دادا کن حالات میں ناں و نفقہ ادا کرنے کا پابند ھے

 Parens patriae is a Latin term which means “parent of the country.” This doctrine postulates that the government is the ultimate guardian of all the people under a disability, especially children and mentally disordered persons. Parens patriae must be distinguished from the loco parentis (Latin for “in the place of a parent”) which refers to “a person who has put himself in situation of a lawful parent by assuming the obligations incident to parental relation without going through the formalities of legal adoption”. Lord Eldon says that “a person acting in loco parentis is in the situation of the person described as the lawful father of the child.” The doctrine of loco parentis is, for example, applied to authorize the educational institutions to act in the best interests of their students, and to allow a non-biological parent to exercise the rights and responsibilities of a biological parent.

The doctrine of parens patriae has its roots in English Common Law. Rosara Joseph writes: “It is based on a Royal Prerogative antedating the Statute De Prerogativa Regis, enacted about the year 1339 in the reign of Edward II. Theobald speculates that by general assent or by some statute, the care of persons of unsound mind was taken by Edward I from the feudal lords, who would normally take possession of the land of a tenant unable to perform his feudal duties. In the 1540s, the parens patriae jurisdiction was transferred from officials in the royal household to the Court of Wards and Liveries. That Court was wound up in 1660, and the Crown’s jurisdiction was thereafter exercised through the Lord Chancellor and some of the Judges to whom it was entrusted under the Sign Manual.
The doctrine of parens patriae is widely applied in today’s world. Albeit, on principle, it is an inherent power, some countries supplement it by legislative acts.
The High Court’s jurisdiction in respect of children has three facets. The first is the conventional role which it performs when it adjudicates family disputes like those relating to maintenance and guardianship. Second, habeas corpus proceedings which may involve recovery of children from illegal or improper custody of a person. The third facet is where the court assumes the rights and duties of a parent itself.
Hedaya is more elaborative. It says: “The maintenance of infant children rests upon their father; and no person can be his associate or partner in furnishing it (in the same manner as no person is admitted to be associated with a husband in providing for the maintenance of his wife), because the word of God, in the Koran, says, ‘the maintenance of the woman who suckles an infant rests upon him to whom the infant is born’ (that is upon the father), from which it appears that the maintenance of an infant child also rests upon the father, because, as maintenance is decreed to the nurse on account of her sustaining the child with her milk, it follows that the same is due to the child himself a fortiori.” The book further states that “a father and mother must provide a maintenance to their adult daughters (and also to their adult sons who are disabled), in proportion to their respective claims of inheritance. The maintenance to an adult daughter, or to an adult son who is disabled, rests upon the parents in three equal parts, two-thirds being furnished by the father, and one-third by the mother, because the inheritance of a father from the estate of his son or daughter is two-thirds, and that of a mother one-third. The compiler of the Hedaya remarks that this is the doctrine of Khasaf and Hasan.”
Our courts have consistently held that maintenance of a minor child is primarily the father’s obligation. If he is indigent and incapable of earning his own labour, the responsibility lies with the mother if she is in easy circumstances. The grandfather becomes liable on two conditions: firstly, the father is impoverished and infirm and the mother is also hard up, and secondly, he (the grandfather) is in easy circumstances.

Writ Petition No. 68950/2021
 Safiya Ishaq etc. Vs. Judge Family Court etc.














طلاق سرٹیفکیٹ کیوں ضروری ہے اور طلاق سرٹیفکیٹ یونین کونسل سے کیسے بنوایا جائے؟

طلاق دینا مرد کا شرعی حق ہے لیکن یہ کام دین اسلام میں ناپسندیدہ کاموں میں سے ایک کام ہے. لہذا طلاق کا فیصلہ کرتے ہوئے سوچ و بچار سے کام لیں جذبات میں آکر فیصلہ مت کریں. اب آپ کو طلاق دینے کا قانونی طریقہ بتا دوں۔ اگر شوہر اپنی بیوی کو طلاق دے گا تو Muslim Family law ordinance 1961 کے تحت وہ شخص طلاق دینے کے بعد متعلقہ یونین کونسل کو بتائے گا مطلب نوٹس بھیجے گا کہ اس نے اپنی بیوی کو طلاق دے دی. نوٹس ملنے کے بعد متعلقہ یونین کونسل ایک ثالثی کونسل تشکیل دے گی۔ یہ ثالثی کونسل شوہر اور بیوی کے نمائندگان پر مشتمل ہوگی. یہ نمائندے شوہر اور بیوی کے قریبی عزیز، والدین اور بھائی ہونگے. چئیرمین یونین کونسل یا سیکرٹری یونین کونسل بھی اسی ثالثی کونسل کا حصہ ہوگا. یہ ثالثی کونسل میاں بیوی کے درمیان صلح کروانے کی کوشش کرے گی اگر صلح ہو جاتی ہے تو دی گئی طلاق غیر موثر ہو جائے گی اور میاں بیوی بغیر نکاح کیے اکٹھے رہ سکتے ہیں اور اگر راضی نامہ نہ ہوا تو یونین کونسل کو نوٹس ملنے کے 3 ماہ بعد طلاق موثر ہو جائے گی اور متعلقہ یونین کونسل طلاق سرٹیفکیٹ جاری کر دے گی. اگر عورت نے عدالت کے ذریعے خلع لی ہے تو عدالتی ڈگری متعلقہ یونین کونسل کو جائے گی اور عدالتی ڈگری کے 3 ماہ بعد متعلقہ یونین کونسل طلاق سرٹیفکیٹ جاری کر دے گی۔
طلاق سرٹیفکیٹ کیوں ضروری ہے؟
طلاق سرٹیفکیٹ ایک ثبوت ہے جس سے ظاہر ہوتا ہے کہ کوئی طلاق یافتہ ہے یا نہیں. مرد دوسری شادی کرنا چاہے یا عورت تو وہ نکاح کے ٹائم اپنا طلاق سرٹیفکیٹ پیش کرے گی جس سے ثابت ہو کہ وہ طلاق یافتہ ہیں. نکاح نامے کے ایک کالم میں لکھنا پڑتا ہے کہ آیا دلہا اور دلہن سابقہ شادی شدہ تو نہیں۔ اگر شوہر نے اپنی بیگم کو طلاق دے دی لیکن یونین کونسل نوٹس نہیں بھجوایا اس صورت میں مرد کو Muslim Family law ordinance 1961 کے سیکشن 7 کے تحت جرمانہ اور قید کی سزا ہوسکتی ہے. سپریم کورٹ نے اپنے فیصلے PLD 2016 457 SC میں قانون وضع کر دیا کہ شوہر پر لازم ہے وہ طلاق دے تو اپنی بیوی اور متعلقہ یونین کونسل کو نوٹس بھیجے بذریعہ رجسٹری. زبانی طلاق بیوی پر اثرانداز نہیں ہوگی اور بیوی حقدار ہوگی کہ وہ شوہر سے سابقہ خرچہ لے کیونکہ شوہر یہ نہیں کہہ سکتا میں نے اتنا عرصہ پہلے طلاق دے دی تھی. اس لئے اب شوہر کے لیے لازمی ہے بیوی اور یونین کونسل کو بذریعہ نوٹس بتائے۔

