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Recovery of Dower, Dowery Articles, Dissolution of Marriage on the Basis of Khula, Bridle Gifts, Maintenance for Wife and Children (Past, Present, and Future) Case Laws in Detail

Citation Name: 2021 YLR 570 PESHAWAR-HIGH-COURT

Bookmark this Case ZAHID AKHTAR VS Mst. SAIMA ZIA
S. 5, Sched.—Suit for dissolution of marriage on the basis of Khula—Gift of gold ornaments—Scope—Respondent brought a suit against the petitioner for dissolution of marriage on the basis of Khula and recovery of monthly maintenance allowance for the minors—Decree for dissolution of marriage on the basis of Khula was granted in favour of the wife in lieu of dower i.e. house and ten tolas gold ornaments—Appellate Court partially allowed the respondent’s appeal by modifying the judgment of trial court to the extent that the respondent was not liable to return ten tolas gold ornaments to the petitioner—Validity—House mentioned in the Nikahnama was sold by the petitioner and the amount of sale consideration was received by him and not by the respondent—Gold in question was given to the respondent besides dower, meaning thereby that the same was given to her as a gift and that it could not be reclaimed once given with free will and consent Monthly maintenance allowance of minors was kept intact, however, its the annual increase was reduced from 20% to 10%—Constitutional petition was disposed of accordingly.

Citation Name: 2021 MLD 288 PESHAWAR-HIGH-COURT Bookmark this
Case MUHAMMAD JAMAL VS Mst. AYESHA KAUSER
S. 5, Sched.—Suit for dissolution of marriage, recovery of dower, dowry articles and maintenance—Scope— Petitioner/ husband assailed the judgments and decrees passed by courts below—Validity—Bone of contention between the parties was an Iqrarnama whereby respondent/wife had returned the gold ornaments which were earlier handed over to her—Scribing of the Iqrarnama and its contents were duly proved—Petitioner had failed to rebut that he had treated the respondent with cruelty and that she had left his house of her own volition- –Petitioner had not produced even a single witness to support his stance or for that matter to say a word in rebuttal to the story put forward by the respondent and her witnesses—Constitutional petition being devoid of merits was dismissed, in circumstances.

Citation Name: 2021 MLD 109 PESHAWAR-HIGH-COURT

Bookmark this Case FAHAD KHAN VS Mst. FARUKH TABBASSUM
S. 5, Sched.—Suit for recovery of maintenance allowance, dower and dowry articles—Plaintiff (wife) had left the house of defendant with her sister and defendant (husband) had not ousted her forcibly—Plaintiff-wife had not levelled the allegation of snatching of dower on behalf of defendanthusband—Wife had not produced her sister in the witness box and she had withheld best evidence available with her—Wife normally keep her gold ornaments in her own custody—Plaintiff remained in the house of defendant for about seven or ten days—Bride normally kept control over her gold ornaments in the early days of marital life—Plaintiff and her witnesses had admitted the payment of dower—Plaintiff was bound to prove that gold ornaments had been snatched on behalf of husband—Defendant had contended that he had paid entire dower to the wife—Plaintiff had failed to
prove that partial gold ornaments were in the possession of defendant— Plaintiff could not take benefit from the shortcomings of defendant’s case— Defendant had proved the payment of entire dower to the wife—Defendant had divorced the wife who had left his house herself and she was not entitled for full amount of maintenance allowance—Plaintiff was held entitled for maintenance allowance @ Rs.5,000/- per month from the date of desertion till expiry of Iddat period—Dowry articles returned by the Courts below to the wife were general items which ordinarily a bride did bring with her as marriage gift from her parents—Findings of Courts below for return of dowry articles did not suffer from any irregularity or jurisdictional defect— Impugned judgments and decrees passed by the Courts below were modified accordingly—Constitutional petition was allowed in circumstances.

Citation Name: 2021 CLC 348 PESHAWAR-HIGH-COURT

Bookmark this Case AKBAR ALI VS KHAIR MOHAMMAD

Ss.17 & 49— Muslim Family Laws Ordinance (VIII of 1961), S.5— Transfer of Property Act (IV of 1882), S.54— Specific Relief Act (I of 1877), Ss. 42 & 54—Suit for declaration and injunction- — Document, non-registration of–Unregistered Nikah Nama—
Plaintiffs/petitioners claimed to be owners in suit property but the stance was controverted by defendants/respondents on the basis of unregistered documents— Both the Courts below concurrently dismissed suit and appeal filed by plaintiffs/petitioners— Validity— Non-registration invalidated transaction altogether and such document could not be looked at in view of the provisions of S.49 of Registration Act, 1908–Un-registered agreement did not confer any right under S.54 of Transfer of Property Act, 1882, to property- -Registration of marriage per Nikah Nama fully in line with Muslim Family Laws Ordinance, 1961, was a legal and authentic document and any property transferred through such document did not need any further registration–Neither there was any Nikah Nama nor the property was mentioned in Nikah Nama— Even dower deed executed much after marriage was not registered as required by Registration Act, 1908— Unregistered dower deed did not confer any right to defendant / respondent— High Court set aside concurrent judgments and decrees passed by two Courts below as both the Courts did not correctly appreciate evidence and regarding sale and dower deeds and decreed the suit in favour of plaintiffs/petitioners— Revision was allowed, in circumstances.

Citation Name: 2021 PLD 85 PESHAWAR-HIGH-COURT Bookmark this Case
KHAIR UD DIN VS Mst. SABIHA
S. 5, Sched. & S.17—Suit for dissolution of marriage on ground of Khula— Return of dower—Scope—Four tolas of gold ornaments as dower was fixed between the spouses at the time of Nikah—In earlier suit filed by the wife for recovery of maintenance allowance, the Family Court held had that three (out of four) tolas of gold ornaments was tendered to the wife at the time of Rukhsati , which remained with her—Wife filed a subsequent suit for dissolution of marriage on basis of Khula, which was decreed— Petitioner/husband contended that Family Court should have, in the subsequent suit, also ordered return of three tolas gold ornaments, besides extinguishing his liability of one Tola gold ornaments under the earlier decree—Held, that the entitlement of the wife regarding recovery of one Tola gold ornaments (claimed as outstanding part of the dower fixed at the time of Nikah) stood vanished as a corollary to dissolution of marriage on the ground of Khula in the subsequent suit—Return of remaining three tolas gold ornaments , however, required a different treatment—Marriage between the spouses had remained effective for a period of 7/8 years, wherefrom three kids had also been born—Dissolution of marriage through Khula was not an inflexible rule that the dower, already paid, had to be returned to the husband—Justification for return of the already paid dower, in the present case, did not exist—In absence of such justification, Family Court was correct in its outcome, and non-discussion on the issue of return of dower would not render it liable to be reversed, under the constitutional jurisdiction of the High Court—No illegality or infirmity having been noticed in the impugned orders and judgments passed by both the Courts below—Constitutional petition was dismissed, in circumstances.

Citation Name: 2021 YLR 869 LAHORE-HIGH-COURT-LAHORE

Bookmark this Case JUNAID AHMAD KHAN SHAHZAD VS DISTRICT POLICE OFFICE, MUZAFFARGARH
dower—dower may be fixed after marriage—Scope—Parties of a marriage can fix/enhance the amount of dower at any time after its solemnization even, during the subsistence of their marriage.

Citation Name: 2021 YLR 869 LAHORE-HIGH-COURT-LAHORE

Bookmark this Case JUNAID AHMAD KHAN SHAHZAD VS DISTRICT POLICE OFFICE, MUZAFFARGARH
S. 491—Habeas corpus—Scope—Petitioner sought recovery of his wife from the illegal and improper custody of her parents—Alleged detenue on being produced affirmed the averments of the petition and showed the desire to accompany her husband—High Court with a view to examine the bona fide of the petitioner as to whether he had contracted marriage with detenue merely as a result of his crush, momentous and impulsive passion, arising out of her bodily and behavioral charm or he had entered into the sacred bond sincerely and with religious zeal, quizzed him and he in order to fortify his bona fide as well as to forge a sense of security in monetary terms in the mind of the detenue, showed his inclination to enhance/re-affix the amount of deferred dower by submitting his sworn affidavit—High Court observed that since the petitioner had enhanced the deferred dower of alleged detenue/his wife, with his volition, therefore, the same shall be considered as integral part of Nikahnama—Petition was allowed, the detenue was set at liberty to accompany her husband.

Citation Name: 2021 YLR 287 LAHORE-HIGH-COURT-LAHORE

Bookmark this Case MUHAMMAD MASOOD-UL-HAQ VS ADDITIONAL DISTRICT JUDGE, BHAKAR
S. 5, Sched.—Suit for recovery of dowry articles, dower amount and maintenance— Scope—Petitioner assailed judgments and decrees passed by courts below whereby the suit for recovery of dowry articles, dower amount and a house as well as for the grant of maintenance allowance was concurrently decreed—Validity—Family Court had ordered the petitioner to pay Rs. 2000 per month as previous maintenance; return of gold ornaments was refused; 50% of the claimed dowry articles were allowed and the suit for restitution of conjugal rights was decreed subject to fulfillment of conditions mentioned in column Nos. 13 and 16 of the Nikahnama, which the petitioner had not fulfilled—Judgments and decrees passed by courts below did not appear to be illegal as such the constitutional petition was dismissed.

Citation Name———: 2021 YLR 108 LAHORE-HIGH-COURT-LAHORE

Bookmark this Case: MUHAMMAD NAEEM VS ADDITIONAL DISTRICT JUDGE
S. 5, Sched.—Suit for recovery of dower—Failure to specifically cross-examine-
–Effect—Dispute between the parties related to gold ornaments given to the
wife/respondent in terms of Column No. 17 of the Nikahnama, which was an admitted fact between the parties—Claim of the wife/respondent was
that after one month of giving gold ornaments to her, same was forcibly
taken away by the husband/petitioner whereas his claim was that while
leaving his house, respondent/ wife took gold ornaments with her—Validity-
–Respondent/wife though, had been confronted with her statement but she
had denied the same—No further question was put to wife relating to her
statement therefore, her assertion in examination-in-chief that articles were
snatched away by the petitioner remained unrebutted and would be
presumed to be correct, as she was not specifically cross-examined—
Petitioner could not prove through any cogent evidence that gold
ornaments were still with the respondent/ wife—Constitutional petition was
dismissed, in circumstances.

