Two Nikahnamas in the field, wife challenging one in the suit for jactitation of marriage. Presumption of truth would be attached to the nikahnama acknowledge by both the spouses.
2005 YLR 156
PLD 1999 LAH 494 (quoted)
نکاح نامہ کے کالمز بالخصوص کالم نمبران 13،14،15،16 کے مندراجات سے متعلق لاہور ہائیکورٹ کے جج محترم انوار حسین کا تازہ ترین اور اہم فیصلہ۔
نکاح نامہ کے کالمز بالخصوص کالم نمبران 13،14،15،16 کے مندراجات سے متعلق لاہور ہائیکورٹ کے جج محترم انوار حسین کا تازہ ترین اور اہم فیصل
W.P.No. 12103/2014
Temporary custody of captioned daughters of the petitioner.
According to the Fatawai Alamgiri the mother amongst all persons is the best person entitled to the custody of her minor children during the connubial relationship as well as after its dissolution, and similar is the position as laid down regarding the custody of the minors by the mother in Muhammadan Law, pages 222-223, Edition 1965. It is thus clear that this right belongs to the mother which cannot be taken from her except her own misconduct. Similarly, the tenderness of their ages or the weakness of their sex, renders a mother’s care necessary. Mohammdan Law supports the mother’s natural right qua the custody of the children and similarly according to the Hanafi doctrine the mother is entitled to the custody of their children until they arrive at puberty.
W.P. No. 49238 of 2021
Dr. Islam Ullah Khan Lodhi Versus CCPO, etc.
کورٹ میرج کیا ہے اور کیسے کی جاتی ہے؟ کورٹ میرج اور عام شادی میں کیا فرق ہے؟
کورٹ میرج اور عام میرج میں فرق صرف اتنا ہے کے عام حالات میں لڑکا لڑکی کا نکاح گھر میں ہوتا ہے یا میرج ہال میں جبکہ کورٹ میرج میں نکاح عدالت میں ہوتا ہے مطلب کسی وکیل کے چیمبر میں. کورٹ میرج اکثر و بیشتر ان کیسز میں ہوتی ہے جن میں لڑکا لڑکی گھر والوں سے چھپ کر بھاگ کر شادی کرتے ہیں. لڑکا لڑکی عدالت آتے ہیں وہاں کسی وکیل سے رابطہ کرتے ہیں جو نکاح رجسٹرار کو بلا لیتا ہے.جس کے پاس نکاح کا رجسٹر ہوتا ہے۔ ایک بات یاد رہے قانون میں یہ ضروری نہیں نکاح خواہ صرف مولوی ہوگا اور نکاح رجسٹر صرف مولوی کو ہی ملے گا.قانون کے مطابق کسی بھی شخص کو متعلقہ ڈی سی نکاح رجسٹر جاری کرسکتا ہے اب آتے ہیں موضوع کی جانب تو وکیل صاحب کسی نکاح خواہ کو بلا کر لڑکا لڑکی کا نکاح کروا دیتا ہے. نکاح کے لیے لڑکا کی عمر 18 اور لڑکی کی 16 سال ہونا لازمی ہے. انکا شناخی کارڈ ہو اگر شناختی کارڈ نہیں ہے تو بے فارم یا تعلیمی اسناد ہوں جس سے عمر کا تعین ہوسکے۔ نکاح کے بعد وہی نکاح خواہ متعلقہ یونین کونسل سے نکاح رجسٹرڈ بھی کروا دیتا ہے اور یوں کورٹ میرج پوری ہو جاتی ہے.
