Appeal against Dissolution of Marriage
Section 14(2)(a) of West Pakistan family Court Act 1964 and section 2(iii)(d) of Dissolution of Muslim Marriage Act 1939 that no appeal against decree for dissolution of marriage .
Its object to deprive from filing of appeal against the decree regarding dissolution is to shorten the agony and to resolve the controversy expeditiously.
Theme behind the proceedings or reconciliation proceedings before and after evidence and taking out of the right of appeal in case of dissolution of marriage by the Family Court is only to settle the matter regarding the marriage of the spouses as early as possible.
No right of appeal is provided if marriage was dissolved by the family court however if marriage was dissolve under section 2(iii)(d) of the Dissolution of Muslim Marriage Act 1939 then right of appeal had been awarded before the District Judge. (Ref: 2013 CLC 1203)
Appeal against Khula, appeal in Khula
Non-payment of dower or paid on first night
Section 5 of west Pakistan family court Act (XXXV of 1964) — article 199 of constitution Petition – suit for recovery of maintenance allowance and dower was decreed – contention of husband was that he had stated before the family court that dower had been paid to the wife on the wedding night therefore, finding of courts below were incorrect –
validity – mere statement before family court could not be considered as proof of payment of dower and the husband was bound to prove the same though evidence – in absence of cogent evidence, simple statement could not be considered as a proof and in such a case the onus would not shift to the wife to disprove the claim of the husband –
dower in fact was a debt against the husband in case the dower amount is not paid the wife would have right to refuse the performance of her marital obligations –
once it was proved that the dower had not been paid the wife would be entitled to sty away from the husband and the husband would be bound to pay maintenance to the wife –
husband in the present case did not prove that he had paid dower to his wife therefore the wife was entitled to receive maintenance allowance
2013 CLC ( Islamabad) 1085
Posted in Family | Tagged Dower paid on one night of marriage, Effect of non-payment of dower to wife, Non-payment of dower, payment of dower without proof, proof of payment of dower
Recovery of Gold Ornaments or its value
Section 5 of the west Pakistan family courts act (XXXV of 1964)—gold ornaments – market value – compensating wife/decree holder with market value of gold instead of gold ornaments – scope – wife filed suit for recovery of dowry articles against her husband and the list of dowry articles included 17 tolas of gold – suit prayed for either recovery of 17 tolas of gold or its value which was stated to e Rs. 380,000/= —
trial court granted decree only for recovery of dowry articles but not its market value therefore wife was held entitled to recovery of 17 tolas and in case he was not in a position to provide the same the wife could be appropriately and fully compensated in terms of money only if she was paid an amount that would enable her to purchase the same from the open market –
unlike other property moveable or immoveable determination of market value of gold did not pose any difficulty as the sasem was fixed by gold market on daily basis and was readily exchangeable for case – wife was entitled to recovery of 17 toals gold ornaments or in the alternative its current market value – appeal was allowed accordingly
Marriage – Nikahnama signing of – effect – As soon as an adult of sound mind signed the nikahnama, he entered into a contract, whereby heavy responsibility was cast upon him to provide basic necessities of life to his wife.
Wife Disentitle of Maintenance
Section 5 west Pakistan Family Courts Acts 1964 – suit for recovery of maintenance allowance by wife – refusal of wife to live with her husband despite having received dower amount on basis of compromise effected between spouses in suit for restitution of conjugal rights filed by husband
– validity—wife for being disobedient was not entitled to maintenance during period of desertion –
suit was dismissed in circumstance
Increment of Minor Maintenance
Maintenance allowance for minor – admission of father ( Govt. employee) to be drawing monthly salary as Rs, 9,944/= with periodic increase therein – maintenance awarded to minor by family court @ Rs. 3000/= per month with annual increase therein @ 10% upheld by appellant court –
father pleas was that no provision existed in west Pakistan Family Courts Act 1964 for granting maintenance with annual increase therein—validity – Father in evidence had admitted increase in his pay on periodic basis as well as 50% increment in his earlier basic pay and medical allowance –
courts below on basis of evidence available on record regarding periodic increase in monthly salary /income of father and also considering growing needs of minor along with rampant inflation in currency had rightly awarded 10% annual increase in maintenance of minor – High Court dismissed constitutional petition in circumstance.