Citation Name: 2021 MLD 880 LAHORE-HIGH-COURT-LAHORE
Bookmark this Case ZEESHAN ALI ZAFAR VS S.H.O.
S.5(2A)—Criminal Procedure Code (V of 1898), S.491—Habeas Corpus—
Nikahnama—Failure to fill each column–Petitioner husband sought recovery
of his wife who contracted marriage without blessings of her parents— Nikah
Registrar instead of accurately filling the same with requisite / specific reply
of bride or bridegroom opted to place single vertical line and also left some
of the columns blank—Validity—Alleged detenue was sui-juris and major
who contracted marriage with petitioner without blessings of her parents
and other siblings— In order to prove his bona fides that petitioner did not
contract marriage with detenue merely as a result of his crush, momentous
and impulsive passion arising out of her bodily and behavioural charm or he
had contracted marriage sincerely with religious zeal and to forge a sense of
security in monetary terms in the mind of detenue, petitioner with his volition
reaffix amount of deferred dower of alleged detenue / his wife as Rs.
1,000,000/- (ten lac)—Nikah Registrar committed clear cut violation of
directions issued by High Court in an earlier case and SOP issued by
Directorate General LG & CD Punjab—High Court referred the matter to
District authorities for initiation of penal proceedings against Nikah Registrar / delinquent after affording opportunity of hearing to him—Constitutional
petition was allowed, in circumstances.

Citation Name: 2021 CLC 204 LAHORE-HIGH-COURT-LAHORE

Bookmark this Case GHULAM MUSTAFA VS JUDGE FAMILY COURT
Ss.5, Sched. & 17—Transgender Persons (Protection of Rights) Act (XIII of
2018), Ss. 2(1)(n) & 3—Constitution of
Pakistan, Arts. 9 & 14—Fundamental Right to privacy, human dignity, security
of person and inviolability of man—
Jurisdiction of Family Court—Validity of Nikah / marriage—Suit for recovery
of maintenance and dower–Allegation regarding gender of spouse—
Compulsory medical examination for wife for determination of gender
characteristics—Guidelines for Family Court to adjudicate in case where
husband claims invalidity of Nikah on ground of alleged problematic gender
characteristics of wife—Inference to be drawn on refusal of party to undergo
medical examination—Scope—Petitioner / husband impugned order of
Family Court, whereby his application for medical examination of his wife, in
order to determine gender characteristics of his wife was dismissed—
Contention of husband, inter alia, was that his wife had no feminine
characteristics and their marriage was not valid and therefore, respondent
wife was not entitled to any benefits of dower and maintenance—Validity—
Respondent wife of petitioner did have Fundamental Right to privacy
however such right was not absolute and sufficient material must be before
Family Court to justify an order for compulsory medical examination—-Family
Court was competent to direct a party to undergo medical examination but
such power was subject to certain conditions and if concerned person
refused to comply with a direction for medical examination, then Family
Court could not compel such a person and could only draw an inference
from such refusal as may be appropriate on facts and circumstances of a cases—Family Court was also obliged to consider whether there was an
explanation for such lack of cooperation—Family Court in such a case should
specifically put non-cooperating party on notice regarding consequences of
its conduct and warn against any adverse inference that may be drawn by
such refusal to undergo medical examination—In Islamic jurisprudence,
Khunsa Wadhih (whose gender had been established) could contract a valid
marriage with opposite sex but Khunsa Mushkil (where gender was
problematic/intractable) was prohibited from marrying any one—In the
present case, if medical examination of respondent wife revealed that she
lacked feminineness, it would have bearing on marriage between parties
and impact rights and obligations arising therefrom, including the claim for
recovery of dower and alimony—Petitioner lived with respondent wife for
eight months and had not divorced her to-date which gave rise to
presumption that marriage between parties was valid—Said presumption
was, however, rebuttable by strong and weighty evidence, which could be
oral or documentary—Petitioner had raised question of gender of
respondent, which allegation was denied by respondent, and as such matter
went to the root of the case, and was therefore incumbent upon Family
Court to frame an issue in such respect and require petitioner to produce
evidence—Petitioner could have moved application for medical examination
of respondent only after getting evidence recorded and bringing material
which could persuade Family Court that an order for medical examination
was absolutely necessary and petitioner’s application at present stage was
therefore premature—High court set aside impugned order and held that
petitioner’s application for medical examination should be kept pending for
time being and that Family Court should frame an issue regarding
respondent’s gender and should pass an order for medical examination only
after parties recorded evidence and only if same was unavoidable and
absolutely necessary—High Court further held that respondent shall not be
forced for medical examination and upon her refusal, Family Court could
only draw an inference as may be just and proper—Constitutional petition
was disposed of, accordingly.

Citation Name: 2021 YLR 43 ISLAMABAD

Bookmark this Case MUHAMMAD YOUSAF VS ADDITIONAL DISTRICT AND SESSIONS

JUDGEVII, (WEST) ISLAMABAD
S.5—Specific Relief Act (I of 1877), S.42—Jactitation of marriage—Valid
marriage, determination of—Parties were husband and wife inter se and
husband sought jactitation of marriage on the plea that divorce pronounced
by him was revoked and there existed a valid marriage—Wife resisted the suit
on the ground that divorce pronounced by her husband attained finality and
there remained no valid marriage between them—Family Court decreed the
suit in favour of husband but Lower Appellate Court dismissed the same—
Validity—Issue between parties was not whether marriage was in existence
or otherwise but a question as to whether, Talaq had become effective or
was revoked as alleged by husband—Findings of Lower Appellate Court
regarding dismissal of suit of husband was not based on any of the
documents and evidence available on record—Documents i.e. divorce deed,
Talaq effectiveness certificate, order of revenue authorities, statement of wife
during proceedings before Arbitration Council, her stance during first suit for
maintenance and recovery of dower and subsequent claim were neither
considered nor discussed—No observation with regard to such documentary
evidence was rendered which had made the judgment result of misreading
and non-reading of evidence and illegality floating on the surface of record-
–Lower Appellate Court proceeded to dismiss suit of husband by treating it
as suit for declaration—High Court observed that when it was established
that proceedings before Family Court were coram non judice, proper course
was to return the plaint for its presentation before Court of competent
jurisdiction—Lower Appellate Court while hearing appeal against judgment
and decree of Family Court, wrongly dismissed suit for declaration, when
there was no appeal filed / pending before him in civil suit against
declaratory decree under S. 42 of Specific Relief Act, 1877—To the extent of
dismissal of suit of husband by treating it as a declaratory suit, was an order
without jurisdiction—High Court set aside judgments and decrees passed by two Courts below and remanded suit for jactitation of marriage to Family
Court to decide the same afresh by considering the suit for declaration—
Constitutional petition was allowed accordingly.

Citation Name: 2020 PLD 613 SUPREME-COURT

Bookmark this Case MUHAMMAD JAMIL VS Mst. SAJIDA BIBI
S. 6(5)(a)—Second marriage contracted by husband—dower, payment of—
Scope—Entire amount of dower fixed at the time of marriage whether
prompt or deferred was immediately payable on account of second
marriage—Where a man entered into a second marriage without seeking
prior permission either from the existing wife or the Arbitration Council, the
dower even if it was termed as deferred or prompt became payable without
any delay.

Citation Name: 2020 PLD 269 SUPREME-COURT

Bookmark this Case FAWAD ISHAQ VS Mst. MEHREEN MANSOOR
S. 5, Sched.—Transfer of Property Act (IV of 1882), S. 41—dower (Meher),
recovery of—Property mentioned in Cl.16 of Nikahnama as dower for wife—
Suit for recovery of said property was filed by respondent-lady against her
mother in-law and father-in-law without impleading her husband—Subject
property was owned by the mother-in-law—Held, that mother-in-law was not
a signatory to the Nikahnama nor had executed any other document
agreeing to transfer the subject property—Mother-in-law had not permitted
her husband, expressly or impliedly, to transfer the property in terms of S.41
of the Transfer of Property Act, 1882—Respondent made no attempt to
ascertain that the father-in-law had the power to transfer the property—Suit
filed by respondent was dismissed with the observation that she could still
claim from her husband any part of her dower which remained unpaid. Citation Name: 2020 CLC 380 QUETTA-HIGH-COURT-BALOCHISTAN
Bookmark this Case AZIZ-UR-REHMAN VS Mst. BIBI JAMEELA
S.5, Sched.—Suit for recovery of dowry articles and dower—Family Court
decreed the suit and appeal was dismissed by the Appellate Court—Validity-
–Not possible for wife to keep the record of purchased articles and prepare
list of dowry articles and obtain signatures of husband and witnesses—
Whosoever alleged existence of a particular fact was to prove the same—
Solitary statement of wife was enough to prove dowry articles—When
marriage had not been consummated then wife would be entitled to half of
the fixed dower only and remaining half should be returned/restored to
husband unless he waived such right voluntarily—Impugned judgments and
decrees passed by the Courts below to the extent of dowry articles were
modified and amount of dowry articles was reduced—Constitutional petition
was disposed of accordingly.
Citation Name: 2020 YLR 2350 PESHAWAR-HIGH-COURT Bookmark this
Case
JEHANGIR KHAN VS Mst. SAEEDA BEGUM
S. 5, Sched.—Nikahnama, Column Nos. 17 & 20—Suit for recovery of
maintenance allowance and residential house–Column No. 17 of
Nikahnama was silent whether residential house was given to the plaintiffwife either in lieu of dower or as a gift—Suit house had been given to the
plaintiff as a part of dower or gift in consideration of marriage in
circumstances—Family Court had exclusive jurisdiction in the matter—Plaintiff
according to Column No. 20 of Nikahnama was entitled for maintenance @
Rs. 5,000/- per month—Plaintiff-wife had left the house of defendant due to
non-payment of maintenance allowance—Courts below had rightly held that
wife had not self deserted—Trial Court had rightly held that wife was entitled
for maintenance @ Rs. 5,000/- per month for the last three years and further.

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COURT OF BALOCHISTAN maintenance allowance at the same rate till subsistence of marriage and had declined to grant maintenance beyond period of three years—Judgment and decree of Appellate Court to the extent of recovery of maintenance beyond three years with 15% increase was illegal and same were set aside and those of Family Court were restored—Constitutional petition was partially allowed.

