CHANGING OF THE LAST NAME AFTER MARRIAGE OR DIVORCE

Changing of last name after the marriage

When you marry, you are free to keep your own family name or take your husband’s name, Give some careful thought to what name feels best for you. You can save yourself considerable time and trouble by making sure you are happy with your choice of name before you change any records. The name changing method is so simple. You have to take your nikahnama (Marriage Certificate) and your old original CNIC with the father name and go to the NADRA office. You will be issued new CNIC with your new family name and husband name instead of father name. And after the CNIC you can get your new passport also.

Changing of last name after the Divorce

The same procedure you have to adopt for changing your name and getting your CNIC & passport with your father name after your divorce. When you get divorce / Khulla from the court or your husband pronounce you divorce then it will be mandatory for you to change your name and have to get new CNIC and Passport with your old name and with your father name. For this you have to visit NADRA office for CNIC and Passport office for Passport along with court decree of divorce / divorce deed and NADRA confirmation certificate that you have got divorce or divorce has been given to you.

Changing of name in other cases

In other cases if you want to change your child name before 18 years/age of majority that will be easy. You have to give the affidavit and get new birth certificate and in this way you can also change your child name in the educational institutions. But after the age of 18 years it will be very difficult to change the name without any cogent reason. However if you have sufficient prove that the name has been written wrong then you can change your name but for this you have to file suit in the court. And upon the court decree you will be able to change the name in the relevant Govt. records. You may also apply the interior ministry for the changing the name and if the satisfy then it will be published in the official gazette.

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Condition of compensation mentioned in column no 19 of nikahnama ...

نکاح کے کالم نمبر 19 میں لکھی جانے والی شرائط غیر اسلامی ہیں

نکاح کے کالم نمبر میں شرائط لکھی جاتی ہیں کہ اگر شوہر طلاق دے گا یا دوسری شادی کرے گا تو پہلی بیوی کو جرمانہ یا ہرجانہ ادا کے گا تاہم اس بار اعلی عدلیہ کے بیشتر فیصلہ جات موجود ہیں جس میں کہا گیا ہے کہ ایسی شرائط غیر اسلامی ہیں اور ناقابل عملداری ہیں.

ملاہذا ہو

Condition of compensation mentioned in column no 19 of nikahnama in case of divorce by husband is declared againt the injunctions of islam as no embargo can be made on the right given by the islam husband to divorce his wife.

 

MUHAMMAD AWAIS VS Mst. ZAHIDA PARVEEN

P L D 2012 Lahore 38

P L D 2012 Lahore 38

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD AWAIS---Petitioner

Versus

Mst. ZAHIDA PARVEEN---Respondent

Writ Petition No.16081 of 2010, decided on 25/11/2011.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Jurisdiction of Family Court---Scope---Plaintiff (wife) filed suit in Family Court for recovery of gold ornaments on the basis that in Column No.17 ofNikah Nama, there was a condition that gold ornaments weighing eight tolas valuing Rs.2,00,000 would be given to her, but the defendant (husband) did not give said ornaments---Contention of defendant was that suit filed before Family Court was not maintainable as same was triable by civil court---Family Court dismissed the suit holding that matter was not triable by a Family Court---Appellate Court disagreed with the findings of Family Court and found that claim of plaintiff fell within the jurisdiction of Family Court and Appellate Court remanded the case for fresh trial to the Family Court---In the present case gold ornaments, in question had never changed hands from the defendant to the plaintiff---Till determination of entitlement to acquire belongings, it could not be said that the gold ornaments had become the property of the plaintiff and that she had acquired proprietary rights---Entry in Column No.17 of the Nikah Nama was still a promise of the defendant with the plaintiff, enforceable through courts of plenary jurisdiction, but on the basis of such promise, family suit was not maintainable as it fell out of the ambit of S.5 and Schedule of West Pakistan Family Courts Act, 1964---Family Court had no jurisdiction to determine the claim lodged before it by the plaintiff---Appellate Court had misinterpreted the law by holding that the claim of plaintiff was actionable before the Family Court---Impugned judgment of Appellate Court was set aside declaring same tobewithoutlawfulauthorityandofnolegalconsequence.

