Bridal gifts fall within the ambit of personal property and belongings of a wife

8. Bridal gifts fall within the ambit of personal property and belongings of a wife i.e. Item No.9 of the Schedule in terms of Section 5 of the Family Courts Act, 1964 which confers exclusive jurisdiction upon the Family Court to hear the claim of such matters. The term “personal property and belongings of a wife” has already been explicated by this Court in the case titled Muhammad Akram v. Hajra Bibi (PLD 2007 Lah. 515) and maintained by the Hon’ble Supreme Court of Pakistan in the case titled Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 SC 260). Relevant extract from the case of Muhammad Akram (supra) reads below:-
 “Such personal property or belonging referred to in Entry No.9, in my considered view, is a residuary provision, which enables the wife to recover through the process of the Family Courts Act, 1964, whatever property she has acquired during the subsistence of the marriage, which is not the part of her dowry, through her own independent means or even through the means provided by her husband, such as her clothes, ornaments and items of personal use and nature, this may also include anything which has been gifted to the wife by the husband or any of his or her relatives or the friends; such property and belonging may be the one acquired by the wife out of the money given to her by the husband, her saving from household allowance, or pocket money, from the money provided by her parents and relatives.”


Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
29827-14
2014 LHC 7218

Entitled to recover the same as per condition mentioned in column No. 17 of the Nikah Nama.

13. Now I advert to the legal objection raised by the learned counsel for the petitioner that the learned Judge Family Court was not competent to decide the claim of respondent No. 3 for recovery of 5-tolas gold ornaments mentioned in column No. 17 of the Nikah Nama. He has placed reliance on judgment of this Court reported as “Muhammad Awais Vs. Mst. Zahida Parveen” (PLD 2012 Lahore 38). In the referred judgment one Mst. Zahida Parveen instituted a suit for recovery of gold ornaments valuing Rs. 2,00,000/- in the Family Court at Okara against the defendant alleging therein that she is entitled to recover the same as per condition mentioned in column No. 17 of the Nikah Nama. Her suit was dismissed by the learned Judge Family Court with the observations that the matter was not triable by a Family Court. Thereafter, the appeal filed by Mst. Zahida Parveen was accepted by the learned Appellate Court and the case was remanded to the learned Judge Family Court for fresh trial. Muhammad Awais husband of Mst. Zahida Parveen filed W.P. No. 16081 of 2010 before this Court which was accepted by this Court in view of the dictum laid down by the Hon’ble Supreme Court of Pakistan in the case titled as “Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others” (PLD 2011 Supreme Court 260), and resultantly, judgment of learned Additional District Judge was set aside and the judgment recorded by the learned Judge Family Court, Okara was restored whereby he had dismissed the suit of Mst. Zahida Parveen on the point of jurisdiction.

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

Dower becomes payable on dissolution of marriage either by death or divorce

10. It has been contended on behalf of the petitioner that respondent No. 3 was not entitled to recover the alleged amount of deferred dower Rs. 2,00,000/- during the subsistence of marriage as deferred dower becomes payable on dissolution of marriage either by death or divorce and both the lower courts have committed illegality while granting the said relief in favour of respondent No. 3. He has placed reliance on the judgment of Hon’ble Supreme Court of Pakistan reported as “Saadia Usman and another Vs. Muhammad Usman Iqbal Jadoon and another” (2009 SCMR 1458), to contend that deferred dower becomes payable on dissolution of marriage either by death or divorce.  

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

Ornaments were recorded in the Nikah Nama later on, whereas, no dower was fixed at the time of Nikah; that the suit

6. Learned counsel for the petitioner contended that as the marriage of respondent No. 3 with the petitioner was intact at the time of filing of suit and passing of decree, therefore, the respondent No. 3 was not entitled to recover the alleged deferred dower from the petitioner. In this respect he has placed reliance upon judgment of Hon’ble Supreme Court of Pakistan reported as “Saadia Usman and another Vs. Muhammad Usman Iqbal Jadoon and another” (2009 SCMR 1458). He further contended that the entries regarding the dower amount of Rs. 2,00,000/- and 5-tolas gold ornaments were recorded in the Nikah Nama later on, whereas, no dower was fixed at the time of Nikah; that the suit of respondent No. 3 to the extent of recovery of 5-tolas gold ornaments mentioned in column No. 17 of the Nikah Nama was not competent before the learned Judge Family Court, Mian Channu. To substantiate his contention he has placed reliance upon “Muhammad Awais Vs. Mst. Zahida Parveen” (PLD 2012 Lahore 38); that respondent No. 3 left his house at her own and she was not entitled to recover any maintenance allowance; that the learned lower courts have fixed maintenance allowance of respondent No. 3 at very excessive rate against the law and facts of the case. 

