Columns No.13 and 16 of the Nikkahnama to be interpreted on the basis of the intention between the parties rather than the headings of the columns, in particular when there is a dispute between the value of the dower and items.

Needless to say that Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties. The High Court has rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No.16 of the Nikahnama, irrespective of its placement in a particular column. It is a matter of common knowledge that the persons who solemnize Nikah or the Nikah Registrars are mostly laymen, not well-versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.

We, on our own independent appraisal of the facts and circumstances of the case, agree with the finding of the High Court,

which is not only supported by the contents of the compromise deed dated 18.12.2012 executed by both the petitioner and the respondent, but also by the contents of the entries of columns No. 13 and 16 of the Nikahnama. The figures (1) and (2) mentioned in columns No.13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column No.13 and (2) four Kanal agriculture land mentioned in column No.16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Therefore, the finding of the High Court on the issue of dower is perfectly correct and is in consonance with the principles of law enunciated by this Court in the cases of Asma Ali and Yasmeen Bibi. As for the claim of the respondent for her maintenance, the Family Court and the District Court held that since the respondent is not residing with the petitioner she is not entitled to maintenance. The High Court has overturned these findings and held the respondent entitled to receive maintenance from the petitioner, while observing that the respondent showed her willingness to go with the petitioner during hearing the petition, but the petitioner, who had contracted second marriage, flatly refused to take her to his house. We find nothing wrong in the decision of the High Court. A wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.

As per Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962, the questions regarding dower are to be decided, subject to the provisions of any enactment for the time being in force, in accordance with Muslim Personal Law (Shariat) in cases where the parties are Muslims. It hardly needs reiterating that the Holy Quran and the Sunnah of the Prophet of Islam (pbuh) are the primary sources of Muslim Personal Law (Shariat) in Islam. The payment of dower (mahr) at the time of marriage was a customary practice in Arabia before the advent of Islam, but it was paid to the guardians of the bride, such as, her father or other male relative, as bride-price and the bride herself did not receive a penny of it. This practice of paying dower as bride-price to the male guardians of the bride was reformed by the Islam through the Quranic commands6 of paying dower as the bride-wealth to the bride herself, who becomes the sole owner of it. The Holy Quran also forbids the Believers to take back anything from their wives out of the paid dower even it be a great sum. In Islam, the payment of dower to bride at marriage is an obligation that is imposed by the God Almighty, and is thus an intrinsic and integral part of a Muslim marriage. It is considered an obligatory bridal gift offered by the bridegroom to the bride graciously as a manifestation of his love and respect for her. Some Muslim men compliment the obligatory bridal gift, dower, with other gifts and presents as per their financial capacity. Under the Islamic law a wife’s right to be maintained by her husband is absolute so long as she remains faithful to him and discharges, or is willing to discharge, her own matrimonial obligations. A Muslim husband is bound to maintain his wife even if no term in this regard is agreed to between them at the time of marriage or she can maintain herself out of her own resources. The Holy Quran enunciates that men are the protectors and maintainers of women because the God Almighty has given the one more strength than the other and because they support them from their money. And the Holy Prophet of Islam (pbuh) has instructed Muslim men to provide their wives with maintenance in a fitting manner and declared it to be the right of the women.

Family/Maintenance Allowance
C.P.1289/2020 Haseen Ullah v. Mst. Naheed Begum & others
Mr. Justice Syed Mansoor Ali Shah

Read More

خرچہ ناں و نفقہ میں سالانہ اضافہ کب سے لاگو ھو گا

2022 LHC 6063

The legal question involved for determination in this case relates to whether 10% annual increase in maintenance allowance is to be effective from the date of passing of the decree that attained finality or from the date of institution of the suit. Examination of the impugned order/judgment of the Courts below reveals that the learned Courts have not kept the aim, object and scope of the Family Courts Act, 1964 in mind while interpreting the judgment and decree dated 25.11.2010 and have reached to a misconceived conclusion that it will be safe to allow the annual increase from the date of decree instead of the date of institution of the suit. It is pertinent to observe that any ambiguity in the decree as to grant of annual increase from the date of institution or from the date of decree would be so construed as to be not incongruous to the object and purpose of law which is a beneficial legislation and in this manner, the instant case exhibits a fortiori situation inasmuch as when the Act 1964 itself, being beneficial legislation, cannot be construed and interpreted in a manner detrimental to the minor or female, the judgment and decree passed under such law cannot be so interpreted.

