وفاقی شرعی عدالت نے پنجاب فیملی کورٹس ایکٹ 1964 کی دفعہ 10 کی ذیلی دفعات 5 اور 6 کالعدم قرار دے دیں جن کے مطابق خلع لینے کے باوجود بھی خاتون کو معجل حق مہر کے 75 فیصد اور غیر معجل حق مہر کے 50 فیصد کا حقدار قرار دیا گیا تھا

 Sh. Petition No.4-I of 2016, 7-I, 2017, 4-I, 2019 & 3-I 2020

Judgment on Khula.

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-Petitioner contracted second marriage during the existence of first wife, without the permission of the first wife--complaint was marked to the magistrate section 30 who after trial, convicted the petitioner-

 PLJ 2022 Cr.C. 257

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 435/439--Muslim Family Laws Ordinance, (VIII of 1961),
S. 6(5)(b)--W.P. Family Courts Act, (XXXV of 1964), S. 20--Petitioner contracted second marriage during the existence of first wife, without the permission of the first wife--complaint was marked to the magistrate section 30 who after trial, convicted the petitioner--S. 5 & 20 has not been altered, repealed or amended by the competent authority, as such, the same is in vogue and applicable with all force--Only the family Court had the jurisdiction to try a complaint under S. 6(5)(b) of the Muslim Family Laws Ordinance, 1961; trial conducted by the magistrate was blatant violation of Article 175(2) of the constitution--Magistrate has erroneously assumed the jurisdiction, hence, the trial stands vitiated--Criminal Revision is allowed--Judgments of both the Courts below set aside and all the proceedings conducted by these Courts are quashed. [Pp. 258 & 261] A, F, G, H & I

Appeal--

----Jurisdiction error--If there was some error in the forum of trial, the same stood rectified in appeal before the learned appellate Court.

                                                                                             [P. 259] B

1992 MLD 93; PLD 2017 SC 187; 1993 SCMR 1901; PLD 1991 Lahore 247; PLD 1985 Lahore 165 ref.

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

----S. 5--Word “Exclusive” used in s. 5 makes it vividly clear that no other Court can assume jurisdiction in respect of provisions of Muslim Family Laws Ordinance except the constituted under the West Pakistan Family Courts act, 1964.                                                                                 [P. 260] C

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

----S. 5--Jurisdiction--Criminal proceedings--Only the Family Court can assume the jurisdiction in some offences of, PPC as mentioned in Part II of the Schedule, if committed against the spouses. [P. 260] D

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

----S. 20--Criminal procedure code, 1898--S. 20 of West Pakistan family Courts act, 1964 was authorized to act as Magistrate of 1st class under code of criminal procedure, 1898. [P. 260] E

Malik Imtiaz Mahmood Awan, Advocate with Petitioner.

Mr. Muhammad Latif, Additional Prosecutor General for State.

Hafiz Khaliq Ditta Langah, Advocate for Respondent.

Date of hearing: 13.9.2021.

 PLJ 2022 Cr.C. 257
[Lahore High Court, Bahawalpur Bench]
Present: Muhammad Amjad Rafiq, J.
MUZAFFAR NAWAZ--Petitioner
versus
ISHRAT RASOOL and another--Respondents
Crl. Rev. No. 168 of 2019, heard on 13.9.2021.

Judgment

Briefly the facts of the case giving rise to the instant criminal revision are that Mst. Ishrat Rasool/Respondent No. 1, as first wife of Muzaffar Nawaz accused/ petitioner, filed a private complaint under Section 6 (5)(b) of The Muslim Family Laws Ordinance, 1961 against said Muzaffar Nawaz contending that she contracted marriage with him on 02.09.2013, during subsistence of that marriage and without getting her permission, Muzaffar Nawaz contracted another marriage with Mst. Sitara Jabeen on 15.04.2015. The said complaint was marked to the Magistrate Section 30, Rahim Yar Khan, who after recording cursory evidence, summoned the accused, framed the charge, recorded evidence of respective parties and on conclusion of trial vide judgment dated 17.05.2019 convicted the accused/petitioner under Section 6(5)(b) of The Muslim Family Laws Ordinance, 1961 and sentenced him to simple imprisonment for three months with fine of five hundred thousand rupees, in case of default in payment of fine, the accused was to further suffer simple imprisonment for two months. Against his said conviction and sentence, the accused/petitioner filed an appeal before the learned Additional Sessions Judge, Rahim Yar Khan, which was dismissed vide judgment dated 12.09.2019, hence, the instant criminal revision.