Citation Name: 2020 YLR 2224 PESHAWAR-HIGH-COURT

Bookmark this Case Mst. KALSOOM BIBI VS JAVED IQBAL

S. 13—Civil Procedure Code (V of 1908), O. XXI, R. 32—Enforcement of decree— Decree for specific performance for restitution of conjugal rights— Scope—Petitioner/wife filed suit for recovery of dower, dowry articles and maintenance allowance whereas respondent/husband contested the suit by submitting his written statement and also prayed for restitution of conjugal rights—Prayer of the respondent was allowed subject to payment of past maintenance—Respondent sought attachment of the property of petitioner for not performing conjugal rights–Petitioner, in response to the execution petition, approached the executing court with the stance that she could not join her husband because of life threats—Executing court consigned the execution petition and allowed the respondent to withdraw the amount deposited with the Court Nazir in connection with conditional decree of past maintenance–Appellate court set aside the order passed by executing court and restored the execution petition—Validity—Wife could not be forced to join her husband pursuant to a decree for restitution of conjugal rights when she apprehended serious threats to her life—Order XXI, R. 32, C.P.C. empowered the executing court to attach the property for the purpose of enforcement of the decree regarding restitution of conjugal rights, but it was discretionary with the court and not mandatory and being so, it ought to be exercised judiciously and carefully—Refusal of petitioner could not be construed as a willful refusal of the decree and thus, her property could not

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COURT OF BALOCHISTAN be attached—Constitutional petition was accepted and the order passed by appellate court was set aside and that of executing court was restored.

Citation Name: 2020 YLR 1850 PESHAWAR-HIGH-COURT

Bookmark this Case Mst. SANA GUL VS USMAN KHAN

S. 5, Sched.—Suits for recovery of dower, maintenance allowance for wife and minors—Desertion of wife—Effect–Defendant-husband had not paid the dower claimed by the plaintiff-wife—Plaintiff-wife was entitled for recovery of entire dower in the shape of seven tolas gold ornaments—Plaintiff-wife could refuse to perform matrimonial obligation if entire dower had not been paid to her—Desertion of wife could not be considered as her disobedience, in circumstances—Defendant-husband was bound to maintain his wife until and unless he had paid the dower—Plaintiff wife had not been paid maintenance during the period of desertion and she was entitled for maintenance @ Rs. 5,000/per month from the date of institution of suit till payment of dower and provision of separate accommodation to her–If plaintiff-wife after receiving dower and provision of separate accommodation refused to honour the decree of restitution of conjugal rights then she would not be entitled to maintenance allowance— Maintenance allowance for the minors fixed by the Courts below was insufficient to meet their requirements which was enhanced to Rs. 5,000/per month for each child with further increase @ Rs. 10% per annum— Constitutional petition was disposed of, accordingly. Citation Name: 2020 YLR 188 PESHAWAR-HIGH-COURT Bookmark this Case PERVEZ ALI VS Mst. RAZIA BEGUM S. 5, Sched.—Claim of dower—Jurisdiction of Family Court—Scope—Where immoveable property is claimed as dower, Family Court has exclusive jurisdiction in such matter.