Remarriage after Khula without Intervening
Section 7(6) Muslim Family Law Ordinance 1961 — constitutional petition — re-marriage – parties were husband and wife inter se and their marriage had been dissolved on the basis of khula vide ex parte decree dated 7-11-2009 – plea raised by parties was that suit for dissolution of marriage was filed on
misunderstanding and both of them wanted to re-marry without intervening marriage (Hallala) – validity – Approved mode of divorce, under Muslim Family laws Ordinance 1961 was by one “Talaq” and such mode was obligatory for husband to divorce by one mode of “talaq” other than “Talaq-e-“Ahsan” –
Couple could remarry without any intervening marriage except where wife had been divorced thrice and third divorce had become 4effective and only in that case they could not remarry without “Halala”
All divorces were revocable under section 7(6) of Muslim Fmaily Law Ordinance 1961 – High Court allowed reunion of parties after revival of “Nikah” particularly when wife was willing to live again with her husband and to perform her matrimonial conjugal rights within the limits ordained by the Holy Quran and Sunnah – Petition was allowed in circumstances.
Marriage of Girl having 14 yeas of age
Section 375 Pakistan Penal Code
Ss. 2(a) & (b) Child Marriage Restrain Act 1929 Ss. 2(a) & (b)
Section 491 Habeas Corpus Criminal Procedure Code 1898 – Petition for the recovery of Detenue – Rape —
Marriage of Muslim girl below sixteen years of age who had otherwise attained puberty and consented to the marriage — Legality — complainant (father of alleged detenue ) filed present petition for recovery of her daughter contending that she was a minor girl and accused was subjecting her to rape
– alleged detenue contended that she had attained puberty and contracted marriage with the accused out of her own free will and consant –– validity — Medical reports of alleged detenue revealed that she was between 14 and 15 years of age at the time of her marriage with the accused –
medico-legal certificate available on record showed that alleged detenue had developed all physical characteristics of having attained puberty – marriage of the Muslim girl who was below 16 yeas of age, but had attained puberty and was also a consenting party to the marriage, was valid for all intent and purposes —
relationship of accused with the alleged detenue could not be equated with rape in such circumstances — Alleged detenue claimed to have attained puberty and admitted her willful nikah with the accused and also deposed to accompany him —
petition for recovery of alleged detenue was dismissed in circumstances.
Qanoon-e-Shahadat section 17
suit for the recovery of dowry articles- non production of receipts for dowry article – effect – provision of the qanun-e-shahadat 1984 were not applicable in the proceedings before family court act 1964 –
intent of the legislature was clearly to simplify the proceddure and the law makers were aware of the fact that in cases relating to dower the lists were seldom prepared and receipts were very rarely kept intact as everyone made arrangements for marriage of one’s daughter with the hope and prayer that she would lead a happily married life.
section 5 and section 10(4) of West Pakistan Family Courts Act 1964
Dissolution of marraige by way of khula – dower (haq Mahr) – return- scope- dispute regarding payment of dower – wife admitted payment of dower at the time of marriage but alleged that the same was snatched from her subsequently –
wife filed suit for dissolution of marriage by way of khula which was decreed by the trial court in lieu of payment of dower.
However due to the dispute between parties regarding payment of dower, trial court framed an issue to the effect that whether husband had paid doer to the wife
– validity – wife had admitted that dower was paid to her and that same was later allegedly snatched from her – once the husband had paid to her wife liability of payment of dower stood fulfilled – even if dower was subsequently snatched by the husband it could not be said that dower amount was not paid
– allegation made by wife that her dower amount had been snatched by the husband did not absolve her from the liability of returning the same because once dower amount was paid by the husband,
payment of dower attained finality and allegedly snatched amount article would not be termed as dower amount -trial court had passed decree for disslution of marraige by way of khula in liue of dower but at the same time also framed an issue to the effect that whether husband had paid dower to the wife –
trial court in such circumstances should have first decide the issue regarding payment of dower after recording evidence and then should have passed decree for granting khula or otherwise – case was remanded to the trial court with direction to first decide the issue regarding payment of dower and then pass appropriate order with regard to grant of khula.