2. The main stance of learned counsel for the petitioner is that the complaint filed by the respondent could only be tried by the Family Court and not by a Magistrate and here in this case as the complaint was tried by a Magistrate, who had no jurisdiction in the matter, therefore, the entire proceedings including the trial would stand vitiated.

3. On the other hand, learned counsel for complainant/ respondent opposed the above arguments and contended that even if there was some error in the forum of trial, the same stood rectified in appeal before the learned appellate Court. In support of his contentions learned counsel placed reliance on the case “Naseem Akhtar Durrani versus Mst. Abida Sultan and 3 others” (1992 MLD 93), “Ishtiaq Ahmad versus The State and others” (PLD 2017 SC 187), “Bshrat Iqbal versus The State and another” (1993 SCMR 1901)’ “Shaukat Ali versus Kalsoom Akhtar and another” (PLD 1991 Lahore 247) and “Mst. Fauzia Hussain versus Mian Khadim Hussain” (PLD 1985 Lahore 165).

4. After hearing the arguments of learned counsel for the parties, the moot point here in this case turns out to be that what would be the proper forum to try a complaint under Section 6(5)(b) of The Muslim Family Laws Ordinance, 1961 i.e. a Judicial Magistrate simplicitor or necessarily it be a Judge Family Court who may also enjoy the powers of a Judicial Magistrate, as required by Section 20 of the West Pakistan Family Courts Act, 1964 (amended by Family Courts (Amendment) Ordinance 2002)? Before proceeding further relevant provisions i.e. Section 5 and Section 20 (as amended by Family Courts (Amendment) Ordinance 2002) of the West Pakistan Family Courts Act, 1964, are reproduced here under:

S.5. Jurisdiction--- [(1)] Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part I of the Schedule.”]

[(2)] Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committed by the other.

(3) The High Court may with approval of the Government, amend the schedule so as to alter, delete or add any entry thereto.”]

Section 20 (as amended by Family Courts (Amendment) Ordinance 2002)

[Section 20. Family Court as Judicial Magistrate. - (1) A Family Court shall be deemed as the Judicial Magistrate of the first class under the Code of Criminal Procedure, 1898 (V of 1898) for taking cognizance and trial of any offence under this Act; the Muslim Family Laws Ordinance, 1961 (VII of 1961), and the Child Marriage Restraint Act, 1929 (XIX of 1929).

(2) A Family Court shall conduct the trial of an offence under subsection (1) in accordance with the provisions of Chapter XXII of the Code of Criminal Procedure, 1898 (V of 1898) relating to the summary trial.

(3) An offence other than contempt of a Family Court shall be cognizable on the complaint of the Union Council, Arbitration Council or the aggrieved party.]

The intention of legislature reflected from the amendment introduced above is to fold all family affairs under an umbrella so that sanctity of family affairs and dignity of spouses could be saved from public exposure in ordinary Courts. The word “exclusive” used in Section 5 makes it vividly clear that no other Court can assume jurisdiction in respect of provisions of Muslim Family Laws Ordinance except the Court constituted under the West Pakistan Family Courts Act, 1964; it is further clarified that only family Court can assume jurisdiction in some offences of PPC as mentioned in Part II of the Schedule, if committed against the spouses. It was the reason that under Section 20 Family Court was authorized to act as Magistrate of 1st Class under Code of Criminal Procedure, 1898. At this stage, the Court would like to specifically refer sub-Article (2) of Article 270AA of the Constitution of Islamic Republic of Pakistan, 1973, inserted by way of Eighteenth Amendment Act, X of 2010, which reads as under:

“270AA (2). Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all other laws including President’s Order, Acts,

Ordinances, Chief Executive’s Orders, regulations, enactments, notifications, rules, orders or bye-laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day of October, two thousand and three (both days inclusive) and still in force shall, continue to be in force until altered, repealed or amended by the competent authority.”

In the presence of above specific saving clause, this Court has been informed that Section 5 and 20 (as amended by Family Courts (Amendment) Ordinance 2002 (LV of 2002) has not been altered, repealed or amended by the competent authority, as such, the same is in vogue and applicable with all force. Furthermore, Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973 in clear terms provides that:

“No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.”

Therefore, once it is settled that per force of Section 20 (as amended by Family Courts (Amendment) Ordinance 2002) of the West Pakistan Family Courts Act, 1964, only the family Court had the jurisdiction to try a complaint under Section 6(5)(b) of The Muslim Family Laws Ordinance, 1961; trial conducted by the Magistrate was blatant violation of Article 175(2) of the Constitution, as reproduced above.

