Husband’s legal capacity to deal with property of his wife

 Download Link: https://www.supremecourt.gov.pk/downloads_jud gements/c.p._154_2019.pdf 

CIVIL PETITIONS NO. 154 AND 155 OF 2019 

 It was contended before the Court that the husband was an ostensible owner of the property of his wife and thus he could transfer that property. The Court repelled the contention, and held: “To attract section 41 it had to be established that, Mst. Khurshida [the wife] had expressly or impliedly held out that her husband [the transferor] was the “ostensible owner” of the Property and had authorized him to transfer the Property to Mehreen [the transferee]. The other requirements of section 41 are that the proposed transferee had taken “reasonable care to ascertain that the transferor had power to make the transfer” and had “acted in good faith”. Mst. Khurshida neither held out that her husband was the ostensible owner of the Property nor that she had authorized him to transfer it. Mehreen also lead no evidence to show that she had attempted to ascertain that Haji Muhammad Ishaq Jan had the power to transfer the Property. Therefore, Mehreen could not avail the benefit of section 41 of the Transfer of Property Act.” The Court further held that “a husband has no right to his wife’s property nor can he ‘guarantee’ or encumber it without her permission.”

2. Fawad Ishaq v. Mehreen Mansoor 

 Download Link: https://www.supremecourt.gov.pk/downloads_jud gements/c.p._154_2019.pdf 

Present Mr. Justice Qazi Faez Isa and Mr. Justice Sardar Tariq Masood 

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Right of a married woman in her owned property, in Islam

CIVIL PETITIONS NO. 154 AND 155 OF 2019 

The Court made a comparative analysis of the old European and American concepts with the classic Islamic law as to rights of a married woman in her owned property, and observed: “A chasm existed between a woman’s position in Islam to that which prevailed till a century ago in Europe and America where upon marriage a wife stood deprived of her property, which became that of her husband to do with it as he pleased. However, in the Muslim world the situation was altogether different and this has been the position since over fourteen hundred years…..In Islamic societies Muslim ladies not only retained their properties but also their identities after marriage.” 

 2. Fawad Ishaq v. Mehreen Mansoor 

 Download Link: https://www.supremecourt.gov.pk/downloads_jud gements/c.p._154_2019.pdf 

Present Mr. Justice Qazi Faez Isa and Mr. Justice Sardar Tariq Masood 

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Principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor.....

8. The learned Courts below while disturbing the custody of the minor mainly relied upon the fact that the petitioner has contracted second marriage and the minor has crossed the age of seven years as such she has lost her right of hizanat. It is settled principle of law that while deciding the application for custody of minor the paramount consideration is the welfare of the minor and nothing else Reliance is placed on case reported as Mehmood Akhtar ..Vs.. District Judge, Attock and 2 others (2004 SCMR 1839) wherein it has been laid down as under:-

“The right of custody of minor is not an absolute right rather is it always subject to the welfare of the minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt general principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject to the welfare of minor which is the prime consideration in determination of the question of custody.” 

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE 

WP- Family Law
14684-11

2014 LHC 5106

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Such a divorce is known as “Talak by Tafweez”. The delegation of option called “Tafweez” by the husband to his wife, confers on her the power of divorcing herself. Tafweez is of three kinds, ....

20. In case reported as Mehnaz Mehboob ..Vs.. Ishtiaq ur Rashid and another (2006 YLR 335) it has been laid down as under:-

 “Although the power to give divorce belongs to the husband, he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable but a permanent delegation may be revoked. The pronouncement of divorce after demand had not caused public policy and principles of Muhamadan Law. Such a divorce is known as “Talak by Tafweez”. The delegation of option called “Tafweez” by the husband to his wife, confers on her the power of divorcing herself. Tafweez is of three kinds, 

(a) Ikhtiar, giving her the authority of Talak herself, 

(b) Amr-ba-Yed, leaving the matter in her own hand, and 

( c) Mushiat, giving her the option to do what she likes. All these, when analyzed, resolve themselves into one. Viz., leaving it in her or somebody else’s option to do what she or he likes. The wife cannot sue to enforce the authority alleged to have been given to her, but she sues after she has given effect to it to make the husband liable for her dower or to restrain him from seeking conjugal rights.