Perusal of the pre-amendment provision brings forth that the legislature had not provided the annual increase; however, the Courts used to award and grant annual increase in the maintenance on their own, keeping in view facts of each case. The jurisprudence so developed was given a legislative form by the legislature through the above reproduced amendment. Perusal of Section 17A, as it stands after the amendment, reveals that in a suit for maintenance, the Court can transcend the legal and procedural limitation of civil law of being confined to the relief sought as sub-section (2)(a) thereof provides that the Family Court is vested with the power to fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances. Such a statutory layout of the said provision is to be put parallel to the beneficial nature of the Act, 1964, which propels to the conclusion that section 17A is also beneficial in nature conferring financial protection to the female and minors. It is further seen from Section 17A that the Court can grant maintenance higher than what has been prayed for in the plaint on the basis of afflux of time or for other circumstances. Similarly, Section 17A(2)(b) of the Act, 1964 obligates upon the Court to prescribe the rate of annual increase and sub-section (3) of Section 17A spells out that where the Court does not prescribe any rate of increase, the annual increase of 10% would be read into the decree. However, on the basis of facts and circumstances of each case, the discretion of the Court to award more than 10% annual increase remains protected. Similarly, it is important to note that the legislature has vested the Family Court with the power to consider the afflux of time and such other circumstances while granting maintenance in the decree of maintenance. Considered from this perspective, the suit for maintenance was filed by petitioner No.1 (mother of the petitioners), in the year 2004 and decree passed attained finality in the year 2010, which show a lapse of almost six years in between the date of institution and the date of decree. Therefore, if the plea of the respondent (father) as to grant of annual increase from the date of decree is allowed, this would not only frustrate the object of the law but would also put premium in the hands of a defendant. The respondent in the instant case was to protract the suit for maintenance being concluded in order to avert the annual increase, which has been now given statutory recognition under Section 17A. Such an interpretation would be contrary and repugnant to the object and purpose of the law. Thus, it would be against the interest and welfare of the minor to grant annual increase from the date of decree particularly in cases like the one at hand where there is a gap of almost 6 years in the date of institution of the suit and date of final decree passed therein.

Petitioners are held entitled to 10% annual increase in the maintenance amount awarded to them under the judgment and decree dated 25.11.2010 till their legal entitlement and the effective date shall be from the date of institution of the suit and not the date of the decree.

Family
23991/17
Mah Noor Azhar Vs Muhammad Sohail Khan etc
Mr. Justice Anwaar Hussain
24-06-2022
2022 LHC 6063

 

Read More

باپ نافرمان بیٹی کو خرچہ دے گا یا نہیں؟

 Divorced Daughter / Disobeint Daughter
Citation Name : 2013 PLD 464 LAHORE-HIGH-COURT-LAHORE
Side Appellant : GAKHAR HUSSAIN
Side Opponent : Mst. SURAYYA BEGUM

S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for maintenance of daughter including educational expenses---Claim of past maintenance ---maintenance ---Definition---Suit was decreed and father (petitioner) was ordered to pay past maintenance including for education of daughter ---Contention of the father (petitioner) was inter alia, that his daughter was disobedient and was therefore, not entitled to recover maintenance and that maintenance did not include education expenses---Validity---Father was bound to maintain his daughter until she was married, and the father was not bound to maintain a child which was capable of being maintained out of his or her own property---Definition of "maintenance " was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means to support life---Father was bound to maintain a daughter and she was entitled to receive maintenance regardless of her age till such time she was married---Even on attaining the age of majority, the father was responsible for daughter 's maintenance ---Father in the present case had been providing maintenance to his other children from his other wives and as such he treated his daughter with discrimination---Contention that the daughter was disobedient had no force, since, firstly, the father was unable to show his love or affection for his daughter , therefore he could not expect her to return, secondly no instance was mentioned showing disobedience, and thirdly, under Islamic law, there was no institution of abandonment ("aaq") for a disgruntled son/daughter depriving him/her from inheritance and therefore a daughter could not be deprived of her right to be maintained by her father during his life time---No interference was called for in the impugned orders---Constitutional petition was dismissed, in circumstances

Contra
1994 C L C 1216
Disobedient children not entitled
Citation Name : 2012 PLD 154 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mian MUHAMMAD SABIR
Side Opponent : Mst. UZMA PARVEEN

S. 5 & Sched.---Suit for maintenance by divorced daughter against her father---Maintainability---Liability of father to maintain his daughter till her marriage.

