Suit for Jactitation of marriage of the Petitioner decreed whose claim was in negative form and..................

 Suit for Jactitation of marriage of the Petitioner decreed whose claim was in negative form and she had proved that no valid and lawful marriage had taken place in exercise of her free will and accord.

Family
2523918.5819-17
BAKHTAWAR BIBI VS ADJ ETC.
Mr. Justice Abid Hussain Chattha
31-10-2022
2022 LHC 7466

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-Decreed on ground of Khula on condition that petitioner shall return three tolas of gold to her husband she will not claim dower, dowry or any maintenance allowance-

 PLJ 2000 Lahore 989 [Bahawalpur Bench Bahawalpur]

 Khula-

—-Art. 199 of Constitution of Pakistan, 1973-Suit for dissolution of marriage-Decreed on ground of Khula on condition that petitioner shall return three tolas of gold to her husband she will not claim dower, dowry or any maintenance allowance-Appeal against-Dismissal of-Writ against- Petitioner in her statement before trial Court stated that she lived haj); !>y with Respondent No. 3 for one month, thereafter, he started to figl: i«f with her-He belongs to shia sect, whereas she is a sunnat-wal-J. at~He used to compel her to follow his faith, she came to house of her parents in her wearing clothes alone~Her ornaments were taken away by him, which he lost in gambling-He was compelling her that if she does not convert to his faith, she will be murdered--She further stated that she cannot pull on as his wife in any circumstances-She was cross examined at length but Respondent No. 3 could not gain anything favourable to him from her-From evidence, this fact is clear that petitioner went to house of her parents in wearing clothes and she did not take any ornaments with her-There is no allegation against her that she deliberately collectedly all clothes, ornaments etc and ran away from house of her husband in his absence—Return of ornaments could only be ordered if it was established on record that same were given to her by husband and were in her possession-Dowry is not a Zar-i-Khula-These articles were given to her by her parents and petitioner could be directed to return only those articles which she received from her husband, therefore, dowry could not be declined to wife for a decree based on Khula-Impugned judgments and decree of khula to the extent of dowry and ornaments declared without lawful authority-However, same was maintained regarding dower and maintenance-Orders accordingly.

[Pp. 991 & 992] A to G PLD 1997 Lah. 108; 1992 MLD 1294; 1991 CLC 1541 ref.

Qazi Muhammad Mukhtar, Advocate for Petitioner. Mr. Ehsan-ul-Haq Tanveer, Advocate for Respondents. Date of hearing: 20.5.1999.

Present: RAJA MUHAMMAD SABIR, J. BUSHRA BIBI-Petitioner

versus JUDGE FAMILY COURT Bahawalpur etc.~Respondents

W.P. No. 1009 of 1998/BWP, heard on 20-5-1999.

JUDGMENT

This petition under Article 199 of the Constitution is directed against the judgment of Additional District Judge, Bahawalpur, dated 23-9-1997, upholding the decree of dissolution passed on the basis of Khula by the Judge, Family Court, Ahmadpur East, on 10-11-1996.

2.     Brief facts of the case are that petitioner filed a suit for dissolution of marriage against Respondent No. 3 Ghulam Abbas on various grounds,  including Khula. The learned trial Judge granted the decree on sole ground of Khula on the condition that the petitioner shall return three Tolas pf gold or its price to the husband. She will not claim dower, dowry or any maintenance allowance also. The petitioner being dis-satisfied with the condition attached with the decree filed appeal before the Additional District Judge, who maintained the decree and dismissed the appeal through theimpugned judgment.

3.   Learned counsel for the petitioner contends that the trial Court has illegally attached the conditions while decreeing the suit of petitioner on the basis of Khula. Such conditions are unwarranted and liable to be quashed. He further submits that the petitioner categorically stated in her evidence before the trial Court that  she has gone to the house of her parents in three wearing clothes without any ornament at the time of her desertion  by Respondent No. 3. The petitioner does not possess the ornaments given to  her earlier by Respondent No. 3, therefore, the direction given in the impugned decree for the return of the same to her husband is against the evidence on the record. The dowry is not a 'Zar-i-Khula', therefore, no such condition disallowing the petitioner to claim it could be imposed and has
relied upon the following judgments :--

(i)   Muhabbat Hussain vs. Mst. Naseem Akhtar & 4 others (1992 MLD 1294);

(ii)  Muhammad Samiullah vs. Muhammad Ilyas, etc. (NLR 1987 Civil 712);

(iii) Dr. Akhlaq Ahmad vs. Mst. Kishwar Sultana and others (PLD 1983 SC 169); and

(iv) Dr. Anees Ahmad vs. Mst. Uzma (PLD 1998 Lahore 52).

4.            Conversely, the learned counsel for Respondent No. 3 submits  that the impugned decree is based on valid conditions which call for nointerference in Constitutional jurisdiction by this Court and relied uponSughran Begum versus Additional District Judge, etc. (NLR 1992 Civil 361).