5. As a corollary, the offence under Section 6(5)(b) Muslim Family Laws Ordinance, 1961 would only be tried by family Court constituted under West Pakistan Family Courts Act, 1964. The Magistrate has erroneously assumed the jurisdiction; hence, the trial stands vitiated. Consequently, the instant criminal revision is allowed, the judgments of both the Courts below are set-aside and all the proceedings conducted by these Courts are quashed.

(K.Q.B.)          Revision allowed

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Great grandchildren are not within the meaning of “children” for the purposes of s. 4 of the Muslim Family Laws Ordinance, 1961 (“Ordinance”)?

S.4 has been declared to be contrary to the Injunctions of Islam by the Federal Shariat Court (“FSC”) by its judgment reported as Allah Rakha and others v Federation of Pakistan and others PLD 2000 FSC 1. However, this judgment is under appeal before the Shariat Appellate Bench of this Court (C.Sh.A 1/2000 and connected cases (Tanveer Jehan v Federation of Pakistan and others, etc.)). Article 203G of the Constitution provides, inter alia, that no court including this Court itself shall, save as provided in Article 203F (which provides for appeals to the Shariat Appellate Bench), “entertain any proceeding or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the [Federal Shariat] Court”. The proviso to clause (2) of Article 203D provides, inter alia, that if an appeal has been preferred to the Shariat Appellate Bench then the decision of the FSC shall be deemed stayed pending disposal of the appeal. The position that emerges therefore is that for purposes of deciding this matter s. 4 of the Ordinance is to be regarded as being in the field but the provision must be interpreted and applied on its own footing, purely as a matter of statutory interpretation.

Now, it is a fundamental principle of the law of Muslim inheritance that the legal heirs of a person are only determined at the moment of death and not before. This rule is clearly reflected in s. 4 by use of the words “opening of succession”. The point is then reinforced by the immediately succeeding words, “the children of [the predeceased] son or daughter, if any, living at the time the succession opens” (emphasis supplied). The words emphasized impose a clear limitation: s. 4 applied only to those grandchildren as are alive at the time of death of the propositus. Had these words been absent then, perhaps, a case could be made out for the interpretation put forward by learned counsel for the leave petitioners. However, the words do exist and therefore must be given due effect. To accept the case sought to be made out would, in effect, erase them from the statute. That would be contrary to well established rules of interpretation. It is of course well known that under the rules of Muslim inheritance the legal heirs of a predeceased son or daughter do not inherit from the parent of the predeceased. Section 4 carves out a carefully constructed exception from this rule. It is not without significance that the section does not refer to the legal heirs of the predeceased son or daughter: the words used are “the children of such son or daughter” and not ‘legal heirs’. Quite obviously for the predeceased son or daughter to have children they would have to have had a spouse, who could also be alive when the parent passes away. Yet, any spouse is excluded from the applicability of s. 4. It is also to be kept in mind that some of the rules of Muslim inheritance can apply across generations, which is encapsulated in the phrases “how high so ever” and “how low so ever” used in the standard treatises. Any possibility of s. 4 having such an effect (which, in essence, is the case pleaded by the leave petitioners) is carefully excluded by use of the words emphasized above, i.e., “living at the time the succession opens”. Read as a whole, the purpose and intent behind s. 4 is clear. The exception created by it is limited and circumscribed. It applies only to those grandchildren as are living at the time of the death of the propositus. An extended meaning cannot be given to the section in terms as urged by learned counsel for the leave petitioners. They, being the great grandchildren, did not have any share in the property left behind by the propositus on the basis of s. 4.

Civil Petition No.3011 of 2021

Hassan Aziz and others … Petitioners vs Meraj ud Din and others 

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Suit for maintenance allowance against grandfather of the minor on wrong premise by treating him as his father instead of grandfather,...........

 Where the Judge Family Court had decreed the suit for maintenance allowance against grandfather of the minor on wrong premise by treating him as his father instead of grandfather, said judgment being against the principle of fair trial was not sustainable. Case is remanded for decision afresh.

