--Filing of suit for restitution of conjugal rights demonstrated that husband was willing to rehabilitate wife but she did not want reconciliation and had obtained decree of divorce on the basis of khula--

 Citation Name: 2019 CLC 1008
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MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE

S. 5 & Sched.---suits for recovery of dower, maintenance and dowry articles by wife and for restitution of conjugal rights by the husband---Wife desertion by husband---Scope---suit of wife was decreed to the extent of recovery of dowry articles---Appellate Court modified the decree and wife was held entitled to recover deferred dower---Validity--Wife had mentioned in her plaint that she was deserted by her husband, but she did not specifically mention in her examination-in-chief that she was deserted by her husband---Wife had failed to prove her forcible desertion by the husband---Filing of suit for restitution of conjugal rights demonstrated that husband was willing to rehabilitate wife but she did not want reconciliation and had obtained decree of divorce on the basis of khula---Family Court had rightly declared her disentitled to dower amount---Constitutional petition was partly allowed.

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- Sole ground to challenge Cl . 19 was the decree passed on the basis of Cl . 19 of Nikahnama , wherein parties had mutually agreed that in case of an unreasoned divorce , declared by petitioner to his wife , petitioner would provide gold ornaments / finances as specified therein -

 2022 CLC 963

Suit for recovery of alimony --- Nikahnama , Cl . 19 --- Scope --- Sole ground to challenge Cl . 19 was the decree passed on the basis of Cl . 19 of Nikahnama , wherein parties had mutually agreed that in case of an unreasoned divorce , declared by petitioner to his wife , petitioner would provide gold ornaments / finances as specified therein --- Contention of petitioner was that the condition imposed in the Nikahnama was contrary to the law and Islamic Injunctions --- Validity --- Financial benefits agreed mutually were in the nature of reasonable financial support for setting the wife free --- Nikahnama was a civil contract between the parties , both of which were at liberty to agree to the terms of arrangement --- Clause 19 , as available in Nikahnama , was not in the nature of absolute bar qua right to divorce --- Petitioner had divorced the wife , which manifested that no bar to divorce was imposed ---

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Matters arising out of Column No 19 of Nikahnama --- Scope -

 2022 CLC 963

Matters arising out of Column No 19 of Nikahnama --- Scope --- No restriction existed that husband cannot agree to arrange for maintenance or agree to extend fiscal advantage to the wife , even after the divorce --- Such nature of the benefit / advantage , which in any manner is not restricting the right of divorce , is in fact an act of bestowing benefit or gift upon wife to support her , hence , cannot be termed as illegal or contrary to the Spirit of Islam and Teachings of Holy Quran --- Concept of alimony is not alien to the Islam --- Financial support agreed to in Column

19 cannot be construed as encumbrance or clog on the right to divorce but manifests sense of continuing responsibility and affection , which cannot be construed as continuing maintenance allowance beyond the period of iddat

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Entries in Nikahnama ,-- Suit for recovery 5 Marla house as dower amount filed by respondent plaintiff was decreed in her favour , as the same was mentioned in Nikahnama -

 2022 CLC 947

Entries in Nikahnama ,--- Proof --- Concurrent findings of facts by two Courts below --- Withholding of evidence --- Presumption --- Suit for recovery 5 Marla house as dower amount filed by respondent plaintiff was decreed in her favour , as the same was mentioned in Nikahnama --- Validity --- Nikahnama was to be examined as a simple contract between parties without any presumption of truth attached to it --- Petitioner's copy (پرت ) of Nikahnama was his best evidence and by producing that copy ( پرت) of Nikahnama petitioner could have dispelled statement of Nikah Registrar that he forgot to fill conditions of Nikah only in " fourth copy " (پرت ) prior to submitting the same in Union Council concerned under the law --- In absence of such copy there was no reason in disbelieving unshaken testimony of respondent / plaintiff , her witness as well as scribe of Nikahnama --- Non - production of his own copy of Nikahnama led to an adverse inference against petitioner as the best evidence in such regard was withheld by him --- Case of petitioner fell within the purview of Illustration ( g ) to Art . 129 of Qanun - e - Shahadat , 1984.

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--Petitioner assailed orders of executing court and appellate court whereby both the courts below in proceedings for execution of decree refused to accept some other property as dower instead of the property which was decreed--

 Citation Name: 2019 CLC 1799

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JAM MEERAN VS ADDITIONAL ADVOCATE GENERAL

Ss.13 & 5, Sched.---suit for recovery of dower---Execution proceedings---Petitioner assailed orders of executing court and appellate court whereby both the courts below in proceedings for execution of decree refused to accept some other property as dower instead of the property which was decreed---Validity---Substituting the property would amount to the executing court amending the decree, which was not permissible in law---Constitutional petition was dismissed in limine.

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-Payment of deferred dower---Payment of dower by husband was not established on record--

 Citation Name: 2019 CLC 1462
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Syed SAJJAD HUSSAIN VS JUDGE FAMILY COURT

S. 5, Sched.---suits for recovery of dowry articles by wife and for restitution of conjugal rights by the husband--Payment of deferred dower---Burden of proof---Scope---Plea of wife was that she had been divorced and husband claimed that he had not divorced the wife and had paid the deferred dower---Validity---High Court, on the basis of husband's plea that dower had already been paid, observed that the parties through their conduct had modified the condition for payment of dower on wife's demand instead of waiting for the dissolution of marriage through divorce or death---Husband was required to prove through cogent and confidence inspiring evidence that either he had not agreed to pay the deferred dower or after having agreed to pay the same had actually made the said payment---Husband was estopped by his conduct to claim that deferred dower was not payable during subsistence of marriage as he claimed to have paid the dower on wife's demand---Statement of witness, produced by husband, was sketchy and he did not state that he was a witness to said payment---Payment of dower by husband was not established on record---Trial Court was justified to decree the suit filed by wife for recovery of deferred dower---Constitutional petition, being devoid of force, was dismissed.

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--suit for declaration regarding land given as dower---Maintainability---

 Citation Name: 2019 MLD 576

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Syed IQBAL SHAH VS Syeda TAHIRA BIBI

S. 42---Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5---suit for declaration regarding land given as dower---Maintainability---Plaintiff-wife filed suit for declaration with regard to the land given to her as dower and also challenged therein the gift deed relating to the said land executed in favour of a third party---suit was decreed concurrently---Validity---Entries of Nikahnama had presumption of truth vis-à-vis oral evidence---suit land given as dower had not been abandoned by the wife---In case of controversy regarding payment of dower in respect of any property between the spouse and third party the civil court was an appropriate forum for determination of the matter--No misreading or non-reading of evidence had been pointed out in the impugned judgments passed by the courts below---Appeal was dismissed, in circumstances.

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