کورٹ میرج سے جڑے مسائل؟
پسند کی شادی میں ہوتا یہ ہے کہ لڑکی کے گھر والے لڑکے پر 365 ب کے تحت اغوا کی ایف آئی آر کروا دیتے ہیں.اس صورتحال میں لڑکے کو چاہیے فوراً لڑکی کا 164 کا بیان مجسٹریٹ کے سامنے کروائے جس میں لڑکی لڑکے کے حق میں بیان دے اور ساتھ ہی لڑکے کو چاہیے وہ ضمانت قبل از گرفتاری کروائے اور ہائی کورٹ میں Quashment Of FiR کے لیے رجوع کرے. بطور ثبوت نکاح نامہ، لڑکی کے 164 کے بیان پیش کرے یوں لڑکے کی جان بڑی حد تک چھوٹ جائے گی. اگر لڑکا یہ نہیں کرتا اور لڑکی بعد میں گھر والوں کے دباؤ میں آکر لڑکے کے خلاف بیان دے دے تو لڑکا 365B کے تحت کئ سال کے لیے جیل جا سکتا ہے۔
اخلاقی نقطہ نظر ہمارے معاشرے کو پیش نظر رکھتے ہوئے؟
اوپر کی گئ باتیں تو قانون کے حوالے سے تھیں. اگر ہمارے معاشرے کے پس منظر میں دیکھا جائے تو لڑکی کا اپنے گھر سے بھاگ کر شادی کرنا بہت معیوب سمجھا جاتا ہے. گھر والوں کے لیے ذلت کا باعث بنتا ہے. ایسا قدم اٹھانے سے پہلے لڑکے اور خصوصاً لڑکی کو ہزار بار سوچنا چاہیے. اس کے ساتھ ہی والدین کی ذمہ داری ہے کہ بچوں کی شادی کرتے وقت بچوں کی مرضی رضامندی کو سامنے رکھ کر فیصلہ کریں کیوں کہ اسلام میں اولاد کی شادی کے لیے رضامندی لینا لازمی ہے. ہم اس شخص کے ساتھ ایک گاڑی میں سفر نہیں کرسکتے جو ہمیں پسند نہ ہو تو زندگی کا سفر کے لیے ہم کیسے غیر پسندیدہ شخص کا انتخاب کرسکتے ہیں. بدقسمتی سے ہوتا یہ ہے کہ والدین بغیر بتائے بغیر پوچھے رشتہ کر دیتے ہیں جس سے بعد میں مسائل پیدا ہوتے ہیں. اگر لڑکا یا لڑکی کو برادری سے باہر شادی کا کہہ دیں تو گھر میں طوفان کھڑا ہوجاتا ہے اور یہ سوچ بن گئ ہے کہ خاندان کے ویلے نکمے سے شادی کر دیں گے لیکن باہر کے پڑھے لکھے سلجھے ہوئے سے شادی نہیں کریں گے. ایسی سوچ کو ہمیں ختم کرنا ہوگا۔ یاد رکھیں اسلام میں نکاح کے لیے کوئی ذات پات برادری کا کوئی تصور نہیں ہے اور اولاد کی بھی ذمہ داری ہے جذباتی فیصلے کے بجائے صبر و تدبر سے کام لیں. اور آخری بات کہ یہ یاد رکھیں کسی عورت کی زبردستی شادی کروانا تعزیرات پاکستان کی دفعہ 498B کے تحت جرم ہے جسکی سزا 10 سال تک ہوسکتی ہے۔
What is court marriage and how is it done? What is the difference between court marriage and common marriage?The only difference between a court marriage and a general marriage is that in common circumstances, a boy and a girl is married at home or in a marriage hall, while in a court marriage, marriage is in the court, that means in a lawyer's chamber. Court marriage is often in those cases in which boys and girls run away from their family and marry. Boys and girls come to court, they contact a lawyer who calls the Nikah Registrar. Those who have a Nikah register. Remember one thing, it is not necessary in law that marriage will be only a Maulvi and only the Maulvi will get the Nikah Register According to the law, a relevant DC Nikah Register can be issued to anyone. Now they come to the topic, the lawyer calls a Nikahwah and get the boy married to a girl. For marriage, the boy's age must be, and the girl's age must be years. If there is no ID card, then there should be no form or educational credentials that can determine age. After marriage, the same nikah also gets nikah registered with the relevant Union Council and so the court marriage is completed.Problems related to court marriage?In the marriage of choice, the girl's family gets the FIR of kidnapping on the boy under In this situation, the boy should immediately make the girl's statement in front of the magistrate in which the girl gives a statement in favor of the boy and the boy should get bail before bail and return to the High Court for Quashment Of FiR ..... As proof of Nikah Nama, present the statement of the girl's possible. This is how the boy's life will be missed to a If the boy doesn't do this and the girl later comes under the pressure of the family and gives a statement against the boy, the boy can go to jail for many years under affordable B.Ethical approach to presenting our society?The above talks were regarding the law. If it is seen in the background of our society, then it is considered very important for a girl to run away from her home and marry. It causes humiliation for the family members. Before taking such a step, the boy and especially the girl should think a thousand times. Also, it is the responsibility of parents to decide when marrying their children by keeping the consent of their children in front of them because it is necessary to consent for the marriage of their children in Islam. We can't travel in a car with a person we don't like so how can we choose a person we don't like for the journey of life. Unfortunately, parents make a relationship without telling them, which causes problems later on. If a boy or a girl is told to marry outside the community, then a storm arises in the house and it has become a thought that the family members will marry a loser but will not marry the educated outside. We have to end such thinking. Remember in Islam there is no concept of caste community for marriage and children are also responsible. Instead of emotional decisions, be patient and be careful. And the last thing to remember that forcing a woman to marry is a crime under the penal of Pakistan, which can be punished for years.