5.      I have heard the learned counsel for the parties at length and perused the evidence placed on the record. The petitioner in her statement before the trial Court stated that she lived with Respondent No. 3 happily for one month. Thereafter he started fighting with her. He belongs to Shia sect, whereas the petitioner is a Sunnat Wal-Jamaat. He used to compel her to follow his faith. On account of this dispute, he started beating her and became cruel. The Tunchayat' was convened by father of the petitioner, whereupon Respondent No. 3 was more infuriated. She came to the house of her parents in her wearing clothes alone. Her ornaments were taken away by him, which he lost in gambling. He was compelling her that if she does not convert to his faith, she will be murdered. She further stated that she cannot pull on as his wife in any circumstances. She was cross-examined at length but Respondent No. 3 could not gain anything favourable to him from her. She denied the suggestion that Respondent No. 3 has been paying maintenance allowance to her when she was living with him. She admitted¹ that Respondent No. 3 gifted ornaments weighing three Tolas in dower. She denied the suggestion that when she went to attend khatna ceremony of her sister's son, she had brought ornaments and clothes with her. She further clarified that she attended the function without ornaments and Respondent No. 3 lost the ornaments and clothes in gambling. The suggestion by Respondent No. 3 that no dowry was given to her was denied by her. In rebuttal to the evidence of petitioner, Respondent No. 3 appeared as DW-1. He Stated in his evidence that she came in his house only in three clothes. She went to attend khatna ceremony to the house of her father and did not come back and while going she took away the ornaments of three Tolas with her. When she was living with him, he gifted more ornaments of three Tolas. He admitted in the cross-examination that on the Nikahnama whatever was given to the petitioner was not mentioned. He admitted that he belongs to Shia sect. He was suggested that the ornaments have been sold by him which he denied. One fact is clear from the evidence of parties that the petitioner went to the house of her parents to attend KHATNA ceremony of the son of her brother in law namely Shahbaz and did not take any 0 ornaments with her. Respondent No. 3 also stated in the trial Court that she went to attend the aforesaid ceremony and thereafter did not return to his house. She subsequently filed the suit for dissolution of marriage. The statement of the petitioner and that of Respondent No. 3 show that she left his house in routine wearing normal clothes and thereafter she did not come back. There is no allegation against her that she deliberately collected all the clothes, ornaments etc. and ran away from the house of her husband in his absence. Her positive deposition that ornaments given to her by her husband were lost by him in gambling has not been rebutted effectively by him. In the absence of any effective rebuttal, it can be presumed that she has not taken any ornaments with her while leaving the house of her husband. The ornaments having not been taken by her in the house of her parents, the direction given by the trial Court for their return in lieu of Khula decree is unwarranted. The return of ornaments could only be ordered if it was established on record that the same were given to her by husband and were in her possession. Her deposition that she went to the house of her brother in three plain clothes and her ornaments were lost by Respondent No. 3 in gambling has not been rebutted by any cogent, independent evidence. A irection for return of such ornaments in these circumstances could not be made.

6. The petitioner has also been restrained from claiming dowry from Respondent No. 3 through the impugned judgments. Dowry is not a 'Zar-i-Khula' as laid down by this Court in Bibi vs. Ghulam Rasool alias Sulla and another (PLD 1997 Lahore 108). These articles were given to her by her parents and she could be directed to return only those articles which she received from her husband. It is laid down in the Holy Qur'an (Surah Baqara v. 229) :

 

"A divorce is only permissible twice; after thai the parties should either hold together oa equitable terms or separate with kindness. It is not lawful for you (Men; to take back any of your gifts (from your wives) except when both parties fear that they waul'¹ be unable to keep the limits ordained by Allah, If ye (Judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them. If any do transgress the limits ordained by Allah, such persons wrong (themselves as well as others)."

The dowry not being Zar-i-Khula could not be declined to wife for a decree based on Khula. It is laid down in Muhabbat Hussain's case (1992) MLD 1294) that the husband is entitled to return of ornaments which were given by him to wife at the time of marriage. It was the duty of husband to prove the price and nature of the ornaments which he had given to the wife but he failed to prove such a fact and the decree passed on the basis of Khula in favour of wife by Courts below thus could not made conditional on return of ornaments or on the payment of price of the same, specially when the wife had stated that the ornaments were snatched from her by the husband. In the instant case, the husband having not proved taking away of the ornaments and dowry by the petitioner is not entitled to them. Admittedly, the dowry was given to her by her parents and not by the husband and while a decree on the basis of Khula was passed in favour of the petitioner, no such condition for relinquishment of the articles given by her parents could be attached. The High Court further held in Muhammad Shabbir vs. Mst. Zahida and others (1991 CLC 1541) that the recovery of benefits allegedly given by husband to his wife, being a civil liability, the husband could institute a separate suit for its recovery, if so advised and the claim of the husband was rejected in divorce proceedings. Same view was expressed by the same learned Judge in another judgment in Dilshad vs. Judge, Family Court, Kharian and another (1991 CLC 1564), holding that the question regarding determination of benefits allegedly given by petitioner husband to respondent wife being a question primarily related to a civil liability, Civil Court could be moved for determination and recovery of the same and the claim of the husband in a decree on the basis of Khula claiming benefits therein was declined.

