شوہر کیموت یا طلاق ملنے کی صورت میں عورت حق مہر کی وصولی کے بابت دعوی دائری کی معیاد 3 سال ہے، 3 سال کے بعد بغیر معقول وجہ کے قابل رواں نہ ہوگا۔۔۔

 2024 M L D 51

Suit filed by a widow for recovery of dower against her father - in - law --- Limitation --- Claim of the plaintiff regarding the dower ( in shape of gold and cash ) from her deceased husband , was concurrently dismissed --- Validity --- Petitioner / plaintiff filed the suit after four years of the death of her husband which was dismissed by both the Courts below on the ground of limitation --- Article 104 of the Limitation Act , 1908 , stipulated three years time to such claim in case marriage was dissolved by death or by divorce --- Since the claim of dower had been filed after said stipulated period of three years , therefore , her suit was rightly rejected by the Family Court .
C.P. No. ( t ) 157 of 2022.

Presumption is attached to subsistence of marriage till death of husband unless the fact of divorce is established through evidence or any other material available on record in view of Illustration (d) .......

 Presumption is attached to subsistence of marriage till death of husband unless the fact of divorce is established through evidence or any other material available on record in view of Illustration (d) of Article 129 of the Qanun-e-Shahadat Order, 1984 which provides that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence.

Misc. Writ: 8728/23
Syed Saqlain Shahana through Legal Heirs Vs ADJ Okara etc
Mr. Justice Muzamil Akhtar Shabir
09-02-2023








Suit for recovery of maintenance allowance and dowry articles --- Respondent / wife alleged that she was given valuable dowry articles at the time of marriage with petitioner ; he proceeded abroad to earn his livelihood and since then neither he came back nor paid any maintenance allowance --

 Suit for recovery of maintenance allowance and dowry articles --- Respondent / wife alleged that she was given valuable dowry articles at the time of marriage with petitioner ; he proceeded abroad to earn his livelihood and since then neither he came back nor paid any maintenance allowance --- Father of the from petitioner his house --- Petitioner was earning turned out her Rs . 2,50,000 / - per month --- Trial Court partially decreed the suit in terms that respondent was held entitled to recover maintenance allowance at the rate of Rs . 6000 / - per month till the expiry of her iddat and to recover the dowry articles as per list in addition to price of bed of Rs . 30,000 / - from the petitioner --- In appeal , maintenance allowance was enhanced to Rs . 12,000 / - per month and she was held entitled to receive the dowry articles or alternate price thereof , excluding some articles --- Validity-- According to respondent , monthly salary of the petitioner was of 3525 UAE Dirham in addition to earnings by overtime --- In support of her claim , respondent produced salary slip of the petitioner which showed that he was Associate Electrical Engineer and was drawing monthly salary 3525 Dirham --- On the other Ifand , petitioner produced his salary slip dated 8th April , 2019 , which showed his salary as 1732. Dirham excluding allowances --- It appeared that allowances had deliberately been excluded by petitioner to conceal his actual salary , which , if calculated in Pakistani currency , became more than one hundred thousand rupees --- Keeping in view the financial status of the petitioner and that there was no categorical denial regarding period of desertion of respondent , the Appellate Court had rightly enhanced her maintenance allowance from Rs.6000 / - to Rs . 12,000 / - per month --- As regards decree for recovery of dowry articles , petitioner relied on a USB containing pictures to establish that dowry articles had been returned --- Despite having accepted in evidence USB produced by the petitioner , both the Courts had only made reference to the same and had not discussed as to whether it was played and confronted to the witnesses to reach at a definite conclusion regarding the dowry articles given to respondent by her parents --- Even otherwise , no purpose to produce a video or audio would be served if it was not played and confronted to the witnesses --- With reference to the provisions of Art . 164 of the Qanun - e - Shahadat , 1984 , screening of video cassette was admissible in evidence and also conclusive in some cases --- Court below had failed to properly record the evidence and appreciate the same while deciding the suit filed by respondent --- In conclusion Appellate Court had correctly appreciated the evidence with regard to financial status of the petitioner and rightly enhanced the rate of maintenance allowance of respondent by setting aside the findings of the Trial Court to that effect --- However , the Trial Court while recording evidence of the parties had accepted the USB produced by the petitioner , but neither had confronted the same to the witnesses nor discussed having viewed the same by playing it --- Appellate Court also did not appreciate the evidence with regard to production , acceptance and playing of USB to view the pictures --- In the circumstances , the findings of the Courts below with regard to recovery of dowry articles were not in accordance with law and were liable to be set aside --- Constitutional petition was partly allowed by setting aside the judgments and decrees of both the Courts below to the extent of recovery of dowry articles and the case was remanded to the trial Court for decision afresh , after confronting the witnesses with the USB produced by the petitioner and recording their evidence to that effect in addition to any other necessary evidence .

