Custody of minor --- Right of Hizanat--- Iqrarnama/Agreement/Compromise made by the mother waiving her statutory right of Hizanat -

 P L D 2024 Supreme Court 291

Custody of minor ---
Right of Hizanat--- Iqrarnama/Agreement/Compromise made by the mother waiving her statutory right of Hizanat --- Legality --- Mother is entitled to the custody ( Hizanat ) of her male child until he has completed the age of seven years and of her female child until she has attained puberty --- These rights cannot be denied to the mother as any such action would be contrary to law . Any agreement related to the custody of minor child ( which stops the mother from claiming custody ) would be violative of law and cannot be enforced by a Court of law --- Any Iqrarnama/Agreement/Compromise made by the mother waiving her statutory right of Hizanat of a minor child would be violative of law and cannot be enforced by a Court of law .




Suit for dissolution of marriage and recovery of dower ( ten tolas gold ornaments and one - third share of the house ) --- Dower , dispute over -

P L D 2024 Peshawar 25



 Suit for dissolution of marriage and recovery of dower ( ten tolas gold ornaments and one - third share of the house ) --- Dower , dispute over --- Jurisdiction of the Family Court --- Scope --- Actionable claim --- Scope --- Dower was claimed against the defendant / husband on the basis Kabeen Nama ( marriage - deed ) according to which the husband had bound down himself to give gold ornaments to his wife at the time of Nikah which would be the sole ownership of wife --- Family Court decreed the dower prayed for by the petitioner / plaintiff , which judgment and decree was maintained by the Appellate Court --- Contention of the petitioner / defendant that gold ornaments as mentioned in the Kabeen Nama ( marriage - deed ) was an actionable claim for which jurisdiction vested in the Civil Court --- Held , that the Kabeen Nama ( marriage - deed ) was admittedly a matrimonial document between the parties which was not such an independent contract which might be interpreted as an ' actionable claim ' within the contemplation of the provisions of the Transfer of Property Act , 1882 ( ' the Act 1882 ' ) --- Section 3 of the Act 1882 means a claim to any debt ( other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property , or to any . beneficial interest in moveable property not in the possession , either actual or constructive of the claimant , which the Civil Court recognizes as affording grounds for relief , whether such debt or beneficial interest be existent , accruing , conditional or contingent --- Hence , the claim of wife for gold ornaments per marriage - deed , was a consideration of marriage for which the Family Court had the jurisdiction to adjudicate upon --- No illegality or infirmity was found in the impugned judgment passed by the Appellate Court

Tauheed Farooqi vs Faiqa Anmol
P L D 2024 Peshawar 25

ایسا اقرار نامہ جو والدہ کے اپنے بچوں کے حق حضانت سے دستبرداری کی بابت ہو سراسر غیر قانونی ہے

P L D 2024 Supreme Court 291 

The delivery of Mahr is one such right, the dutY of which is bestowed upon the husband for the financial support and stability of his wife. Such entitlement to dower has the origin in the HoIy Quran, and the inspiration of the same entitlement has been made part of the statutory law.

Para 352 (5) of the Muhammadan Law provides that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. These rights cannot be denied to her as any such action would be contrary to law. Any agreement related to the custody of minor child would be violative of law and cannot be enforced by a Court of law. This Court in a reported case titled Mst. Beena v. Raja Muhammad and others [PLD 2020 SC 508], at paragraph 8, held that the agreement where mother surrendered the custody of her child or the agreement which stopped the mother to claim his custody is not lawful; it is contrary to the Islamic principles governing Hizanat and the law determining the custody of minors and thus forbidden. An agreement the object or consideration of which is against public policy is void, as stipulated in section 23 of the Contract Act.
It is imperative that the wife must be made a party to the agreements concerning her rights. A wife enjoys exclusive and absolute right over her dower and the same could not be waived via lqrarnama/ Agreement/Compromise and any such document, registered or unregistered, attempting to compromise the wife’s right to dower, especially in the context of familial dissolution, lacks legal validity. Further, any Iqrarnama/ Agreement/Compromise made by the mother waiving her statutory right of Hizanat of a minor child would be violative of law and cannot be enforced by a Court of law.