Muhammad Akram v Mst. Hajira Bibi PLD 2007 Lah 515; Nasrullah v District Judge PLD2004Lah.588andSyedMukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 rel.

Nasrullah v. District Judge PLD 2004 Lah 588 distinguished.

Sardar Abdul Mjeed Dogar for Petitioner

Ch. Abdul Majeed for Respondent No.1

Date of hearing: 25th November, 2011.

JUDGMENT

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---This constitutional petition is directed against the judgment dated 21-6-2010 passed by the learned Additional District Judge, Okara whereby he accepted the appeal and remanded the case to the learned Judge, Family Court, Okara for decision afresh.

2. Facts of the case briefly stated are that the respondent Mst. Zahida Parveen instituted a suit for recovery of gold ornaments in the Family Court at Okara against the defendant on the ground that in column No.17 of her Nikah Nama, there is condition that gold ornaments weighing eight tolas valuing Rs.2,00,000/- shall be given to her which shall be her property and that the defendant did not give her ornaments thus, prayed for the decree of eight tolas gold ornaments or as alternate value of Rs.2,00,000.

3. The suit was contested by the present petitioner/defendant with an assertion that the suit was not maintainable as the claim made therein was triable by Civil Court and Family Court has no jurisdiction to entertain the suit.

4. The learned trial court after hearing the parties, while agreeing with the objection of the defendant dismissed the suit holding that the matter was not triable by a Family Court.

5. Mst. Zahida Parveen assailed the findings of the Family Court in the appeal where the learned appellate court disagreed with the findings of Family Court and held that claim of the appellant fell within the jurisdiction of Family Court thus by accepting the appeal remanded the case for fresh trial to the court of first instance. Judgment of the appellate court is subject-matter of instant constitutional petition.

6. Learned counsel for the petitioner submitted that this court in the case of Muhammad Akram v. Mst. Hajira Bibi (PLD 2007 Lahore 515) has candidly observed that only the claim of personal belongings and property of the bride could be entertained by a Family Court, the condition contained in column No.17 of the Nikah Nama, in respect of gold ornaments does not constitute personal property and belongings of the respondent thus, the learned appellate court has misdirected itself in holding that matter in hand is entertainable by a family court.

7. On the other hand, learned counsel for respondent No.1 supported the judgment of the learned appellate court and argued, that right created by Column No.17 of Nikah Nama could be enforced through a family suit. He has cited the case of Nasrullah v. District Judge (PLD 2004 Lahore 588).

8. I have considered the submissions made by the learned counsel for the parties and perused the record.

9. The case-law cited at the bar has minutely been examined and it is noticed that the Hon'ble Supreme Court in the case of Syed Mukhtar Hussain Shah v. Mst. SabaImtiaz and others (PLD 2011 Supreme Court 260) has approved the ratio of the case of Muhammad Akram (supra) and dissented with view taken by this Court in the case of Nasrullah (supra). The ratio of the reported judgment of the Hon'ble Supreme Court is that for determination of entry in the column of Nikahnama with respect to acquisition of property as personal belongings of bride, civil court is the proper forum, and family court is not competent to decide question.

