-Application for custody of male minors above the age of seven years by mother--
2018 Y L R 649
Guardians and Wards Act (VIII of 1890)---
----Ss.17 & 25---Application for custody of male minors above the age of seven years by mother---Preference of minors---Scope---Minors were living with father and step-mother since birth---Effect---Welfare of minors--- Scope--- Petitioner/father contended that both the courts below had wrongly granted custody of minors above the age of seven to the mother---Respondent/mother contended that there was no substitute for mother's lap---Validity---Record revealed that father had moved application under S.17(3)(5) Guardians and Wards Act, 1890 before Family Court and appellate court praying to record the statements of minors but request was disallowed for no cogent reasons---While deciding the issue of custody of minor Court had to consider all the circumstances---In the present case, admittedly, the minors were living with their father since 2015, when the parents of the minors started living separately and finally the marriage was dissolved by way of Khulla the same year---Father was a natural guardian of minors and with him the children were living since their birth and there was step-mother and grandmother to look after their well-being and there were no adverse allegations against their attitude towards minors---Right of Hizanat lay in favour of mother only up to seven years in case of male child, admittedly in the present case both the minors were more than seven years of age---High Court during the course of hearing sent both the parents out of the Court room and one by one both of minors were asked to disclose their preference as they looked intelligent enough to form their opinion---Minors disclosed about their schooling, their daily routine and repeatedly expressed their wish to live with their father as they were being properly looked after by their grandmother, step-mother and father---Preference of the minors could not be ignored altogether and had to be given due importance---Minors needed supervision of their father at such growing age to groom properly---High Court observed that welfare of the minors, in the present case, lay with the father while charting out visitation schedule for mother to meet them occasionally---Impugned orders passed by the two Courts below were set aside---Constitutional petition was allowed accordingly.
Shahid Hussain Soomro for Petitioner.
Rana Muhammad Arshad for Respondent No.1.
Date of hearing: 6th November, 2017.
2018 Y L R 649[Sindh]Before Mrs. Ashraf Jahan, JIMRAN AHMED---PetitionerVersusMst. MADIHA YOUNUS and 2 others---RespondentsC.P. No.S-2210 of 2017, decided on 6th December, 2017.
JUDGMENT
MRS. ASHRAF JAHAN, J.---The Petitioner has assailed the order dated 12.10.2017, passed by learned Vth Additional District Judge, Karachi (East) in Guardian and Wards Appeal No.167/2017, by way of present petition, praying therein that impugned order along with earlier order dated 18.08.2017 passed by the Family Court in Guardians and Wards Application No.3111/2015 may be set aside and the custody of minors may be allowed to remain with him.
2. The precise facts relevant for disposal of instant petition are that Respondent No.1 had filed an application under section 25 of the Guardians and Wards Act, 1890 for seeking permanent custody of her two minors before the Court of IInd Civil and Family Judge, Karachi (East), stating therein that she had married with the Petitioner on 30.12.2005. They had two sons Huzaifa Imran, born on 04.11.2006 and Aashad Imran, born on 17.10.2008. After marriage, the Petitioner changed his attitude and used to treat her as housemaid, he was also jobless and addicted to alcohol. In the year 2008 she came to know that the Petitioner was already married with one Mst. Shamim which fact was concealed at the time of their marriage, thus he proved himself to be irresponsible and careless person. Further he failed to maintain her as well as two minors. Resultantly, she filed Family Suit No.1570/2015 and obtained Khulla from him through the Court. Thereafter she tried to meet with the minors, but the Petitioner did not allow her to meet with them. Having no other remedy she filed Guardian and Wards Application, which was decided in her favour vide order dated 03.07.2017, which was successfully challenged by the Petitioner, as his appeal was allowed vide order dated 10.08.2017 and the case was remanded to the Family Court to decide it afresh. But again the learned Family Court decided the case in her favour vide order dated 18.08.2017. The above order was challenged before the Vth Additional District Judge, but this time appeal was dismissed and order of the Family Court in her favour was upheld.
3. Conversely, the present Petitioner denied the allegations of Respondent No.1 and stated that she suppressed the actual material facts and concocted a fictitious story in her favour. The Petitioner had before marriage informed her about his first marriage with Mst. Shamim. Previously he was working in police department and maintained his family properly. The Respondent No.1 herself left the minors at his house and went to her parents' house and then filed suit for dissolution of marriage, where marriage was dissolved by way of Khulla. The minors are residing happily with the Petitioner being their natural guardian and thus no case for handing over their custody to Respondent No.1 is made out.
