دادا کن حالات میں خرچہ نابالغان ادا کرنے کا پابند ہے

Grandfather when is affluent, then the obligation to maintain children lies on the grandfather but only when father is poor, infirm and incapable of earning by his own labour and mother is also poor.

Fixing quantum of maintenance always requires to strike a balance between needs of minors and earnings of a father as well as his other sources. The award in favour of minors should not be incompatible or inconsistent with the financial conditions of father or the one who is held to be obliged by law to take care of children. The learned Family Courts should consider the education, medical, food expenses and other day to day needs of minor(s) at one side and on the other hand, the Courts are required to determine the financial status of the father.
While doing the implementation it should also be borne in mind that the case is one of maintenance and decree should be passed after taking into account the requirements for proper upbringing of a child or children after scrutinizing income and finances of father but at the same time the order should not result into unjust enrichment of one side or operate as vexatious or oppressive to a father.

WP 27381/23
Ayesha Hashmat and 2 others Vs ADJ etc
2024 CLC 141

لے پالک (گود لیے گئے) بچے کی شرعی و قانونی حیثیت کے بارے لاہور ہائیکورٹ کا نہایت معلوماتی رہنما فیصلہ

The adoption of child has no legal effect in Shariah rather it is for emotional and psychological satisfaction. The adoptive parents may treat an adopted child as their natural child in the matters of love, affection and general behaviour. The adoption of a child with the purpose of providing shelter to him is virtuous and carries much reward for welfare of the Child but adoption in Islam has no legal consequence. The child should be attributed to the natural parents, and not to the father or mother who has adopted him and marriage of adopted children with natural children of adoptive parents is not prohibited unless they relate to each other in a prohibited degree. In short, adoption does not create a new legal relationship which did not exist before adoption. According to the NADRA (National Database and Registration Authority) Registration procedure, the parentage of the adopted child with known parentage must be entered as that of natural/biological parents, whereas parentage of the children with unknown parentage can be entered with some fictitious names to avoid social stigmas but there must be evidence provided by the adoptive parents that the child is with unknown parentage to avoid any confusion or controversy over the rights or duties of the adopted child as a biological child. Until now no law in Pakistan addresses the issue of adoption. However, the process of adoption is carried out in the name of custody of the person of the child under the Guardians and Wards Act, 1890. The adoptive parents apply to the court under the provisions of the Guardians and Wards Act, 1890 and in the case of a child with known parentage, make the biological parents of the child as respondent who usually give consenting statement in favour of the applicant, adoptive parent. Adoption has not been defined nor is recognized under the Succession Act, of 1925. Succession to the movable and immovable property of any intestate Pakistani is governed under the laws of Pakistan in terms of section 5 of the Succession Act, 1925. Degree of kindred is computed in the manner set out in the Schedule 1 to the Succession Act, 1925. The adopted child does not find any mention in the category of kindred upon whom the property of intestate upon his death may devolve. According to the succession laid down under the Succession Act, 1925, an adopted child is not an heir or kindred entitled upon intestacy to inherit the estate of his adoptive parent. Adoption under 'Muslim Law' does not create any kindred relationship between the adopted child and adoptive parent whosoever.

Writ Petition-Criminal Proceedings-Detention/Habeas
12826-23
MST. ARZU VS
DPO ETC
Mr. Justice Sadiq Mahmud Khurram
11-09-2023
2023 LHC 7114










Family/Dissolution of Marriage on the Ground of Khulla .

 With regard to the question raised before us by the petitioner as to whether Family Courts in Pakistan have jurisdiction to entertain the case when the plaintiff/wife is a dual citizen of Pakistan and the USA and is residing in the USA at the time of the institution of the suit, whereas, the husband is national and permanent resident of Pakistan. In this regard Rule 6 of the West Pakistan Family Courts Rules, 1965 is relevant .