7.         The aforesaid judgments clearly indicate that the benefits derived by wife from the husband could be relinquished by her while claiming decree on the asis of Khula. The articles of dowry were not given by therespondent/husband to the wife but were given by her parents, therefore, the petitioner could not be directed to give up the dowry. Similarly, the ornaments having not been taken by the petitioner to her house, and the same having been utilised by Respondent No. 3, the imposition of condition of return of ornaments by lower Courts is wholly without lawful authority.

8.         In Sughran Begum vs. Addl. District Judge, etc. (NLR 1992 Civil  361) referred by the learned counsel for the respondent, the point as to the return of benefits given by the husband to the wife was not taken into consideration at all. Just in the concluding para, the decree on the basis of the Khula declined by lower Courts was granted to the petitioner therein, directing her not to claim her dowry or maintenance from Respondent No. 3 therein. The point involved herein this case was neither agitated nor fully examined in the aforesaid case, and as such that judgment does not support Respondent No. 3 in any manner.

9.         For the aforesaid reasons, the impugned judgments and decree of Khula to the extent of dowry and ornaments are declared without lawful authority. However, same is maintained regarding dower and maintenance. Resultantly, petitioner shall be entitled to claim dowry from her husband,  G the direction for return of 3 tolas of gold or its price is set aside. However, other conditions of decree relating to dower and maintenance allowance are
maintained.

This petition is partly accepted in the terms indicated above.
(MYFK)                                                                         Orders accordingly.

 

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-Ss 14(3) & 17---Appeal against interim order passed by Executing Court/Family Court---Provisions of C.P.C. and Qanun-e-Shahadat, 1984, not applicable to proceedings of Family Court--

 2022 Y L R 2114

Family Courts Act (XXXV of 1964)---

----Ss 14(3) & 17---Appeal against interim order passed by Executing Court/Family Court---Provisions of C.P.C. and Qanun-e-Shahadat, 1984, not applicable to proceedings of Family Court---Scope---Actual point involved in the present petition was that whether first Appellate Court had jurisdiction to entertain appeal against the order of Executing Court/Family Court as per provisions of Ss.14(3) & 17 of the Family Courts Act, 1964---Family Courts Act, 1964, was a special law and all the proceedings were conducted under the said Act, and when provision of only one appeal was provided that mean there was philosophy behind the said provision of the Act and Family Court had been empowered to decide all the matters while observing the principle of law---Provisions of C.P.C and Qanun-e-Shahadat, 1984, were not applicable to the proceedings of Family Court in order to decide the matters within the shortest possible time with permanent solution---Only one right of appeal had been provided by the Family Courts Act, 1964, against the final order of the Family Court, whereas no provision of appeal or revision should lie against an interim order of Family Court, especially when the petitioner had taken a specific objection regarding the maintainability of appeal before the first Appellate Court, that matter should have been decided first in view of spirit of law---

Judgment

SAFDAR SALEEM SHAHID, J.---Through this constitutional petition, Mst. Sadia Iqbal petitioner has challenged the validity of judgment dated 11.03.2016 whereby learned Addl. District Judge, Lahore set aside the orders dated 23.05.2015 and 15.12.2015 passed by learned Executing Court Lahore, "with the directions to learned Executing Court to determine/ascertain the actual value of gold ornaments and not pure gold, prevailing at the date of satisfaction/ execution of decree, when the judgment debtor had paid decretal amount, which was exact date of execution/satisfaction of decree, as per order of Hon'ble Lahore High Court, Lahore".

2. Perusal of order dated 06.05.2016 passed by this Court in the instant petition reveals that on the said date, learned counsel for the petitioner contended that respondent No.1 had filed an application before the learned Executing Court raising objection on the value of gold ornaments on 3rd June, 2015 which was dismissed vide order dated 11th June,2015. Thereafter, the respondent No.1 filed EFA No.1366 of 2015 against the said order, which he withdrew, after arguments, vide order dated 21.10.2015; that instead of availing appropriate remedy, he again moved an application with the same contents, pleadings and prayer seeking revaluation of the gold ornaments on 28.11.2015 which was also dismissed by the learned Executing Court vide order dated 15.12.2015. Thereafter, he preferred an appeal before the learned Lower Appellate Court which was taken up and decided vide impugned judgment dated 11.03.2016, despite the objection of learned counsel for the petitioner that appeal did not lie against the said interim order as per provisions of section 14(3) and 17 of the West Pakistan Family Court Act 1964.