WP 23372 of 2020
Babar Rasool vs ADJ Ssrgodha
2024 YLR 265

Suit for recovery of maintenance allowance of minor --- Rights of minor --- Maintenance allowance of minor , waiving of --- Scope --- Agreement ( Punchayat Nama ) was entered into between the parties by which custody of minor girl was to be

 Suit for recovery of maintenance allowance of minor --- Rights of minor --- Maintenance allowance of minor , waiving of --- Scope --- Agreement ( Punchayat Nama ) was entered into between the parties by which custody of minor girl was to be handed over to her mother on the condition that she ( mother ) would not demand the maintenance allowance of the minor girl --- Said agreement / Punchayat Nama ( document - in - question ) was signed by the grandfather of minor girl --- Held , that the rights of minor can not be waived by the mother or any of the blood relatives --- Allah has specifically fixed the responsibility of maintaining the minor ( suckling baby ) to the father and the mother has been given responsibility of feeding the child --- Where the father is not alive or not in a position to pay maintenance , then the responsibility will be shifted to mother if she can bear the same , or to the other family members ( like grandfather ) as given in S. 370 of the Muhammadan Law --- Document - in - question would not disentitle the minor from her Shari right of maintenance allowance --- High Court upheld the maintenance allowance to the minor having been rightly awarded to the minor by the Family Court ---

WP 18625 of 2016
Farida Bibi vs Judge Family Court.
2024 M L D 145


Suit for recovery of maintenance allowance of the wife is not living with the husband --- Past maintenance allowance --- Fostering period of the child --- Scope --- Family Court granted the maintenance allowance for the iddat period to the lady / plaintiff in wake . of her divorce --- Family Court though granted the maintenance allowance to the minor - girl ( suckling baby ) but denied the same to her mother / plaintiff ( for fostering period ) on the basis that she had left the house of her husband , not performing her matrimonial obligations Held , that though a disobedient lady living separately without any reason should be refused payment of maintenance allowance for that period as she has not performed her matrimonial obligations , but the situation in the present case was different as the petitioner ( plaintiff lady ) had been feeding the minor during such period , thus the respondent ( father of the minor ) was under obligation to provide the maintenance to her ( petitioner ) who was feeding his child --- Welfare of the minor is supreme , even if the mother has left her husband's house herself or she is expelled from the house --- As per Sharia the father is duty bound to maintain his wife who is feeding his child and maintenance allowance of such mother cannot be stopped in any way , however , after that period the Court can assess the evidence adduced by the parties and then appropriate order can be passed --- Under the Islamic Law , the feeding period has been fixed by Fiqa as two and half ( 2-1 / 2 ) years , therefore , petitioner ( plaintiff / mother ) was also entitled for the past maintenance allowance from date of her desértion till the time of conclusion of feeding / fostering period of the minor ( i.e. two and half years ) --- High Court modified impugned judgment and decree to the extent of grant of the past maintenance allowance to the petitioner ( plaintiff / mother ) for the said period at the rate the minor had been granted maintenance allowance

Maintenance allowance of minor , enhancement of --- Constitutional petition --- Maintainability --- Mother invoked constitutional jurisdiction of the High Court to seek enhancement of maintenance allowance on the ground of daily growing requirements of minor --- Held , that the Family Court had exclusive jurisdiction to pass an order on the application ( under S. 151 of the Civil Procedure Code , 1908 ) for enhancement of the maintenance allowance even after the passing the final judgment and decree --- Petitioner might move the application under S. 151 of the Civil Procedure Code , for enhancement of the minor before the Court of jurisdiction

WP 18625 of 2016
Farida Bibi vs Judge Family Court.
2024 M L D 145

-Written reply within stipulated period--Application for striking-off defence--Petitioner assailed vires of judgments/orders passed by learned Courts below, whereby, his application for striking-off defence of Respondent No. 3 was dismissed concurrently-

 PLJ 2024 Lahore (Note) 5
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
MUHAMMAD AZHAR--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P. No. 13380 of 2023, decided on 7.9.2023.