10. Lending support from Syed Mukhtar Hussain Shah's case (supra), facts of instant case have been examined. It is alleged by the respondent in para 3 of her plaint that the petitioner has to give eight tolas of gold ornaments to her in view of the condition contained in column No.17 of her Nikah Nama which ornaments till the institution of the suit had not been given to her. It was further asserted that when she raised demand for giving such ornaments, the petitioner divorced her. This averment contained in the plaint necessarily shows that there was allegedly a promise of the petitioner to bequeath the gold ornaments to the respondent which was not fulfilled as such, claim for the recovery of the said gold ornaments has been lodged in the family court. It flows from the assertion that till date, those gold ornaments have not become the personal property or belonging of the respondent. Under section 5 and Schedule of West Pakistan Family Courts Act, 1964, a Family Court has jurisdiction to entertain the claim of a wife in respect of the belongings which have been given to her at the time of her marriage, not as dowry, or acquired subsequently by bride as gift. In the instant case, the gold ornaments never changed hands from the petitioner to the respondent as such, till determination of entitlement to acquire these belongings, it cannot be said that the gold ornaments had become the property of the respondent and she has acquired proprietary rights. The entry in column No.17 of the Nikah Nama is still a promise of the petitioner with the respondent, enforceable through the courts of plenary jurisdiction but on the basis of this promise, a family suit is not maintainable as it falls out of ambit of section 5 and Schedule of Act supra.

11. For what has been discussed above, I am of the firm view that the Family Court has no jurisdiction to determine the claim lodged before it, by respondent bride. The learned appellate court has misinterpreted law by holding that the claim of the respondent was actionable before the learned Family Court thus, the judgment rendered is without lawful authority.

12. For the foregoing reasons, the petition is allowed declaring the impugned judgment as without lawful authority and of no legal consequences. Resultantly, the same is set aside and the judgment recorded by the learned Judge Family Court, Okara is restored.

H.B.T./M-383/LPetition allowed.

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Limitation---Condonation of delay---Wrong advice of counsel.

 O.XIII, R.2---West Pakistan Family Courts Act,

S.5---Filing of petition for leave to appeal

Wife, in the matter of recovery of dowry articles and past maintenance, being dissatisfied from the judgment of High Court, filed petition for leave to appeal which was barred by 27 days.

Plea raised by the wife was that delay was due to wrong advice of counsel who consulted a diary published by Punjab Bar Council.

Wife produced affidavit of the counsel and also copy of the diary relied upon---Validity.

Party should not be made to suffer or prejudiced on account of wrong advice of counsel provided it was tendered bona fide.

Supreme Court, in larger interest of justice extended period for filing of petition for leave to appeal under the provisions of O.XIII. R. 2 of Supreme Court Rules, 1980.

P L D 2006 Supreme Court 457
Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ
Mst. FARAH NAZ---Appellant
Versus
JUDGE FAMILY COURT, SAHIWAL and others-Respondents
Civil Appeals Nos. 1336 and 1337 of 2005, decided on 6th March, 2006.
(On appeal from judgment of Lahore High Court, Mutlan Bench dated 15-12-2005 passed in Writ Petitions Nos. 3179 and 4259 of 2004).

(a) Supreme Court Rules, 1980---

O.XIII, R.2---West Pakistan Family Courts Act (XXXV of 1964), S.5---Filing of petition for leave to appeal---Limitation---Condonation of delay---Wrong advice of counsel---Wife, in the matter of recovery of dowry articles and past maintenance, being dissatisfied from the judgment of High Court, filed petition for leave to appeal which was barred by 27 days---Plea raised by the wife was that delay was due to wrong advice of counsel who consulted a diary published by Punjab Bar Council---Wife produced affidavit of the counsel and also copy of the diary relied upon---Validity.

Party should not be made to suffer or prejudiced on account of wrong advice of counsel provided it was tendered bona fide.

Supreme Court, in larger interest of justice extended period for filing of petition for leave to appeal under the provisions of O.XIII. R. 2 of Supreme Court Rules, 1980.

(b) Affidavit---

----Admissibility---Procedure---Deponent not subjected to cross­ examination.

Effect---Trial Court illegally accepted affidavit on its face value merely because deponent had been living abroad and was not readily available in Pakistan.

Such approach on the part of Trial Court and endorsed by Appellate Court apart from being without legal backing was repugnant to settled principles of law.

Affidavit, without an opportunity of cross-examination to opposite party did not constitute legal and valid evidence and must be excluded from consideration.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

S. 5---Limitation Act (IX of 1908), S.13 & Art.120--- Recovery of past maintenance---Limitation---Husband was living abroad and wife filed suit for recovery of past maintenance.