Upon pleadings of the parties, the Family Court framed the following issues:--
1. "Whether the application of Plaintiff is maintainable under the law?
2. Whether the welfare of minors namely Huzaifa Imran and Arshad Imran lies in favour of applicant?
3. Whether the welfare of minors namely Huzaifa Imran and Arshad Imran lies in favour of opponent?
4. What should the decree be?"
4. I have heard the learned counsel for the parties. It is contended by learned counsel for the Petitioner that the trial Court did not consider the real facts and passed the order in a hasty manner. In fact Respondent No.1 is doing job from 9:00 a.m. to 5:00 p.m. thus welfare of the minors lies with present Petitioner; the children are happily residing with the Petitioner and they are being properly looked after, therefore, no case for granting their custody to Respondent No.1 is made out. Furthermore the children are quite sensible and for this reason an application was moved before the Family Court to record their statements to see their preference, but the Court dismissed such application without any legal justification and illegally granted the custody of minors to Respondent No.1. He further contended that under the Islamic Law, in case of male child, right of Hizanat in favour of mother, is only upto the age of 7 years, whereas in the present case both the minors have already crossed the age of seven years. It is also pointed out that the present Petitioner has substantive earnings, as presently he is working as Zonal Manager, Tajjia Marketing Corporation and his first wife is running a beauty parlor. Hence, he is in better financial position as compared to Respondent No.1, who is working as Lecturer. Thus, the orders of the Family Court, as well as, Appellate Court are liable to be set aside and custody of minors may be allowed to remain with the present Petitioner. In support of his contentions, learned counsel for the Petitioner relied upon the cases reported as 2012 MLD 762 (Zainab Bibi v. Zaffar Iqbal), PLD 2015 Lahore 401 (Miss Fauzia Iqbal v. Farhat Jahan and others) and 2009 YLR 2339 (Mst. Farzana Kausar v. Muhammad Tufail and 2 others).
5. On the other hand, learned counsel for Respondent No.1 contended that welfare of the child lies with Respondent No.1, as she is their real mother, who can properly look after the children of this age. The present Petitioner has no proper arrangement at home for the care of the children, therefore, the learned Family Court and the Appellate Court have rightly ordered for the custody of children in her favour. It is also vehemently urged that the other wife of the Petitioner is running a beauty parlor, where she is busy from morning till evening, whereas the Petitioner himself also not available at home to look after the children; therefore, present petition may be dismissed. In support of his contentions, learned counsel for Respondent No.1 relied upon the cases reported as 2009 MLD Lahore (Tahira Bibi v. Muhammad Saeed and another), 2009 MLD 37 Karachi (Nasir Hayat v. The State), PLD 2005 Karachi 610 (Abdul Razzaque and 3 others v. Dr. Rehmana Shaheen and another).
6. I have considered the arguments advanced by both the sides and have perused the case record, which reveals that Respondent No.1 filed application under section 25 of Guardians and Wards Act before the IInd Civil and Family Court, Karachi (East), praying therein that custody of her two minor sons may be given to her. In her application referred to above, she claimed that being educated mother she is in better position to maintain and look after her children. She alleged that their father being jobless and illiterate person neither can maintain them properly nor could take care of them otherwise.
7. The Petitioner in his written statement denied the allegations leveled against him and stated that Respondent No.1 herself left the children with him on 02.06.2015 and since then they are residing with him happily. Besides, he has sufficient resources to maintain them, therefore no case for grant of custody of minors in favour of Respondent No.1 was made out.
8. Earlier the Family Court after recording the evidence of both the parties and only hearing the counsel for the present Respondent No.1 passed the order dated 03.07.2017, which was challenged by the present Petitioner before the Court of Vth Additional District Judge. This appeal was allowed and case was remanded to the Family Judge with directions to decide the same afresh after hearing both the parties. The Family Court vide Order dated 18.08.2017 decided the case afresh in favour of Respondent No. 1. and directed the father to handover the custody of both minors to their mother (Respondent No.1.). Again this order was challenged by the Petitioner before the Appellate Court, who vide its Judgment dated 12.10.2017, dismissed the appeal and maintained the order of the Family Court. It will be relevant to mention that before the Family Court as well as the Appellate Court present Petitioner has moved applications under section 17(3) and (5) of Guardians and Wards Act, praying therein to record the statements of minors but such request was disallowed for no cogent reasons.