Even second suit is maintainable
Citation Name : 2012 PLD 154 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mian MUHAMMAD SABIR
Side Opponent : Mst. UZMA PARVEEN

S. 5, Sched. & S.17---Civil Procedure Code (V of 1908), S.11---Second suit for maintenance by divorced daughter against her father---Res judicata, principle of---Applicability---Scope---Rejection of plaint in plaintiff's first suit by Family Court for want of jurisdiction to entertain maintenance claim by a daughter against her father---Father's plea that daughter's second suit for maintenance was barred by res judicata---Validity---Period of past maintenance claimed in first suit was six years, while in second/present suit was five years---Family Court had not decided first suit on merits, rather had rejected plaint on technical or preliminary ground for want of jurisdiction---Res judicata would not apply where first suit was not decided on merits---Family Court had exclusive jurisdiction to entertain all claims of maintenance without any exception and had no jurisdiction to exclude maintenance claim of a daughter against her father---Order of Family Court rejecting plaint in first suit for being void order was liable to be ignored---Such plea of father was overruled in circumstances.

Contra

Citation Name : 2011 YLR 1632 LAHORE-HIGH-COURT-LAHORE

Side Appellant : RASHID AHMED

Side Opponent : ADDITIONAL DISTRICT JUDGE, LAHORE

S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional peti-tion---Suit for maintenance by daughters against father--- Plaintiffs/daughters alleged that their father/defendants intended to deprive them of their share in the property left by their late mother---Defendant contended that all the plaintiffs/daughters had attained majority, left the home and were living in 'Dastak', a charitable institution---Father contended that the daughters being disobedient and major female children were not entitled to maintenance---Trial Court decreed maintenance at Rs.2500 for each daughter---Father's appeal was also dismissed---Validity---If the children had attained majority, the father stood absolved from his obligation to provide necessities of life to the major children---Where the daughter refused to take the assistance of her father in her personal matter like marriage, then the father could not be burdened with the liability to pay the expenses of the marriage of his rude and disobedient daughter---Maintenance allowance was payable to the child who was minor and was unable to earn his/her bread and butter and other expenses of life---Father would not be under any legal or moral obligation to maintain his child who left his house and opted to live away from him especially when the child was major---Major child could earn his/her livelihood himself/herself and such major child male or female would not fall in the definition of "dependant"---Where the father was alleged to be usurping share of children in property of their mother, no such dispute could become the cause to recover the maintenance from father---Children in case of such grievance, could knock the door of the court---Courts below had not considered the case properly---Constitutional petition was accepted.

Citation Name : 2012 PLD 154 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mian MUHAMMAD SABIR
Side Opponent : Mst. UZMA PARVEEN

S. 5 & Sched.---Suit for maintenance by divorced daughter against her father---Maintainability---Liability of father to maintain his daughter till her marriage would pass on after her marriage to her husband---Husband's liability to maintain his wife would continue till subsistence of marriage, but not after dissolution of marriage---Female losing her marital status would revert to her status of a single lady and would need financial support in same manner as she needed before her marriage---Divorced daughter, if not gainfully employed or having means at her disposal to take care of her basic needs, could claim maintenance from her father, whose means would be kept in view while determining her maintenance---Father could not deny maintenance to divorced daughter, if she was living with her mother instead of father---Custody of daughter till her marriage would belong to mother and father as her guardian could not complain if she did not live with him-