Wife was non-suited on the ground that suit was filed beyond the period of three years when the cause of action had accrued to her---Validity.

Claim for past maintenance would be governed by Art.120 of the Limitation Act, 1908, which prescribed a period of six years in a suit for which no period was provided elsewhere in the Act, from the date when the right to sue had accrued.

In computing period of limitation prescribed for any suit, by reason of S.13 of Limitation Act, 1908, time during which defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of the Central Government would be excluded.

Even if period of limitation for such suit would be three years, in view of absence of husband from Pakistan, period of his absence from Pakistan would be excluded for reckoning the period of limitation.

Suit filed by wife was not barred by limitation.

(d) Islamic Law---

Maintenance-Responsibility-In absence of any proof of dissolution of marital tie, it is legal, moral as well as social duty of husband under Islamic principles to provide adequate maintenance for respectable living of wife.

In law, husband cannot neglect to maintain his wife during subsistence of marriage tie.

(e) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 9---Recovery of past maintenance---Plea of oral divorce---Validity--- Husband was required to send notice of divorce to Arbitration Council under Muslim Family Laws Ordinance, 1961 and also to send copy of such notice to wife by registered post---No such proceedings having been ever conducted, oral allegation of Talaq would neither be effective nor valid and binding on wife, who was legally entitled to past maintenance.

(f) West Pakistan Family Courts Act (XXXV of 1964)---

S. 5---Recovery of past maintenance---Affidavit attested by Pakistan. Embassy abroad--- Non-appearance of deponent---Wife filed suit for recovery of past maintenance at the rate of Rs.10,000 per month, against her husband who was living abroad---Family Court relying on affidavit of husband, duly attested by Embassy and contents of written statement, dismissed the suit---Judgment and decree passed by Family Court was set aside by Appellate Court and the suit was partly allowed but, High Court in exercise of constitutional jurisdiction restored the judgment and decree passed by Family Court---Validity---Amount of maintenance claimed by wife was neither excessive nor unreasonable in view of inflation in the cost of living and the amount of probable income earned by husband---Claim of wife was justified by all canons of justice and reason---Judgments of two Courts below as well as of High Court suffered from serious error of law by misreading of record and exclusion of material piece of evidence from consideration which had resulted in gross miscarriage of justice---In fact written statement could not be considered as substitute of evidence on oath---Affidavit of husband attested by Pakistan Embassy abroad would not constitute legal evidence as he did not appear for his cross-examination before the Family Court---Husband did not endeavour to appear even before Appellate Court at any point of time---I. n-rebutted version of wife would, therefore, be considered as valid and legal to all intents and purposes, particularly when it remained uncontroverted---Interference of High Court in the matter in its constitutional jurisdiction was beyond the scope of Art.199 of the Constitution and judgment of High Court must not be allowed to remain in field---Supreme Court set aside the judgments of High Court and Family Court and suit was decreed in the sum of Rs.10,000 per month as claimed by the wife---Appeal was allowed.

Saeed Ahmad v. Mehmood Ahmad PLD 1968 Lah. 520 ref.

(g) West Pakistan Family Courts Act (XXXV of 1964)---

S. 5---Constitution of Pakistan (1973), Art.199---Recovery of dowry articles---List containing value of dowry articles.

Affidavit attested by Pakistan Embassy abroad.

Non-appearance of deponent.

Wife filed suit for recovery of dowry articles valuing Rs.955,038 against her husband who was living abroad.

Family Court relying on affidavit of husband duly attested by Pakistan Embassy and contents of written statement, partly decreed the suit to the extent of Rs.400,000.

Judgment and decree passed by Family Court was set aside by Appellate Court and the suit was decreed in favour of wife in the sum of Rs.955,038 but High Court in exercise of constitutional jurisdiction restored the judgment and decree passed by Family Court---Validity.

Evidence of wife was neither contradicted nor rebutted and list of articles as well as value of articles shown in it must be accepted on its face value.