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE

WP- Family Law
12640-13

2014 LHC 5114

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Principle of law that poverty on the part of a mother is no ground to disentitle her from the custody of the minor.

13. Now dealing with the contention of the learned counsel that the respondent has sufficient source of income and he can fulfill all needs of the minor, it is pointed out that the respondent himself while appearing as AW3 during his cross-examination deposed that his monthly salary is Rs.6,000/-, therefore, in no manner he can be said a person of sufficient means. Besides, it is an established principle of law that poverty on the part of a mother is no ground to disentitle her from the custody of the minor. Reliance is placed on case reported as Mst. Razia Bibi ..Vs..Riaz Ahmad and another (2004 SCMR 821).

  Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE 

WP- Family Law
14684-11

2014 LHC 5106

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Rules of personal law would be subservient to the welfare of the minor

14. For the above discussion, seeing from whatever angle welfare of the minor lies in his custody with the petitioner particularly in view of the law laid down by the Hon’ble Supreme Court of Pakistan in the case reported as Firdaus Iqbal ..Vs.. Shafaat Ali and others (2000 SCMR 838) that the rules of personal law would be subservient to the welfare of the minor.  

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE 

WP- Family Law
14684-11

2014 LHC 5106

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Provisions of Order XX, Rule 10, C.P.C. will not be applicable strictly to the execution of a decree by the Family court in view of section 17 of the West Pakistan Family Courts Act, 1964.”

12. Now coming to the question that on which date the alternate price of the gold ornaments is to be determined. There is a plethora of judgments of this Court as well as the Hon’ble Apex Court that in case of a decree of gold ornaments the alternate price is to be determined at the time its execution, so, that on failure of return of gold ornaments the decree holder would be able to fetch equal weight of the gold. Learned Judge Family Court while awarding alternate price of the gold ornaments at the rate which was prevailing at the time of filing of institution of suit, relied upon the judgment of the Hon’ble Supreme Court of Pakistan reported as Mst. Mehbooba ..Vs.. Abdul Jalil (1996 SCMR 1063). The facts and circumstances of the said case are distinguishable. In the said case plaintiff/wife had not claimed recovery of gold ornaments rather she specifically claimed alternate value of the gold ornaments specified in the plaint. Therefore, it was held by the Hon’ble Apex Court that she was held entitled to market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as no decree for delivery of gold ornaments had been passed. She was granted money decree simplicitor. While in the present case respondent claimed for a decree of gold ornaments or in the alternative its market value and the same was awarded to her by the learned courts below, therefore, while determining alternate price of said gold ornaments prevalent at the time of institution of suit, both the courts committed material illegality and irregularity. Reliance is placed on case reported as Mst. Ayesha Shaheen ..Vs.. Khalid Mehmood and another (2013 SCMR 1049) wherein the Hon’ble Apex Court while distinguishing Mst. Mehbooba’s case referred supra has observed as under:-

“The case of Mst. Mehbooba v. Abdul Jalil turned on its own facts and does not in any way lay down a general rule that in all cases where the decree for recovery of gold is granted its value shall be determined at the market price prevailing on the date of grant of decree or filing of the suit. Where decree for delivery of gold or its market value is granted the value shall be determined with reference to the date of payment. As only then the decree can become fully satisfied. Neither the High Court nor the First Appellate Court had focused on the afore-stated distinction. In the case of Mst. Humaira Majeed V. Habib Ahmad cited in the leave granted order the Lahore High Court had also drawn the said distinction and had rightly held that the provisions of Order XX, Rule 10, C.P.C. will not be applicable strictly to the execution of a decree by the Family court in view of section 17 of the West Pakistan Family Courts Act, 1964.”

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE

WP- Family Law
12640-13

2014 LHC 5114

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