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

The provisions of Civil Procedure Code, 1908 as well as Qanun-eShahadat Order, 1984 are not applicable in stricto senso to the proceedings before the Family Court by virtue of Section 17 of the Family Courts Act, 1964.

14. It is a settled principle of law that purpose of enacting the special law regarding family disputes is to advance justice and to avoid technicalities, which are hindrance in providing ultimate justice to the parties. The West Pakistan Family Courts Act, 1964 was promulgated for the expeditious settlement and disposal of disputes relating to the marriages and  other family affairs and special procedure was provided to achieve this object. The purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between parties in shortest possible time. The provisions of Civil Procedure Code, 1908 as well as Qanun-eShahadat Order, 1984 are not applicable in stricto senso to the proceedings before the Family Court by virtue of Section 17 of the Family Courts Act, 1964. Family Court has to regulate its own proceedings in accordance with the provisions of the Act, 1964 as the evidence adduced before the Family Court cannot be evaluated and appraised in the manner as it is appreciated in the cases presented under Civil Procedure Code, 1908. A mere fact that a party did not finally prove the receipts of dowry articles in evidence have no legal consequence. Reliance is placed on case law reported as “Mst. Shakeela Bibi Vs. Muhammad Israr and others”(2012 MLD 756). 

Part of Judgment : 
THE LAHORE HIGH COURT, BAHAWALPUR BENCH BAHAWALPUR
WP- Family Law
2673-14
2014 LHC 7190

Recover the dower amount Rs. 2,00,000/- which was not paid to her by the petitioner; that the learned Family Court was competent to adjudicate upon the claim

7. On the other side, learned counsel for respondent No. 3 argued that respondent No. 3 was subjected to torture and she was turned out by the petitioner from his house and the learned trial Court has rightly granted her maintenance allowance; that respondent No. 3 was fully entitled to recover the dower amount Rs. 2,00,000/- which was not paid to her by the petitioner; that the learned Family Court was competent to adjudicate upon the claim of respondent No. 3 regarding 5-tolas gold ornaments; that the learned trial Court as well as the learned appellate court have passed the judgments and decrees in favour of respondent No. 3 in accordance with law and the writ petition against concurrent findings of both the learned courts below is not competent. He has placed reliance on “Liaquat Ali Vs. Additional District Judge, Narowal and 2 others” (1997 SCMR 1122), “Mst. Razia Begum Vs. Jang Baz and 3 others” (2012 CLC 105), and “Mst. Ghulam Shaheena Vs. Judge, Family Court” (2010 CLC 87).  

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917

Column No. 17 of Nikah Nama as it falls out of ambit of Section 5 and Schedule of West Pakistan Family Courts Act, 1964.

14. In the present case as per record 5-tolas gold ornaments are mentioned in column No. 17 of the Nikah Nama (Ex. PI) and in column No. 16 of the Nikah Nama it is clearly mentioned that no property was given in lieu of dower. Therefore, the alleged claim of respondent No. 3 that 5-tolas gold ornaments were mentioned in the Nikah Nama as consideration for dower remains unproved. It has been clearly held in the above referred precedent case that the learned Family Court has no jurisdiction to decide the claim of wife regarding any amount or property mentioned in column No. 17 of Nikah Nama as it falls out of ambit of Section 5 and Schedule of West Pakistan Family Courts Act, 1964. Therefore, in these circumstances, I am of the considered view that the learned trial Court as well as the learned appellate court have not considered this aspect of the matter and the suit of respondent No. 3 for the claim of 5-tolas gold ornaments has been illegally decreed by the learned courts below. The judgments referred by learned counsel for respondent No. 3 reported as (1) “Mst. Razia Begum Vs. Jang Baz and 3 others” ( 2012 CLC 105), “Mst. Ghulam Shaheena Vs. Judge, Family Court” (2010 CLC 87), and “Liaquat Ali Vs. Additional District Judge, Narowal and 2 others (1997 SCMR 1122), are not applicable in this case as in the referred cases the property was given to the wife as dower, whereas, in the present case 5-tolas gold ornaments are mentioned in column No. 17 of the Nikah Nama and the same were not given to respondent No. 3 in lieu of dower. Hence, findings of learned trial Court as well as learned appellate court for passing the decrees regarding 5-tolas in favour of respondent No. 3 are not sustainable under the law. Resultantly, I reversed the findings of both the courts below on issue No. 1 and decide the same against respondent No. 3.  

Part of Judgment : 
LAHORE HIGH COURT MULTAN BENCH, MULTAN 
WP- Family Law
11586-13
2015 LHC 3917
Subscribe to: Posts (Atom)
Powered by Blogger.

Case Law Search