Declaratory suits of any nature, or any other civil litigation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law.

The Hon‟ble Supreme Court of Pakistan resolved this conflict in a judgment reported as PLD 2011 SC 260 by approving the case of Mohammad Akram (supra) in the following manner:- 

“Thus the interpretation of entry No.9 ibid as provided by Mohammad 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 litigation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law.” (emphasis added) 

Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Writ Petition-219-2020 | -
Author:
Honourable Mr. Justice Fiaz Ahmad Anjum Jandran

Nikahnama is forged and has a cause of action about adjudgment of Nikahnama, would be a cause of action under Section-5 of the Act, 1964.

The Hon‟ble Lahore High Court in case of “Irshad Ahmad V. Muhammad Sharif and another (PLD 2006 Lahore 260), in an irresistible manner expounded that

 “when anyone of the parties i.e. husband/wife alleges that Nikahnama is forged and has a cause of action about adjudgment of Nikahnama, would be a cause of action under Section-5 of the Act, 1964.”

 Part of Judgment : 

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD 
Writ Petition-219-2020 | -
Author:
Honourable Mr. Justice Fiaz Ahmad Anjum Jandran

Transfer of ownership of property in inheritance is not dependent on sanction of mutation

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._989_2015.pdf 

The Court while dealing with the claim of the petitioner in the inheritance of her father observed: “[P]etitioner, claiming her share in the legacy left by her father, was on the basis of operation of law and not on the basis of any mutation. … [M]utation is not a document of title. The sole purpose of a mutation is to keep the record of rights updated and to maintain the fiscal records straight. When she being one of the legal heir of deceased Habib Khan then she becomes entitled to inherit the legacy of her father from the day her father died and as such becomes co-sharer/co-owner in the property and this entitlement of petitioner is based on operation of Mohammadan Law and the Law of Inheritance.” (Para 2)  

Brikhna v. Faiz Ullah 

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._989_2015.pdf 

Present Mr. Justice Mazhar Alam Khan Miankhel and Mr. Justice Qazi Muhammad Amin Ahmed

Right to custody (Hizanat) of a child cannot be surrendered: agreement containing such terms is against law, injunctions of Islam, and public policy

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._4129_2019.pdf  

The Court while dealing with the questions whether a mother can, by an agreement, give up her right to the custody (Hizanat) of her child, and whether such an agreement is valid and enforceable under the law, held: “Muslim personal law prescribes rules of hizanat (custody); a mother in whom hizanat vests cannot be compelled to surrender it nor can such surrender constitute consideration for an agreement of khula. The custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can the husband demand such surrender. … The agreement to the extent that the mother surrendered the custody of her child or which stopped the mother to claim his custody is not lawful consideration; it is contrary to the Islamic principles governing hizanat and the law determining the custody of minors and thus forbidden. An agreement the object or consideration of which is against public policy is void, as stipulated in section 23 of the Contract Act … The welfare of a minor cannot be subsumed by the interest of his father, and if this is done it will be against public policy, and such clause or condition will be void.” (Paras 7, 8)

Beena v. Raj Muhammad 

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._4129_2019.pdf 

Present Mr. Justice Mushir Alam and Mr. Justice Qazi Faez Isa

It is settled law that in absence of a jurisdictional defect this Court in the exercise of its constitutional jurisdiction normally does not interfere in concurrent findings of fact arrived at by the learned Courts below unless a case of grave miscarriage of justice is made out.

12. Needless to add that it is a case of concurrent findings of fact. It is settled law that in absence of a jurisdictional defect this Court in the exercise of its constitutional jurisdiction normally does not interfere in concurrent findings of fact arrived at by the learned Courts below unless a case of grave miscarriage of justice is made out. Reliance is placed on the judgments reported as Waqar Haider Butt v. Judge, Family Court & others (2009 SCMR 1243), Shamshad Begum v. Mst. Huma Begum & others (2008 SCMR 79), Arshad Mehmood v. Additional District Judge, Rawalpindi & 5 others (2001 SCMR 516), Haji Abdullah & 10 others v. Yahya Bakhtiar (PLD 2001 S.C. 158) and Hanif & others v. Malik Ahmad Shah & another (2001 SCMR 577). 

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
540-14
2014 LHC 11493

The schedule cannot be amended and the names of the witnesses cannot be added under section 7(2) of the Family Courts Act.

9. I have gone through the judgment cited by the learned counsel for the petitioner, which is reported as “Muhammad Ajkram v. Mst. Shakeela Bibi and others”(2003 C L C 1787) in which it was held as under:- 

“The bare reading of this section shows that the learned Judge Family Court is restrained by law not to allow additional evidence or add names of witnesses in the schedule. The provisions are mandatory. The schedule cannot be amended and the names of the witnesses cannot be added under section 7(2) of the Family Courts Act. The provisions of this section empowers the learned Judge Family Court that the parties with the permission of the Court call any witness at any later stage if Court considers such evidence expedient in the interest of justice does not mean that the Family Court will reopen the schedule and allow the parties to produce additional witnesses, therefore, the learned Judge Family Court rightly rejected the application as there was no provision to allow a Family Court to reopen he schedule submitted by the parties.”  

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
3990-14
2014 LHC 2764

Submitted Schedule/List of witnesses in terms of Section 7 of the West Pakistan Family Courts Act, 1964.....

6. In support of the petition, learned counsel for the petitioner submits that once the plaintiff/respondent No.2 submitted Schedule/List of witnesses in terms of Section 7 of the West Pakistan Family Courts Act, 1964, she stood precluded from filing amended Schedule of witnesses. In order to fortify his submissions, he has heavily placed reliance upon the judgment reported as “Muhammad Ajkram v. Mst. Shakeela Bibi and others”(2003 C L C 1787). According to him, the learned Judge Family Court exceeded his jurisdiction, warranting the interference of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. 

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE
WP- Family Law
3990-14
2014 LHC 2764
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