--Family Court conditionally dissolved the marriage and passed decree for half dower in favour of wife---

 

Citation Name: 2019 PLD 218

PESHAWAR-HIGH-COURTBookmark this Case
AJMAL KHAN VS Mst. FALEK NEGAR BIBI

S. 5, Sched---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---suit for dissolution of marriage and recovery of dower---Rukhsati having not been effected---Effect---Family Court conditionally dissolved the marriage and passed decree for half dower in favour of wife---Validity---Wife would be entitled to whole dower upon consummation of marriage or death of the husband and valid retirement---Wife could not ask for her dower before rukhsati---When husband had divorced his wife before consummation, he had to pay half of the dower but said principle was not applicable when before consummation wife was asking for dower---Wife before consummation was not entitled to ask for dissolution of marriage on the grounds provided in S.2 of Dissolution of Muslim Marriages Act, 1939---Wife was not entitled for dower before rukhsati and valid retirement---No ground existed for the wife to ask for dissolution of marriage in circumstances---Impugned judgments passed by the Courts below were against law---When parties were not ready to settle and live their lives in accordance with Islam, their marriage was dissolved on the basis of khula--Impugned judgments and decrees passed by the Courts below were set aside---Constitutional petition was allowed, in circumstances.

S. 5---Qanun-e-Shahadat (10 of 1984), Art. 129, illus. (e) & Chap. VI, [Arts.102 to 110]---Exclusion of oral evidence by documentary evidence---Nikahnama, contents of--

 Citation Name: 2019 MLD 758
LAHORE-HIGH-COURT-LAHOREBookmark this Case
FAYAZ HUSSAIN VS ADDITIONAL DISTRICT JUDGE

S. 5---Qanun-e-Shahadat (10 of 1984), Art. 129, illus. (e) & Chap. VI, [Arts.102 to 110]---Exclusion of oral evidence by documentary evidence---Nikahnama, contents of---Scope---suit for recovery of house as dower filed by wife was concurrently decreed in her favour by two Courts below---Plea raised by husband was that house mentioned in Nikahnama was of 5 Marlas whereas two Courts below passed decree for house of 10 Marlas---Validity---Nikah Nama was public document and presumption of truth was attached to entries made therein---Where there was gross misreading, non-reading or jurisdictional defect flouting on the surface of record, High Court was justified to interfere with the same under its Constitutional jurisdiction to undo injustice---High Court modified judgments and decrees passed by two courts below and decreed the suit to the extent of house measuring 5 Marlas with necessary amenities or in alternate its market price---Claim of wife contrary to the terms and conditions of Nikah Nama was dismissed--Constitutional petition was allowed accordingly.

--Husband contracted second marriage without first wife's consent---Claim of first wife for maintenance, dower and return of dowry articles-

 Citation Name: 2020 CLC 803

PESHAWAR-HIGH-COURTBookmark this Case
SAKHAWAT HUSSAIN VS Mst. RUBINA SHAHEEN

S. 5, Sched.---suit for recovery of dower---Entries made in nikahnama---Presumption of truth---Scope---Husband contracted second marriage without first wife's consent---Claim of first wife for maintenance, dower and return of dowry articles---Wife produced nikahnama and kabin-nama which showed that the husband, at the time of nikah, had committed and agreed to transfer certain share of the suit house and give gold ornaments to the wife in lieu of dower amount---Plaintiff wife had established her case through examination of marginal witnesses of nikahnama as well as kabin-nama---Held, when the husband gave immovable property as dower and it was incorporated in the nikahnama, such property became property of the wife---Entries incorporated in the nikahnama were equated to a registered deed---Strong presumption of truth was attached to entries made in the nikahnama---Wife was entitled to the award of decree, in circumstances---Constitutional petition filed against the decree passed by the courts below was dismissed.

In Pakistan, the maintenance with regard to Muslim children is governed by the Injunctions of Islam and in other cases as per applicable personal law and the provisions of the Family Courts Act, 1964 in this regard essentially govern jurisdiction and procedure.

The jurisdiction and procedure of Family Courts in Pakistan is, inter alia Courts Act, 1964.