Citation Name : 2013 PLD 464 LAHORE-HIGH-COURT-LAHORE

Side Appellant : GAKHAR HUSSAIN

Side Opponent : Mst. SURAYYA BEGUM

S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for maintenance of daughter including educational expenses---Claim of past maintenance ---maintenance ---Definition---Suit was decreed and father (petitioner) was ordered to pay past maintenance including for education of daughter ---Contention of the father (petitioner) was inter alia, that his daughter was disobedient and was therefore, not entitled to recover maintenance and that maintenance did not include education expenses---Validity---Father was bound to maintain his daughter until she was married, and the father was not bound to maintain a child which was capable of being maintained out of his or her own property---Definition of "maintenance " was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means to support life---Father was bound to maintain a daughter and she was entitled to receive maintenance regardless of her age till such time she was married---Even on attaining the age of majority, the father was responsible for daughter 's maintenance ---Father in the present case had been providing maintenance to his other children from his other wives and as such he treated his daughter with discrimination---Contention that the daughter was disobedient had no force, since, firstly, the father was unable to show his love or affection for his daughter , therefore he could not expect her to return, secondly no instance was mentioned showing disobedience, and thirdly, under Islamic law, there was no institution of abandonment ("aaq") for a disgruntled son/daughter depriving him/her from inheritance and therefore a daughter could not be deprived of her right to be maintained by her father during his life time---No interference was called for in the impugned orders---Constitutional petition was dismissed, in circumstances

Citation Name : 2014 MLD 351 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : FARID KHAN

Side Opponent : SAEEDA BIBI

Ss. 17A & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---maintenance of children by father---Scope---Suit for recovery of dower and maintenance allowance---Application for fixation of interim maintenance for minor---Contention of father was that mother had waived right of maintenance of minor---Application for fixation of interim maintenance for minor was accepted by the Family Court---Validity---Father was responsible to meet expenses of his minor children whether they were in the custody of their mother or in his own custody; he was even bound to maintain divorced daughter if she was living with her mother instead of himself---No illegality, irregularity or jurisdictional defect in the interlocutory order had been pointed out by the defendant---Constitutional petition did not lie against an interlocutory order and same was dismissed.

Maintenance---Divorced daughter, maintenance of---Entitlement---Plaintiff, a divorcee, filed suit against her father claiming maintenance---Trial court, after hearing parties and record evidence, decreed the suit and fixed maintenance of plaintiff till her marriage---Father contended that plaintiff, being disobedient daughter who refused to reside with him, was not entitled for any maintenance---Daughter controverted said contention alleging that she had refused to reside with father due to maltreatment on the part of her step-mother/second wife of father---Validity---Father could not rebut said plea of mal-treatment and admitted to have unpleasant relations with daughter and that being father he was unable to show his love, affection or intimacy for his daughter and for that reason could not expect the same in return---Plea of father to disentitle daughter from maintenance on account of her alleged disobedience had no force---Father admitted to have served in Pakistan Rangers for thirty-five years and thereafter had been pensioner, had ancestral house with agricultural land and that plaintiff-daughter was in need of medical treatment---No illegality was committed by courts below in determining quantum of maintenance---Defendant being real father was legally and morally bound to maintain his divorced daughter---Daughter (as admitted by father) had no source of income and was being maintained by her paternal uncle---Plea of father that he was not bound to maintain daughter had no force---Constitutional petition was dismissed.

2015 PLD 683 LAHORE-HIGH-COURT-LAHORE

Side Appellant : MANZOOR HUSSAIN

Side Opponent : Mst. SAFIYA BIBI

PLD ,,,,2015 lah 683 (a) & (b).........disobedience of daughter has no force ,,,,,when she become divorced laibilty again shits upon father to maintain her

Read More

The question raised in the present petition is perhaps a question of first impression in which a husband has stepped forward to volunteer the return of dowry articles brought home by his wife at the time of marriage.

 The question raised in the present petition is perhaps a question of first impression in which a husband has stepped forward to volunteer the return of dowry articles brought home by his wife at the time of marriage. This unconventional approach has been discarded by a judge family court upon a suit filed by the petitioner and which denial has brought the petitioner before this Court.