9. Be that as it may, while deciding the issue of custody of minors, the prime duty of the Court is to examine, evaluate and determine the welfare of minor. In this regard, Court has to consider all the circumstances including relationship of proposed guardian, character, his or her financial capacity, home, age, religion and sex of the minor. Thus the question of welfare of minor varies from case to case in the given circumstances. So far as the facts of present case are concerned, it is admitted position that the children are residing with their father since June, 2015, when both the parents started living separately and finally marriage was dissolved by way of Khulla on 11.12.2015. When the case of both parties is put in juxtaposition, it appears that on one hand there is mother, working as Lecturer at some College; at her house she has her sister in law and aged father. On the other hand is father, who is natural guardian of minors and with whom the children are residing since their birth. Besides father, there is step mother and grandmother to look after their well being and there are no adverse allegations against their attitude towards minors.
10. It is also to be kept in mind that right of hizanat under the Islamic Law lies in favour of mother only upto the age of seven years in case of male child. In the case in hand, admittedly at present both the minors are more than seven years of age. Moreover, nothing has come on record to show any disqualification of the father to hold their custody being their natural guardian. This ground alone is sufficient for awarding the custody of minors to their father. It appears that the Family Court as well as first Appellate Court have not applied the principle of right of Hizanat as per its real prospective provided under the Islamic Law. Thus, it is established that there is non-reading/misreading of evidence and the impugned orders are illegal.
11. It is important to note that both the minors remained present before the Court on two dates of hearings. They both appeared to be intelligent enough to form their opinions. Therefore, during course of hearing both the parents were sent out from the Court room and one by one both the minors were asked to disclose their preference, who in clear and specific words chosen to live with their father, they disclosed about their schooling and other daily routine and repeatedly expressed their wish to live with their father as they are happy with him and being properly looked after by their grandmother, step-mother as well as their father. The minor Huzaifa, who is student of class-V and the other Aashad, student of class-III also disclosed that their education at home is given by some tutor and they get the positions in their class examinations. They both appeared to be healthy and confident in their appearance and conduct and on questions put by the Court they replied intelligently and opted to live with their father.
12. In the light of above mentioned facts and circumstances, their preference cannot be ignored altogether and has to be given its due importance. Even otherwise, looking to the growing age of minor boys they need the supervision of their father in order to groom them properly to meet the future challenges of society.
13. The case law cited by the learned counsel for Respondent No.1 is distinguishable and not applicable to the facts and circumstances of the present case.
14. Resultantly, I am of the view that at this stage welfare of minors lies with the present petitioner. Accordingly, orders dated 12.10.2017 and 18.08.2017 are set aside and present petition is allowed. However, Respondent No.1 would be entitled to meet the minors fortnightly on Saturdays from 10:00 a.m. to 6:00 p.m. In this regard parties are directed to appear before the Family Court and mutually settle the arrangement regarding meeting the minors. She will also be entitled to meet the minors on second day of both Eids. Moreover, Respondent No.1 (mother) will be entitled for the custody of both the minors for five days in winter holidays and fifteen days during summer vacations as per convenience of both the parties but subject to furnishing surety by Respondent No.1 for Rs.50,000/- before the Family Court for the safe return of minors to their father. If deems appropriate, Family Court would be at liberty to appoint any Court Official as Commissioner in respect of handing and taking over the minors.
MQ/I-1/Sindh Petition allowed.
CLOSING OF RIGHT OF WRITTEN STATEMENT BY FAMILY COURT
1. Right of Written Statement or Defence can
be struck down by the Family Court in spite
of Specific Provision in this regard in Family
Courts Act because the Family Court cannot
remain helpless if the defendant fails to file
written statement within the time provided
by the court.
[2017 CLCN 22]
2. Right of cross examine to a defendant
who failed in filing written statement can
not be denied.
[2012 CLC 1361]
4. The act of the petitioner was
contemptuous who did not file the written
statement in spite of the fact that ex parte
proceedings was set aside against him. Writ
Petition was dismissed.