Family Courts Act, 1964 (XXXV of 1964)--

----Family Courts Act, 1964--R. 22 of Family Courts rules, 1965--Written reply within stipulated period--Application for striking-off defence--Petitioner assailed vires of judgments/orders passed by learned Courts below, whereby, his application for striking-off defence of Respondent No. 3 was dismissed concurrently--Respondent No. 3 could not file written reply within stipulated period as prescribed by Family Courts Act, 1964--Petitioner moved an application for striking-off defence of respondent No. 3--The Trial Court after obtaining its reply and hearing arguments of both side, dismissed same--He preferred a time barred appeal which also met same fate and dismissed by learned appellate Court--Written reply on behalf of respondent No. 3 has be filed--Trial Court shall definitely decide case after observing all procedure including recording evidence of parties once for all--This petition dismissed.

                                                                       [Para 2 & 4] A, B, C & D

Kh. Qaisar Butt, Advocate for Petitioner.

Date of hearing: 7.9.2023.

Order

Through this Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973, the petitioner assailed the vires of judgments/orders dated 27.04.2023 & 05.08.2023 passed by learned Courts below, whereby, his application for temporary custody of the minor was dismissed concurrently.

2. Facts in brevity are that petitioner filed an application for the custody and visitation of his minor daughter namely Rida Azhar aged about 04 years on 15.10.2022. Alongwith the main petition, the petitioner also filed an application for interim custody of the minor. The learned trial Court after obtaining its reply and hearing arguments of both side, dismissed the same vide order/judgment dated 27.04.2023. Being aggrieved, the petitioner preferred a time barred appeal which also met the same fate and dismissed by the learned appellate Court vide judgment/order dated 05.08.2023. Being dis-satisfied the petitioner filed the instant Constitutional Petition.

3. I have heard learned counsel for the petitioner at full length and perused the record with his able assistance.

4. In guardianship cases welfare of the minor was the paramount consideration. At present, the minor, who is aged about 04 years, is residing with her real mother i.e. Respondent No. 3. The petitioner in his application for interim custody has not mentioned whether it is in the welfare of the minor to handover her interim custody to him or there is any question of danger to her life and health while residing with Respondent No. 3. The learned trial Court while dismissing his application also framed a visitation schedule. Learned counsel for the petitioner failed to point out any illegality, irregularity, or mis-reading and non-reading of record on the part of lower fora.

5. For what has been discussed above, this petition having no force/substance is dismissed in-limine. No order as to costs.

(M.A.B.)         Petition dismissed

جبکہ اس ججمنٹ میں لاھور ہائیکورٹ نے سولہ سال سے کم عمر لڑکی سے شادی غیر قانونی قرار دیتے ہوئے ضمانت خارج کردی

 The State had since fixed the age of minority/majority to protect the minors through the provisions of the relevant laws, which are presently holding the field, the noncompliance whereof would amount to frustrate the object behind the laws. Implementation of the statutory provisions of Act of 1929, read with all other allied enactments made by the legislature, while giving it a preference over uncodified divergent opinions of religious scholars, by way of strict compliance with the provisions pertaining to fixation of sixteen years of age of female for her marriage, as aforesaid, shall enable the state to discharge its international obligations being signatory to the UNCRC besides providing safeguard to the female minors from infringement of their fundamental rights guaranteed under Articles 4, 9, 14, 25 of the Constitution read with all other enabling provisions of law. It will also tend to create a sense of harmony with its consequential effect of definiteness about the law amongst various sections of the society.

To decide the fate of this petition, while weighing up the swinging contentions of parties projected through their counsels, on perusal of available record, it transpires that the age of alleged abductee, as per the medicolegal certificate issued by M.O, after her physical/medical examination, is 13/14 years. The acclaimed marriage of the petitioner with the abductee, refuted by her, prima facie has illegally been contracted in clear violation of the provisions of the Act of 1929, which unambiguously prescribes sixteen years of age as threshold to enter into a marriage contract by a female and violation thereof is punishable under Section 4 of the Act ibid with imprisonment of six month and fine 50,000/- rupees. According to the celebrated maxim “Jus ex injuria non oritur” a right does not arise from a wrong, the petitioner prima facie himself has not only violated law, but with the same stroke he has dislodged legal & constitutional protection available with the alleged abductee under Article 4 of the Constitution. Whereas, the petitioner was bound to follow & abide by law prescribing age of majority whilst entering into contract of marriage, which obligation otherwise is clearly cast upon him by the Constitution through Article 5 (2) stating that “obedience to the Constitution and law is inviolable obligation of every citizen whereever he may be and of every other person for the time being within Pakistan”. Moreover, as per section 375(d) PPC, the consent of a female below the age of sixteen years is otherwise immaterial.