Reasons recorded by Family Court did not appeal to Supreme Court and assessment of value of articles in the sum of Rs.400,000 appeared to be artificial, whimsical and arbitrary.

On the other hand calculation made by Lower Appellate Court accepting claim of wife in the sum of Rs.955,038 was evidently justified and warranted by law.

High Court in constitutional jurisdiction could not substitute its own findings for the findings recorded by Court of appeal after appraisal of evidence.

Judgments passed by High Court as well as by Family Court were set aside and that of the Appellate Court was restored.

Appeal was allowed.

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Without restoring Haq Mahar khula can't be granted if haq mahar already paid.

2015 S C M R 804

Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(viii)---West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched.---Dissolution of marriage---Grounds---Cruelty by husband---Proof---Cruelty by husband not proved---Effect---Decree for dissolution of marriage on basis of cruelty converted into khula---Wife filed a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty---Family Court found that wife had failed to prove cruelty, but still decreed the suit on the basis that the relations between the parties had become strained and there seemed no possibility of reunion, and if they were constrained to live together, they may transgress the limits of Almighty Allah and their union may not last longer, hence, their separation had become inevitable---Decree passed by Family Court was upheld both by the Appellate Court as well as by the High Court---Validity---Family Court had reached the conclusion that indeed no cruelty could be proved by the wife, hence in such circumstances the Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under the Dissolution of Muslim Marriages Act, 1939---Only way out and the logical conclusion was that the marriage should have been dissolved on the basis of khula in which event the wife would have to forego the dower amount---Supreme Court decreed the suit of the wife for dissolution of her marriage on the basis of khula only, and directed that mutation for the plot given by the husband to his wife as dower would now revert back to the husband---Order accordingly.

Muhammad Bashir Mughal, Advocate Supreme Court for Petitioner.

M. Saliheen Mughal, Advocate Supreme Court Respondent No.1. along with M. Ashraf, father of Respondent No.1.

Date of hearing: 11th February, 2015.

MUHAMMAD ARIF VS SAIMA NOREEN

2015 S C M R 804

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Qazi Faez Isa, JJ

MUHAMMAD ARIF---Petitioner

versus

SAIMA NOREEN and another---Respondents

Civil Petitions Nos. 1421 and 1479 of 2014, decided on 11/02/2015.

(On appeal against the judgment dated 11-6-2014 passed by Peshawar High Court, Abbottabad Bench in W.Ps. Nos.504-A of 2011 and 652-A of 2012)

ORDER

SARMAD JALAL OSMANY, J.---These two Petitions impugn the Judgment of the learned Peshawar High Court (Abbottabad Bench) in Writ Petitions Nos. 504-A of 2012 and 652-A of 2012 filed by the petitioner whereby same were dismissed.

2.Briefly stated the facts of the case are that the respondent married the petitioner according to Islamic Sunni Rights on 21-4-2010. Thereafter apparently the relations became strained which ultimately led the respondent to file a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty. So also it was prayed that the dowry articles be returned to her and that she be given possession of the house which was given to her as dower per the Nikah Nama. The suit was decreed by the learned Family Court and such decree was upheld both by the learned Appellate Court as well as by the learned High Court and hence the Petition.

3.Mr. Muhammad Bashir Mughal, learned Advocate Supreme Court appearing for the petitioner has submitted that the entire evidence led by the respondent nowhere displays even an iota of cruelty perpetuated upon her by the petitioner. To the contrary the respondent admits under cross-examination that she was living very happily with the petitioner. So also other witnesses who were produced by the respondent No. 1 in her favour to prove her claim could not establish that the petitioner was guilty of cruelty insofar as the respondent No. 1 is concerned. Consequently learned Advocate Supreme Court has submitted that the ground of cruelty which the respondent No.1 had alleged in her suit for dissolution of marriage could not be proved by her and hence at the most the learned Family Court could grant her a decree of dissolution of marriage on the basis of Khula only in which event there could not be any question of dower as in such circumstances the wife has to forgo the dower per the Proviso to section 10 of the West Pakistan Family Courts Act, 1964 and as per Sharia. Regarding the other decretal amounts viz Rs.6,000 as maintenance and return of dowry articles learned Advocate Supreme Court says that such amount has been deposited with the Learned Family Court and all the dowry articles have been taken away by the respondents. In favour of his submission learned Advocate Supreme Court has relied upon Mst. Shamim Akhtar v. Abdur Rafiq and 2 others (PLD 2013 Peshawar 12) and Muhammad Faisal Khan v. Mst. Sadia and another (2013 MLD 760).