[2006 MLD 1128]
5. No appeal against interlocutory order of
Family Court
[2005 CLD 1049]
6. The order of closing of right of written
statement by a Family court in a suit for
recovery of maintenance or dowry articles
cannot be challenged in a writ petition
being interlocutory order. The petitioner can
file appeal against the final judgment
because appeal has wider scope than writ
jurisdiction.
[2007 YLR 1550], [2009 MLD 1042]
7. Family court can regularize its proceedings on the general principles of
law.
[2017 YLR 622]
S.17-A---Interim maintenance, fixation of---Imperative duty of the Family Court to adopt a pragmatic approach and fix interim maintenance.
2020 C L C 131[Islamabad]Before Mohsin Akhtar Kayani, J
S.17-A---Interim maintenance, fixation of---Imperative duty of the Family Court to adopt a pragmatic approach and fix interim maintenance.
Principles enumerated.
i. Financial status of father shall be kept in view, which should be based upon salary slips, bank statements, income tax record, and business income reflected on record or through any other documentary proof placed by either side in the Court.
ii. Interim maintenance should be fixed not on hard and fast principles, rather based upon a tentative view.
iii. Maintenance should not be fixed on a higher side, which may result into technical knockout of the father so that he could not able to pay the interim maintenance, therefore, his option should also be considered for payment of interim maintenance, which he agrees to pay before the Family Court.
iv. In cases, where father has not explained his monthly income or his financial status in the pleadings, rather concealed his income, the Family Court can rely upon the facts narrated in plaint or on the basis of attached documents vis-a-vis the needs of minor and the verbal stance given by father without reference to his written statement will not be considered justified, hence the Family Court shall exercise discretion to fix the interim maintenance while applying the above principles.
v. In cases, where determination of adequacy or inadequacy of quantum of maintenance requires factual inquiry and evidence in trial, the maintenance should be fixed after consultation with the father and mother as well as keeping in view the day-to-day requirements of minor.
vi. The needs of minor should be considered on the basis of social stratification of family in which minor has been brought up.
vii. The financial status of father could also be considered on the basis of facts narrated in pleadings of the parties, which includes the living standard and previous matrimonial life of the parties in which the mother/wife has been provided with particular kind of living, housing facilities, transportation, gifts, immovable properties of husband and the lifestyle in which husband/father was living prior to separation or divorce or before the institution of suit for maintenance.
viii. In cases, where father being civil servant or employee of any organization, department or company has not appended his salary slips or bank statements, the Family Court shall ask for an undertaking or affidavit regarding his salary and thereafter shall fix the interim maintenance, however after the trial of the case, if the court comes to the conclusion that at the time of fixation of interim maintenance allowance the father/husband has stated a fact beyond his pleadings or undertaking, which is found to be false, such father be burdened with heavy costs and action of perjury may also be initiated against him.
ix. The Family Court may also call the employer of father, HR department, admin department, bank managers, land revenue department, tax record, and banking details as well as salary details of the father directly from the relevant offices while deciding the question of interim maintenance for a prima facie view to fix the allowance in favour of minor so that no inadequacy is attributed while fixing the maintenance allowance.
" SECOND MARRIAGE OF WIFE DURING " iddat" OF 90 DAYS PERIOD IS AN OFFENCE/ZINA".
2004 Y L R 1229
"Quashing of F.I.R/Declined".
The Federal Shariat Court in Mst. Kundan Mai v. The State PLD 1988 FSC page 89 has held that if the Nikah has been contracted during Iddat period and the spouses start living as husband and wife, they are guilty of offence under section 10(2) of the Offence, of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
It has also been held that the Nikah performed during Iddat period is liable to be cancelled as according to Shariah that Nikah is void and in order to validate the same, the spouses can contract Nikah for the second time and if they fail to revive their Nikah, they will be guilty of the above-said offence
The Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC page 51 has held that during the period of 90 days where after divorce becomes effective the divorcee woman remains wife of the husband who pronounces divorce.
The Supreme Court of Pakistan in case reported as Ghulam Shabbir Shah v. The State 1983 SCMR page 942 while holding that the second marriage contracted without observing iddat period was an irregular marriage which ceases to be a valid marriage had maintained the conviction.