فیملی مقدمات میں فیملی عدالت کی ڈگری کے خلاف صرف اپیل دائر کی جا سکتی ھے۔ فیملی عدالت کی ڈگری کے خلاف کراس ابجیکشن دائر نہیں کیا جا سکتا
Cross Objection.
Decree passed by the Family Court could only be challenged by filing appeal and in family matters/suits Oanoon Shahadat and C.P.C. except S.10&11 were not applicable. Cross objection/counter claim could not be filed in Family Court which was the subject of C.P.C.
2014 SCMR 1365
2007 SCMR 1768
2014 CLC 1038
PLJ 2014 Lahore 1006
PLJ 2014 Lahore 1006[Multan Bench Multan Mst. SADIA FIDA KHAN, etc.--Respondents W.P. No. 9982 of 2009, heard on 4.12.2013.
Mst. SADIA FIDA KHAN, etc.--Respondents
----S. 14--Procedure of filing appeal against decree passed by Family Court--Marriage was dissolved on basis of Khula subject to payment of dower amount entitlement to receive of amount as price of dowry whereas rest of her claim was turned down--Decree passed by Family Court can only be challenged by filing an appeal and nothing else--Right to object decree through appeal--Cross objections--Validity--Proceedings of Addl. District Judge, towards entertainment of cross-objections/counter claim filed by respondent findings regarding objections/claim and judgment and decree whereby objections/ counter claim have been accepted could not be permitted under law. [P. 1010] C
----It is an established principle of law that when law provides a thing to be done in a particular manner then it must be done in said manner or should not be done. [P. 1010] B
----S. 17--Applicability of provisions of Qanun-e-Shahadat Order and CPC (except Section 10 & 11) in family cases--Decree passed by Family Court can only be challenged by filing an appeal and nothing else--Validity--A decree passed by a Family Court (dower or dowry exceeding Rs. 30,000/- and maintenance allowance exceeding
Rs. 1000/- per month) can only be objected by filing an appeal and that in family matters/suits, Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure 1908 (Except Section 10 & 11) are not applicable--Meaning thereby that a decree passed by a family Court, by no imagination, can be challenged by way of filing cross objections/counter claim, as it is subject of CPC. [P. 1010] A
Ch. Abdul Ghani, Advocate for Petitioner.
Mehar Haq Nawaz Humayun, Advocate for Respondents.
Date of hearing: 4.12.2013.
Judgment
Through the instant writ petition, the judgments and decrees dated 31.3.2009 and 6.11.2009, respectively passed by the learned Judge Family Court and learned Addl. District Judge, Burewala have been called in question.
2. The facts are that the Respondent No. 1, filed a suit against the petitioner, through which she had claimed dissolution of marriage, recovery of dowry amounting to Rs. 13,81,150/-, dower valuing Rs. 1,00,000/- and past eight months maintenance allowance @ Rs. 10,000/- per month total Rs. 80,000/-. The said suit was contested through written statement, whereby the contentions raised in the plaint were vehemently denied.
3. During the pre-trial, reconciliation proceedings dated 6.12.2008 the marriage was dissolved on the basis of Khula, subject to the payment of dower amounting to Rs. one lac to the petitioner. To resolve the remaining controversy between the parties, issues were framed, the evidence of the parties was recorded and finally the impugned judgment and decree dated 31.3.2009 was passed, whereby the Respondent No. 1 was held entitled to receive Rs. 6 lac as price of the dowry articles and rest of her claims were dismissed.