4.To this submission Mr. M. Saliheen Mughal, learned counsel appearing for the respondents has submitted that it is not necessary that cruelty has to be proved by physical marks on the body of the person but it can also be by way of mental torture. He has stressed that in her deposition before the learned Family Court the respondent had stated on oath that the petitioner as well as his family members used to torture her day in and day out as a result of which she was forced to leave her marital home. Hence per learned Advocate Supreme Court when three forums have reached the conclusion that indeed the petitioner used to perpetuate cruelty upon the respondent then this Court should not interfere as normally it would not do so in matters of fact which have been established by the learned lower forums.

5.We have heard both the learned ASCs as well as the learned DAG and perused the record along with the evidence led by the respondent in her suit for dissolution of marriage.

6.Suffice it to say that even the learned Family Court had reached the conclusion that indeed no cruelty could be proved by the respondents for which proposition the following paragraphs and the findings of the Family Court are reproduced as under:--

"Plaintiff in Suit No.4/FC has failed to produce any medical certificate in support of her allegation; regarding beating or any Doctor, from any hospital, where she might have remained under medical treatment. Moreover, further in her statement she stated that during the abadi, the attitude of defendant of Suit No. 4/FC was cordial. It is also an admitted fact that plaintiff went to her parent's house on her own. Jirga members, produced by her have also stated that it was the plaintiff party who was not willing for abadi, hence, I, hold that defendant in Suit No .4/FC has not treated the plaintiff with cruelty, plaintiff went to her parents' house at her sweet will and is not ready for her abadi. Therefore, it is held that her ghair abadi is self imposed, thus she is not entitled for recovery of any maintenance allowance during ghair abadi, excepting maintenance allowance during iddat period at the rate of Rs.2,000 P.M. and in total Rs.6,000. However, as the relations between the parties gone so strained and there seems no possibility of reunion between the parties, and if they are constrained to live together, they may transgress the limits of Almighty Allah and their union may not last longer. Hence, their separation has become inevitable. Plaintiff is thus entitled for dissolution of marriage."

In these circumstances the learned Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under -the Dissolution of Muslim Marriages Act, 1939. Hence the only way out and the logical conclusion was that the marriage should have been dissolved on the basis of Khula in which event the respondent would have to forego the dower amount. Consequently we while converting Civil Petition No. 1479 of 2014 into an Appeal would allow the same and decree the suit of the respondent No. 1 for dissolution of her marriage with the petitioner on the basis of Khula only. We are told that the plot which was given to her as dower has been mutated in the respondent No.1's favour by the petitioner, hence the mutation shall now revert back to the petitioner.

7.Insofar as Civil Petition No.1421 of 2014 is concerned viz restoration of conjugal rights, as we have already allowed Civil Petition No.1479 of 2014 by converting it into an Appeal, this has become in-fructuous and is dismissed accordingly.

MWA/M-15/SCOrder accordingly.

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فیملی کورٹ جنس کے تعین کیلئے طبی معائنہ کرانے کا حکم صادر کرسکتے ھے

 فیملی کورٹ جنس کے تعین کیلئے طبی معائنہ کرانے کا حکم صادر کرسکتے ھے

2021 CLC 204

VVI MUST READ JUDGMENT

Whether the Family Court is competent to direct a party to undergo medical examination?

Whether the marriage between the parties is void because the female lacks feminine characteristics?

Family Court is competent to direct a party to undergo medical examination but that power is subject to the conditions.