In the above-proviso, the Legislature has intentionally used the word "ordinarily" which has a different meaning than that of permanent residence. According to Black’s Law Dictionary (VIth Edition) word "ordinary" means “usual, common, settled, customary, and reasonable”.
In the present case, although the Respondent is living in the USA at the time of the institution of the suit through her duly constituted attorney. However, the respondent usually comes to Pakistan; have acquired her education in Karachi and visits her family in Karachi from time to time.
By this proviso, the rigour of normal rule providing for territorial jurisdiction for trial of cases in Family Court have been relaxed in favour of female filing a suit for dissolution of marriage or recovery of dower. The words "Ordinarily resides" and "shall also have jurisdiction" used in proviso demonstrate the intention of parliament is to facilitate things for the wife and off-set her handicap. Therefore, the option of instituting such suits vests with the wife and the Court is bound to take her convenience subject to law. Hence, Family Courts in Pakistan have jurisdiction to entertain the matter and the trial court has rightly exercised so.
West Pakistan Family Courts Act, 1964 (“Act”) was promulgated for the expeditious settlement and disposal of disputes with regard to the marriage and other family affairs and also provides special procedure to achieve such object. Being special law, it creates the special courts for determination of the family disputes in order to advance justice and to avoid technicalities.
The Legislature while introducing amendment in the Family Court Act, 1964 has derived wisdom from Quran and Sunnah. Islam confers the right of Khula to woman by virtue of which a Muslim woman can get herself released from the bond of marriage if she feels, due to any reason, that she could not live with her husband within the limits prescribed by Allah Almighty. The right and mode of "Khula" has been described by Almighty Allah in verse No. 229 of Surah Baqra.
The proviso to section 10 empowers the Family Courts to pass a preliminary decree for the dissolution of Marriage forthwith upon the failure of reconciliation and further provides that wife shall be ordered to return the Haq Mehr received by her.
Section 10(3) imposes a legal obligation on the Family Courts to make a genuine attempt for reconciliation between the parties. Trial Court shall remain instrumental and make genuine efforts in resolving the dispute between the parties. In case if despite of genuine efforts, reconciliation fails, the Trial Court under proviso of section 10(4), without recording evidence is empowered to pass a decree of dissolution of marriage forthwith. At this juncture if the court observes that the wife without any reason is not willing to live with her husband, then under proviso (ibid) the Court is left with no option, but to dissolve the marriage.
Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation.

C.P.488-K/2023
Sohail Ahmed v. Mst. Samreena Rasheed Memon & others
Mr. Justice Syed Hasan Azhar Rizvi
20-12-2023









Kidnapping , abducting or inducing woman to compel for marriage etc .--- Pre - arrest and post arrest bail , grant of --- Further inquiry --- According to the prosecution case , the alleged victim was abducted -

SALMAN MUSHTAQ and others versus The STATE through P.G. Punjab and another
Criminal Petitions Nos . 1121 and 1128 of 2023.
2024 S C M R 14

 Kidnapping , abducting or inducing woman to compel for marriage etc .--- Pre - arrest and post arrest bail , grant of --- Further inquiry --- According to the prosecution case , the alleged victim was abducted -- However , according to the petitioners ( accused persons ) , alleged abductee , being sui juris , contracted a marriage with one of the accused of her own free will and volition , and the marriage was duly registered --- One of the petitioners , who was now seeking post - arrest bail , was the real brother of the abductee --- It was also a matter of record that one of the accused , who claimed to have married the alleged abductee , filed a suit for restitution of conjugal rights before the Family Court which was decreed in his favour , whereas the alleged abductee had also filed a suit for jactitation of marriage --- In the suit for jactitation of marriage , the alleged abductee admitted that the marriage was solemnized , but under fear and threat --- It was a matter of further inquiry to ascertain whether the alleged abductee's real brother was in actuality involved in the abduction and whether he aided or facilitated the commission of the heinous crime of rape against his real sister Question was if the brother of the alleged abductee was involved in the abduction then why was he not nominated in the FIR , and why was he only implicated subsequently on the basis of the statement of the alleged abductee recorded under section 164 , Cr.P.C .--- No medical examination of the alleged victim was conducted for recovering DNA ( Deoxyribonucleic zcid ) despite the serious allegation of rape --- Considering that the offence of rape was suspected and reported to the police , the medical examination should have been conducted immediately and without any delay in order to draw DNA samples --- Possibility of mala fide intention in lodging the FIR could not be ruled out , and , present stage , there were no reasonable grounds for believing that the accused persons were involved ; rather , there were sufficient grounds for further inquiry to prove the guilt of the accused persons --- Petitions for leave to appeal were converted into appeals and allowed , ad - interim pre - arrest bail granted to two of the accused was confirmed , while the third accused ( brother of alleged abductee ) was granted post - arrest bail