4. The petitioner assailed the above said judgment and decree of the learned trial Court, before the learned Addl. District Judge, Burewala through an appeal. The Respondent No. 1 also preferred cross-objections/counter claim in the appeal filed by the petitioner. The learned Appellate Court through the consolidated judgment and decree dated. 6.11.2009, dismissed the appeal filed by the petitioner, whereas while accepting cross-objections/counter claim, preferred by Respondent No. 1, enhanced the amount of dowry to Rs. 8,61,350/- and also held her entitled to recover maintenance allowance @ Rs. 10,000/- per month from 15.4.2008, till expiry of the "Iddat" period.
5. Feeling aggrieved, the instant writ petition has been preferred, with the contentions and the grounds that nothing in support of the claims made in the plaint was brought or available on the record but erroneously, the learned trial Court had decreed the suit in the terms mentioned above; that when the matter went in appeal, the learned Appellate Court had falsely dismissed the appeal and accepted the cross-objections/counter claims filed by the Respondent No. 1. It has been requested that by setting aside both the decrees of the above-said learned Courts, the suit may be dismissed.
6. Arguments pro and contra have been heard and record perused.
7. It has been observed that before the learned trial Court to substantiate the claim of the dowry, not only the Respondent No. 1 herself had appeared and got recorded her statement as PW-1, but also produced a witness namely Haroon Fida Khan as PW-2 and also brought on the record proof regarding purchase of the dowry. The list of the claimed dowry was also tendered in evidence as Ex.P-1. During the said evidence, the contention raised and grounds taken in the plaint were reiterated. On the other hand, the petitioner himself appeared in the witness-box as DW-1, whereby he denied the claims and contentions of the Respondent No. 1.
8. The learned trial Court, while minutely examining the material available before it and evaluating the stance of both the parties had rightly come to the conclusion that Respondent No. 1 was entitled to receive a sum of Rs. 6 lac as price of the dowry, whereas rest of her claim was turned down. In family matters Section-14 of the West Pakistan Family Courts Act, 1964 (hereinafter will be read as Act) prescribes a procedure of filing appeal, against decree passed by a Family Court. For sake of reference, the said provision is reproduced herein below:--
Appeal. [(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable--
(a) to the High Court, where the Family Court is presided, over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Judge or a Additional District Judge, and
(b) to the District Court, in any other case.]
(2) No appeal shall lie from a decree passed, by a Family Court:-
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of Item (viii) of section (2) of the Dissolution of Muslim Marriages Act, 1939.
(b) for dower (or dowry) not exceeding rupees [thirty thousand).
(c) for maintenance of rupees [one thousand] or less per month.
(3) No appeal or revision shall be against an interim order passed by a, Family Court.
(4) The appellate Court referred to in sub-section (1) shall dispose of the appeal within a period of four months].
9. The abovementioned provision, clearly describes that a decree passed by a Family Court, (dower or dowry exceeding Rs. 30,000/-, maintenance allowance exceeding Rs. 1000), can only be challenged by filing an appeal and nothing else. It was the right of the petitioner to object the decree dated 31.3.2009, passed by the learned Family Court through appeal, hence he had rightly exercised his said right.
10. Section-17 of the Act prohibits applicability of the provisions of Qanun-e-Shahadat Order, 1984, and the Civil Procedure Code 1908, (except Sections 10 & 11), in family cases. For guidance, the said section is highlighted hereunder:--
"17. Provisions of Evidence Act and Code of Civil Procedure not to apply. (1) Save as otherwise expressly provided by or under this Act the provisions of the (Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984), and the Code of Civil Procedure, 1908 (except Sections 10 and 11) shall not apply to proceedings before any Family Court (in respect of Part I of Schedule).
(2)........................
11. The abovementioned provisions have confirmed that a decree passed by a Family Court (Dower or dowry exceeding Rs. 30,000/- and maintenance allowance exceeding Rs. 1000/- per month) can only be objected by filing an appeal and that in family matters/suits, the Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure 1908 (Except Sections 10 & 11) are not applicable. Meaning thereby that a decree passed by a family Court, by no imagination, can be challenged by way of filing cross objections/counter claim, as it is the subject of Civil Procedure Code, 1908.
12. It is an established principle of law that when law provides a thing to be done in a particular manner then it must be done in the said manner or should not be done. In the situation in hand, despite the abovementioned settled provisions, the Respondent No. 1 instead of filing an appeal, erroneously has filed cross objections/counter claim, in the appeal preferred by the present petitioner and astonishingly the learned Addl. District Judge has not only entertained the said objections/claim, but by accepting the same has enhanced the price of dowry from Rs. 6,00,000/- to Rs. 8,61,350/- and also granted interim maintenance allowance @ Rs. 10,000/- per month, in favour of the Respondent No. 1.