Serial No.8 of Part-I of the Schedule to the Act, 1964 makes all matters pertaining to dowry triable exclusively by the family courts. The Impugned Order proceeds upon the sole logic, as provided therein, that suit regarding recovery of dowry articles can only be brought by a wife. Section 7 of the Act, 1964 stipulates no such restriction and perhaps a common occurrence has weighed upon and influenced the learned trial judge.

Family courts, no doubt, have jurisdiction to entertain a suit filed by a wife seeking recovery of her dowry articles but can a husband; an unwilling custodian of such articles abandoned by the wife without any specific instructions; seek help of the family court and refuse to store such items for an indefinite period of time? Such provision and space if not particularly conferred, has not even been particularly excluded. Neither has any distinction about what type of suit can be brought by a husband or a wife has been drawn in the Act, 1964. In other words, if a husband cannot point out a statutorily prescribed express allowance for filing a case for the return of dower to the wife; neither can the wife for the claim of dower. All matters relating to dower have been accumulated and made exclusively triable by a Family Court by virtue of Section 5(1) read with Serial No.8 of Part-I of the Schedule.

POWER OF A FAMILY COURT TO REGULATE ITS PROCEDURE UNLESS EXPRESSLY BARRED

...........

An analysis of precedent cases on the procedure to be adopted by family courts reveals a consistent consensus on the principle that family courts operating under the Act, 1964, are left to decide the course to be taken by them in most cases and are free to govern and adjust the procedure to be adopted but are expected to presume that every course is permissible to take unless the specified course is expressly barred or prohibited.

FREEDOM OF FAMILY COURTS TO ASSUME POWERS NOT EXPRESSLY GIVEN IN THE ACT, 1964.

....................

The guiding principles discernible from the above judgments are that the Family Courts, as special forums are minimally regulated and are flexible in terms of what course of action they adopt during proceedings and such relative freedom is geared to ensure that all family disputes are expeditiously decided. Assumption of powers not expressly conferred, though not excluded either, has been approved as long as the purpose of administration of justice is served.

PURPOSIVE AND INCLUSIVE INTERPRETATION OF PROVISIONS CONFERRING JURISDICTION:

.................

Here, the jurisdiction for entertaining any dispute regarding any matter pertaining to dowry is liberally conferred upon a Family Court by Section 5 of the Act, 1964. Section 7 relating to the institution of suits refers to the terms Plaintiff without specifying the gender of the Plaintiff. Can the words „of wife‟ be read into the statute instead of „of Plaintiff‟ when the matter is that of dowry?

Relief sought may be return by the husband or retrieval by the wife. 26. Such interpretation, as the one pursued by the trial court will limit the scope of jurisdiction of the Family Courts even when no such limitation is either prescribed nor would it sit well with the purpose of enactment of the Act, 1964 as discernible from its preamble i.e. WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith; It would additionally disentitle a husband from brining in a cause which falls in exclusive jurisdiction of Family Courts even when no such person specific distinction is made in the Act.

Refusal of the learned Family Court to assume jurisdiction over the subject matter of dowry when a cause is brought by a husband would not only defeat the purpose of Act, 1964 which provides a unified forum for resolution of all family disputes falling within the jurisdiction conferred through Section 5 but will also amount to restricting the meaning of the term Plaintiff in Section 7 without there being any circumstances justifying such interpretation and when the legislature has not drawn any such distinction.

W rit Petition Uzair Azmat Versus No. 46842 of 20 22 Judge Family Court etc.
05-08-2022

Read More

نکاح نامہ کے کالم نمبر 13 اور 16 کی تشریح کالموں کے عنوانات کی بجائے فریقین کے درمیان نیت کی بنیاد پر کی جائے، خاص طور پر جب مہر کی قیمت اور اشیاء کے درمیان تنازعہ ہو۔

 Columns No.13 and 16 of the Nikkahnama to be interpreted on the basis of the intention between the parties rather than the headings of the columns, in particular when there is a dispute between the value of the dower and items.

Needless to say that Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties. The High Court has rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No.16 of the Nikahnama, irrespective of its placement in a particular column. It is a matter of common knowledge that the persons who solemnize Nikah or the Nikah Registrars are mostly laymen, not well-versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.