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COURT OF BALOCHISTAN Citation Name: 2020 YLR 188 PESHAWAR-HIGH-COURT Bookmark 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.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2020 MLD 1091 PESHAWAR-HIGH-COURT Bookmark this Case ABDUL ALI VS Mst. SANI S. 5, Sched.—Suit for recovery of dower and maintenance allowance— Principles—Payment of dower on behalf of grandfather—Scope—Dower deed—Proof of—Grandfather of defendant-husband promised to transfer landed property as a dower in favour of wife of his grandson through dower deed—Contention of defendant-husband was that he had not executed dower deed in favour of plaintiff-wife—Suit was decreed concurrently— Validity—Scribe and marginal witnesses of dower deed had expired but plaintiff-wife had substantiated the execution of the dower deed by producing sons of said deceased witnesses—Entire dower as per dower deed was outstanding against the defendant husband—Grandfather of defendant being his elder agreed to transfer landed property to the wife of his grandson through dower deed which had his signature and he stood surety for the same—Property which had been mentioned in the dower deed as dower for plaintiff even if it did not belong to the defendant should be transferred to the wife–Father or grandfather could transfer movable as well as immovable property as dower on the eve of marriage of his son/grandson—If anyone had stood surety or had guaranteed the payment of dower then he was as much party and liable to pay the same as bridegroom himself—Presence of wife at the time of execution of dower deed/agreement was not necessary as same was not a commercial transaction—Marriage in the present case was arranged one and its terms and conditions had been settled amongst elders of the families—Dower deed had been proved on behalf of plaintiff wife— Grandfather of defendant had expired and inheritance mutation to the extent of share of plaintiff was illegal and void—Wife had right to refuse conjugal rights of her husband in case of non-payment of dower—Desertion of plaintiff in her parents’ house could not be considered as her disobedience  ———————————————————————————-COURT OF BALOCHISTAN when her dower was outstanding against the husband—Defendant was bound to maintain his children and disclose his financial status before the Family Court–Defendant had not disclosed his earning which showed that maintenance allowance fixed by the Courts below was within his means— Family Court had discretion to grant annual increase in the maintenance allowance—No misreading or non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below–Constitutional petition was dismissed in limine, in circumstances. Citation Name: 2020 MLD 554 PESHAWAR-HIGH-COURT Bookmark this Case ISLAM GUL VS Mst. NALEEM S. 5, Sched. & S. 7(2)—Suit for dissolution of marriage and recovery of dowry articles, dower and maintenance allowance—Khula, announcement of— Procedure—Additional evidence, production of—Scope—Family Court decreed the suit against which appeal was filed wherein appellant moved an application for additional evidence but same was dismissed—Validity— Wife at her own could not announce or award Khula—Family Court could dissolve marriage on the basis of Khula on the request of wife—Family Court could not allow additional evidence or add names of witnesses in the schedule of witnesses—Parties with the permission of Court could call any witness at any later stage if Court considered such evidence expedient in the interest of justice—Family Court or Appellate Court could not re-open schedule of witnesses submitted by the parties—Defendant (husband) remained silent during the trial of case despite ample opportunity to produce any witness in his defense—Defendant had neglected his wife and had entered into second marriage—Father of plaintiff was businessman and delivery of dowry articles as per list annexed with the plaint could not be denied—Nothing was on record that plaintiff had taken back the dowry articles—Courts below had rightly appreciated the evidence produced by the parties and arrived at proper conclusions while passing the impugned  ———————————————————————————-COURT OF BALOCHISTAN judgments and decrees—No jurisdictional error had been pointed out in the impugned judgments and decrees passed by the Courts below— Constitutional petition was dismissed, in circumstances. Citation Name: 2020 PLD 173 PESHAWAR-HIGH-COURT Bookmark this Case Mst. YASMEEN GUL VS MUHAMMAD ZUBAIR S. 5, Sched. & S. 10(4)—Suit for dissolution of marriage and recovery of dowry articles—Khula—Scope—Family Court dissolved marriage on the basis of Khula—Validity—Plaintiff (wife) had produced sufficient evidence in support of her claim for dowry articles—Defendant (husband) had submitted that he himself had purchased articles but he had failed to substantiate the same— Evidence of plaintiff with regard to dowry articles was cogent and convincing as compared to the evidence produced by the defendant—Khula could be granted by the Family Court if wife had failed to establish any allegation leveled in the plaint—Family Court, in the present case, had granted Khula as reconciliation between the parties had failed—Such findings of Family Court were not based on evidence and same could not be challenged through constitutional petition—Right for dissolution of marriage on the basis of Khula was absolute and contingent upon restoration of dower to the husband—Muslim woman had been given right to get herself released from the bond of marriage, if she could not live with her husband within the limits prescribed by Allah Almighty—Wife in such event had to seek Khula by foregoing dower received by her from her husband in consideration of marriage—If husband had left his wife giving divorce then he would not be entitled to receive anything back giving by him to his spouse—If wife herself deserted her husband then she had to give something in lieu of her release—Courts below were competent to draw inference while delivering the judgments—High Court in constitutional jurisdiction could not interfere into such findings unless and until miscarriage of justice had been established—Constitutional petition was not maintainable when evidence in the case had properly been appreciated–Appellate Court had passed the  ———————————————————————————-COURT OF BALOCHISTAN decree after properly evaluating the evidence available on record— Constitutional petition was dismissed, in circumstances. Citation Name: 2020 CLC 1874 PESHAWAR-HIGH-COURT Bookmark this Case Mst. FARHAT IMAM VS SAJID NAZEEF S.5, Sched.—Dissolution of Muslim Marriages Act (VIII of 1939), S.2—Suit for dissolution of marriage—Grounds for decree for dissolution of marriage—Plea of Khula—Scope—Wife would lose her dower only if she seeks dissolution of marriage on the sole ground of Khula and not when she urges other grounds in support of her case, unless the other grounds are not proved— Entitlement to receive dower or its retention would remain unaffected and intact, if wife proved other grounds like cruelty of the husband. Citation Name: 2020 CLC 910 PESHAWAR-HIGH-COURT Bookmark this Case USMAN KHAN VS Mst. SHEHLA GUL S. 5, Sched—Suit for recovery of dower—Scope—Husband assailed the findings of courts below whereby wife’s claim of 5-1/2 tolas gold as outstanding dower was decreed—Validity—Husband himself had admitted outstanding dower as 5-1/2 tolas against him while cross-examining the Nikah Registrar—Appellate Court had rightly held that the wife was entitled to the outstanding dower of 5-1/2 tolas of gold—Constitutional petition was dismissed. Citation Name: 2020 CLC 910 PESHAWAR-HIGH-COURT Bookmark this Case USMAN KHAN VS Mst. SHEHLA GUL S.5, Sched.—Qanun-e-Shahadat (10 of 1984), Art.133(2)—Suit for recovery of dower—Cross-examination—Failure to cross-examine on specific issue—  ———————————————————————————-COURT OF BALOCHISTAN Scope—Portion of statement which remains unchallenged in crossexamination is deemed to be admitted. Citation Name: 2020 CLC 910 PESHAWAR-HIGH-COURT Bookmark this Case USMAN KHAN VS Mst. SHEHLA GUL S.5, Sched.—Suit for recovery of dower—Cross-examination—Double-edged weapon—Scope—Fundamental purpose of cross-examination is to sort out the truth by disclosing or clarifying the matter, for such purpose no mathematical procedure is prescribed and it is not necessary that witness should only reply question according to the whims of counsel who is crossexamining, as it is a double-edged weapon and a witness while replying the question can explain the matter for clarifying the question of dispute. Citation Name: 2020 CLC 910 PESHAWAR-HIGH-COURT Bookmark this Case USMAN KHAN VS Mst. SHEHLA GUL S. 5, Sched—Suit for recovery of dower—Entries in Nikahnama alleged to be forged—Scope—Husband had alleged the Nikahnama to be forged for the reasons that entries made in columns Nos. 15, 16, 17 & 21 were filled later on and that the alleged Nikahnama was registered much earlier than the solemnization of Nikah—Validity—Written statement filed by husband did not contain a single word about Nikahnama having been forged rather it was admitted, however, its contents were attacked—Evidence showed that Nikahnama was registered after solemnization of Nikah—Husband himself had admitted Nikahnama in his examination-in-chief, so it was required to be taken as a whole and not as per his whims and wishes—Husband could not be allowed to admit a portion of Nikahnama as correct and the other as incorrect—Constitutional petition was dismissed. Citation Name: 2020 CLC 910 PESHAWAR-HIGH-COURT Bookmark this Case  ———————————————————————————-COURT OF BALOCHISTAN USMAN KHAN VS Mst. SHEHLA GUL S. 5, Sched—Suit for recovery of dower—Failure to cross-examine on specific issue—Effect—Husband assailed the findings of courts below whereby wife’s claim of four Marla plot as dower was decreed—Husband had admitted the Nikahnama in his examination-in-chief— Wife, through her attorney, had categorically stated that it was agreed between the parties that four Marla plot would be given to her as dower—Husband, during cross-examination, had not specifically questioned about the plot nor had he put any suggestion to her, as such the unchallenged/uncrossed portion of the statement had to be considered as admission of the husband—Constitutional petition, being devoid of merit, was dismissed. Citation Name: 2020 CLC 803 PESHAWAR-HIGH-COURT Bookmark this Case SAKHAWAT HUSSAIN VS Mst. RUBINA SHAHEEN S.5, Sched.—Suit for maintenance—Second marriage by husband without consent of first wife—Effect—Plaintiff, being wife, claimed maintenance, dower and return of dowry articles—Validity—Defendant husband, was responsible to provide maintenance to his wife so that she could live a respectable life but he had failed to maintain her—Plaintiff wife was entitled to maintenance allowance, irrespective of the fact as to whether she left the house of her own choice or was compelled to do so; she was held to be entitled to the award of decree—Constitutional petition filed against the decree passed by the courts below was dismissed. Citation Name: 2020 CLC 803 PESHAWAR-HIGH-COURT Bookmark 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  ———————————————————————————-COURT OF BALOCHISTAN 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. Citation Name: 2020 CLC 803 PESHAWAR-HIGH-COURT Bookmark this Case SAKHAWAT HUSSAIN VS Mst. RUBINA SHAHEEN S.5, Sched.—Suit for recovery of dowry articles—Scope—Husband contracted second marriage without consent of first wife—Wife claimed maintenance, dower and return of dowry articles—Evidence led by wife in order to substantiate her claim of dowry articles was sufficient as she had appeared before the Trial Court and had also produced other witnesses who were subjected to lengthy cross-examination but they had remained consistent on material points—List of dowry articles was attached and duly exhibited in evidence, which consisted of routine articles and under no circumstances could be termed as unreasonable—Wife was held to be entitled to the award of decree—Constitutional petition was dismissed. Citation Name: 2020 PCrLJ 13 PESHAWAR-HIGH-COURT Bookmark this Case QABIL VS State Ss. 302(b), 109 & 34—Pakistan Arms Ordinance (XX of 1965), S. 15—Qatl-iamd, abetment, common intention, possessing illicit weapon—Appreciation  ———————————————————————————-COURT OF BALOCHISTAN of evidence—Accused was charged for the murder of daughter of complainant, whereas the acquitted co-accused were charged for abetment- –Record showed that on the following day of the crime Investigation Officer had recorded the statements of paternal and maternal cousins of the deceased who were later examined during the trial—Both the said witnesses had claimed that they had witnessed the occurrence–Admittedly, the complainant, father of the deceased lady, was neither the eye-witness of the occurrence nor he had stated in his report/FIR that the occurrence was witnessed by said eye-witnesses—Motive was stated to be that appellant who was husband of the deceased had sold the dower ornaments, which was a continuous reason of quarrel between the spouses but said motive could not be established by the prosecution—Deceased was wife of the appellant and she died on account of unnatural death i.e. through firearm and her dead body was found in the house of the appellant—Alleged eye-witnesses had stated that they had seen the appellant holding a pistol in his hand and he fired at the deceased, they were empty-handed—Said two witnesses were neither cited as eye-witnesses in the FIR nor their statement was recorded on the same day, indeed their statement was recorded on the following day— Complainant had stated in the Murasila as well as in his court statement that he was informed by the appellant through his cell phone that the deceased had committed suicide—Investigation Officer in his cross-examination had confirmed