Nikah performed during Iddat period was liable to be cancelled as according to Shariah said Nikah was void and in order to validate the same, spouses could contract Nikah for the second time and if they failed to revive their Nikah, they would be guilty of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2004 Y L R 1229
[Lahore]
Before Ijaz Ahmad Chaudhry, J
Mst. SUGHRAN---Petitioner
Versus
STATION HOUSE OFFICER and 2 others---Respondents
Writ Petition No.4925/Q of 2003, decided on 17th December, 2003.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
Ss. 10/16---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Quashing of F.I.R.
Suit for dissolution of marriage filed by petitioner against her husband was decreed and petitioner (lady) during her Iddat period had contracted second marriage with the co-accused--Effect.
If Nikah was contracted by the lady during Iddat period and spouses started living as husband and wife, they were guilty of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
Nikah performed during Iddat period was liable to be cancelled as according to Shariah said Nikah was void and in order to validate the same, spouses could contract Nikah for the second time and if they failed to revive their Nikah, they would be guilty of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
Marriage having been contracted by the petitioner with the co-accused during Iddat period, unless they would perform Nikah again, they could not live as husband and wife and would be guilty of offence of Zina.
Second marriage contracted by a lady without observing iddat period, was an irregular marriage which ceased to be a valid marriage.
Conviction of the lady was maintained especially when no law was produced in support of the contention that Nikah performed during iddat could be regularized after expiry of 90 days.
F.I.R. against the petitioner, in circumstances, could not be quashed, in circumstances.
Allah Dad v. Mukhtar and another 1992 SCMR 1273; NLR 1993 770; Mst. Kundan Mai v. The State PLD 1988 FSC 89; Ghulam Hussain v. Sirajul Haque and others 1997 PCr.LJ 1214; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Ghulam Shabbir Shah v. The State 1983 SCMR 942 and 1994 SCMR 2142 ref.
Sardar Tariq Sher Khan for Petitioner.
Muhammad Qasim Khan, A.A.-G.
ORDER
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No. 172 of 2003 dated 6-11-2003 registered under sections 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at Police Station Mahmood Kot District Muzaffargarh at the instance of her mother respondent No.2.
2. Briefly the facts narrated in the F.I.R. are that Mst. Sughran Mai petitioner was married with Bashir Ahmad who filed a suit for dissolution of marriage, which was decreed vide judgment and decree dated 15-3-2003 and during the Iddat period, on 27-3-2003, she contracted second marriage with Muhammad Bilal co-accused, whereafter they started living as him band and wife. Hence case was registered. Mst Sughran petitioner was released on bail. Afterwards Muhammad Bilal co-accused was also admitted to bail. The complainant claimed that the petitioner again eloped with him, therefore, the present case was registered.
3. Learned counsel for the petitioner contends that earlier F.I.R. No.67 of 2003 was registered on 5-5-2003 at the same police station with the same allegations wherein Mst. Sughran Mai petitioner and Muhammad Bilal were arrested and they were released on bail by this Court, who being husband and wife are not guilty of offences under sections 10(2)/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) as now the period of Iddat has already expired and their Nikah has become regular. He further contends that under Article 257 of Muhammadan Law, the marriage performed during Iddat period is not void but may be irregular and cannot be said to be unlawful under Article 264 of Muhammadan Law. Relies upon Allah Dad v. Mukhtar and another 1992 page 1273 in support of his contention It is further contended that the registration of the second F.I.R. on the same allegations is with mala fide intention and ulterior motive in order to humiliate petitioner and her husband.
Also relies upon "1992 SCMR 1273" to contend that with the bonafide belief they are living as husband and wife hence the impugned F.I.R. is liable to be quashed.
4. On the other hand the complainant/ respondent No.2 has appeared in person. who states that the marriage was contracted by the petitioner with Muhammad Bilal co accused during Iddat period and unless they contract Nikah again, they cannot live as husband and wife, hence they are guilty of the above-said offences. She has also filed written arguments alleging that the case has been correctly registered aid relies upon "NLR 1993 page 770." and PLD 1988 FSC page 89".
5. I have heard the arguments of both the parties and also perused the case law cited by them. Learned A.A.-G has also been heard.
6. The Federal Shariat Court in Mst. Kundan Mai v. The State PLD 1988 FSC page 89 has held that if the Nikah has been contracted during Iddat period ant the spouses start living as husband and wife, they are guilty of offence under section 10(2) of the Offence, of Zina (Enforcement of Hudood) Ordinance (VII of 1979). It has also been held that the Nikah performed during Iddat period is liable to be cancelled as according to Shariah that Nikah is void and in order to validate the same, the spouses can contract Nikah for the second time and if they fail to revive their Nikah, they will be guilty of the above-said offence. The relevant portion is reproduced below:--
The other case cited by the complainant reported as Ghulam Hussain v. Sirajul Haque and others 1997 PCr. LJ 1214 is on the point that second F.I.R. can be lodged.