3. Arguments heard. Record perused.

4. The actual point involved in the instant petition was that whether learned first Appellate Court was having jurisdiction to entertain the appeal against the interim orders of learned Executing Court as per provisions of sections 14(3) and 17 of the West Pakistan Family Court Act 1964?. Here I would like to reproduce section 14(3) and Section 17 (supra) as under:-

"Section 14(3) " No appeal or revision shall lie against an interim order passed by a family Court".

"Section 17 provisions of evidence Act and Code of Civil procedure not to apply.(1) save as otherwise expressly provided by or under this Act, the provisions of the (Qanun-e-Shahdat, 1984 (P.O No.10 of 1984) and the Code of Civil Procedure, 1908 (except sections 10 and 11) shall not apply to proceedings before any Family Court (in respect of part I of Schedule)."

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts.

5. It has been noticed that Mst. Sadia Iqbal petitioner filed Writ Petition bearing No.29500 of 2013 before this Court. Vide order dated 12.06.2014 this court observed as under:-

" The respondent is held entitled for recovery of gold ornaments as prayed for or in alternate their market value which would be prevailing at the time of execution/satisfaction of the decree"

" From the above discussion, it has been established on record that both the learned courts below erred in law while declining the prayer of respondent for recovery of deferred dower. The petitioner could not prove that he has paid the dower during the existence of marriage, therefore, respondent is held entitled to recover Rs.1,00,000/- from the petitioner as deferred dower.

Keeping in view the aforesaid observations passed by this Court, the learned Executing Court vide order dated 23.05.2015 had fixed the value of seventy tolas gold ornaments as Rs. 32,90,000/- and dower amount of Rs. 1,00,000/-, total decretal amount was calculated as Rs. 33,90,000/ and thereafter the learned Executing Court, Lahore directed the respondent/judgment debtor to present seventy tolas gold ornaments or its value ascertained hereinabove or Rs. 33,90,000/- as decretal amount. The respondent/ judgment debtor filed an application seeking evaluation of correct price of gold ornaments and depositing of an amount of Rs. 3,00,000/- in lieu of decretal amount which was dismissed by learned Executing Court vide order dated 11.06.2015. Being aggrieved by the orders of learned Executing Court, the respondent/judgment approached this Court by filing EFA No.1366 of 2015 which was dismissed by this Court vide order dated 21.10.2015 and that dismissal order was not assailed by the respondent/ judgment debtor. It has further been noticed that respondent/judgment debtor also filed an application under section 151, C.P.C. read with section 94 of C.P.C. praying the court to appreciate the actual direction of this Court given in para No.13 of the judgment dated 12.06.2014 passed in W.P. No.12640 of 2013, which was also dismissed by learned Executing Court vide order dated 15.12.2015. Thereafter on 05.01.2016 against the orders dated 23.05.2015 and 15.12.2015 passed by learned Executing Court, the respondent/judgment debtor filed a family appeal before the learned Addl. District Judge, Lahore who set aside the aforesaid orders passed by learned Executing Court. The other question arises that whether interim order dated 23.05.2015 passed by learned Executing Court, during the execution of decree in question can be assailed through appeal which was allegedly filed by the respondent/judgment debtor on 05.01.2016 with the delay of more than seven months. The West Pakistan Family Courts Act, 1964 provides only one provision of appeal and in view of that whether appeal against other interim order dated 15.12.2015 is competent and maintainable before learned Ist Appellate Court. During the course of arguments learned counsel for respondent/judgment debtor took stance that an illegal order of the court may be assailed in appeal before the court of competent jurisdiction and as such the appeal before the learned appellate court regarding the aforesaid orders passed by learned Executing Court was well maintainable before the said Court. It was further contended by learned counsel for the respondent that learned executing Court was bound to fix the market value of alleged gold ornaments keeping in view the spirit of judgment dated 12.06.2014 passed by this Court in W.P. No.12640 of 2013 which was not certainly followed by the learned Executing Court. In the case reported as "Muhammad Sadiq v. Dr. Sabir Sultana" (2002 SCMR 1950) the Hon'ble Supreme Court of Pakistan has observed as under:-

Ss. 13 & 17---Civil Procedure Code (V of 1908),O.XXI, R.54--- Order of attachment and auction of property by the Family Court---Compliance of O.XX,R.54, C.P.C.--- Necessity--- Provisions of O.XXI, R.54, being not mandatory substantial compliance with the said provision is enough---Strict compliance with O. XXI, R. 54, C.P.C. may not be insisted upon as S.13 of the West Pakistan Family Courts Act, 1964 provides for the execution of a decree passed by the Family Court and application of O.XXI, R.54, C.P.C has been excluded by S.17 of the said Act.