2013 CLC 450
Posted in Family | Tagged khula in lieu of dower, return of dower in khula
Succession Certificate of Nominee
section 372 and section 373 Succession Certificate
Nominee is not entitled as owner of the amount subject matter in the succession matters but is only a representative and legal, duty bound to receive the amouont and distribute amongst legal heirs.
2013 CLC 406 Sindh High Court
Grandchildren Right of Inheritance
Section 4 of Muslim Family law Ordinance 1961
Article 203-D of Constitution of Pakistan
Right of Inheritance – scope- right of grandchildren to inherit the share of their predeceased father from their grandfather — Legality –
Although Federal Shariat Court had declared section 4 of Muslim Family Law Ordinance 1961 to be repugnant to Islamic Sharia but such verdict was under challenge before the Supreme Court and thereby the operation of said verdict stood suspended automatically till decision of the appeal as provided by Article 203-D of the Constitution –
grandchildren therfore, could inherit the share of their predeceased father from their grandfather.
Maintenance of breast feeding
Mother is entitled to maintenance for breast feeding the suckling baby for two years even after the period of iddat. However social status of the man and the level of his legitimate financial source which are imminent factor for deciding the quantum of maintenance shall not be ignored.
Section 17-A West pakistan Family Court Act 1964
Constitution of Pakistan Article 199
Maintainability- interim maintenance, quantum of – petition father /defendant challenged the reate of interim maintenance allowance awarded to his daughters
– quantum of interim maintenance allowance was not excessive in view of status of parties and expenses incurred on the education of daughters – determination of adequacy and inadequacy of the quantum of interim mantenance allowance would require factual inquiry which could not be undertake by the High Court in its constitutional jurisdiction –
impugned order was interlocutory in nature and was based on tentative assessment and the same could not be questioned in the constitutional jurisdiction of High court – Constitutional Petition was dismissed accordingly.
quantum of interim Maintenance
Past Maintenace limitation
section 5 Limitation Act 1908
Article 120, 199 Constitution of Pakistan
Suit for maintenance for four year till the period of iddat – appellate court upheld the judgment of trial court – defendant contended that past maintenance allowance could not be granted for more than a peiod of three years – validity – defendant remained out of country during last five years of marriage leaving behind the family and visited the country only twic – nothing was brought on record to unsettle the factual controversies and the findings of the courts below –
No period of limitation was prescribed under the limitation Act 1908 filing suit for maintenance allowance and was governed by article 120 of the limitation Act 1908 which provided period of six years for filing and suit for which no period of limitation was prescribed – constitutional petition was dismissed for being within merit.
suit for Past maintenance
Consent of Wali for Marriage
Posted on April 15, 2013
Marriage – Validity- consent of “Wali” isnot required and a sui juris Muslim female can enter into valid marriage / nikah of her own free will and choice
PLD 2004 Supreme Court 219
Maintenance Interim Order Limitation
Section 17A and 12A of West Pakistan Family Court Act 1964
Interim maintenance order fixing allowance – time period for which such interim order would remain valid – scope joint reading of section 17A and 12A of West Pakistan Family Courts Act 1964 reveled that when Family Court was made competent to pass an interim order for payment of maintenance allowance,
it was also made incumbent upon the Family Court to dispose of the case pending before it within a period of six months from the date of institution –
order passed under section 17A of the Wets Pakistan Family Court Act 1964 would be, at most effective by virtue of section 12A for final disposal of a lis pending before Family Court-
when the maximum age expired, continuation of proceedings before Family Court violate provision of section 12A of the said Act- age of an order passed under section 17A of West Pakistan Family Courts Act 1964 for interim maintenanec would at maximum be six months and if porceedings were not concluded within such time in the main suit wherein interim order was passed, the Family Court should not insist upon the implementation of the order of interim maintenance –
High Court observed that family Court had to report to the High Court for non implementation of section 12A of West Pakistan Family Court Act 1964 or in case of failure of Family Court to do so, either party would have a right to bring to notice of High Court such illegality being continued in the Family Court and High Court shall then either under prosio to section 12A of the said Act or under Article 199 of the Constitution pass appropriate order and reconsider quantum of maintenance
PLD 2013 Lahore 64 (Muhammad Shahbaz Khalid versus Family Judge Lahore)
section 7(6) of Muslim Family Law Ordinance 1961
Pronouncement of talaq by court would amount to single divorce and husband would be at liberty to marry the wife again after solemnization of nikah without intervention of a third person –
section 7(6) of the Muslim Family Law Ordinance 1961 did not debar wife whose marriage had been terminated by divorce under section 7 of the said ordinance from remarrying the same husband without intervening marriage with a third person.
