Valuable rights accrued in favour of other party. (after giving six opportunities coupled with cost and last warning)

Record suggests that after giving six opportunities coupled with cost and last warning, the petitioner has failed to file written statement and also to pay costs vide order dated 26.11.2013. Keeping in view of above referred circumstances, learned Judge Family Court while relying upon case law titled “FAIZ-UL-HASSAN versus Mst. JAN SULTAN and 2 others” (2001 SCMR 1323) struck off the right of filing written statement vide order dated 18.12.2013 and decreed the suit vide ex-parte judgment dated 26.02.2014. Initially, ex-parte decree was passed on 05.05.2011 which was set aside on 26.11.2013. Inspite of numerous opportunities petitioner had failed to file written statement, resultantly, his right to file written statement was struck off as stated supra. Thereafter, impugned judgment and decree was passed on 26.02.2014. Surprisingly, after passing of impugned ex-parte judgment and decree, he remained mum and filed appeal on 28.03.2015, after delay of more than one year. It is well settled principle by now that delay of each and every day has to be explained as on account of limitation certain valuable rights accrued in favour of other party. Record negates the version of learned counsel for petitioner that due to death of real brother of counsel for the petitioner, learned Judge Family Court struck off the right of petitioner in hasty manner.  

Part Of Judgment
Lahore High Court
WP- Family Law
2280-16
2016 LHC 1487

Stance of the petitioner that nothing in the shape of dowry articles was given to respondent No.1 is not acceptable.

6. The stance of the petitioner that nothing in the shape of dowry articles was given to respondent No.1 is not acceptable. It is customary in our society that parents do give dowry articles to their daughters merely as a token of love and symbol of honour and the petitioner has miserably failed to bring on record anything from which it could be inferred that something contrary to the settled norms was happened in respondent’s case. I have also gone through the decreed items and am of the considered view that the same are of daily use and usually given to a daughter at the time of marriage by the parents even having unsound financial background. The alternate price assessed in lieu of the dowry articles by the learned Judge Family Court and affirmed by the learned Appellate Court is also very reasonable. Concurrent findings of facts in the absence of any illegality or irregularity need no interference by this Court in its Constitutional jurisdiction. Reliance is placed on case reported as Muhammad Habib ..Vs.. Mst. Safia Bibi and others (2008 SCMR 1584).

Part Of Judgment
Lahore High Court
WP- Family Law
8604-16
2016 LHC 4572

Extent of grant of future maintenance to the minors.

4. The petitioner has no objection to the grant of past maintenance to his minor children/respondents No.2 to 4. He has only challenged the impugned decree only to the extent of grant of future maintenance to the minors. The law does not make any distinction between “past” and “future maintenance”. In this regard reliance is placed on the case of Aurangzeb v. Judge Family Court, Khanewal and others (PLJ 2003 Lahore 1494). As per settled law a father is bound to pay maintenance allowance to his minor children till their legal entitlement. Mere non-mentioning of the word “future maintenance” in the plaint neither disentitles the minors from future maintenance nor absolves the petitioner father from the duty of providing maintenance to his minor children till their entitlement. There is nothing on the record to show that the minors or their mother/respondent No.1 are living with the petitioner after passing the impugned judgments and decrees, so they are not entitled to future maintenance. A child who is entitled to past maintenance is also entitled to future maintenance. If the plaintiffs-respondents in their plaint omitted to claim future maintenance along with the past maintenance, the Court itself is empowered to grant such relief for complete administration of justice. Reliance in this regard is placed on the cases of Samar Gul v. Central Government and others (PLD 1986 SC 35) and Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984). In these circumstances, this Court is of the considered view that both the courts below have not committed any illegality or travelled beyond their jurisdiction by granting future maintenance to the minors, which is their undeniable, legal and vested right. 