that according to the CDR of the cell phone mentioned in the Murasila, the complainant did not receive any call from the appellant at the relevant time—Said statement of the complainant was also contradicted by the witnesses, wherein they had stated that they (witnesses) had informed the complainant about the occurrence—Despite the complainant having ample opportunity for deliberation and consultation he had not mentioned in the Murasila that the occurrence was seen by the eye-witnesses—Presence of the said two eye-witnesses, in circumstances, become doubtful—Conduct of the alleged eye-witnesses of the occurrence was also unnatural because according to their statements the deceased was killed in their presence who was their close relative but they were not present when the police reached at the place of occurrence—Said witnesses even did not accompany the  ———————————————————————————-COURT OF BALOCHISTAN deceased to the hospital—Statements of said witnesses regarding the time of occurrence which was around 4.00 p.m. was also contradicted by the statement of the complainant and the time provided in the post-mortem report— Places of residence of said witnesses were mentioned at considerable distance from the place of occurrence—Witnesses being chance witnesses were supposed to justify their presence at the place of occurrence at the relevant time which they failed—Such circumstances rendered testimony of said witnesses untruthful, hence, were to be excluded from consideration—Deceased was wife of the appellant and died unnatural death in his house—Said fact alone was not sufficient for his conviction, when other family members both male and female were jointly residing in the said house—Appellant did not abscond from the place of occurrence as he was arrested on the following day of the crime—No incriminating material was recovered from the possession of accused after his arrest— Circumstances established that prosecution had failed to prove its case beyond shadow of doubt, benefit of which would resolve in favour of accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court. Citation Name: 2020 PLD 811 LAHORE-HIGH-COURT-LAHORE Bookmark this Case TAHIRA BIBI VS STATION HOUSE OFFICER S. 2 (vii)—Term ‘repudiation of marriage’—Option of puberty (Khyar-ulBulugh), principle of—Scope—Female has been given a right under Dissolution of Muslim Marriages Act, 1939, to repudiate marriage before attaining age of eighteen years provided that marriage has not been consummated—In case of a male the right continues until he has ratified marriage either expressly or impliedly as by payment of dower or by cohabitation.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2020 PLD 343 LAHORE-HIGH-COURT-LAHORE Bookmark this Case SAIF ULLAH BAJWA VS Mst. SAJIDA MANZOOR S. 5, Sched, & S.18.—Maintenance for minor and wife—Appearance through agent before Family Court—Effect–Concealment of source of income by husband—Effect—Suit for recovery of dower articles and maintenance of wife and minor was decreed concurrently—Contention of petitioner / husband, inter alia, was that impugned orders did not take into account that the husband/petitioner no longer had any source of income and furthermore that wife had not personally appeared before Family Court to substantiate her contentions—Validity—Evidence showed that husband/petitioner had concealed his sources of income and there existed contradictions on behalf of petitioner and his father, who was a witness, regarding his sources of income—Husband, if he fails to disclose his salary, or financial earnings, then adverse inference was to be drawn against him—No bar existed in wife being represented before Family Court by her authorized agent, therefore contention that wife did not appear before Family Court to substantiate her contentions was not tenable since her appearance was made through her authorized agent, who was her father—No illegality existed in impugned order—Constitutional petition was dismissed, in circumstances. Citation Name: 2020 MLD 1008 LAHORE-HIGH-COURT-LAHORE Bookmark this Case Dr. NOOR MUHAMMAD SALEEMI SAGGU VS ADDITIONAL DISTRICT JUDGE S. 10—dower—Deferred dower—Scope—Wife sought recovery of deferred dower during subsistence of marriage–Validity—Prompt dower was payable on demand during subsistence of the marriage tie whereas the deferred dower was payable on the time stipulated between the parties, but where no time was stipulated, it was payable on dissolution of marriage either by death or divorce—Deferred dower did not become “prompt” merely because  ———————————————————————————-COURT OF BALOCHISTAN the wife had demanded it—High Court observed that the wife was not entitled to recover her dower at this stage and her suit was premature— Constitutional petition was allowed, in circumstances. Citation Name: 2020 CLCN 10 LAHORE-HIGH-COURT-LAHORE Bookmark this Case KHUBAIB KHAN VS ADDITIONAL DISTRICT JUDGE, MIAN CHANNU S. 5, Sched.—Suit for recovery of dower and dowry articles—Consent decree- –Appeal—Scope—Petitioner assailed judgment and decree passed by the appellate court—Validity—Petitioner along with his brother and counsel was present before the appellate court when the parties settled to resolve the claim of dowry articles and dower on the basis of statement of maternal uncle of the petitioner on oath—Appellate court had passed the impugned order and decree on the basis of statement of petitioner’s uncle—Status of impugned order and decree was that of consent decree, which was not appealable—No illegality as jurisdictional error was pointed out in the impugned order warranting interference by the High Court in exercise of extraordinary constitutional jurisdiction—Constitutional petition was dismissed. Citation Name: 2020 YLR 2523 KARACHI-HIGH-COURT-SINDH Bookmark this Case MUHAMMAD TUFAIL VS Mst. SAMIYA Ss. 10 & 5, Sched.—Suit for restitution of conjugal rights—Pre-trial proceedings— Scope— Petitioner challenged order passed by Judge Family Court whereby suit filed by petitioner for restitution of conjugal rights was dismissed and the counter claim of Khula preferred by defendant was entertained and she was granted Khula in lieu of dower–Contention of petitioner was that opportunity of reconciliation was not provided by holding a proper pre-trial–Validity—Judge Family Court had observed that  ———————————————————————————-COURT OF BALOCHISTAN the matter was fixed for pre-trial proceedings on the date of passing impugned order but neither the petitioner nor his counsel appeared—No illegality or infirmity was found in the order of Trial Court and it was an indecorous plea that an opportunity of pre-trial was not provided to the petitioner–Petition was dismissed in limine. Citation Name: 2020 YLR 261 HIGH-COURT-AZAD-KASHMIR Bookmark this Case JAHANGIR VS WAHEEDA KOUSAR S. 5, Sched.—Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R. 13—Suit for recovery of maintenance allowance and dower—Ex-parte decree, setting aside of—Limitation—Maxim: Audi alteram partem– Applicability—Petition for setting aside of ex-parte decree was dismissed being time barred—Validity—Respondent plaintiff moved application for submission of fresh address of appellant-defendant but same was wrongly dismissed as withdrawn—Family Court was aware with regard to fresh address of appellant-defendant and he could have been summoned on the said address—Ex-parte proceedings were wrongly initiated against the petitioner, in circumstances–Petitioner-defendant was not summoned properly—Family Court had failed to follow the statutory provisions of law while initiating ex-parte proceedings against appellant—Nobody was to be condemned unheard before passing an adverse order—Trial Court had wrongly concluded that application for setting aside of ex-parte decree was time barred—Right of hearing was a recognized principle of law and such right could not be snatched on the will of any party just to protect its illgotten gains—Impugned order passed by the Court below was set aside and application for setting aside of ex-parte decree was allowed—Matter was remanded to the Family Court for decision afresh on merits–Appeal was allowed, in circumstances.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2020 CLC 1311 HIGH-COURT-AZAD-KASHMIR Bookmark this Case MUHAMMAD MASOOM VS ADDITIONAL DISTRICT JUDGE S.13—Decree—Enforcement of—Duty of executing court—Scope—Petitioner assailed order passed by executing court whereby he was ordered to pay, besides the decretal amount, an amount of Rs.5,00,000/- in light of an agreement between the parties—Contention of respondent was that the decree was passed on the basis of compromise between the parties and in the light of said agreement, it was agreed that if the petitioner, without any reason, would divorce the respondent, he would be bound to pay the said amount—Validity—Record revealed that the respondent was declared entitled to dower of Rs. 44,445/—Trial court had not declared that if the petitioner would divorce the respondent without any reason, she would be entitled to Rs.5,00,000/- in the light of said agreement—Executing Court had to execute the decree as it was and could not go beyond it—Executing court had travelled beyond the scope of the decree—Petition was accepted and the impugned order was set aside, in circumstances. Citation Name: 2020 CLC 952 HIGH-COURT-AZAD-KASHMIR Bookmark this Case NIAZ AHMED VS Mst. MUSHARAF SHAHEEN O. VII, R. 10—Specific Relief Act (I of 1877), Ss. 42 & 54—Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5, Sched.—Suit for declaration and permanent injunction with regard to land given as dower–Maintainability— Plaint, return of—Plaintiff-wife filed a suit for declaration and permanent injunction regarding land given to her as dower—Trial Court returned the plaint for presentation before Family Court—Validity—Family Court had exclusive jurisdiction to entertain and adjudicate all the matters which fell within the Schedule of Azad Jammu and Kashmir Family Courts Act, 1993— If dispute was between the spouses then Family Court was the right forum  ———————————————————————————-COURT OF BALOCHISTAN but if it was between the spouses and third party with regard to property given in lieu of dower then Civil Court had jurisdiction to resolve the said controversy—Dispute, in the present case, was between the widow and the third party i.e. brothers and sisters of her deceased husband—Civil Court was the appropriate forum to decide the present matter–Impugned orders passed by the Courts below were set aside and suit was transferred to the Court of Senior Civil Judge for its decision on merits—Revision was allowed, in circumstances. Citation Name: 2019 YLR 2298 SUPREME-COURT-AZAD-KASHMIR Bookmark this Case ASGHAR AHMED KHAN VS SAFEENA PARVEEN S. 2 & Sched.—Suit for dissolution of marriage, recovery of dower, dowry articles and maintenance allowance–Cruelty—Scope—Appellant/ex-husband contended that respondent/ex-wife left his house on her own sweet-will and the marriage was dissolved by the Trial Court on the ground of Khula, without determining the consideration of Khula—Respondent contended that due to severe physical and mental torture, she was forced to leave the house of appellant and marriage was dissolved on the ground of cruelty— Validity—Record revealed that decree was passed on ground of cruelty as issue was framed with regard to dissolution of marriage which appellant remained unable to deny—Findings recorded on said issue showed that respondent was not willing to populate with the appellant at any cost— Although the respondent , in her statement, prayed for a decree of dissolution of marriage on the ground of Khula, however, in her suit, she prayed for the decree on the ground of cruelty and Trial Court, after going through the averments of the suit and statements of the witnesses, had passed the decree of dissolution of marriage on the ground of cruelty and not on the ground of Khula—If the decree had been passed on the ground of Khula, then it should have been passed after determining the consideration—All the witnesses were unanimous in their statements to  ———————————————————————————-COURT OF BALOCHISTAN prove the element of cruelty—Cruel attitude was not confined physical violence, but the same included the mental torture, hateful attitude of husband or other inmates of the house and the circumstances in presence of which the wife was forced to abandon the house of her husband— Nothing had been brought on record that respondent left the house of the husband at her own, rather she was forced to leave the same, therefore, the element of torture and cruel attitude had been proved through cogent and reliable evidence—Trial Court had rightly observed that the respondent was entitled to get the decree for dissolution of marriage on the ground of cruelty—Appeal was dismissed accordingly. Citation Name: 2019 MLD 576 SUPREME-COURT-AZAD-KASHMIR Bookmark this Case Syed IQBAL SHAH VS Syeda TAHIRA BIBI S. 42—Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5—Suit for declaration regarding land given as dower—Maintainability—Plaintiff-wife filed suit for declaration with regard to the land given to her as dower and also challenged therein the gift deed relating to the said land executed in favour of a third party—Suit was decreed concurrently—Validity—Entries of Nikahnama had presumption of truth vis-à-vis oral evidence—Suit land given as dower had not been abandoned by the wife—In case of controversy regarding payment of dower in respect of any property between the spouse and third party the civil court was an appropriate forum for determination of the matter–No misreading or non-reading of evidence had been pointed out in the impugned judgments passed by the courts below—Appeal was dismissed, in circumstances. Citation Name: 2019 YLR 1945 PESHAWAR-HIGH-COURT Bookmark this Case NISAR VS Mst. FAUZIA  ———————————————————————————-COURT OF BALOCHISTAN Ss. 5, Sched. & 10(4)—Suit for