The West Pakistan Family Courts Act, 1964 is a special law and all the proceedings are conducted under the said act and when only one provision of appeal is provided that means there is philosophy behind the said provision of afore-mentioned Act and Family Court has been empowered to decide all the matters while observing the principle of law. The provisions of C.P.C. and Qanun-e-Shahadat Order are not applicable to the proceedings of Family Court in order to decide the matters within the shortest possible time with permanent solution. This is why that only one right of appeal has been provided by the Act against the final order of the Family Court Court, whereas no provision of appeal or revision shall lie against an interim order of the Family Court, especially when the petitioner has taken a specific objection regarding the maintainability of appeal before the learned Ist Appellate Court, that matter should have been decided first in view of spirit of law. Keeping in view the facts and circumstances of the case, this court has reason to believe that learned Addl. District Judge, Lahore while assuming the jurisdiction to entertain the said appeal and passing the impugned order, erred in law by setting aside the interim orders passed by learned Executing Court.

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Column Nos.13 to 15 and column No.16 are independent and not interdependent as they cater for two different undertakings between the spouses while executing the Nikahnama,

 2022 MLD 1982

Column Nos.13 to 15 and column No.16 are independent and not interdependent as they cater for two different undertakings between the spouses while executing the Nikahnama, thus the same cannot be read in conjunction. Through column Nos.13 to 15 reference is made to dower i.e. what will be the dower, whether it is prompt or deferred and whether some of the dower has been paid at the time of marriage, whereas column No.16 is an independent condition setup at the time of marriage as it refers to a special condition undertaken by the spouses while entering in the marital bond through a Nikahnama.

In the above background for enforcement of the special condition as set up in column No.16, either of the spouses can approach the family court keeping in view the Schedule attached to the West Pakistan Family Courts Act 1964.

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Principles of surrender of dower in cases of Khula enunciated in the light of Imran Anwar Khan case (PLD 2022 Federal Shariat Court 25.

 The Judgment in the Imran Anwar Khan case was rendered in this context. It struck down the prescribed upper ceiling with respect to surrender of dower encapsulated in Sub-sections (5) & (6) of Section 10 of the Act being repugnant to Islam and as such, declared the same to be ineffective from 01.05.2022. The conclusion was drawn in quest of proposition as to whether at the time of dissolution of marriage in the case of Khula, the Holy Quran or Sunnah of the last Messenger of Allah (Peace Be Upon Him) require a Muslim woman to surrender or return the wealth, gift or dower to the husband received by her during the subsistence of marriage in any specific proportion or ceiling and how the Court should decide the quantum of dower while granting a decree of Khula. The said query was minutely and extensively deliberated by the Honorable Federal Shariat Court in the light of Islamic injunctions. It is, therefore, pertinent to examine and assess its impact on the pending cases involving the cases of Khula.

The following conclusions are extracted from the reading of the Imran Anwar Khan case:

(i) There is no prescribed specific ceiling in Islam regarding payment of compensation for seeking Khula in terms of return or surrender of dower in cash or kind just as there is no prescribed upper ceiling for fixation of dower;

(ii) It is an established principle of Sharia that payment of dower and undertakings of Nikah become due on consummation of marriage and if not paid earlier are payable at the time of death, divorce or dissolution of marriage;

(iii) Dower is wholly payable at the time of dissolution of marriage except where in a case of Khula, the Court orders return or surrender of whole or part of dower;

(iv) As a general rule, if a husband pronounces divorce to his wife himself, he is not entitled to seek return or surrender of dower, gifts or any other benefit given by him to his wife during the subsistence of marriage;

(v) More specifically, if a husband divorces his wife on his own accord without any fault on the part of wife, the husband does not have any right to demand return or surrender of dower or gift;

(vi) A wife is entitled to seek Khula on any ground under Section 2 of the Act of 1939 by filing a suit in the Court of competent jurisdiction;

(vii) If it is proved that there was no fault of the wife and she was compelled to seek Khula, the Court should not order return or surrender of any amount of dower in cash or kind;

(viii) If it is proved that there was no fault of the husband and the wife sought Khula solely and merely on the basis of her personal dislike for her husband, the Court should order return or surrender of entire amount of dower in cash or kind;

(ix) If it is proved that the husband and the wife are proportionally at fault for dissolution of marriage, the Court may order proportionate return or surrender of dower in cash or kind;

(x) The order of return or surrender of dower in cash or kind shall not exceed the dower fixed in the Nikahnama;

(xi) 9 W. P. No. 12505 / 2020 The Court is empowered to determine the quantum of return or surrender of dower in cash or kind, keeping in view the facts and circumstances of the case on the touchstone of fault of each spouse triggering dissolution of marriage; and

(xii) The quantum of return or surrender of dower shall be decided in the light of aforesaid principles without resort to statutory upper ceiling stipulated in Section 10 (5) & (6) of the Act having been struck down as repugnant to injunctions of Islam after the cutoff date declared in the Imran Anwar Khan case.