7. I have also searched out the case law on the subject. The Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC page 51 has held that during the period of 90 days whereafter divorce becomes effective the divorcee woman remains wife of the husband who pronounces divorce. The Supreme Court of Pakistan in case reported as Ghulam Shabbir Shah v. The State 1983 SCMR page 942 while holding that the second marriage contracted without observing Iddat period was an irregular marriage which ceases to be a valid marriage had maintained the conviction. The relevant portion is as under:--
"In section 4 while defining Zina the word "marriage" has been qualified by another word "validly", while in section 5 Zina liable to Hadd the word "marriage", is used without such qualification. A valid marriage has been defined as "marriage contracted and solemnized in accordance with Shariah with all its constituents and conditions, without any legal impediment" (Dr. Tanzilur Rahman). A Code of Muslim Personal Law). Even Mulla's Muhammadan Law recognizes the distinction of valid and invalid marriages and in the category of invalid marriages are placed the irregular marriages and void marriages. So the moment the learned counsel accepts that it was an irregular marriage, it ceases to be a valid marriage.
On no principle of interpretation of Statutes can dissignificant qualifying word "validly" be ignored, treated as redundant or a surplusage. It has to be given a meaning and full effect. So an irregular marriage affords no protection where the law requires as in section 4, a valid marriage."
The case-law reported as Allah Dad v. Mukhtar and another 1992 SCMR page 1273 cited by the learned counsel for the petitioner runs contrary to the facts and circumstances of the present case wherein it was held that the second marriage after the divorce while observing Iddat could not be declared as invalid only for the reasons that the notice was not sent to the Chairman. Even in the said judgment the marriage performed during Iddat period was held to be void. The relevant portion is reproduced here for ready reference:--
"This point was also raised before the trial Court but was rejected on the ground that Nikah during the "Iddat" of the former husband is only an irregular Nikah and is not void, but we do not agree with this finding of the trial Court, because, firstly a marriage contracted during the period of "Iddat" is not merely an irregular marriage, it has been termed by the Muslim Jurists as Batil (void). See Ibn Abidin: Raddul-Muhtar, Vol. 2, p. 482 and secondly, because even if is held to be irregular, it is still an invalid marriage, for both the irregular (Fasid) and void (Batil) marriages fall in the category of "invalid marriage". (See Ibn Abidin Vo1.2. page 835)."
8. In view of above discussion, I am of the view that no case is made out for quashment of F.I.R., No case-law has been produced in support of the contention that the Nikah performed during Iddat period can be regularized after the expiry of 90 days, which question is still open in the present case and under Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973, the Federal Shariat Court is the proper forum which can declare any provisions of law or act repugnant to the Injunctions of Islam.
It is also factual controversy that whether after her release on bail in the earlier case the petitioner started living with her in-laws or she came to her mother's house wherefrom she again eloped with Muhammad Bilal co-accused as claimed in the impugned F.I.R., which can be resolved after recording of evidence and this Court cannot assume the role of Investigating Officer as has been held in " 1994 SCMR page 2142".
9. For the foregoing reasons this writ petition having no merit is dismissed. However, it is clarified that the above observations or the case-law cited in this order will not prejudice the case of either party at the trial.
H.B.T./S-15/L Petition dismissed.
ﻓﯿﻤﻠﯽ ﻋﺪﺍﻟﺖ ﻣﯿﮟ ﺑﯿﻮﯼ ﮐﻮ ﺳﺎﻣﺎﻥ ﺟﮩﯿﺰ ﺛﺎﺑﺖ ﮐﺮﻧﮯ ﮐﮯ ﻟﯿﮯ ﺭﺳﯿﺪﺍﺕ ﭘﯿﺶ ﮐﺮﻧﮯ ﮐﯽ ﺿﺮﻭﺭﺕ ﻧﮩﯿﮟ
2013 CLC 698
Receipts of dowry articles.
Suit for recovery of dowry articles. Non-
production of receipts for dowry articles.
Effect.