recovery of dower, maintenance and dissolution of marriage—Divorce pronounced by husband prior to consummation of marriage—Effect—Dower, payment of—Scope—Family Court dissolved marriage on the basis of Khula and found that defendanthusband was entitled for recovery of seven tolas gold as dower from the plaintiff-wife—Appellate Court modified the said judgment and held that wife was entitled for the half of the dower fixed at the time of Nikah—Validity— Marriage, in the present case, had not been consummated and dissolved prior to valid retirement—If Talaq was pronounced by the husband prior to consummation then wife was entitled for half of the dower fixed at the time of Nikah—Where Talaq was pronounced on the demand of wife then she was not entitled to half of dower—Marriage was dissolved by defendanthusband on phone, therefore, he was bound to pay half of the fixed dower to the wife—Wife, in the present case, was bound to return half of the dowered ornaments to the husband—Judgment of Family Court was rightly modified by the Appellate Court—Constitutional petition was disposed of accordingly. Citation Name: 2019 YLR 734 PESHAWAR-HIGH-COURT Bookmark this Case ANWAR ALI VS Mst. NAHEED S. 5, Sched— Suit for recovery of dower, dowry articles maintenance allowance and custody of minors by the ex-wife/mother—Payment of gold ornaments in lieu of dower at the time of marriage—Scope—Non-production of receipts of purchase of dowry articles—Effect—Welfare of minors—Scope– -Trial Court had held that payment for claimed dower/gold ornaments had already been paid to the ex-wife/petitioner to which she was entitled to retain–Petitioner/ex-wife contended that Trial Court had wrongly held so as she was minor at the time of her marriage and sister of the respondent (husband) had skillfully taken the said gold ornament on the next day of the marriage; Trial Court had not rightly discarded few items like furniture from list of her dowry articles while passing decree in her favour—Respondent  ———————————————————————————-COURT OF BALOCHISTAN (husband) contended that at the time of leaving his house, petitioner (wife) had taken away the dower/gold ornaments—Validity—No proof was provided by the respondent that petitioner had taken gold ornaments along with her while leaving his house—Female who had been given in Nikah to the respondent being minor at that time, it was more plausible to believe that on the next day of marriage, the sister of the respondent had taken the gold ornaments from her as the same had been temporarily arranged at the time of marriage by the sister of respondent who demanded its return just after the marriage was solemnized—Where there was a list of dowry articles which included household articles such list was to be believed—Normally it was not possible for bride to keep the record of purchase of dowry articles and obtain signature on the list of articles from the bridegroom side, all the dowry articles as per list were either returnable or payment of one third of its value in the alternate—Record revealed that during subsistence of trial, Session Court, on application under S. 491, Cr.P.C, gave children to the custody of mother–Mother/petitioner being natural guardian could best take care of the children; father having had contracted second marriage— Constitutional petition of ex-wife/mother was allowed accordingly. Citation Name: 2019 YLR 605 PESHAWAR-HIGH-COURT Bookmark this Case FAWAD ISHAQ VS Mrs. MAHREEN MANSOOR Ss. 2(d) & 5, Sched.—dower, recovery of—Suit against mother-in-law— Concurrent findings of two courts below–Suit was filed by plaintiff against her ex-husband and ex-mother-in-law for recovery of dower in shape of constructed house which was in name of her mother-in-law—Family Court and Lower Appellate Court concurrently decreed suit and appeal in favour of plaintiff—Validity—Nikahnama was signed by father-in-law of plaintiff as guarantor and consented that house in question would be given to plaintiff in lieu of dower—House in question was in ownership of ex-mother-in-law of plaintiff—dower in shape of cash amount and gold ornaments was already paid to plaintiff by her husband—Remaining part of her dower concerned  ———————————————————————————-COURT OF BALOCHISTAN the defendant (mother-in-law)—Plaintiff had rightly filed suit against her mother-in-law for recovery of dower—Family Court had jurisdiction to try and adjudicate upon such suit filed by plaintiff—Judgments of two courts below were well-reasoned and were based on proper appreciation of evidence and law on the subject—Defendants failed to point out any jurisdictional defect or violation of any law in judgments passed by two courts below—High Court, in exercise of its Constitutional jurisdiction maintained judgments and decrees passed by two courts below—Constitutional petition was dismissed in circumstances. Citation Name: 2019 YLR 86 PESHAWAR-HIGH-COURT Bookmark this Case QALANDRI BIBI VS Mst. IRUM BIBI Ss. 5, Sched. & 18—Suit for dissolution of marriage, recovery of dower, dowry articles, gold ornaments and maintenance allowance by wife against husband, his brother and his mother—Pardanasheen Lady (petitioner ) applied for recording her statement through her special attorney—Petitioner contended that her application was wrongly dismissed by the Family Court though application of similar nature was accepted—Respondent contended that petitioner had already appeared before the court in other proceedings so her application was rightly dismissed by the Family Court—Validity— Record revealed that the application of the petitioner was rejected on the ground that she could not produce any proof of her ailment—Section 18 of Family Courts Act, 1964 permitted a Pardanasheen lady to be represented by duly authorized agent—When a Pardanasheen lady could be represented before the Court through her authorized agent no embargo could be imposed on recording her statement through her special attorney—Family Court was legally required to have recorded her statement through her special attorney—Computerized National Identity Card of the petitioner also showed that she was an old lady of 79 years which further strengthened her case–Appearance of the petitioner in other proceedings, held, would not debar her to seek such relief in the  ———————————————————————————-COURT OF BALOCHISTAN present proceedings—High Court set aside impugned order directing the Family Court to proceed with the case while recording the statement of the petitioner through her agent—Constitutional petition was allowed accordingly. Citation Name: 2019 MLD 401 PESHAWAR-HIGH-COURT Bookmark this Case IQBAL RABBANI VS NOOR UL AIN Ss. 5, Sched, 7, 9, 17-A & 18—Family Courts Rules, 1965, R. 4—Civil Procedure Code (V of 1908), S. 132 & O. VI, R. 15—Suit for recovery of maintenance allowance, dower and dowry articles—Appearance of parties in person—Scope—Representation through counsel/attorney—Scope—Defendant-husband living abroad submitted wakalatnama and written statement without his signatures—Striking of defence—Scope—Personal appearance of a party before Family Court— Pardanasheen lady—Appearance through agent—Exemption from personal appearance–Appointment of a counsel—Authority of agent—Irregularity in the wakalatnama—Effect—Wife filed suit against her husband who lived abroad and his father—Wakalatnama and written statement signed by the father of husband were filed but without signatures of defendant-husband- –Family Court struck-off defence of defendant-husband—Validity–Suit with regard to family matters could be filed before Family Court by presentation of a plaint—Court on presentation of plaint was to fix a date for appearance of defendant issue summons for appearance on the date fixed therein—If defendant received summon then he should appear before the Family Court and file written statement with list of witnesses—Pardanasheen lady/party to a family suit might be permitted to be represented by a duly authorized agent—Defendant was not bound to appear in person before Family Court- –Right to be represented through counsel was a statutory right—Any person who was of the age of majority and was of sound mind might employ an agent through an express or implied authority—Said agent could perform  ———————————————————————————-COURT OF BALOCHISTAN every lawful action which was necessary in order to do such act—When a party was not required to personally appear then he could be represented through attorney or counsel—Appearance of the parties before the Court would include appearance through duly constituted attorney–Court had to confirm genuineness of pleadings/presentations and consent of parties to be represented having not been obtained by way of force, fraud or undue influence—Counsel appointed by a party to the proceedings could represent his/her client before the Court—Execution of wakalatnama was the written instrument and proof of such appointment–If from the record it was clear that party to the proceedings had appointed a counsel, mere omission of certain particulars in the wakalatnama was irregularity which would not vitiate the relations between the counsel and client–Family Court could strike-off defence if order for interim maintenance had not been complied with and decree the suit—If conduct of defendant was contumacious and he had willfully disobeyed the lawful order of Family Court then Court had jurisdiction to strike off the defence—Written statement was signed by one of the defendants and counsel in the present case—Submission of power of attorney at belated stage was not fatal—Order for striking-off defence in presence of valid written statement and that too without notice was unwarranted and not sustainable in the eyes of law—Non-signing of pleadings as well as wakalatnama were mere irregularity and said defect could be cured at any stage by allowing the party to put his/her signatures on the same—If any of the defendants had signed written statement then it would be deemed as valid written statement before the Court—If there was any defect in the power of attorney then same could be cured by filing power of attorney duly attested by the Consulate of Pakistan abroad– Defendant had been restrained from defending his case through impugned order which was against law; said order being illegal and final in nature was amenable to the constitutional jurisdiction of High Court—Defendant could be represented through duly authorized agent—Wakalatnama should be returned to the counsel for the defendant for resubmitting the same before the Trial Court—Defendant-husband was allowed to place on file the power  ———————————————————————————-COURT OF BALOCHISTAN of attorney executed in his favour—Impugned order passed by the Family Court was set aside—Constitutional petition was allowed in circumstances. Citation Name: 2019 PLD 218 PESHAWAR-HIGH-COURT Bookmark this Case AJMAL KHAN VS Mst. FALAK NEGAR BIBI ‘dower’—Meaning. Citation Name: 2019 PLD 218 PESHAWAR-HIGH-COURT Bookmark this Case AJMAL KHAN VS Mst. FALAK 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. Citation Name: 2019 PLD 218 PESHAWAR-HIGH-COURT Bookmark this Case  ———————————————————————————-COURT OF BALOCHISTAN AJMAL KHAN VS Mst. FALEK NEGAR BIBI ‘dower’—Meaning. Citation Name: 2019 PLD 218 PESHAWAR-HIGH-COURT Bookmark 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. Citation Name: 2019 CLCN 61 PESHAWAR-HIGH-COURT Bookmark this Case Mst. HAJIRA BIBI VS ABIDULLAH S. 5, Sched—Suit for recovery of dower—Entry in column No. 17 of Nikahnama—Jurisdiction of Family Court—  ———————————————————————————-COURT OF BALOCHISTAN Scope—Family Court decreed the suit for possession of a house mentioned in column No. 17 of Nikahnama but Appellate Court dismissed the same— Validity—Entry in column No. 17 of Nikahnama would amount to a promise which was enforceable through Court of plenary jurisdiction—Suit filed before Family Court on the basis of such promise/commitment was not maintainable being out of ambit of Schedule of S. 5 of Family Courts Act, 1964–Impugned judgment passed by the Appellate Court was based on proper appreciation of evidence—No jurisdictional error had been pointed out in the impugned judgment passed by the Appellate Court— Constitutional petition was dismissed, in circumstances. [Paras. 8 & 9 of the judgment] Citation Name: 2019 YLR 1290 LAHORE-HIGH-COURT-LAHORE Bookmark this Case MUHAMMAD BASHIR KHAN VS Mst. NAZIA HASSAN Ss. 5, Sched. & 17 —Civil Procedure Code (V of 1908), S.11 & O. VII, R.11—Suit for recovery of dower—Res judicata, principle of—Applicability—Scope— Rejection of plaint—Scope—Wife filed suit for recovery of deferred dower— Wife in an earlier suit, had claimed the decree of haq Meher in question— Application for rejection of plaint by husband on the ground of res judicata, was dismissed—Validity—Family Court, on conclusion of trial, had only granted the decree of maintenance allowance to the minors, whereas the prayer regarding haq Meher in question was not acceded to—Wife had, at the relevant time, remedy of appeal available under the law but she failed to avail the same and as such judgment and decree passed by Family Court had attained finality—Subsequent suit claiming haq Meher in question was barred by principle of res judicata—Constitutional petition was allowed and plaint of wife was rejected, in circumstances.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2019 YLR 640 LAHORE-HIGH-COURT-LAHORE Bookmark this Case SAIMA ASHRAF VS ADDITIONAL DISTRICT JUDGE S. 5 & Sched.