Writ Petition-Family-Maintenance
12505-20
MUHAMMAD MOHSIN RAZA VS
ADJ ETC
Mr. Justice Abid Hussain Chattha 17-10-2022

2022 LHC 7184

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--Ss. 5, 13(4) & 25-A---Civil Procedure Code (V of 1908), S.46---Execution of decree, transfer of---Principle---Applicant was wife of respondent who sought transfer of execution proceedings from the district where property was situated the place of her abode-

 P L D 2022 Lahore 600

Family Courts Act (XXXV of 1964)---

----Preamble---Object, purpose and scope---Purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in ultimate justice between the parties---Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law---Court can exercise its own powers to prevent course of justice being refracted from the path---Main object of Family Courts Act, 1964, is for protection and convenience of the weaker and vulnerable segments of society i.e. women and children.

Family Courts Act (XXXV of 1964)---

----S.13 (4)---Civil Procedure Code (V of 1908), O.XXI---Execution of decree---Procedure--- Provision S. 13 (4) of Family Courts Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by Civil Court as directed by general or special order by District Judge---When a Civil Court is designated and entrusted with duties to execute decrees passed by a Court: Civil or Family, it enjoys powers vested under O. XXI, C.P.C.

Family Courts Act (XXXV of 1964)---

----Ss. 5, 13(4) & 25-A---Civil Procedure Code (V of 1908), S.46---Execution of decree, transfer of---Principle---Applicant was wife of respondent who sought transfer of execution proceedings from the district where property was situated the place of her abode---Validity---Held, there was no need to transfer execution petition to any other Court out of one district to other district where judgment-debtor resided---Executing Court seized of the matter could adopt procedure provided under law by sending a precept through proper channel to the Court where judgment debtor resided or had movable/immovable property so as to attach the same and recover decretal amount as arrears of land revenue, following methodology as provided in S.46, C.P.C.---When all proceedings at trial stage were carried out at a place where women and children resided, forcing them to get transferred execution petition or decree to some other Court, out of District, would cause inconvenience and troubles to them, such was not the myth and essence of Family Courts Act, 1964, as highlighted in its 'Preamble'---High Court for future proceedings directed all District Judges and Family Courts in Punjab Province that while passing money decree in respect of maintenance allowance, alternate prices of dower or dowry articles be fixed and provisions of S.13(3) of Family Courts Act, 1964 should be adhered to---High Court further directed that District Judges to designate a Civil Judge as Executing Court in their Districts as well as Tehsils, where execution petitions for satisfaction of decrees passed by Family Court would be filed and executed/satisfied in accordance with law by adopting all measures in that regard---High Court also directed that in case judgment debtor resided in some other District and owned property, precept would be transmitted for attachment purposes and further proceedings were to be taken in accordance with law---

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-Ss. 17 & 25---Custody of minors with their maternal grand-father after suspicious death of their mother---Father failing to discharge his duties towards minors--

 P L D 2022 Supreme Court 32

Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minors---Preferential right---General principle and exceptions---As a general principle the degree of preference was confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which were essential in upbringing of the minors within four corners of law---Any deviation from the general principle, where the blood relationship had to be dislodged, there should be very strong and compelling reasons to have a contrary view which included upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom care of the minors was to be assigned---When ignoring/ bypassing the general principle there must be very strong and exceptional circumstances which must be brought forth with reference to the intent of the legislature regarding the sole purpose of "welfare of minor".

Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minors with their maternal grand-father after suspicious death of their mother---Father failing to discharge his duties towards minors---Parents of father alleged to have burnt to death mother of minors---Whether father had preferential right to custody over maternal grand-father in such circumstances---Held, that the petitioner/father was a cab driver in a foreign country---While the father was away, the mother was critically burnt for which an FIR was lodged against the parents of the father with an allegation that they had intentionally burnt to death the mother of the minors---Statement of the father recorded before the Family Court revealed that had not discharged his duties as father in any manner towards the minor children or his deceased wife; that he was most reluctant to take care of his wife or minor children because they were under the patronage of maternal grandfather and he thought of it as an opportunity to skip his moral, legal and religious duty bestowed upon him---Minor children were brought before the Court and seemed very well dressed up showing mature manners and they plainly refused to accompany their own father, rather they categorically stated to reside with their maternal grandparents---Body language of the minors clearly demonstrated a sign of hatred towards their father---Maternal grand-father of minors stated before the Court that he owned 19 acres of agricultural land which was sufficient to bear the expenses of the minor children and they were already enjoying reasonable living status in the custody of their maternal grandfather---Another important aspect of the present case was that the minors were well aware of the fact that their mother died due to unnatural consequences and it must be in the back of their minds that it was their father who was involved in the whole episode---At present stage any change in custody by the Supreme Court by handing over the minors to the father would be instrumental in impairment of their mental faculty which could have negative impact on their personality in future and that would squarely be against the dictates of "welfare of the minor" which was the prime factor under the Guardians and Wards Act, 1890---Petition for leave to appeal filed by the father was dismissed, leave was refused, and it was directed that the visitation. schedule made by the Family Court for the grandparents shall be considered to be made for the father.

Judgment

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks leave to appeal against the judgment dated 27.02.2020 passed by the Islamabad High Court, Islamabad whereby Writ Petition No.3950/2019 filed by him was dismissed.