PLD 2013 Lahore 88 (Major Qamar versus Judge Family Court Jhelum)
PLD 2010 Karachi 131 ( Muhammad Ayoub versus Mst. Shehla Rasheed)
Recovery of dowry Articles
Section 17, Dowry and Bridal Gifts (Restriction) Act 1976
Section 2(b) 10, Dowry and Bridal Gift (Restriction) Rule 1976
Suit for Recovery of dowry articles- list of dowry articles produced in evidence by both parties in support of their respective claim –
decree passed by Family Court on basis of such list produced by husband upheld by Appellant Court.
Wife plea that rule of thumb would apply to proceedings before Family court and not provisions of Qanoon-e-Shahadat 1984 or its principles, thus receipts in respect of purchase of dowry articles produced by her were liable to be relied upon by courts below –
Validity – wife in her statement had admitted that such list was not prepared at time of her nikah, while her father had deposed otherwise – rule of thumb would not be solve a party from establishing his/her claim
– party denying liability, on basis of such rule, could not be burdened to shoulder claim of opposite party without its proof-
Dowry list produced by wife was not prepared in shape of Form D-1 as prescribed in Rule 4(1) of Dowry and Bridal Gift (Restriction ) Rules 1976, therefore same was not to be considered in support of her claim –
receipts in respect of purchase of household articles on basis of rule of thumb would not quality and met essential requirement of proof of purchase of said articles by parents of wife and its giving to her before or after marriage – High Court dismissed constitutional Petition in circumstances
(Mst. Mirrat Manzoor Bajwa versus Additional District Judge Islamabad)
section 25 of Guardian and Ward Act 1890
Minor, Wefare of – Minor daughter was living iwth her mother and Guardian Court declined to interfere in the custody but lower Appellate Court handed over the minor to her father – Validity – Love and affection of a mother could not be compared with
– welfare of minor was to be given paramount consideration for disposal os such like questions i.e. custody of mionr and for that purpose any other consideration, even personal law of the parties was was sometimes preferred to be ignored
– whenever any such circumstances existed or controveries were brought before the court, Judge performed his jurisdiction like parents- Tearing apart the minor from lap of her mother, who at such stage,
for the sake and better ment of mior, even was taking risk of her matrimonial life with her second husband, would affect mental, psychological and physical uplift of the mior –
High court in exercise of constitutional jurisdiction, set aside the judgment and decree passed by Lower Appellant court and restored that the Guardian Court – Petition was allowed
section 10(4) of West Pakistan Family Courts Act 1964
Interpretation of section 10(4) proviso of west Pakistan Family Courts Act 1964- Restoration of Haq Mehr- proviso to section 10(4) of the west Pakistan Family Court Act 1964 provided that it could be validity inferred that if pre-trial reconciliation efforts familed,
the family court would pass decree for dissolution of marriage forthwith and would also restore to the husband,
the haq mehr received by the wife- order for the restoration of Haq Mehr could not be made mechanically as a matter of routine without first determining if the Haq Mehr was in fact received or not by the wife.