Following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:

 PLD 2022 Lahore 600

In order to avoid technical trapping, there remains no need to transfer the execution petition to any other Court out of one district to the other district where the judgment debtor resides. The learned Executing Court seized of the matter may adopt procedure provided under law by sending a precept through proper channel to the Court where the judgment debtor resides or has movable/immovable property so as to attach the same and recover the decretal amount as arrears of land revenue, following the methodology as provided in section 46 of the Code of Civil Procedure, 1908.
Following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:-
1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, „Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.‟
2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard.
3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law
Family Courts, 1964 is a special statute and has been enacted with a specific purpose to precede expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. Furthermore, the purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. The Court can exercise its own powers to prevent the course of justice being refracted from the path;
The main object of this enactment is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children; it is due to this reason that “Nikah” is to be registered where the bride is living; if bridegroom fails to pay maintenance, application for securing maintenance is competent before Union Council where the bride resides and in case permission is required to be sought by the bridegroom for contracting second marriage, application has to be submitted to the Chairman Union Council where the wife resides; same like Talaq proceedings are to be carried out in the Union Council where the wife resides and if any offence relating to offences detailed in the Family Courts Act, 1964, its trial has to be conducted by Family Court within the precincts where the wife resides; moreover, if a father intends to get custody of the minor children, he has to initiate proceedings at a place where the children reside. All these go to divulge that the main purpose of the enactment is to accommodate the women and the children, weaker segments of the society, due to this reason under section 14(3) of the Act, 1964 provides that no appeal or revision shall lie against an interim order passed by a Family Court.
When after passing of a decree by a Family Court, the execution petition is filed, the Family Court executing the decree has to proceed with the same under Section 13 of the Act, 1964 and sub-section 4 of the said Section is relevantSection 13(4) of the Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by the Civil Court as directed by general or special order by the District Judge; meaning thereby when a Civil Court is designated and entrusted with duties to execute the decrees passed by a Court: Civil or Family, it enjoys powers vested under Order XXI of the Code of Civil Procedure, 1908, though section 17 of the Family Courts Act, 1964 provides that the provisions of Qanun-eShahadat Order, 1984 and Code of Civil Procedure, 1908 except sections 10 & 11 shall not apply to the proceedings before any Family Court.

فیملی کورٹس ایکٹ، 1964 کا بنیادی مقصد، معاشرے کے کمزور اور کمزور طبقات کی خواتین اور بچوں کے تحفظ اور سہولت کے لیے ہے۔

 PLD 2022 Lahore 600

Family Courts Act ( XXXV of 1964 ) --- Preamble --- Object , purpose and scope - Purpose of enacting special law regarding family disputes is advancement of justice justice between the parties --- Family Court has to proceed on the and to avoid technicalities which are hindrance in ultimate premises that every procedure is permissible unless a clear probibition is found in law --- Court can exercise its own powers to prevent course of justice being refracted from the path -... Main object of Family Courts Act , 1964 , is for protection and convenience of the weaker and vulnerable segments of society women and children

Admittedly Nikah between the parties was orally solemnized according to Shariah.

 2022 CLC 1516

Admittedly Nikah between the parties was orally solemnized according to Shariah. Under the Quranic teachings the relations of a Muslim family unit (spouse) is established through solemnization of Nikah in order to determine the rights / obligations of a husband and wife and it is made mandatory for a husband to give dower to his wife. Quantum of the dower amount has been left open for the parties to settle the same according to their independent opinion. In case the amount of dower is not mentioned in that eventuality a modus operandi is provided in Shariah to ascertain the same from the customs, status and allied social traits of the parties. The such settlement or determination of dower amount is named as proper dower (Mehr-e-Misl).

معزز لاہور ہائی کورٹ نے قانون کی ایک نئی جہت تجویز کی ہے۔ معزز لاہور ہائی کورٹ نے نہایت خوش اسلوبی سے اس نکتے پر اتفاق کیا ہے کہ اگر کوئی شخص اپنے طور پر جہیز کی واپسی کے لیے فیملی کورٹ سے رجوع کرتا ہے تو قانون میں اس کی قطعاً کوئی ممانعت نہیں ہے۔

 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
















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









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