It must be emphasized that the court should not allow itself to become a tool in the hand of unscrupulous persons and order medical examination of a party only in exceptional circumstances when no alternative is available. Roving inquiry is not permissible. There must be sufficient material before the court to justify such an order. If the concerned person refuses to comply with the direction it cannot compel him. It would only draw such inference as may be appropriate on the facts and in the circumstances of the case.

The court should specifically put the noncooperating party on notice about the consequences of its conduct and warn it what adverse inference may be drawn against it.

Admittedly, marriage is a contract which entails various rights and obligations. In Islam these, inter alia, involve dower, maintenance and sexual relationship. However, they can only be enforced if there is a valid marriage – just as other contracts are enforceable if they are valid. The classic Islamic law recognizes four genders among human beings: male, female, Khunsa (translated as ‘intersex’ or ‘hermaphrodite’, i.e. a person who has both male and female anatomy), and the Mukhannath (an effeminate male, i.e. a man who resembles women). Khunsa are of two types: Wadhih (discernible) and Mushkil (problematic/intractable). The former is a person with both male and female genitals but specific gender can be assigned to him on the basis of the attributes of the dominant sex. For example, if that person urinates from penis, ejaculates semen, or grows facial hair, he can be regarded as male. On the other hand, if that person develops breasts and mensuration, she would be regarded as female. In contrast, Khunsa Mushkil is a person who cannot be categorized either as male or female. Islamic jurists made the classification of Khunsa on the basis of the knowledge available in their times. “Today doctors are capable of determining a Khunsa’s sex by investigating his karyotype, gonadal tissue histology and internal reproductive organs. They do not depend on the appearance of the external genitalia.”

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Nikah between the parties was orally solemnized according to Shariah.

2021 LHC 688

 Admittedly Nikah between the parties was orally solemnized according to Shariah. Under the Quranic teachings the relations of a Muslim family unit (spouse) is established through solemnization of Nikah in order to determine the rights / obligations of a husband and wife and it is made mandatory for a husband to give dower to his wife. Quantum of the dower amount has been left open for the parties to settle the same according to their independent opinion. In case the amount of dower is not mentioned in that eventuality a modus operandi is provided in Shariah to ascertain the same from the customs, status and allied social traits of the parties. The such settlement or determination of dower amount is named as proper dower (Mehr-e-Misl).

Writ Petition-Family-Maintenance :4024-21
WAHID BAKHSH VS ADJ ETC
Mr. Justice Ch. Muhammad Iqbal
15-03-2021
2021 LHC 688

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Stay of criminal proceedings---During pendency of a case in a Family Court for adjudication, criminal proceedings are stayed till the determination of the suit.

1995 P Cr. L J 1925
[Lahore]
Before Ahmad Saeed Awan, J
JAVID IOBAL---Petitioner
Versus
STATION HOUSE OFFICER, POLICE STATION FACTORY AREA SARGODHA and 3 others---Respondents
Writ Petition No.15040 of 1994, heard on 8th May, 1995.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 16--- Constitution of Pakistan (1973), Art.199---Constitutional petition--­Ouashing of F.I.R.---F.I.R. had been lodged for mala fide purposes after the alleged abductee had filed a suit for dissolution of marriage against the complainant (husband) which was pending before a competent Court--­Criminal proceedings, in circumstances under the law were to be stayed during the pendency of the case in a Family Court till the determination of the suit--­Investigation on the impugned F.I.R. was consequently stayed till the decision of the suit by the Family Court---Constitutional petition was disposed of accordingly.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 rel.

(b) Offence of Zina (Enforcement of Hudood) Ordinance MI of 1979)---

----S.16---West Pakistan Family Courts Act (XXXV of 1964), S.5--­Constitution of Pakistan (1973), Art.199---Constitutional petition---Stay of criminal proceedings---During pendency of a case in a Family Court for adjudication, criminal proceedings are stayed till the determination of the suit.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 ref.