13. Consequently, the proceedings of the learned Addl. District Judge, Burewala towards entertainment of the cross-objections/counter claim filed by the Respondent No. 1, the findings regarding the said objections/claim and the judgment and decree dated 6.11.2009, whereby the said objections/counter claim have been accepted could not be permitted under the law.
14. The other findings of the learned Appellate Court, whereby the appeal filed by Respondent No. 1 has been dismissed have also been perused. The said findings being quite reasonable and result of correct appreciation of the evidence and material available on the record are not open to any exception, hence warrant no interference.
15. Resultantly, this writ petition is partially accepted. The impugned judgment and decree dated 6.11.2009 passed by the learned Addl. District Judge, Burewala whereby, cross-objections/counter claim, filed by Respondent No. 1 have been accepted, is set aside being not acceptable under the law. Rest of the findings as well as the judgment and decree impugned are maintained. The result is that the judgment and decree dated 31.3.2009 passed by the learned trial Court shall hold the field.
(R.A.) Petition accepted
-Art. 199--Muslim Family Law Ordinance, 1961, Ss. 7, 9--Constitutional petition--Petitioner filed a suit against respondent for recovery of dower, dowry articles and maintenance allowance-
PLJ 2021 Peshawar (Note) 113
Constitution of
----Art. 199--Muslim Family Law Ordinance, 1961, Ss. 7, 9--Constitutional petition--Petitioner filed a suit against respondent for recovery of dower, dowry articles and maintenance allowance--Essence of marriage is a sharing of common life, a sharing of all happiness that life has to offer and all misery that has to be faced in life--Living together is a symbol of such sharing in all its aspects whereas living apart is a symbol indicating negation of such sharing--It is indicative of a disruption of essence of marriage-“breakdown” and if it continues for a fairly long period, it would indicate destruction of essence of marriage “irretrievable breakdown”--In case in hand, petitioner in response to execution petition filed by Respondent No. 1, approached executing Court with a clear stance that she cannot join her husband, because of life threats and to this effect, she also recorded her statement under oath before executing Court, therefore, when there are serious threats to petitioner from her husband, then petitioner could not be compelled to join her husband at cost of threats to her life--A wife could not be forced to join her husband pursuant to a decree for restitution of conjugal rights when she apprehends serious threats to her life--Granted, that Order XXI, Rule 32, C.P.C. empowers executing Court to attach property of judgment debtor for purpose of enforcement of decree regarding restitution of conjugal rights, but it is discretionary with Court and not mandatory and being so, it ought to be exercised judiciously and carefully--Provision has specifically provided that if party against whom a decree has been passed had an opportunity of obeying decree and has wilfully failed to obey it, then decree could be enforced through attachment of her property--In instant case, when petitioner herself urged before executing Court that she has life threats from Respondent No. 1, then decree could not be executed through coercive measures and she could not be forced to reside with her husband and in circumstances, her refusal could not be construed a wilful refusal of decree and, thus her property could not be attached--Appellate Court erred in reversing order of trial Court which did not suffer from any jurisdictional defect. [Para 6] A
Mr. Muhammad Wahid Anjum Advocate for Petitioner.
Mr. Muhammad Ghazanfar Ali Advocate for Respondent No. 1.
Date of hearing: 5.12.2019.
PLJ 2021 Peshawar (Note) 113
[D.I. Khan Bench]
Present: Syed Muhammad Attique Shah, J.
versus
JAVED IQBAL and others--Respondents
W.P. No. 815-D with C.M. No. 900-D of 2019, decided on 5.12.2019.
Judgment
Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Mst. Kalsoom Bibi has called in question the judgment dated 18.7.2019 rendered by learned Additional District Judge-I/MCAC, D.I. Khan, whereby on acceptance of the appeal of Respondent No. 1, the impugned order dated 07.9.2018 of learned Judge Family Court-I, D.I. Khan was set aside and the learned Executing Court/Judge Family Court-I, D.I. Khan was directed to restore the execution petition of Respondent No. 1.