دادا کیخلاف خرچہ نان ونفقہ کے موضوع پر سپریم کورٹ کا رہنما فیصلہ

 PLD 2024 SUPREME COURT 67

Decree for maintenance passed against the father of a child cannot be executed against the grandfather, and the child has to institute a suit for maintenance against his grandfather, in case no property of his father, the judgment debtor, is found for the execution of the decree.
‘Doing what is right may still result in unfairness if it is done in the wrong way.’ The right thing must be done in the right way. Just ends are not justified through unjust means. The present case is a classic instance of doing a right thing in a wrong way. In their urge to provide a child with due maintenance at the earliest, the courts below have circumvented the due process of law, and instead of achieving the desired result, have thrown the parties into a protracted, unnecessary litigation. Courts in this country, from top to bottom, must always remember that while dealing with matters of life, liberty, body, reputation or property of all persons must be dealt with in accordance with law, and that every person appearing before them is entitled to a fair trial and due process for the determination of his civil rights and obligations or in any criminal charge against him.
Advocate Qaisar Farooq
Under the Islamic law of maintenance of the children, if the father of a child has died or the father, being a poor person, has no financial resources to maintain his child, the obligation to maintain such child passes on to his grandfather provided he is financially in easy circumstances. This statement of Islamic law is not disputed before us. The matter of contention between the parties that requires determination by us is: whether a decree for maintenance passed against the father of a child can be executed against the grandfather or the child has to institute a suit for maintenance against his grandfather, in case no property of his father, the judgment debtor, is found for the execution of the decree.
As it is evident from the above statement of the Islamic law of maintenance of the children, the obligation of a grandfather to maintain his grandchild is dependant upon two conditions:
(i) the father of the child must be a poor person who has no financial resources to maintain that child, and
(ii) the grandfather of the child must be a person who is financially in easy circumstances.
In case either of these conditions is not fulfilled, the grandfather is not under any obligation to maintain his grandchild. These two conditions are thus also the grounds of defence available to a grandfather against whom his grandchild makes a claim of maintenance.
A child who claims his maintenance from his grandfather has to prove these two conditions, and the grandfather must be provided with an opportunity to defend the claim made against him by rebutting the existence of either of these two facts. This is the requirement of the fundamental right guaranteed by Article 10A of the Constitution of Pakistan, which mandates that for the determination of his civil rights and obligations, a person shall be entitled to a fair trial and due process. The matter of providing maintenance to his grandchild is a matter of civil obligation; for its determination, the grandfather must be provided with a fair trial and due process. Both the above conditions, the fulfillment of which brings a grandfather under obligation to maintain his grandchild, are factual propositions, not legal ones. Their existence or non-existence can, therefore, only be proved through producing their respective evidence by the parties in a properly instituted suit for maintenance. Such evidence cannot be recorded in the execution proceeding nor can any determination be made therein by the executing court on these facts. The recording of evidence and making of findings on these facts in an execution proceeding would be a useless exercise, as despite making a positive finding, an executing court cannot modify the decree5 nor can it execute the decree against a person who was not a party to the suit.6 Further, the Family Courts Act 1964 prescribes a procedure for how the claims of maintenance are to be entertained and decided by the Family Courts. Such a claim made against a grandfather operates against his property; he is, therefore, entitled to be dealt with the procedure prescribed by law, i.e., the Family Courts Act, as per Article 4 of the Constitution.

Divorce‑‑‑Iddat‑‑‑Period of Iddat starts from date of judgment and decree of the Court.

 1999CLC514
[Lahore]
Before Mrs. Fakhar‑un‑Nisa Khokhar, J
Mst. MAHPARA‑‑‑Petitioner
versus
S. ARSHAD MAHMOOD and another‑‑‑Respondents
Writ Petition No.5974 of 1997, heard on 8th October, 1998