WP 15138/20

Roshan din Vs Rashida Ilyas etc

Mr. Justice Muzamil Akhtar Shabir

10-11-2021

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 PLJ 2010 Lahore 426

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Order passed by Executing Court in execution proceedings on objection petition was challenged through writ petition--Petitioner did not assail judgment and decree of Family Court and did not file an appeal before Distt Judge--Appeal was not filed as such judgment and decree of Family Court attained the status of finality--Validity--Petitioner did not file the appeal against the judgment and decree, thus the decree attained finality--Present objection petition was filed just to prolong the matter to avoid payments, till passing of the order petitioner did not pay single penny to respondent--Petition was dismissed in limine. [P. 428] A

Mr. Mazhar Hayat Bhatti, Advocate for Petitioner.

Date of hearing: 11.11.2009.

 PLJ 2010 Lahore 426
[Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
ABID HUSSAIN--Petitioner
versus
JUDGE FAMILY COURT--Respondent
W.P. No. 7733 of 2009, decided on 11.11.2009.

Order

Through this constitutional petition, petitioner calls in question the order dated 04.06.2009 passed by learned Judge Family Court/Executing Court in execution proceedings on objection petition filed by the petitioner/judgment-debtor.

2.  Brief facts of the instant writ petition are that petitioner was married with Respondent No. 2, Sajida Mai on 16.02.2001, against four tolas gold ornaments, and 5 Marlas land situated in Mauza Kherra abad Basti Perraywali was fixed as dower in Nikah Nama. In the beginning relations between the spouses remained cordial and they enjoyed the happy matrimonial life, out of this wedlock, Muhammad Noshairwan Respondent No. 3 was born.

3.  Learned counsel for the petitioner submits that Respondent No. 2 remained in the house of the petitioner and a forged divorce deed was prepared by her she went away with her parents she filed a suit for maintenance allowance and delivery charges Rs. 25,000/-; that petitioner also filed a suit for conjugal rights against Respondent No. 2 when she went to her parents; that petitioner also initiated criminal proceedings for forging a divorce deed; however, suit for maintenance of Respondent No. 2 was decreed at the rate of Rs. 2000/- per month for plaintiff Respondent No. 2 Mst. Sajida Mai d/o Ghulam Hussain till the existence of marriage in case of divorce till the period of Iddat and the learned Judge Family Court also fixed Rs. 1000/- per month for the minor Muhammad Noshairwan from the date of institution of the suit till the minor attains majority; that it is pertinent to mention here that petitioner did not assail the judgment and decree of maintenance passed against her by the Judge Family Court and did not bother to file appeal against judgment and decree passed by the learned Judge Family Court, Multan, Respondent Nos. 2 & 3 in whose favour judgment and decree for maintenance allowance was passed filed by the execution proceeding petition of 30.11.2000; during these proceedings the parties started negotiations for reconciliation but all in vain; present petitioner filed objection petition in the executing Court on 30.6.2008; that the Respondent No. 2 filed reply of objection petition; learned Judge/ Executing Court dismissed the objection petition vide order dated 4.6.2009; through this writ petition petitioner is assailing the order dated 04.06.2009 passed by learned Executing Court dismissing the objection petition of the petitioner.

4.  I have heard the learned counsel for the parties and perused the record.

5.  Learned counsel for the petitioner when was confronted that petitioner did not assail judgment and decree of Judge Family Court and did not file an appeal before the District Judge, he candidly confessed that appeal was not filed, as such, the judgment and decree of the learned Judge Family Court attained the status of finality. Relevant para of the impugned order dated 04.06.2009 passed by Judge Family Court is reproduced hereunder:--

"From the perusal of the record it has transpired that the suit for conjugal rights was dismissed by learned Judge Family Court, Mr. Azhar-ul-Haq dated 06.11.2006 in which it was also permission for granted to the plaintiff that he may file the suit for conjugal rights within six month from the date of this judgment. The suit for decree holder on decreed on the same dated on 06.11.09, there is no condition mentioned in the judgment. In this way, the Plaintiff No. 1 is bound to live with the judgment debtor as well as decree Holder No. 2 is minor. The judgment debtor appeared in the Court and did not pay any single penny and did not in stated whether he want to pay the maintenance allowance of the decree Holder No. 2, therefore, prima facie case it looks that the application has been filed just to prolong the matter."

I find no illegality or irregularity in the impugned order dated 04.06.2009 passed by Judge Family Court. Petitioner did not file the appeal against the judgment and decree, thus, the judgment and decree dated 04.06.2009, attained the finality, present objection petition is filed just to prolong the matter to avoid payments, till passing of this order petitioner did not pay single penny to the respondent or his minor son, Muhammad Noshairwan, The Executing Court rightly dismissed.

5.  Resultantly, this writ petition is dismissed in limine.

(R.A.)  Petition dismissed.

 

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