2. The brief facts giving rise to the instant petition are that the petitioner filed a suit against Respondent No. 1 for recovery of dower, dowry articles and maintenance allowance. Respondent No. 1 contested the suit by submitting his written statement and also prayed for restitution of conjugal rights. After full dress trial, the suit of the petitioner was partially decreed vide judgment and decree dated 25.5.2015. At the same time, the prayer of Respondent No. 1 for restitution of conjugal rights subject to payment of past maintenance was also allowed.
3. The Respondent No. 1 filed execution petition for execution of decree to the extent of restitution of conjugal rights in his favour. During the pendency of execution proceedings, the Respondent No. 1 filed an application seeking attachment of the property of the petitioner. The petitioner contested the said application by submitting her replication. After hearing arguments, the learned Civil Judge-IX/JFC-I, D.I. Khan consigned the execution petition vide order dated 07.9.2018, leaving the Respondent No. 1 to withdraw the amount already deposited with the Civil Nazir of the Court in connection with conditional decree of past maintenance.
4. Aggrieved from the order dated 07.9.2018, the Respondent No. 1 filed an appeal. The learned Additional District Judge-I/MCAC, D.I. Khan, vide judgment dated 18.7.2019, accepted the appeal, set aside the impugned order dated 07.9.2018 and directed the learned Executing Court/Judge Family Court-I, D.I. Khan to restore the execution petition of Respondent No. 1, hence the instant petition by the petitioner.
5. I have heard the arguments of learned counsel for the parties and have gone through the available record.
6. The essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life. Living together is a symbol of such sharing in all its aspects whereas living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage “breakdown” and if it continues for a fairly long period, it would indicate destruction of the essence of marriage- “irretrievable breakdown”. In the case in hand, the petitioner in response to the execution petition filed by the Respondent No. 1, approached the learned executing Court with a clear stance that she cannot join her husband, because of life threats and to this effect, she also recorded her statement under oath before the learned executing Court, therefore, when there are serious threats to the petitioner from her husband, then the petitioner could not be compelled to join her husband at the cost of threats to her life. A wife could not be forced to join her husband pursuant to a decree for restitution of conjugal rights when she apprehends serious threats to her life. Granted, that Order XXI, Rule 32, C.P.C. empowers the executing Court to attach property of the judgment debtor for the purpose of enforcement of the decree regarding restitution of conjugal rights, but it is discretionary with the Court and not mandatory and being so, it ought to be exercised judiciously and carefully. The ibid provision has specifically provided that if the party against whom a decree has been passed had an opportunity of obeying the decree and has wilfully failed to obey it, then the decree could be enforced through attachment of her property. In the instant case, when the petitioner herself urged before the learned executing Court that she has life threats from Respondent No. 1, then the decree could not be executed through coercive measures and she could not be forced to reside with her husband and in the circumstances, her refusal could not be construed a willful refusal of the decree and, thus her property could not be attached. The appellate Court erred in reversing the order of learned trial Court which did not suffer from any jurisdictional defect.
7. For the reasons mentioned above, the instant petition is accepted, the impugned judgment dated 18.7.2019 of the learned appellate Court is set aside and the order of learned Executing Court dated 07.9.2018 is restored.
(A.A.K.) Petition accepted
--Art. 199--West Pakistan Family Courts, Rules, 1965, R. 6 r/w S. 7(2) of West Pakistan Family Courts, Act, ( of 1964)--Fixation of interim maintenance allowance--
PLJ 2021 Lahore (Note) 122
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Family Courts, Rules, 1965, R. 6 r/w S. 7(2) of West Pakistan Family Courts, Act, ( of 1964)--Fixation of interim maintenance allowance--Jurisdiction--Maintainability--Challenge to--Under Rule 6 of West Pakistan Family Court Rules, 1965 read with Section 7(2) of West Pakistan Family Courts Act, 1964, a suit for recovery of maintenance allowance can be filed before a Family Court, where wife resides--As plaintiffs have claimed that they are living in Lahore, therefore, issue of jurisdiction has rightly been decided by Judge Family Court, Lahore--So far as quantum of interim maintenance allowance of minor at rate of Rs. 2500/- per-month is concerned, Judge Family Court has rightly fixed same while keeping in view status of parties--Petitioner has challenged interim order of Judge Family Court, Lahore, which is always subject to final decision of case--High Court cannot go into disputed questions of fact and cannot determine status of parties in its Constitutional jurisdiction, therefore, instant writ petition, which has been filed against an interim order, is not maintainable--Petition dismissed. [Para 5 & 6] A, B, C & D
PLD 2005 SC 22 ref.
