion, seeing from whatever angle welfare of the minor lies in custody of the petitioner particularly in view of the law laid down by the Hon’ble Supreme Court of Pakistan in the case reported as Firdaus Iqbal ..Vs.. Shafaat Ali and others (2000 SCMR 838) that the rules of personal law would be subservient to the welfare of the minor.

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

WP- Family Law
21752-10

2014 LHC 708

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The Code is framed on the scheme of providing generally for the mode in which the High court is to exercise its jurisdiction, whatever it may be while, specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the code is not to apply.

11. In this regard although the Civil Procedure Code 1908 (CPC) is not applicable to the suits filed under West Pakistan Family Courts Act, 1964, however High Court in its extra ordinary Constitutional jurisdiction can recourse to CPC as an enabling tool. In this regard reference is made to the decision of Hon’ble Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein it was held; 

“The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding. As regards application of the provisions of the Code in proceedings before a High Court, their Lordships of the Privy Council in Sabitri Thakurani v. Savi (1) observed: “The Code is framed on the scheme of providing generally for the mode in which the High court is to exercise its jurisdiction, whatever it may be while, specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the code is not to apply.” The underlining* in the above quotation is mine. The words underlined* clearly indicate that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court’s jurisdiction in a civil matter, whatever may be the nature of that jurisdiction”. 

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

WP- Family Law
19091-09

2014 LHC 5328

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Provisions of West Pakistan Family Courts Act, 1964 are equally applicable to all Muslims and Non-Muslims regardless of their faith and personal law.

7. On the other hand learned counsel appearing on behalf of respondent No.1 vehemently supported the orders and the judgment of the Family Court. Learned counsel while relying upon Mst.Noreen Iqal Vs Sohail Iqbal and others (2005 CLC 1472) submits that provisions of West Pakistan Family Courts Act, 1964 are equally applicable to all Muslims and Non-Muslims regardless of their faith and personal law.

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

WP- Family Law
2163-09

2014 LHC 5509

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Condition of deposit of minor’s allowance is not against the provision of law as under Section 17-A of the West Pakistan Family Courts Act, 1964 a Family Court has the power to pass an order for interim maintenance.

18. Keeping the above in mind, when the order dated 04.04.2009 is examined, it is found that the appeal was dismissed solely on the ground that petitioner had failed to deposit the maintenance of minor as per direction of the court. This condition of deposit of minor’s allowance is not against the provision of law as under Section 17-A of the West Pakistan Family Courts Act, 1964 a Family Court has the power to pass an order for interim maintenance. It is also an admitted fact that appeal is continuation of suit and therefore the order passed by the learned Appellate Court directing the petitioner to deposit the maintenance allowance of minor by the next date of hearing and petitioner’s failure to deposit the amount or in other words petitioner’s failure to comply with the order of the Appellate Court calls for the strict action against the petitioner. The Appellate Court rightly dismissed petitioner’s appeal on the ground of failure to deposit the maintenance amount as well as on account of non-compliance of order of the Appellate Court. The order impugned is neither illegal nor void. Injustice is also not caused due to the said order to the petitioner. Although learned counsel for the petitioner has relied upon Abdullah v. Mst. Zubaida Begum and others (1988 CLC 1631) to state that pre-condition of deposit of decretal amount is illegal.

  Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

WP- Family Law
19091-09

2014 LHC 5328

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Filing the suit for dissolution of marriage and same belied the prosecution story as narrated in the F.I.R

 In this regard I respectfully refer the case of Majid Khan v. Sessions Judge, Kasur and 5 others (2014 P.Cr.L.J. 903) wherein it has been observed as under:- 

“Since nikah with the petitioner is admitted by Nadia Aslam, the alleged abductee by filing the suit for dissolution of marriage on 22.6.2012 and same belied the prosecution story as narrated in the F.I.R., she cannot be permitted to change her stance by making false statement to achieve nefarious goad. All this shows that she wants to make another statement under Section 164 Cr.P.C. with some ulterior motive to entangle the petitioner in further litigation.” 

 Part of Judgment

LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI

WP- Criminal Proceeding
27577-15

2015 LHC 6617

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