—Suit for recovery of maintenance allowance and dower— Maintenance allowance proportionate to financial status of husband/father- –Scope—Dower—Scope—Petitioner (wife) contended that she was entitled for maintenance allowance proportionate to the financial status of her husband and the dower amount as per entry in Nikahnama— Validity— Record revealed that respondent was a retired person getting monthly pension of Rs. 7000; he also owned some agricultural as well as urban land in addition to some cattle—Appellate Court, while dilating upon the issue of maintenance allowance, had taken into account the assets of husband and that he had three wives, including the petitioner—Husband had to maintain all three of them—Maintenance allowance to wife /children by a husband/father was governed by Injunctions of Islam—Appellate Court had determined the issue of maintenance allowance of the petitioner quite reasonably—Column No. 17 of Nikahnama showed that dower amount was only to be given to the petitioner in case of divorce by the husband, whereas marriage between the parties was still intact—No illegality or infirmity having been found in the impugned judgments and decrees passed by the two Courts below constitutional petition was dismissed. Citation Name: 2019 YLR 84 LAHORE-HIGH-COURT-LAHORE Bookmark this Case Mst. RUKHSANA MAJEED VS ADDITIONAL DISTRICT JUDGE S. 5 & Sched.—Suit for recovery of dower—Gold ornaments and a constructed house was incorporated in the Nikahnama as “dower” at the time of marriage—Execution of exhibited agreement admitted by the party—Effect–Petitioner/ ex-wife contended that Appellate Court had wrongly set aside the decree passed by the Family Court  ———————————————————————————-COURT OF BALOCHISTAN as written agreement exhibited by the respondent/ex-husband was disbelieved by the Family Court—Respondent contended that petitioner had waived off the right incorporated in Nikahnama in light of agreement between the parties duly written on stamp paper—Validity—Record revealed that petitioner/plaintiff (ex-wife) had admitted the fact that she purchased the stamp paper, mentioning certain serial number and date, which contained her signature as well as thumb impression; she also admitted that she signed the stamp paper after the same was written—Record revealed that document exhibited by the respondent bore the serial number and date as referred to by the petitioner–Respondent produced not only attesting witnesses and the scribe of said exhibited document , but also one witness to prove the purchase of exhibited stamp paper—Witnesses proved the fact that the petitioner had waived her dower in favour of the respondent while she admitted the execution of the document exhibited by the respondent— Appellate Court had rightly appreciated the evidence on record—High Court upheld the impugned decree and judgment passed by the Appellate Court- —Constitutional petition was dismissed accordingly. Citation Name: 2019 CLC 1799 LAHORE-HIGH-COURT-LAHORE Bookmark this Case JAM MEERAN VS ADDITIONAL ADVOCATE GENERAL Ss.13 & 5, Sched.—Suit for recovery of dower—Execution proceedings— Petitioner assailed orders of executing court and appellate court whereby both the courts below in proceedings for execution of decree refused to accept some other property as dower instead of the property which was decreed—Validity—Substituting the property would amount to the executing court amending the decree, which was not permissible in law— Constitutional petition was dismissed in limine.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2019 CLC 1475 LAHORE-HIGH-COURT-LAHORE Bookmark this Case SHAZIA PARVEEN VS ADDITIONAL DISTRICT JUDGE S. 5, Sched.—Civil Procedure Code (V of 1908), O. XII, R. 6—Suit for recovery of dower—Judgment on admission– -Family Court dismissed the suit for recovery/possession of house in lieu of dower to be paid by husband in terms of Column No. 16 of Nikahnama— Plea of wife was that an agreement was executed by husband in her favour relating to transfer of house as dower— Husband claimed that the said dower was paid in cash—Trial Court dismissed the suit on the admission of wife that dower had been received by her—Validity—Trial Court had not mentioned in what perspective such admission was made and what was the mode of payment of dower to the wife in terms of her admission—Admission of wife had been considered in piecemeal before using the same for decision—Admission had to be rejected or accepted as a whole which had not been done by the courts below—Constitutional petition was partly allowed and the matter was remanded to the Trial Court for decision afresh. Citation Name: 2019 CLC 1462 LAHORE-HIGH-COURT-LAHORE Bookmark this Case Syed SAJJAD HUSSAIN VS JUDGE FAMILY COURT S. 5, Sched.—Recovery of deferred dower—Limitation, determination of— Scope—Non-fixation of any condition, date or time period for payment of deferred dower in Nikahnama does not preclude the parties for subsequently fixing the same through consent or conduct—In the absence of any agreed stipulation relating to time of payment of deferred dower, the husband who has to make payment of the same, can bilaterally or unilaterally, expressly or impliedly through his conduct, waive the condition of waiting till the dissolution of marriage for making such payment by tendering dower or agreeing to tender the same immediately or on a future  ———————————————————————————-COURT OF BALOCHISTAN date, expiry of some time period or on the happening of some event or fulfilment of a fixed condition for which purpose subsistence or dissolution of marriage would be irrelevant. Citation Name: 2019 CLC 1462 LAHORE-HIGH-COURT-LAHORE Bookmark this Case Syed SAJJAD HUSSAIN VS JUDGE FAMILY COURT S. 5, Sched.—Recovery of deferred dower—Limitation—Deferred dower is usually not payable immediately at the time of performance of marriage ceremony/Nikah (as required in case of prompt dower) and is referred to as deferred because its payment is reserved to be made later on, however, the law does not prescribe as to when the deferred dower becomes payable and the law has left the same to be decided by the parties themselves–Deferred dower becomes payable to the wife on the fixed date, expiry of time period, on the occurrence of any event or fulfillment of pre-condition fixed for payment of the same in the Nikahnama or otherwise and if neither such date or period is fixed nor any condition is imposed, the same becomes payable on the dissolution of marriage by death or divorce. Citation Name: 2019 CLC 1462 LAHORE-HIGH-COURT-LAHORE Bookmark this Case Syed SAJJAD HUSSAIN VS JUDGE FAMILY COURT S. 5, Sched.—Suits for recovery of dowry articles by wife and for restitution of conjugal rights by the husband–Payment of deferred dower—Burden of proof—Scope—Plea of wife was that she had been divorced and husband claimed that he had not divorced the wife and had paid the deferred dower- –Validity—High Court, on the basis of husband’s plea that dower had already been paid, observed that the parties through their conduct had modified the condition for payment of dower on wife’s demand instead of waiting for the dissolution of marriage through divorce or death—Husband was required to  ———————————————————————————-COURT OF BALOCHISTAN prove through cogent and confidence inspiring evidence that either he had not agreed to pay the deferred dower or after having agreed to pay the same had actually made the said payment—Husband was estopped by his conduct to claim that deferred dower was not payable during subsistence of marriage as he claimed to have paid the dower on wife’s demand—Statement of witness, produced by husband, was sketchy and he did not state that he was a witness to said payment—Payment of dower by husband was not established on record—Trial Court was justified to decree the suit filed by wife for recovery of deferred dower—Constitutional petition, being devoid of force, was dismissed. Citation Name: 2019 MLD 758 LAHORE-HIGH-COURT-LAHORE Bookmark 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.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2019 MLD 112 LAHORE-HIGH-COURT-LAHORE Bookmark this Case Mst. IRAM SHAHZADI VS MUHAMMAD IMRAN-UL-HAQ 2003 SCMR 1261, 2008 SCMR 186, 2013 CLC 276, 2016 CLC 180, 2016 CLC 765, 2017 MLD 1101, 2017 YLR 1481, PLD 2007 Lahore 515, PLD 2012 Lah. 43, PLD 2012 Lahore 43, PLD 2018 Lah. 429, PLD 2018 Lahore 429, S. 5 & Sched.—Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S. 2(a)—Suit for recovery of maintenance allowance, dowry articles, dower and gold ornaments—Dissolution of marriage on the basis of Khula—Entries against Serial/Column Nos.13 to 16 of the Nikahnama—Effect—Jurisdiction of the Family Court—Scope—Family Court declared the petitioner/plaintiff owner of 22-Tolas gold ornaments as per entry in Column 16 of the Nikahnama, however, Appellate Court set aside the decree to the extent of said gold ornaments—Petitioner/ex-wife contended that bridal gifts were in addition to and not in lieu of Haq Meher (dower) thus, the same, being not part of the dower, were not liable to be returned to the respondent on the ground of Khula—Respondent contended that Appellate Court had rightly reversed decree with regard to the said gold ornaments as Family Court had no jurisdiction to entertain claims regarding entries in Nikahnama—Validity—Held, matter in question called for the perusal of entries made at serial Nos. 13, 14, 15 and 16 of the exhibited Nikahnama which showed that Haqmahr of Rs. 5000/- fixed in the entry against serial No. 13, payment of which was deferred since the entry against serial No. 14 had been left empty—Entry against serial No. 15 showed that no part of Haqmahr was paid at the time of marriage—Entry of gold ornaments, weighing 22-Tolas, having been given to the bride by family of respondent was shown at serial No. 16 of the Nikahnama which became ownership of the petitioner—Mentioning of Rs. 5000/- as dower in column No. 13 left no doubt that gold ornaments were in addition to the Haqmahr and not in lieu thereof and did not form part of dower–Such gold ornaments were not part and parcel of dower but had to be regarded as bridal gifts in  ———————————————————————————-COURT OF BALOCHISTAN contradistinction to dower—Said gold ornaments, being bridal gifts, could not be withheld by the husband in lieu of Khula as the same were not part of dower—Even otherwise respondent had shown his consent to return 22- Tolas gold ornaments to the petitioner while deposing before the Family Court—Section 2(a) of Dowry and Bridal Gifts (Restriction) Act, 1976 stipulated that the articles of dowry, bridal gifts, presents or all other moveable property were the belongings of the bride—Consideration for marriage was dower amount which had not been paid to the wife— Petitioner had waived her dower amount in consideration of Khula which was enough—Family Court had the jurisdiction to entertain and adjudicate any matter arising out of the Nikahnama—High Court set aside impugned order passed by the Appellate Court and restored decree and judgment passed by the Family Court—Constitutional petition was allowed accordingly. Citation Name: 2019 CLC 1008 LAHORE-HIGH-COURT-LAHORE Bookmark this Case MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE S. 5 & Sched.—Limitation Act (IX of 1908), Art. 104—Suit for recovery of deferred dower—Limitation–Deferred dower was payable after a specified period of time and when no period was fixed, the same had to be paid on the death of the husband or dissolution of marriage. Citation Name: 2019 CLC 1008 LAHORE-HIGH-COURT-LAHORE Bookmark this Case MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE S. 5 & Sched.—Suit for recovery of dowry articles—Financial position of parents of wife—Presumption—Scope–Wife filed suit for recovery of dower, maintenance allowance and dowry articles which was decreed to the extent of recovery of dowry articles by Family Court—Appellate Court modified the  ———————————————————————————-COURT OF BALOCHISTAN decree and wife was held entitled to deferred dower—Validity—No evidence regarding source of income of parents of wife was available from which it could be presumed that father of wife was in a position to give dowry articles as claimed in the list of dowry articles–High Court observed that parents gave dowery articles to their daughters at the time of their marriage according to their financial status but sometimes they had to exceed their financial limits and even get debt for the provision of dowry articles—Husband did not deny that dowry articles were lying in his house—Courts below had rightly decreed the claim of dowry articles. Citation Name: 2019 CLC 1008 LAHORE-HIGH-COURT-LAHORE Bookmark this Case MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE S. 5 & Sched.—Suit for recovery of gold ornaments as deferred dower— Presumption regarding possession of gold ornaments—Scope—Wife filed suit for recovery of dower, maintenance allowance and dowry articles which was decreed to the extent of recovery of dowry articles by Family Court— Appellate Court modified the decree and wife was held entitled to recover deferred dower—Validity—Wife had not uttered even a single word as to whether gold ornaments had been taken away by her or the same were in the custody of her husband—Husband, during cross-examination, stated that he had given gold ornaments at the time of Nikah, which wife took away at the time of deserting—Wife failed to prove that gold ornaments had been snatched by her husband—General presumption was that the gold ornaments were always possessed by females and in exceptional cases were kept by males—Findings of Appellate Court were set aside and that of Family Court were upheld. Citation Name: 2019 CLC 1008 LAHORE-HIGH-COURT-LAHORE Bookmark this Case  ———————————————————————————-COURT OF BALOCHISTAN MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE S. 5 & Sched.—Suit for recovery of gold ornaments as dower—Presumption— General presumption was that gold ornaments were always possessed by females and in exceptional cases were kept by males. Citation Name: 2019 CLC 1008 LAHORE-HIGH-COURT-LAHORE Bookmark this Case MUHAMMAD SAEED VS ADDITIONAL DISTRICT JUDGE S. 5 & Sched.