C.A.1227/2016
Mst. Haseena Bibi v. Abdul Haleem & others
P L D 2024 Supreme Court 291

Unless possession of the immovable property constituting dower of a wife is given to her, and/or the share of the produce thereof is paid, in essence, the obligation to pay the dower has not been discharged by the husband

  Unless possession of the immovable property constituting dower of a wife is given to her, and/or the share of the produce thereof is paid, in essence, the obligation to pay the dower has not been discharged by the husband, which precisely is the position in the present case. The conduct of the petitioner of delaying the payment of the agreed dower and denying possession of the dower property and/or usufruct in form of the produce thereof, on the ingenuine and shallow plea that he was obligated only to transfer the land and not the possession reveals the contumacious conduct of the petitioner as to further protract and linger on the matter by involving, rather dragging, the respondent in uncalled for litigation that cannot be countenanced by this Court in constitutional jurisdiction.

Writ Petition No. 15918/2021
Muhammad Ali Khan Versus Additional District Judge etc.
Date of Hearing: 06.02.2024










-- Mother and minor girl were living at a place / district different from the place / district where the father moved application for custody .... Guardian Court dismissed application of the petitioner / mother for setting aside ex - parte judgment and decree -

 PLD 2023 Lahore 412

Application for the custody of minor girl --- Due service --- Fair trial --- Service upon the defendant --- Presumption --- Mother and minor girl were living at a place / district different from the place / district where the father moved application for custody .... Guardian Court dismissed application of the petitioner / mother for setting aside ex - parte judgment and decree --- Petitioner / mother claimed that neither she was personally served nor she had any knowledge of the case proceedings --- Held , that primary controversy for the Court , in the present case , was that whether the mother was served in accordance with law before decree I was passed against her --- Without framing issues and recording evidence , the Court below had decided the factual controversy qua residential address of the mother / petitioner while relying on the photocopy of her alleged second marriage in district " K " , produced by the respondent / father --- Court also presumed the petitioner's knowledge of proceedings and service of summons on the basis that notice along with registered envelope AD were sent on her district ' K ' address and that notice was also proclaimed in the newspaper having been circulated / published from relevant division --- Neither the process server was ] produced as a witness , in the present case , to establish personal service of summons under S.8 of the Family Courts Act , 1964 , upon the mother / petitioner in accordance with law , nor any reference to his ( process server's ) report to the said effect had been made in the impugned order --- In the absence of any acknowledgement due available on record , service of the notice been presumed by the Court below merely on the basis of al receipt available on record --- Without establishing on not be served rd that the mother / petitioner could rsonally , reliance on publication of the notice could not be considered safe to presume service of the mother / petitioner , particularly when father / respondent himself alleged in his petition for custody that she was an illiterate villager --- High Court set - aside impugned order and allowed the application of mother / petitioner for setting aside ex - parte judgment and decree --- Application of father for the custody of minor girl . would be deemed to be pending , at the place mother and minor were residing , for decision afresh in accordance with law.

-It is imperative upon Family Court to send notice to defendant regarding grant of an exparte decree passed against him through process server or by registered post, acknowledgment due or through courier service or any other mode or manner as it deems fit--

 PLJ 2023 Peshawar 44
Present: Muhammad Faheem Wali, J.
MUHAMMAD JALIL--Petitioner
versus
Mst. NAGINA BIBI and others--Petitioners
W.P. No. 35-D of 2022 with Interim Relief, decided on 22.9.2022.

Civil Procedure Code, 1908 (V of 1908)--

----O.IX R. 13--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage recovery of dower and maintenance allowance--Ex-parte decreed--Application for setting aside ex-parte decree--Dismissed--Time-barred--Application for setting aside ex-parte decree was filed after getting knowledge of ex-parte decree--Question of whether time limitation for filing application was to be reckoned from date of ex-parte proceedings so initiated or from date of receipt of notice of ex-parte decree--The main claim of petitioner is that his application for setting aside exparte decree is within time for good reason that he received notice of exparte decree on 30.5.2019 and on same day he applied for obtaining attested copies of order while on next day he filed subject application--Record reveals after getting knowledge of ex parte decree, application filed by petitioner is well within time--Counsel for Respondent No. 1 has not been able to show any law to rebut contention of petitioner regarding getting knowledge of exparte decree from date of receipt of notice--Lis should not be knocked out on technical grounds but endeavour of Courts should be to decide matters, involving valuable rights of parties, on merits and party to litigation should not be non-suited on mere technical grounds--ADJ was wrong in his findings through judgment impugned herein--Petition accepted.   