We, on our own independent appraisal of the facts and circumstances of the case, agree with the finding of the High Court,

which is not only supported by the contents of the compromise deed dated 18.12.2012 executed by both the petitioner and the respondent, but also by the contents of the entries of columns No. 13 and 16 of the Nikahnama. The figures (1) and (2) mentioned in columns No.13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column No.13 and (2) four Kanal agriculture land mentioned in column No.16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Therefore, the finding of the High Court on the issue of dower is perfectly correct and is in consonance with the principles of law enunciated by this Court in the cases of Asma Ali and Yasmeen Bibi. As for the claim of the respondent for her maintenance, the Family Court and the District Court held that since the respondent is not residing with the petitioner she is not entitled to maintenance. The High Court has overturned these findings and held the respondent entitled to receive maintenance from the petitioner, while observing that the respondent showed her willingness to go with the petitioner during hearing the petition, but the petitioner, who had contracted second marriage, flatly refused to take her to his house. We find nothing wrong in the decision of the High Court. A wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.

As per Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962, the questions regarding dower are to be decided, subject to the provisions of any enactment for the time being in force, in accordance with Muslim Personal Law (Shariat) in cases where the parties are Muslims. It hardly needs reiterating that the Holy Quran and the Sunnah of the Prophet of Islam (pbuh) are the primary sources of Muslim Personal Law (Shariat) in Islam. The payment of dower (mahr) at the time of marriage was a customary practice in Arabia before the advent of Islam, but it was paid to the guardians of the bride, such as, her father or other male relative, as bride-price and the bride herself did not receive a penny of it. This practice of paying dower as bride-price to the male guardians of the bride was reformed by the Islam through the Quranic commands6 of paying dower as the bride-wealth to the bride herself, who becomes the sole owner of it. The Holy Quran also forbids the Believers to take back anything from their wives out of the paid dower even it be a great sum. In Islam, the payment of dower to bride at marriage is an obligation that is imposed by the God Almighty, and is thus an intrinsic and integral part of a Muslim marriage. It is considered an obligatory bridal gift offered by the bridegroom to the bride graciously as a manifestation of his love and respect for her. Some Muslim men compliment the obligatory bridal gift, dower, with other gifts and presents as per their financial capacity. Under the Islamic law a wife’s right to be maintained by her husband is absolute so long as she remains faithful to him and discharges, or is willing to discharge, her own matrimonial obligations. A Muslim husband is bound to maintain his wife even if no term in this regard is agreed to between them at the time of marriage or she can maintain herself out of her own resources. The Holy Quran enunciates that men are the protectors and maintainers of women because the God Almighty has given the one more strength than the other and because they support them from their money. And the Holy Prophet of Islam (pbuh) has instructed Muslim men to provide their wives with maintenance in a fitting manner and declared it to be the right of the women.

Family/Maintenance Allowance
C.P.1289/2020 Haseen Ullah v. Mst. Naheed Begum & others
Mr. Justice Syed Mansoor Ali Shah

Read More

--S. 14--Jurisdiction of appellate court against decree of maintenance allowance--Section 14(2) of Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred--

PLJ 2022 Lahore 558

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

----S. 14--Jurisdiction of appellate court against decree of maintenance allowance--Section 14(2) of Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred--Bar contained in Section 14(2) of Act is applicable to husband only and same cannot be applied to minor or wife--Since maintenance allowance granted to each person was less than Rs. 5000/- per month, therefore, appeal under Section 14(2) of act, was barred--This writ petition is allowed and impugned judgment and decree passed by appellate court below is set aside, appeal of petitioner will deem to be pending before learned appellate court below. [Pp. 560 & 561] A, B, C & D

2018 SCMR 1885; 2017 YLR 1684 ref.

Malik Waqar Haider Awan, Advocate for Petitioner.

Mr. Qadeer Asif Toor & Ms. Raheela Saleem, Advocates for Respondents.

Date of hearing: 22.2.2022.

PLJ 2022 Lahore 558
Present: Anwaar Hussain, J.
Mst. SHAISTA PARVEEN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P No. 849 of 2020, heard on 22.2.2022.