On perusal of section 17A(1) of the Act, it is manifest that in a suit for maintenance, the Family Court is required to pass an order fixing interim monthly maintenance for wife or a child. The use of word “shall”, on the face of it, indicates that the said requirement is imperative in character. Such an order is required to be passed on the date of the first appearance of the defendant. The purpose or object of such a mandatory requirement apparently is to ensure subsistence of wife or child till final determination of his or her entitlement qua the maintenance. The interim monthly maintenance so fixed by the Court is payable by fourteenth day of each month. A sanction has been created by the legislature in the form of striking off defence of the defendant followed by a decree to be passed to guard against failure of the defendant to pay interim monthly maintenance in compliance of the order of the Court. The striking off of the defence in the case of default in the payment of interim maintenance is mandatory and no discretion in this regard is conferred upon the Court. Likewise, the striking off of the defence in such cases is automatic (i.e. not dependent upon any order of the Court in this regard), which is reflected from the use of legislative expression “the defence of the defendant shall stand struck off”. The expression “defence struck off” means the defendant would not be entitled to rely on any defence set up by him in his Written Statement and the Court would not give any weight to the same, however, the Court has been required by the legislature to decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case. Being a clause contemplating penal consequences for failure to pay the maintenance, it has to be strictly construed, therefore, the decree passed in terms of Section 17A(1) ibid is confined to the claim for maintenance and shall not cover any other claim of the plaintiff before the Family Court.
The primary question involved in this case is whether the decree passed by the Family Court for the recovery of maintenance under Section 17A(1) of the Act can only be for the period commencing the date of decree and not prior to that? To answer that question, it is imperative to refer to certain fundamental principles governing the grant of relief in suits. For it to succeed, the claim of a party against another must be based on a cause of action i.e. infringement of a right, title or interest recognized by law of the land. Generally speaking, in civil litigation, the entitlement to any relief covers the period commencing accrual of the cause of action. Such entitlement may, however, be controlled, curtailed or restricted by an appropriate legislature by express words or necessary implications. Additionally, in cases where claimants succeed in establishing a cause of action but without proof of the exact date of accrual thereof, relief is usually granted from the date of institution of the suit. If a cause of action is recurring or continuous one, the relief is granted for the future period covering entitlement of the claimant.

W.P.No.1787 of 2022
Syed Ahmad Sher. Versus Addl. District Judge, etc.









Blocking of Cnic by family Court, Non payment of maintenance.

2019 C L C 1787
[Sindh]
Before Nadeem Akhtar, J
Mst. NOOR AFSHAN----Petitioner
Versus
MUHAMMAD GHALIB and 3 others----Respondents
C.P. No. S-285 of 2017 and C.M.A. No.8620 of 2017, decided on 19th February, 2019.

Guardians and Wards Act (VIII of 1890)---
----S.25---Custody of minor---Welfare of minor---Re-marriage of mother---Visitation---Conduct of father---Non-payment of maintenance allowance---Effect---Petitioner/mother assailed the order of Appellate Court whereby permanent custody of minor was given to the father/respondent---Appellate Court had granted the permanent custody of minor to the father on the sole ground that the mother had remarried and was now living with her second husband---Validity---Held; such ground could have been applied had the subject minor been a girl---No other justifiable reason was assigned by the Appellate Court for granting permanent custody of a male minor of tender age to his father---Observation of Family Court regarding the conduct of father being negligent and mala fide, was apparent in view of his continuous absence at the time of visitation ordered by the Family Court, impounding and blocking of his CNIC by Family Court and issuance of his non-bailable warrants by the Judicial Magistrate---Father had not complied with the decree of maintenance passed by Family Court in favour of the subject minor---Grant of permanent custody of minor to respondent/father was not in the interest and welfare of the minor---Respondent was, however, granted right of visitation, subject to certain conditions---Constitutional petition was allowed, in circumstances.
Khawaja Naveed Ahmed and Irfan Bhutta for Petitioner along with Petitioner Mst. Noor Afshan (CNIC No.42401-4414382-0) and minor Maaz Ali.

-Wife, filed application to the effect that she had received an amount of Rs. five lac through cheque as her maintenance allowance and rest of the claim would be settled privately-

  Citation Name: 2020 YLR 188

PESHAWAR-HIGH-COURTBookmark this Case
PERVEZ ALI VS Mst. RAZIA BEGUM

S.5, Sched.---dower and maintenance allowance, recovery of---Wife filed suit for recovery of dower and maintenance allowance---Wife, filed application to the effect that she had received an amount of Rs. five lac through cheque as her maintenance allowance and rest of the claim would be settled privately---Joint statement of both the parties was recorded and suit was disposed of on 27.9.2014---Wife on 15.5.2015, filed suit for recovery of dower as husband never turned up for settlement---Said suit was partially decreed---Validity---Record revealed that the wife had sought recovery of possession of agricultural property along with a constructed house, which, as per her contention, were given to her in lieu of her dower---Husband-defendant in his written statement had admitted that he had given his share from his ancestral property to the wife along with constructed house---Factum of deed dated 16.3.1985, on the basis of which dower had been paid, was denied---Petitioner/husband had also asserted that the house was jointly owned by him with brothers and the amount to the extent of her share in the house was paid to her---Petitioner in his written statement, though, had admitted the fixation of dower, but had taken the stance that the respondent-wife to whom the property was transferred, in lieu of dower, had alienated it to another person---Respondent/wife while appearing as witness had reiterated the factum of fixation of dower and non-payment thereof, which portion of the statement remained un-rebutted, which would be considered to have been admitted---Similarly, the respondent-wife had received the amount of share in the house---Evidently, no property was ever mutated in the name of the respondent-wife, as such, she could never transfer it to other person---Petitioner/husband could not produce any evidence regarding payment of share in the house to the respondent-wife---Petitioner/ husband had failed to prove that any property either constructed or otherwise was given to the respondent-wife---Constitutional petition being without any merit was dismissed in limine.


Subscribe to: Posts (Atom)
Powered by Blogger.

Case Law Search