2. The brief facts of the case are that the petitioner is working abroad in Saudi Arabia as a Cab Driver and as such the instant petition was filed through his father on the basis of the power of attorney executed by him. The petitioner got married with one Mst. Kausar Naseem (since dead) and during their wedlock respondents Nos.3 to 5 were born. It is claimed by the petitioner that he was enjoying happy matrimonial life but unfortunately on 06.11.2015 his wife sustained burns in an accident and she was admitted in the hospital. On 19.08.2016 when the wife of the petitioner was still in the hospital, respondent No.2 took away the minor children of the petitioner and as such they are in the custody of respondent No.2 till filing of the instant petition. The tragic episode of the matter is that wife of the petitioner passed away on 03.09.2016. The petitioner claimed that he made several attempts to get back the children but the efforts made by him proved futile. Hence the petitioner had no other option except to file petition under section 25 of the Guardians and Wards Act, 1890 claiming custody of the minor children from the maternal grandfather on the basis of preferential right. The Family Court after recording of evidence accepted the petition vide judgment dated 03.09.2019 and declared that under section 19 of the said Act, the father has preferential right to custody of minor children, however, the maternal grandparents were allowed to have meetings with the minors and in this regard a visitation schedule was chalked out. The judgment of the Family Court was assailed through appeal under section 47 of the Guardians and Wards Act, 1890, before the Appellate Court, which was allowed vide judgment dated 15.10.2019 by setting aside the judgment of the Family Court dated 03.09.2019 whereas the visitation schedule was kept intact. The petitioner being dissatisfied with the judgment of the Appellate Court approached the High Court in its constitutional jurisdiction but it also met the same fate vide judgment dated 27.02.2020. The crux of the judgment passed by the High Court was that the petitioner resides and works in Saudi Arabia, whereas the wife of the petitioner had died on account of incident of burning and the allegation was made against in-laws, though it ended into their acquittal but still it is not appropriate to handover the custody to the petitioner or his parents which may impair personality flaws with minors. Further it was observed by the High Court that during the course of proceedings the parents of the petitioner never showed any inclination to take the responsibility of the minor children whereas the sole criterion to decide the petition under section 17 read with section 25 of the Guardians and Wards Act, 1890 is meant for "welfare of the minor", which is sine qua non of proceedings before the court of competent jurisdiction.

3. Learned counsel for the petitioner tried to persuade us on the ground that the petitioner being the natural guardian has preferential right to enjoy the custody of the minors and in the presence of the petitioner the custody of the minor children cannot be handed over to maternal grandfather. Contends that the petitioner was residing abroad but now he has placed an affidavit on the record to take care of the minor children and that he would relinquish his stay in Saudi Arabia and will reside with the minor children in Pakistan. Further contends that the Family Court has passed the judgment in favour of the petitioner, however, the Appellate Court as well as the High Court had given contrary findings resulting into handing over of custody of the minor children to maternal grandfather against the law. Lastly, it has been contended that the petitioner has sound financial antecedents and as such he can bear the expenses of the minor children for their brought up. Thus prays for acceptance of the instant petition.

4. On the other hand, the learned counsel appearing on behalf of the maternal grandfather has vehemently opposed the contentions raised by the learned counsel for the petitioner. The crux of the arguments advanced by the learned counsel for the respondents is that in ordinary circumstances there is no denial to this fact that the petitioner has the preferential right to retain the custody of the minor children but the purpose of the legislature qua Guardians and Wards Act is "welfare of the minor". He has referred the statement of the petitioner before the Court which was read before us in detail. Lastly, contended that the preferential right of handing over of the custody of the minors to the father is not absolute in nature especially when he has re-married and there is a daughter born out of the wedlock. At the end it is argued that this Court has ample powers to take a contrary view in the spirit of law.