Judgment

Succinct facts of the case are that on 28.06.2012, petitioner, namely, Mst. Shaista Parveen (“the petitioner”) on her behalf as well as minor, namely, Muhammad Suleman Ajmal (“the minor”) instituted a suit for recovery of maintenance allowance and dowry articles against Respondent No. 3, namely, Muhammad Ajmal (“the respondent”) on the ground that nikah of the parties was solomnized on 29.09.2009 and rukahsati took place 15 days thereafter; that out of this wedlock, the minor was born; that after some time, the respondent became cruel towards the petitioner; that he borrowed a sum of Rs. 200,000/- from step father of the petitioner on different pretexts and 11 months prior to institution of the suit, asked the petitioner to bring a sum of Rs. 50,000/- more from her step father but she refused whereupon the respondent kicked out the petitioner along with the minor from his house; that at the time of the marriage, the respondent was given dowry articles worth Rs. 5,63,200/-, which are lying with the respondent; that despite repeated demands, the respondent neither paid any maintenance allowance to the petitioner and the minor nor returned the dowry articles which constrained the petitioner to institute the suit.

2.  The respondent contested the suit by filing written statement. He also instituted a suit for resultation of conjugal rights. Both the suits were consolidated and consolidated issues were framed. After recording of evidence of the parties, learned trial Court decreed the suit of the petitioner in the terms that the minor is entitled to maintenance allowance at the rate of Rs. 2000/- per month for the last two years and at the same rate in future with 10% increase per annum and dismissed the claim of the petitioner to the extent of maintenance allowance and dowry articles and also decreed the suit of the respondent for restitution of conjugal rights vide consolidated judgment and decree dated 25.11.2013. Both sides preferred appeals, which were dismissed by learned appellate Court below vide judgment and decree dated 27.02.2014. The petitioner assailed both the judgments of learned Courts below by way of filing Writ Petition
No. 3723/2014 wherein the case was remanded to learned trial Court to the extent of dowry articles only vide order dated 25.03.2019. In post-remand proceedings, learned trial Court partially decreed the suit of the petitioner and held her entitled to recover a sum of Rs. 60,000/- as alternate price of dowry articles vide judgment and decree dated 20.05.2019. The petitioner feeling dissatisfied preferred appeal, which was dismissed by learned Additional District Judge, Jampur on the ground that the legislature has not provided any appeal against decree of dowry articles not exceeding Rs. 100,000/- under Section 14(2) of Family Courts Act, 1964 (“the Act”) vide judgment and decree dated 08.11.2019. Hence, this writ petition has been filed.

3. Only controversy involved in the matter, is quantum of alternate value of dowry articles. Learned counsel for the petitioner submits that under Section 14(2) of the Act, the embargo has been placed upon the husband by restraining him not to challenge a decree of dowry article if it is upto Rs 100,000/- but no such restriction has been placed upon the wife by the legislature for enhancement of the. amount granted as alternate value of dowry articles. Submits that the learned lower appellate Court below has erred in dismissing the appeal of the petitioner depriving her from her statutory right of appeal. The said assertion of learned counsel for the petitioner has been controverted by learned counsel for the respondent while submitting that the appeal against grant of dowry articles not exceeding Rs. 100,000/- is explicitly barred by law. He has placed reliance on Sarfraz v. Additional District Judge and 5 others [2017 YLR1684 Lahore (Rawalpindi Bench)].

4. Arguments heard. Record perused.

5. Perusal of impugned judgment and decree of learned appellate Court below reveals that the learned appellate, Court below has dismissed the appeal of the petitioner on the sole ground that under Section 14(2) of the Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred. Suffice to state that the legislature in its wisdom has impuned the said restriction keeping in view the present price hike and strong custom of our society to give dowry articles to the brides while considering that dowry articles of ordinary nature, which are usually given to the brides at the time of marriage, will not be less than the value of Rs. 100,000/-. This restriction has been imposed upon the husband to curtail the litigation so that the wife could, at least, get the said amount, if it is decreed by the Court without further litigation by the husband as a matter of right. By no stretch of imagination, the said embargo is applicable to the wife. In this view of the matter, the learned appellate Court below has misinterpreted and misapplied the law on the subject and wrongly dismissed appeal of the petitioner, therefore, the impugned judgment and decree of learned appellate Court below cannot sustain. In this regard, I am fortified by dicta laid down in Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh (2018 SCMR 1885) and Rahim Bux, Additional District Judge Muzaffargarh (2004 MLD 1749 Lahore). In the latter judgment, it has been held that:

“8. Now applying the said rule to the said Section 14 of the Family Courts Act, 1964, one finds no ambiguity whatsoever in the words of the provide to the said argue that the intention of the legislature was to avoid the challenge by a person to a decree passed in the sum of Rs. 1,000/- or less by way of maintenance to a child or a wife. Applying the very rule being relied upon by the learned counsel for the petitioner we find a bar to an appeal by a child or a wife to seek enhancement of the maintenance allowance where the trial Court grants it in a sum less than Rs. 1000 is not to the read into the said proviso.

(Emphasis supplied)

Bare perusal of above unambiguously reflects that the bar contained in Section 14(2) of the Act is applicable to the husband only and the same cannot be applied to the minor or the wife, if the family Court decrees their suit for maintenance allowance to the extent of Rs. 1000/- or the dowry articles to the tune of Rs. 100,000/-.

6. Learned counsel for the respondent has relied upon Sarfraz supra to contend that no appeal, even to a wife, is available under Section 14(2) of the act against a decree of dowry upto the amount of Rs. 100,000/-. I have gone through the said judgment. The facts of the referred case are distinguishable from that of the instant case inasmuch as in the said case, the husband challenged the decree whereby the wife was granted maintenance allowance at the rate of
Rs. 3,000/- per month for Iddat Period, and the minors at the rate of Rs. 4,500/- month per head. Therefore, it was held in the referred case that since the maintenance allowance granted to each person was less than Rs. 5000/- per month, therefore, the appeal under Section 14(2) of the Act was barred. Whereas, in this case, the appeal was filed against a decree of dowry article less than Rs. 100,000/- by a wife who was not debarred to challenge the same as the restriction imposed under Section 14(2) of the Act is only upon the husband, as discussed hereinabove. The contention of learned counsel for the respondent that the appeal of wife is also barred under the said provision is without any foundation, which is accordingly discarded.

7. For what has been discussed above, this writ petition is allowed and the impugned judgment and decree passed by learned appellate Court below is set aside. Resultantly, the appeal of the petitioner will deem to be pending before learned appellate Court below. Parties are directed to appear on 05.03.2022 before learned District Judge, Rajanpur who will hear the appeal of the petitioner

himself or entrust it to a Court of competent jurisdiction. The Court so seized with the matter will decide the appeal of the petitioner afresh to the extent of claim of dowry only, after affording opportunity of hearing to both sides, expeditiously, preferably within a period of one month commencing from the date of such entrustment, strictly in accordance with law.

(K.Q.B.)          Petition allowed

Read More

ضروری اطلاع برائے نکاح رجسٹرار حضرات،،،،*

  *گورنمنٹ آف پنجاب کی طرف سے آج تمام نکاح خواں رجسٹرار کو بذریعہ* نوٹیفکیشن مطلع کیا جاتا ہے کہ پرانے نکاح رجسٹر ( چاہے اس میں سے چند فارم ہی استعمال ہوئے ہوں اور کافی صفحات خالی کیوں نا ہوں) آئندہ قابلِ استعمال نہیں رہے ، *گورنمنٹ کے آرڈر کے مطابق آئندہ صرف اور صرف نئے٫٫ختم نبوت کے حلفیہ بیان کے کالم والے ،، نکاح فارم ہی قابلِ قبول ہوں گے ختم نبوت کے بغیر نکاح فارم کی اب کوئ حیثیت نہیں رہی،* تمام یونین کونسل کے سیکرٹری صاحبان کو گورنمنٹ آف پنجاب کی طرف سے اس حکم نامے پر سختی سے عملدرآمد کی تاکید کی گئی ہے *پرانے نکاح رجسٹر اپنی مطلقہ یونین کونسل میں فورآ جمع کروا دیجیے.اور نئے رجسٹر حاصل کر لیجئے گا*

Read More