Mr. Atif Mehmood Chaudhry, Advocate for Petitioner.
Mr. Muhammad Zaman Bhutta, Advocate for Respondents
No. 1 and 2.
Date of hearing: 23.12.2011.
PLJ 2021 Lahore (Note) 122
Present: Malik Shahzad Ahmad Khan, J.
HAKIM ALI--Petitioner
versus
Mst. KAUSAR, and 2 others--Respondents
W.P. No. 9350 of 2011, decided on 23.12.2011.
Order
This petition has been filed to challenge the order dated 16.03.2011, whereby, interim maintenance allowance at the rate of
Rs. 2500/- per-month of minor/Respondent No. 2 has been fixed, as well as, against the order dated 18.04.2011, whereby, preliminary objection taken by the petitioner/defendant regarding jurisdiction of the Court was decided in favour of the Plaintiffs/Respondents No. 1 and 2, passed by the learned Judge Family Court, Lahore.
2. It is contended by the learned counsel for the petitioner/ defendant that the petitioner is resident of Sahiwal, therefore, under Rule 6 of the West Pakistan Family Courts Rules, 1965, the learned Judge Family Court, Lahore has no jurisdiction to entertain the suit filed by the Plaintiffs/Respondents No. 1 and 2; that it was admitted in the plaint by Plaintiff No. 1 that she was ousted from the house of the petitioner, therefore, her plaint has illegally been entertained by the above-mentioned Court at Lahore; that the quantum of interim maintenance allowance of minor at the rate of Rs. 2500/- per-month is beyond the means of the petitioner; that the said interim maintenance allowance has been fixed without keeping in view the status of the parties, therefore, the above-mentioned impugned orders may be set-aside.
3. On the other hand, this petition has been opposed by the learned counsel appearing on behalf of Respondents No. 1 and 2 on the grounds that the plaintiffs have been living at Lahore, therefore, under Rule 6 of the West Pakistan Family Courts Rules, 1965, the learned Judge Family Court, Lahore, has the jurisdiction to entertain the suit of the plaintiffs; that a specific ground was taken by the plaintiffs/ Respondents No. 1 and 2 in Para 10 of their plaint that they were living at Lahore, and there is no specific denial by the petitioner in his written-statement to the above-mentioned fact; that the interim maintenance allowance was fixed by the Courts below while keeping in view the status of the parties, because the petitioner/defendant has himself admitted in his written-statement that there were gold, ornaments weighing 13 tolas and a sum of Rs. 1,00,000/- in his house, which were, allegedly taken away by plaintiff/Respondent No. 1 at the time of desertion; that the instant writ petition has been filed against an interim order, which is not maintainable, therefore, the same may be dismissed.
4. Arguments heard and record.
5. Under Rule 6 of the West Pakistan Family Court Rules, 1965 read with Section 7(2) of the West Pakistan Family Courts Act, 1964, a suit for recovery of maintenance allowance can be filed before a Family Court, where wife resides. As the plaintiffs have claimed that they are living in Lahore, therefore, the issue of jurisdiction has rightly been decided by the learned Judge Family Court, Lahore. Reference in this context may be made to the case of Muhammad Iqbal through Special Attorney Faiz Sultan vs. Parveen Iqbal (PLD 2005 Supreme Court 22).
So far as the quantum of interim maintenance allowance of minor at the rate of Rs. 2500/- per-month is concerned, the learned Judge Family Court has rightly fixed the same while keeping in view the status of the parties. The petitioner/defendant has mentioned in Para No. 3 of his written-statement that there were gold ornaments weighing 13 tolas and a sum of Rs. 1,00,000/- in his house, which were allegedly stolen by plaintiff/Respondent No. 1 at the time of desertion. So, keeping in view the present state of inflation and price hike, the above-mentioned interim maintenance allowance cannot be declared to be exorbitant or excessive.
6. The petitioner has challenged interim order of the learned Judge Family Court, Lahore, which is always subject to final decision of the case. This Court cannot go into disputed questions of fact and cannot determine the status of the parties in its Constitutional jurisdiction, therefore, instant writ petition, which has been filed against an interim order, is not maintainable and the same is, hereby, dismissed.
(Y.A.) Petition dismissed
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