5. We have heard the learned counsel for the parties and gone through the record.

The framers of the law relating to Guardians and Wards Act, 1890 legislated it as a special enactment with an intent to secure the interest and welfare of the minors living within the jurisdiction while highlighting the degree of preference to establish guardianship. The sole criterion which depicts the intent of the legislature is nothing except welfare of the minors as grundnorm of the enactment. As a general principle the degree of preference is confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which are essential in upbringing of the minors within four corners of law. Any deviation from the general principle, where the blood relationship has to be departed, there should be very strong and compelling reasons to have a contrary view which includes upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom if it is assigned to take care of the minors. In short words, while ignoring/ bypassing the general principle there must be very strong and exceptional circumstances which could be brought forth with reference to the intent of the legislature regarding the sole purpose of "welfare of minor". As in the instant case, the ordinary order of preference is under question, keeping in view the facts and circumstances wherein the petitioner being the real father of all the three minors, namely, Muhammad Haseeb Ullah, Iraj Noor and Muhammad Shahmir, all aged about 06 to 09 years, claiming guardianship on the basis of the preferential right, a detailed scrutiny of the aforesaid facts and circumstances are to be adjudged in the spirit of the law relating to guardianship. The background of the instant petition is that the petitioner entered into wedlock with the deceased mother of the minors. He was a cab driver in Saudi Arabia and all the three minor children were born out of the wedlock. On 06.11.2015, the wife of the petitioner was burnt; she remained hospitalized in a critical condition and subsequently died of the said injuries. In this regard, a case bearing FIR No. 171 dated 24.6.2017 under section 302/34, P.P.C. was registered at Police Station Sihala, Islamabad against the parents of the petitioner with an allegation that petitioner's wife was intentionally burnt to death by the parents of the petitioner. The petitioner alleges that his wife was still in the hospital when his minor children were removed from the lawful custody and taken over by the maternal grandfather. The petitioner has not lodged any report in this regard to police though it is a criminal act, rather he preferred to file a petition under the Guardians and Wards Act, 1890. During the course of the proceedings before this Court, learned counsel for the respondents read before us the statement of the petitioner, Rashid Hussain (PW1) recorded before the Family Court. The relevant portion of which reads as under:-

A bare perusal of the statement of the petitioner (PW-1) clearly reflects that the petitioner had not discharged his duties as father in any manner towards the minor children or his deceased wife. It appears that he was most reluctant to take care of his wife or minor children because they were under the patronage of maternal grandfather and he thought it an opportunity just to skip moral, legal or religious duty bestowed towards him. The provisions of Section 17 of the Guardians and Wards Act, 1890 expressly reflect consideration by the court for appointing guardian. It has been clearly mentioned that welfare of the minor is of paramount consideration with reference to so many other aspects narrated above.To evaluate the contents of the provisions of Section 17, it seems advantageous to reproduce the relevant provisions which read as under:-

"17. Matters to be considered by the Court in appointing guardian.- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference."

The bare language of subsection (2) of section 17 reveals that for considering the welfare of the minor the Court has to keep in mind age, sex, and religion of the minor and the character and capacity of the proposed guardian and his nearness of kin to the minor. At the same time, the Court has to look at the wishes of a deceased parent, if any, and any existing or previous relations of the proposed guardian with the minor or his property. Subsection (3) of section 17 postulates that if the minor is old enough to form an intelligent preference, the Court may consider that preference. In the judgment reported as Khalid Mehmood v. Additional District Judge, Islamabad and 2 others (2011 CLC 889), it was held "In appointing the guardian of the minor paramount consideration for the court should be welfare of the minor. Court must see as to who was the most likely to contribute to the well being of the minor and who would be in better position to look after and take care of the minor". Similarly, in the judgment reported as Mst. Rasheedan Bibi v. Additional District Judge and 2 others (2012 CLC 784), it was held "Mere entitlement of father as natural guardian of minors would not be sufficient to decide such question. Prime consideration while deciding custody of minors would be their welfare keeping in view character and capacity of their proposed guardian". Today, the minor children were present in the Court. They were brought before the Court under the orders and they were very well dressed up showing mature manners and they plainly refused to accompany their own father, rather they categorically stated to reside with the maternal grandparents. It is not a matter of surprise that their body language clearly demonstrated a sign of hatred towards him. It only happened because the father of the minor children has not performed his legal, moral and religious obligation in the manner as it is provided in an Islamic society. Though there is no denial of this fact that the petitioner has remarried and there is a daughter born out of the wedlock but this aspect cannot be considered as a valid ground to defeat the preferential right of the father, rather it can have only persuasive value with respect to other aspects which compel deviation, if any, as per the dictates of justice and "welfare of the minor". Further, Articles 2 and 2A of the Constitution of the Islamic Republic of Pakistan, 1973 clearly envisage that Islamic social order has to be observed while leading life within the four corners of the law. In an Islamic culture, the father has been bestowed with so many responsibilities towards his children. Even the mother of the children can claim compensation of breast feeding from her husband which is well within the tenants of Islamic fiqah. Where this responsibility has been ignored, how a father while forgetting his obligations towards minor children and that too at a belated stage, can claim the guardianship on the basis of bald claims. As an abundance of caution, we have asked the maternal grandfather about his worth to which he stated that he is the owner of 19 acres of agricultural land which is sufficient to bear the expenses of the minor children and they are already enjoying reasonable living status in the custody of their maternal grandfather. Another aspect of this case is that the children are well aware of the fact that their mother died due to unnatural consequences which must be in the back of the mind of the children that it was their father who was involved in that episode. At this stage any adventure by this Court to dislodge the custody and handover the same to the father would be instrumental into impairment of the mental faculty of the minor children which could imprint negative impact on their personality in future and that would squarely be against the dictates of "welfare of the minor" which is an attire of Guardians and Wards Act, 1890.

6. In view of the facts and circumstances narrated above, this petition is dismissed. However, the visitation schedule made by the Family Court for the grandparents shall be considered to be made for the petitioner and the same shall be followed.

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