                                                           [Pp. 46, 47 & 48] A, C, D, G & H

Ref. 2006 SCMR 631, 2008 SCMR 287, PLD 2015 Pesh. 59.

Limitation Act, 1908 (IX of 1908)--

----Art. 164--Ex-parte decree--Article 164 of Limitation Act, 1908 is applicable to an application by a defendant for an order to set aside a decree passed exparte and prescribed period of limitation of 30 days starts running from date of decree, where summons is not duly served, when applicant has knowledge of decree.        [P. 46] B

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

----S. 9(6)(7)--Ex-parte decree--It is imperative upon Family Court to send notice to defendant regarding grant of an exparte decree passed against him through process server or by registered post, acknowledgment due or through courier service or any other mode or manner as it deems fit--In view of section 9(7) of Family Courts Act, 1964, thus, onus was shifted to petitioner/defendant to prove that copy of exparte decree has been sent to him that, in turn, he has proved through producing sufficient record.          [P. 48] E & F

PLJ 2017 Pesh. 1.

Mr. Muhammad Mohsin Ali, Advocate for Petitioner.

Mr. Shakil Ahmad Katikhel, Advocate and Mr. Muhammad Kamran Baloch, Advocate for Respondents.

Date of hearing 22.9.2022.

Judgment

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Muhammad Jalil has called in question the judgment dated 28.2.2022 rendered by learned District Judge-II, D.I.Khan, whereby his appeal against the order dated 25.11.2021 of learned Civil Judge-1/Judge Family Court-I, D.I.Khan was dismissed being time barred.

2. Precise summary of the case is that the Respondent No. 1 filed a suit for recovery for dissolution of marriage, dower, maintenance, dowry and gold ornaments etc against the present petitioner before learned Civil Judge-IX/Judge Family Court, D.I.Khan. When put on notice by the Court, the petitioner/defendant appeared and contested the suit by filing his written statement but later on remained absent before the Court, thus was placed and proceeded exparte. After recording exparte evidence of plaintiff/respondent, partial exparte decree was passed in favour of Respondent No. I vide order dated 24.4.2019. Not contended with the same, the petitioner filed an application for setting aside ex-parte decree, which was dismissed by the learned trial Court on 25.11.2021. Feeling disgruntled from the said order, the petitioner preferred an appeal before learned appeal Court, which was also dismissed vide judgment dated 28.02.2022, hence the instant writ petition.

3. I have considered the arguments of learned counsel for the parties and perused the record with their valuable assistance.

4. Perusal of the record manifestly shows that impugned judgment and decree was passed on 24.4.2019 by learned trial Court while the application for setting aside exparte decree was filed on 31.5.2019 with a delay of more than 09 days. The main claim of the petitioner is that his application for setting aside exparte decree is within time for the good reason that he received notice of the exparte decree on 30.5.2019 and on the same day he applied for obtaining attested copies of the order while on next day i.e 31.5.2019, he filed the subject application. Admittedly, the petitioner had participated in trial before the learned Family Court and thereafter due to his absence, he was placed exparte which culminated into exparte decree in favour of the Respondent No. 1. In the instant case, the attitude and conduct of the petitioner is not a question but this Court has to consider the law point involved in it i.e whether the time limitation for filing application was to be reckoned from the date of exparte proceedings so initiated or from the date of receipt of notice of exparte decree?

5. After delving into the record, it is manifestly clear that petitioner has established his plea that he got knowledge when he received notice of exparte decree i.e on 30.5.2019. In legal parlance, Article 164 of the Limitation Act, 1908 is applicable to an application. by a defendant for an order to set aside a decree passed exparte and the prescribed period of limitation of 30 days starts running from the date of the decree, where the summons is not duly served, when the applicant has knowledge of the decree. The record reveals after getting knowledge of exparte decree, the application filed by the petitioner is well within time. The apex Court, while placing reliance on case Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631), has also held a similar view in case Secretary Education Department, Government of N.W.F.P., Peshawar and others v. Asfandyar Khan (2008 SCMR 287) as:

“Article 164 of Limitation Act provides 30 days to file application for setting aside ex-parte decree because petitioner/defendant had participated in the proceeding before the trial.”

6. This Court, in case of Khayal Badshah v. Afzal Khan and 4 others (PLD 2015 Peshawar 59) has held the same view that if summons were served upon the defendant, period to set aside ex-parte decree would be governed under Article 164 of the Limitation Act which would be reckoned from the date of decree and if the summons was not served, the period for moving the application under Order IX Rule 13 C.P.C. would be reckoned from the date of acquiring knowledge of the ex-parte decree, in both the cases, it would be thirty (30) days as prescribed under Article 164 of the Limitation Act.