ﻓﯿﻤﻠﯽ ﻋﺪﺍﻟﺖ ﻣﯿﮟ ﺑﯿﻮﯼ ﮐﻮ ﺳﺎﻣﺎﻥ ﺟﮩﯿﺰ ﺛﺎﺑﺖ ﮐﺮﻧﮯ
ﮐﮯ ﻟﯿﮯ ﺭﺳﯿﺪﺍﺕ ﭘﯿﺶ ﮐﺮﻧﮯ ﮐﯽ ﺿﺮﻭﺭﺕ ﻧﮩﯿﮟ
ﮐﯿﻮﻧﮑﮧ ﻭﺍﻟﺪﯾﻦ ﻧﯿﮏ ﺗﻤﻨﺎﺅﮞ ﮐﮯ ﺳﺎﺗﮫ ﺑﯿﭩﯽ ﮐﻮ ﺭﺧﺼﺖ
ﮐﺮﺗﮯ ﮨﯿﮟ ﺍﺱ ﻟﯿﮯ ﻭﮦ ﺭﺳﯿﺪﺍﺕ ﺳﻨﺒﮭﺎﻝ ﮐﺮ ﻧﮩﯿﮟ
ﺭﮐﮭﺘﮯ
ﻟﮍﮐﯽ ﮐﯽ ﺯﺑﺎﻧﯽ ﺷﮩﺎﺩﺕ ﭘﺮ ﮨﯽ ﻋﺪﺍﻟﺖ ﻟﮍﮐﯽ ﮐﺎ ﮐﻠﯿﻢ
ﮈﮔﺮﯼ ﮐﺮﺳﮑﺘﯽ ﮨﮯ ﻟﮩﺬﺍ ﺭﺳﯿﺪﺍﺕ ﭘﯿﺶ ﮐﺮﻧﺎ ﻻﺯﻣﯽ ﻧﮧ
ﮨﯿﮟ
Provisions of the Qariun-e-Shahadat, 1984
were not applicable in the proceedings
before the Family Court in view of S.17 of the
West Pakistan Family Courts Act, 1964.
Intent of the legislature was clearly to
simplify the procedure 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.
Reliance is placed in
2013 CLC 698
تین پوشیدنی کپڑوں میں مار پیٹ کر کے گھر سے نکال دیا" جیسے گھسے پٹے فرسودہ الزامات اب عائلی عدالتوں میں ثابت بھی کرنا ہںوں گے۔
2020 MLD 1147,
It is the duty of the family courts to consider the following guiding principles.
a) After recording of evidence by the Family Court, if it appears that any spouse who has suffered the psychological and physical injuries at the hands of other spouse covering under the offences referred in Part-II i.e. Sections 337A(i), 337F(i), 341, 342, 343, 344345, 346, 352 and 509 PPC, the learned Family Judge has to proceed against the perpetrator and award sentence in accordance with the law.
b) The Family Court while considering the offences referred in Part-II of the Schedule should give clear findings and verdict while dilating upon the evidence, even with or without framing of charge of that offence as the legislation has used the term “notwithstanding anything contained in the Code of Criminal Procedure, 1898”.
c) The Family Court can summon the evidence of expert psychiatrist, doctor, CMO or the relevant doctor who had treated the victim in such type of cases.
d) The Family Court, before pronouncement of the final judgment, if prima facie, seem the offences referred in Part-II of the Schedule, may issue a show cause to the perpetrator or the spouse accused of the offence(s) in order to justify the requirements of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 by giving full opportunity for his defence and may record his/her statement being an accused as required under Section 342 Cr.P.C. or 340(2) Cr.P.C., if so required.
e) The Family Court may also call the summary inquiry through the relevant police authorities or seek a report and treat all those reports, record and documents as part of trial and may also provide the copies of those documents to the person accused of the charge before final pronouncement of the judgment.
f) The Family Court, while deciding the issue of cruelty, may frame specific charge for the offence, consider the evidence on the touchstone and requirement of ingredients of offences referred in Part-II of the Schedule and pass a sentence simultaneously in the same judgment or may proceed separately in accordance with procedure provided under the Cr.P.C.
g) The Family Court who has not given any findings on Part-II of the Schedule (of the offences) in its judgment despite availability of evidence in the Family Court jurisdiction, shall be treated as misconduct on its part, which has to be dealt with Separately by the High Court on its administrative side...!!
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