Crl. Misc.
33583/23
Shahid Imran Vs The State etc.
 Mr. Justice Anwaarul Haq Pannun
31-05-2023
 2023 LHC 4435
























16 سال سے کم عمر لڑکی کی شادی باطل نہ ہے اور نہ ایسا ازدواجی تعلق زنا (Rape) کے زمرے میں آتا ہے۔ بیان زیر دفعہ 164 ض ف قلمبند کرنیکا طریقہ کار۔

Legal age to enter into matrimonial tie.

Consequences of marrying a girl who has not yet attained the minimum age provided by the law to enter into a matrimonial contract. In this regard, suffice it to say that it is a consistent view of Constitutional Courts of our Country that if a person marries an underage girl, the relevant law providing punishment for such an act is the Child Marriage Restraint Act, 1929.
The sexual offence mentioned in Section 375 PPC cannot be equated with the consensual consummation of marriage with a legally wedded girl, who has attained puberty, though she has not attained the minimum age provided under the Act of 1929. To do so would amount to declaring such marriage null and void. Regarding the validity of such marriage, it is worth noting that marriage is a significant institution in Islam and its validity or illegality can only be adjudged in the light of injunctions of Islam. The Act of 1929 only provides punishment for marrying a girl under 16 years of age but does not declare such marriage void. When confronted with this proposition, learned counsel for the petitioner has controverted the validity of this enactment. I am not in agreement with his stance because to declare a law or provision of law against the injunctions of Islam is the sole domain of the Federal Shariat Court established under Article 203-C of the Constitution.
It would not be out of place to discuss that during investigation resort is being made to Section 164 of the Cr.P.C. by the Investigating Officer, generally when statement of a witness or confession of an accused is to be recorded before the Magistrate. The statement of the witness must be recorded like a statement recorded from a witness in court. Before recording the statement, an oath is administered. The procedure of recording the statement of a witness is entirely different from the procedure of recording the statement/confession of an accused. Only before and after recording a confession of an accused, various precautionary measures including giving of reflection time to the accused have been prescribed. This rigorous exercise needs not to be followed for recording the statement of a witness under Section 164 of the Cr.P.C. Section 364 of the Cr.P.C. is of general application as it only applies to the statement of an accused recorded during any proceeding. The confession of an accused is recorded under Section 164 read with Section 364 of the Cr.P.C. Every court is bound to comply with all the precautionary measures provided under Section 364 Cr.P.C. whenever statement of an accused is recorded.(Syed Naeem Ali Adv 03006762054) But in the case of recording the statement of a witness, Section 364 Cr.P.C. has no relevance.
Provision of S.164 CrPC is self-explanatory and only provides an opportunity of cross examining a witness, who is getting her/his statement recorded under Section 164 Cr.P.C., to the accused against whom such statement was made. Right to cross examine a witness during trial proceedings is provided under Article 132(2) of the Q.S. but sub-section (1-A) of Section 164 Cr.P.C. is a special provision enacted to provide an opportunity to the accused only to confront the witness who makes the statement against such accused before a Magistrate prior to the commencement of trial. Allowing the petitioner to cross examine Mst. Yasmeen would mean that Magistrate had considered and declared Mst. Yasmeen as ‘a hostile witness’ and allowed the petitioner to put questions to her under Article 150 of the Q.S. which was based upon wrong assumption of law because these were not the trial proceedings during the course of which a witness could be declared hostile and party producing such witness could be allowed to put questions to such a witness. Thus, act of learned Magistrate to allow petitioner to cross examine the alleged victim Mst. Yasmeen was not warranted by the law.
Provision of 164 CrPC makes it profusely clear that such memorandum is to be recorded only at the end of a confessional statement of an accused and there is no legal requirement to provide such memorandum at the end of the statement of a witness recorded under Section 164 Cr.P.C.
In the view of above discussion, I have no hesitation to hold that the practice of allowing the persons other than the accused, to cross examine a witness after her/his statement under Section 164 Cr.P.C. is recorded, and providing a memorandum as envisaged under Section 164(3) of the Cr.P.C. at the end of statement of a witness, is not in accordance with the law.
Competence of a witness of tender age to depose.

Criminal Proceedings
57371/23
Nazar Muhammad Vs DPO Okara etc.
Mr. Justice Ali Zia Bajwa
The order was pronounced on 19.10.2023 and after completion it was signed on 22.11.2023.
2023 LHC 6318












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