7. Learned counsel for the Respondent No. 1 has not been able to show any law to rebut the contention of petitioner regarding getting knowledge of exparte decree from the date of receipt of notice despite being given an opportunity to produce dictums of the Hon’ble Supreme Court of Pakistan in relation to section 9(7) of Family Courts Act, 1964. For ready reference, the sections 9(6) and 9(7) of Family Courts Act, 1964 are reproduced as under:

Sections 9(6) and 9(7) of Family Courts Act 1964

(6) In any case in which a decree is passed ex-parte against a defendant under this Act, he may apply within [32][thirty days of the service of notice under sub­section (7) of the passing of the decree] to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, and on such terms as to costs as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit; provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also.

(7) The notice of passing of the ex-parte decree referred to in sub-section (6) shall be sent to the defendant by the Family Court together with a certified copy of the decree within three days of the passing of the decree, through process server or by registered post, acknowledgement due, or through courier service or any other mode or manner as it may deem fit.

8. It is worth mentioning that it is imperative upon the Family Court to send notice to the defendant regarding the grant of an exparte decree passed against him through process server or by registered post, acknowledgment due or through courier service or any other mode or manner as it deems fit. In the instant case, it is apparent from the perusal of the exparte order dated 24.4.2019, wherein it is mentioned that certified copy of this order/judgment alongwith certified copy of decree sheet be sent to the defendant and concerned Union Council within three days positively through registered posts upon the expenses of plaintiff. In this respect, the petitioner stated that copy of exparte decree has been delivered to him on 30.5.2019 in view of section 9(7) of Family Courts Act, 1964, thus, onus was shifted to the petitioner/defendant to prove that copy of exparte decree has been sent to him that, in turn, he has proved through producing sufficient record. In holding this view, I am also fortified by the judgment laid down by this Court in the case titled Syed Agha Hussain Shah and others vs. Mst. Deena Bibi and others (PLJ 2017 Peshawar D.I.Khan Bench). Therefore, it is held that the application for setting aside the ex-parte decree was filed within a reasonable time. Even otherwise it has been observed in the numerous authorities laid down by the supenor Courts that lis should not be knocked out on technical grounds but endeavour of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and party to the litigation should not be non-suited on mere technical grounds.

9. Relying upon the dictum laid down by the apex Court as well as section 9(7) of the Family Courts Act, 1964, I am of the considered view that the learned Additional District Judge-II, D.I.Khan was wrong in his findings through the judgment impugned herein. Therefore, this writ petition is accepted, the impugned order dated 24.4.2019 and judgment dated 28.2.2022 are set aside and the application of the petitioner for setting aside the judgment and decree dated 24.4.2019 is allowed. The case is remanded to the learned Judge Family Court-I, D.I.Khan with the direction to decide the suit filed by Respondent No. 1 Mst. Nageena Bibi on merits within a period of four months expeditiously.

(Y.A.)  Petition accepted

Section 9(2) of the Family Courts Act, 1964 clearly provides that where a defendant relies upon a document in his possession or power, he shall produce it or copy thereof in the Court along with the written statement.

2024 CLC 375 

Section 9(2) of the Family Courts Act, 1964 clearly provides that where a defendant relies upon a document in his possession or power, he shall produce it or copy thereof in the Court along with the written statement. Sub-section (4) of Section 9 ibid requires copies of the documents referred to in subsection (2) to be given to the plaintiff along with the written statement on the date fixed for that purpose.

Although the word “shall” has been used in subsections (2) & (4) of Section 9 of the Act, however, that does not make these provisions mandatory thereby rendering non-compliance thereof absolutely fatal so as to prevent a defendant from belatedly filing and producing in evidence any document that was not filed along with the written statement. This is primarily for the reason that no such penal consequences have been specified by the legislature in Section 9 of the Act. It thus remains discretionary for the Family Court to permit a defendant to file any document, deliver a copy thereof to the plaintiff that was not filed along with the written statement and produce the same in evidence in a suit. The question then arises what are the principles governing the exercise of such discretion by the Family Court?

WP 65227/23
Muhammad Nawaz Vs ADJ Hafizabad etc
2024 CLC 375

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