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Supervisory jurisdiction of High Court‑‑‑Scope‑‑‑High Court has no supervisory jurisdiction on Special Tribunals of Family Court as provided by West Pakistan Family Courts Act, 1964--While sitting over judgment passed by Special Tribunals under Family Courts Act, High Court Acts as Family Court under West Pakistan Family Courts Act, 1964.
(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 17‑‑‑Civil Procedure Code (V of 1908), Preamble ‑‑‑Procedure‑‑ Applicability' of Civil Procedure Code‑‑‑Settlement of matrimonial affairs between spouses‑‑‑Procedure in family suits is made more easier by deviation from procedure of Civil Procedure Code, 1908.
(c) Muhammadan Law‑‑‑
‑‑‑‑ Divorce‑‑‑Iddat‑‑‑Period of Iddat starts from date of judgment and decree of the Court.
(d) West Pakistan Family Courts Rules, 1965‑‑‑
‑‑‑‑R. 13‑‑‑Limitation to file application for setting aside ex parte decree starts from date of judgment and decree of dissolution of marriage‑‑‑Ex pane‑‑‑Notice to Chairman, Arbitration Council by petitioner for getting certificate of effectiveness of divorce‑‑‑Respondent husband appeared before Chairman, Arbitration Council and expressly gave consent to issue a certificate of effectiveness of divorce which was issued by the Chairman‑‑‑Petitioner got remarried to some other person and in that wedlock a child was born‑‑‑Ex parte decree was set aside by Trial Court‑‑‑Respondent, husband who had knowledge of proceedings and had given consent to Chairman, Arbitration Council to issue certificate of effectiveness of divorce filed application for setting aside ex parte decree thereafter‑‑‑Limitation‑‑‑Period of limitation to set aside ex parte decree starts from date of judgment and decree or from date of knowledge‑‑‑Application for setting aside the ex parte decree was dismissed being time‑barred in circumstances.
Pervaiz Ahmad v. Tahra Shaheen alias. Balquees Shahzadi 1988 CLC 1444; Ainuddin Karikar v. Salatanness Bibi PLD 1953 Dacca 216; Mst. Fahmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694 and Muhammad Shamim Siddiqui v. Mrs. Kausar Aziz and others 1982 CLC 1972 ref.
(e) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 21(2)(3)‑‑‑Divorce‑‑‑Certificate of effectiveness of divorce‑‑‑Husband had given consent for issuance of such certificate‑‑‑Such certificate having not been challenged before Competent Authority had attained finality.
Qamar Zaman Qureshi for Petitioner.
Ch. Shazib Saeed for Respondent No.2
Date of hearing: 8th October, 1998.

--Suit for recovery of maintenance allowance and dower---Family Court had struck off the right of the husband (petitioner) to file written statement and cross-examine witnesses of the wife-

 2012 CLC 1361
LAHORE-HIGH-COURT-LAHOREBookmark this Case
MUHAMMAD NADEEM VS JUDGE FAMILY COURT

Constitutional petition--TERM , West Pakistan Family Court Act 1964--11 , West Pakistan Family Court Act 1964--17-A , West Pakistan Family Court Act 1964--5 , West Pakistan Family Court Act 1964--9 ,
Ss. 17A, 11, 9 & 5---Constitution of Pakistan, Arts.199 & 10A---Constitutional petition---Suit for recovery of maintenance allowance and dower---Family Court had struck off the right of the husband (petitioner) to file written statement and cross-examine witnesses of the wife---Contention of the husband was that on account of his failure to file a written statement, the Family Court could not deny him the right to cross-examine the witnesses of the wife---Validity---Family Court had struck off the husband's right to file written statement which was contrary to the provisions of the West Pakistan Family Courts Act, 1964---No provision for striking off the right to file written statement existed in the Act---Statutory right to strike off the defence of the defendant was only available under S.17-A of the Act, which was for interim maintenance---If the husband failed to file a written statement in accordance with the order of the Family Court, the Family Court may strike off his defence; and the case would then proceed in evidence and in terms of S.11 of the Act, the wife would lead evidence----At the time of recording evidence, the husband who had not filed his written statement, had a right to cross-examine the wife's witnesses---Such right was a valuable right and was prescribed in S.11(3) of the West Pakistan Family Courts Act, 1964---Family Court, in the present case, could strike off husband's right to file a written statement, right of defence, but could not close his right to cross-examine the witnesses of the wife---Denial of said right would render the procedure adopted by the Family Court as unfair and against the right to a fair trial---High Court set aside impugned orders, remanded the case to Family Court with the direction to provide one more opportunity to the husband to file written statement and produce evidence---Constitutional petition was allowed, in circumstances.
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