Part Of Judgment
Lahore High Court
WP- Family Law
8427-15
2016 LHC 4626

First glance, clause 1(a) of Article 128 appears to pose a difficulty (Qanune-Shahadat )

12. Admittedly, the minor born during the subsistence of marriage and this proposition has already been dealt with by the Hon'ble Supreme Court of Pakistan in a judgment cited as “Ghazala Tehsin Zohra versus Mehr Ghulam Dastagir” (PLD 2015 SC 327), wherein it has been observed that:- “We first of all, take up for comment the provisions of Article 128 ibid. The Article is couched in language which is protective of societal cohisn and the values of the community. This appears to be the rationale for stipulating affirmatively that a child who is born within two years after the dissolution of the marriage between his parents (the mother remaining unmarried) shall constitute conclusive proof of his legitimacy. Otherwise, neither the classical Islamic jurists nor the farmers of the Qanun-eShahadat Order could have been oblivious of the scientific fact that the normal period of gestation of the human foetus is around nine months. That they then extended the presumption of legitimacy to two years, in spite of this knowledge, directly points towards the legislative intent as well as the societal imperative of avoiding controversy in matters of paternity. It is in this context that at first glance, clause 1(a) of Article 128 appears to pose a difficulty. It may be noted that classical Islamic Law, which is the inspiration behind the Qanune-Shahadat Order (though not incorporated fully) and was referred to by learned counsel for the appellant also adheres to the same rationale and is driven by the same societal imperative. In this regard, it is also worth taking time to reflect on the belief in our tradition that on the Day of  Judgment, the children of Adam will be called out by their mother’s name. It shows that the Divine Being has, in His infinite wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall be laid bare the secrets about paternity shall not delved into or diverged.”

Part Of Judgment
Lahore High Court
WP- Family Law
9891-16
2016 LHC 911

Power to increase the quantum of maintenance allowance suo moto on appeal of the petitioner

4. Learned counsel for the petitioner submits that the learned Appellate Court has gone beyond its jurisdiction while increasing maintenance allowance of the respondents of its own. He emphatically argued that respondents did not challenge the findings of the learned Judge Family Court either through appeal or crossobjections as such findings of the Family Court to their extent had attained finality and the learned Appellate Court was not vested with any power to increase the quantum of maintenance allowance suo moto on appeal of the petitioner . Relies on Mateen Haider ..Vs.. Additional District Judge, Lahore and others (2005 SCMR 1683) and Muhammad Nazir Khan ..Vs.. Ahmad and 2 others (2008 SCMR 521). Adds that the learned Appellate Court did not consider the financial status of the petitioner while increasing maintenance allowance of the minors; that the petitioner has limited source of income out of which he has to maintain his second wife and children as well, therefore, he is unable to pay the maintenance allowance to the respondents at the enhanced rate fixed by the learned Appellate Court. He next argued that there is no provision in the West Pakistan Family Courts Act, 1964 empowering the Family Court to pass a decree of automatic annual increase; that the judgments and decrees of both the courts below are harsh and liable to be modified in accordance with the financial status of the petitioner.  

Part of Judgment of
Lahore High Court
WP- Family Law
1447-10
2015 LHC 8916

Court could increase quantum of maintenance allowance of the respondents/minors

8. First of all I would like to dilate upon the issue whether the Appellate Court could increase quantum of maintenance allowance of the respondents/minors in the absence of their appeal against the decree of the Family Court. In this context Rule 33 of Order 41 of CPC is very much relevant which reads as under:- “ Power of Court of Appeal.--- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection.”

Part of Judgment of
Lahore High Court
WP- Family Law
1447-10
2015 LHC 8916

Lean in favour of adjudication of causes on merits

Reliance is placed on case reported as Muhammad Arif ..Vs.. Uzma Afzal and others (2011 SCMR 374) wherein it has been laid down as under:-

“There is no cavil to the proposition that the “conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim ‘ he who seeks equity must do equity”. Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law under which he is claiming entitlement.”

Part Of Judgment
Lahore High Court
WP- Family Law
4892-13
2017 CLC 794
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