Mahmood Ahmad Alwavi for Petitioner. Ghulam Murtaza Khan Ch. for Respondent No.2.

Date of hearing: 8th May, 1995.

JUDGMENT

Javaid Iqbal, petitioner, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan seeks quashment of F.I.R. No.110, dated 30-11-1994 under section 16 of Ordinance VII of 1979 registered with Police Station Factory Area, Sargodha, being illegal, false, fabricated, misconceived, result of highhandedness and mala fide.

2. The facts briefly stated are that Muhammad Ashfaq, respondent No.2 got the impugned F.I.R. registered for the abduction of his wife, namely, Amtal Bibi by Javed Iqbal, the present petitioner.

3. It is contended on behalf of the petitioner that he never abducted Mst. Anital Bibi; she in her statement under section 164, Cr.P.C. before the learned Magistrate stated that she was never abducted by the present petitioner and the, impugned F.I.R. was got registered due to filing of suit for dissolution of marriage against the complainant on 1-6-1994. Further argued that the impugned F.I.R. was lodged on 30-11-1994 while Mst. Amtal Bibi had disclosed in her statement under section 164, Cr.P.C. that her suit for dissolution of marriage is pending-since 1-6-1994 before the learned Judge, Family Court at Mianwali and, the complainant had threatened her prior to lodging the F.I.R. not to pursue her suit, otherwise she will have to face the dire consequences. According to the learned counsel, this shows the false implication of the petitioner when particularly the complainant has not disclosed in the F.I.R. about the pendency of the family suit 'against him.

4. The petition was resisted by learned counsel for respondent No.2 by arguing, that in fact the present petitioner has abducted the wife of his client and in the .facts and circumstances of this case when a criminal case stands registered; without investigation of the same, quashment of the F.I.R. at such an initial stage is unwarranted,and uncalled for. '

5. I have heard learned counsel for both the sides at length and have gone through the record with their able assistance and care. The impugned F.I.R. in this case -was got registered on 30-11-1994 while the alleged occurrence of abduction of his wife took place on 30-3-1994 eight months prior. The explanation offered is that he had been trying for the return of his wife on Baradari basis. It is noteable that the alleged abductee Mst. Amtal Bibi had filed a suit, for dissolution of marriage before the Judge, Family Court at Mianwali on 1-6-1994 and the complainant, respondent No.2 appeared before the Court and fled written statement on 29-6-1994. He also got his statement recorded before the learned Judge, Family Court on 6-7-1994 in which he did not at all mention that his wife was ever abducted by the present petitioner. He only stated that his nephew Mumtaz had seen some bad activity and then Mst. Aortal Bibi left for Sialkot from where she was brought back and then started living at Soni Pura, Sargodha. Further in the written statement, in reply to para. 4 he submitted that Mst. Aortal Bibi had disappeared at the instance of Javed Ghuman. A certified copy of the order; dated 18-1-1995 of the learned Judge, Family Court has also been placed on record according to which last opportunity has been given to the complainant, respondent No.2, for the production of witnesses.

6. In the above peculiar facts and circumstances of this case, I am of the view that the F.I.R. has been lodged for mala fide purposes when the alleged a abductee had fled a civil suit which is pending before a competent Court. It is now settled principle of law that when a case is pending in a Family Court for adjudication, the criminal proceedings are stayed till the determination of the, suit. Relying upon the authoritative pronouncement of the Honourable Supreme Court of Pakistan in the case of Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95, the investigation of case F.1.R. No.110, dated 30-11-1994 registered with Police Station Factory Area, Sargodha shall remain stayed till such time the suit is decided by the learned Judge, Family Court, Mianwali who shall dispose of the same within four months. A copy of the judgment shall be forwarded by the learned Judge, Family Court, Mianwali to S.H.O., Police Station Factory Area, Sargodha who shall proceed then in accordance with law in the light of judgment of the learned Judge, Family Court.

With these directions, writ petition stands disposed of with no order as to costs.

N.H.Q./J-104/L

Order accordingly.

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