—Suits for recovery of dower, maintenance and dowry articles by wife and for restitution of conjugal rights by the husband—Wife desertion by husband—Scope—Suit of wife was decreed to the extent of recovery of dowry articles—Appellate Court modified the decree and wife was held entitled to recover deferred dower—Validity–Wife had mentioned in her plaint that she was deserted by her husband, but she did not specifically mention in her examination-in-chief that she was deserted by her husband– -Wife had failed to prove her forcible desertion by the husband—Filing of suit for restitution of conjugal rights demonstrated that husband was willing to rehabilitate wife but she did not want reconciliation and had obtained decree of divorce on the basis of khula—Family Court had rightly declared her disentitled to dower amount—Constitutional petition was partly allowed. Citation Name: 2019 CLC 777 LAHORE-HIGH-COURT-LAHOREBookmark this Case ZESHAN IFTIKHAR BUTT VS Mst. MARIA ASIF S. 5—Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ii)—Constitution of Pakistan, Art. 199–Constitutional petition—Non-consummation of marriage—Effect—Maintenance allowance, recovery of–Deferred dower— Scope—Petitioner was ex-husband of respondent and he was aggrieved of judgment and decree passed against him by Trial Court as well as Lower  ———————————————————————————-COURT OF BALOCHISTAN Appellate Court—Validity—Deferred dower became due after dissolution of marriage either by death or divorce—Marriage between parties was dissolved therefore, deferred dower had become due on part of petitioner— Wife could claim dissolution of marriage even other than ground of Khula— Respondent sought dissolution of marriage on grounds of non-payment of maintenance allowance and she successfully proved the same—Courts below were not right to direct respondent to forego her dower–Marriage having not been consummated therefore, both courts below had rightly decreed half of the dower amount–High Court declined to interfere in the concurrent judgments passed by two courts below as there was no illegality or irregularity—Constitutional petition was dismissed in circumstances. Citation Name: 2019 CLC 89 LAHORE-HIGH-COURT-LAHOREBookmark this Case MUHAMMAD AHMAD VS ADDITIONAL DISTRICT JUDGE S. 5 & Sched.—Suit for recovery of dower—Nikahnama showed that Rupees 100,000/- were incorporated in column 17 as compensation in case of divorce—Invoking constitutional jurisdiction on factual controversy—Scope–Petitioner/ex-husband contended that both the Courts below wrongly passed decree in favour of respondent/ex-wife as she filed the suit at the instigation of her new husband and entries in the Nikahnama had been made in connivance with Nikah Khawan and witnesses—Respondent contended that petitioner had divorced her without justification–Validity—Stance of the respondent/plaintiff had been supported by witnesses—Courts below had passed the impugned judgments after fully appreciating evidence on record—High Court in its extraordinary jurisdiction could neither substitute findings of facts recorded by Family Court, nor could give its opinion regarding quality or adequacy of the evidence —Assessment and appraisal of evidence was the function of Family Court— Constitutional petition was dismissed accordingly.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2019 MLD 720 KARACHI-HIGH-COURT-SINDH Bookmark this Case ZAHID HUSSAIN VS Mst. FARHANA Ss. 7 & 8—Family Courts Rules, 1965,R. 6—Family Courts Act (XXXV of 1964), S. 5 & Sched.—Suit for dissolution of marriage—‘Ordinarily resides’—Scope— Jurisdiction of Family Court—Khulla, right of—Scope–Petitioner (ex-husband) contended that respondent/ plaintiff did not ordinarily reside at the address shown in her plaint and Family Court had not complied with the provisions of Muslim Family Laws Ordinance, 1961 in granting decree of Khulla to the respondent—Validity—Deliberate use of the phrase ‘ordinarily resides’ in proviso clause of R. 6 of the Family Courts Rules, 1965 was an exception confined to the ‘wife’ alone—Ordinarily residence must not require proof as would be for permanent residence, such was keeping in view the agony of woman who, on being ousted by husband, sometimes did not find shelter in the house of her parents—Right to claim ‘khula’ as well ‘dower’ were absolute rights of ‘wife’ which legally could not be resisted if the ‘wife’ persisted to such claim—Such entitlement, was not subject to a proof of permanent or long residence but a claim of stay of few days even would be enough for the wife to file a suit for dissolution of marriage or dower only— Claim of ‘ordinarily resides’ would not require proof of the standard which normally was necessary for a disputed fact but a claim on oath shouldered by independent support would be sufficient—Record revealed that claim of wife regarding her ordinary residence was backed by an inquiry (physical verification from neighbors) made by the commissioner appointed by the Family Court on the application of the petitioner, which was rightly taken as sufficient proof to take cognizance into the matter—Temporary, even one day, residence, was sufficient to seek relief of Khulla and said proposition of law had taken status of stare decisis, hence the petitioner’s objections over Khulla with regard to jurisdiction was not maintainable—Compliance of Ss. 7 & 8 of Muslim Family laws Ordinance, 1961, was up to the Trial Court and the same was a formality—Decree of Khula having already been granted,  ———————————————————————————-COURT OF BALOCHISTAN there was no option to deprive the respondent from her right which was her choice under the law—No illegality or infirmity having been noticed in the impugned order passed by Family Court, constitutional petition was dismissed accordingly. Citation Name: 2019 CLC 1159 KARACHI-HIGH-COURT-SINDH Bookmark this Case SHRIMATI AASHI VS BHESHAM LAL R. 6—Family Courts Act (XXXV of 1964), S. 5 & Sched.—Suit for Judicial separation by Hindu husband—Parties were Hindu by religion—Territorial Jurisdiction—Scope—“Parties last resided together”—Scope—Question as to whether the Trial Court where family suit was filed under Hindu Law could exercise jurisdiction in view of facts, pleadings and Rules—Petitioner/wife contended that Family Court where husband had filed the suit, had no jurisdiction to entertain the same as spouses never last resided at the address given in the plaint—Respondent/husband contended that Family Court had rightly dismissed the application moved by the wife, raising objection on the territorial jurisdiction, as the same was filed just to buy time—Validity—Family Courts Act, 1964 and Family Courts Rules, 1965 were applicable to all Family Courts including but not limited to those who professed different religions — Rule 6 of Family Courts Rules, 1965 determined the jurisdiction to try suit within local limits of which (a) the cause of action wholly or in part arose (b) where the parties resided or last resided together, provided that in the suit for dissolution of marriage and dower amount the Court within the local limits of which the wife ordinarily resided, would also have jurisdiction—Said proviso was primarily in consideration of the fact that Muslim woman who filed her suit for dissolution of marriage and dower amount would also be in position to avail the jurisdiction of local limits where she ordinarily resided but the same did not exclude the jurisdiction of the two situations regarding cause of action or last residence together—Husband being Hindu by religion,  ———————————————————————————-COURT OF BALOCHISTAN in the present case, had filed suit for judicial separation under Hindu Law and had attempted to exercise the first part of R. 6 of Family Courts Rules, 1965, however, husband had not pleaded that the parties last resided or ever resided at the address given in the plaint–Record revealed that in another case filed by the husband for recovery of dowry articles, he had shown different addresses of both—Party could not say to have resided at the place when it was not pleaded as such—Application by wife was not moved to buy time—High Court set aside the impugned order passed by the Family Court and restored the application filed by the wife—Family Court was directed to consider said application in the light of facts and circumstances de novo— Constitutional petition was partly allowed. Citation Name: 2019 CLCN 56 KARACHI-HIGH-COURT-SINDH Bookmark this Case WASEEM BAIG VS Mst. NOSHEEN Ss.13 & 14—Recovery of dowery articles—Enforcement of decree—Revision— Competence—Petitioner assailed order of Family Court whereby it had, in execution proceedings, directed the petitioner to return the remaining dowery articles including gold ornaments as per the list annexed with the plaint or to pay equivalent amount—Contention of petitioner was that gold ornaments were not specifically mentioned in the plaint—Held; petitioner instead of complying with the decree, filed revision application, which was not competent, as there was no such provision in the Family Courts Act, 1964—Gold ornaments were duly mentioned in the list attached with the plaint and their weight was mentioned in the prayer clause of the plaint— Petitioner by filing applications and petitions had been increasing the miseries of the decree holder just to satisfy his ego and deprive the decree holder of her ornaments of gold or value thereof—Constitutional petition was dismissed. [Paras. 1 & 7 of the judgment]  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2019 CLCN 50 KARACHI-HIGH-COURT-SINDH Bookmark this Case GHULAM RASOOL VS Mst. RAVEENA S. 5 & Sched.—Suit for recovery of dower amount, dowry articles and maintenance—Petitioner assailed judgments and decrees passed by lower courts whereby respondent was held entitled to recover dower amount of Rs. 2,00,000, maintenance for iddat period at the rate of Rs.5,000 per month, past maintenance of both the minors at the rate of Rs. 5,000 per month till disposal of the suit and their future maintenance at the rate of Rs. 3,000 per month till they attained majority with increase of 10% per year—Validity— Family Court had fixed the maintenance allowance keeping in view the source of income of the father/petitioner—Judgments and decrees passed by lower courts did not suffer from any illegality or jurisdictional defect— Constitutional petition was dismissed. [Paras. 9 & 10 of the judgment] Citation Name: 2019 CLCN 41 KARACHI-HIGH-COURT-SINDH Bookmark this Case MUHAMMAD SHAFI MESSO VS Mst. SHUMAILA S. 5 & Sched.—Suit for recovery of maintenance allowance for minors, dower and dowry articles—Judgment debtor (father/husband) resorting to delaying tactics to satisfy the decree—Scope— More than fifteen years back Family Court had decreed the maintenance allowance amounting to Rs. 2000/- per month for two minor sons each—Family Court only allowed the dowry articles to the extent of admission of the petitioner instead of dowry articles claimed by the wife—Respondent contended that the matter had already been adjudicated up to Supreme Court—Validity–Judgments, decrees and orders etc. passed against the petitioner by all the Courts having attained finality, the petitioner by filing present constitutional petitions had made an  ———————————————————————————-COURT OF BALOCHISTAN attempt to re-agitate the same matter—Petitioner, a professor by profession, had been depriving the respondent and his children of their right of maintenance for the last 18 years—Both children being students at engineering universities were dependents and their monthly expenses were Rs. 40,000 to Rs. 50,000—Petitioner, patently, had been attempting to deprive his own children and the respondent of fruits of the decrees in their favour delaying the payment of even meager amount allowed by the courts, by filing petitions—Such contumacious conduct displayed by the petitioner could not be expected even from a person of an ordinary class, what to say about the petitioner, who was a professor—Constitutional petitions were dismissed accordingly. Citation Name: 2019 CLCN 59 ISLAMABAD Bookmark this Case ROZINA BIBI VS Dr. MUHAMMAD AMJAD CHAUDHARY S. 5 & Sched.—Qanun-e-Shahadat (10 of 1984), Art. 64—Suit for maintenance and recovery of dower—Opinion on relationship when relevant—Reliance on communication made through SMSs with regard to relationship as husband and wife—Failure to produce witness from cellular company and witnesses of Nikah—Nikahnama was not produced–Effect—Petitioner filed suit for maintenance and recovery of dower—Respondent specifically denied solemnization of marriage—Petitioner relied upon the communication made through SMSs and admission of respondent before Jirga to prove the relationship of being wife of respondent—Validity—Petitioner had not produced any witness from cellular company nor any certificate to justify the contents of SMS’s received from a particular number—Petitioner had not produced any witness of Nikah, Nikah Khawan, Nikahnama or any close relative who could say in unequivocal terms that the parties had lived together as husband and wife for a particular period of time—Petitioner had not produced any documentary evidence in the shape of photographs captured or videos recorded on the day of Nikah or any other function in which petitioner and respondent could be seen as husband and wife—  ———————————————————————————-COURT OF BALOCHISTAN Petitioner had not produced any documentary evidence to prove the quantum of dower and maintenance—Message referred by the petitioner in which the sender acknowledged himself as an old husband, if presumed to be true on behalf of respondent, even then the admission could not be considered as a whole truth as it lacked specific subject matter with respect to relationship of petitioner and respondent as being of husband and wife– -Second message did not reflect any acknowledgement—Petitioner had failed to discharge the onus to prove the factum of Nikah—Concurrent findings of the courts below were declared to be correct—Constitutional petition was dismissed. [Paras. 9, 13, 17 & 19 of the judgment] Citation Name: 2019 MLD 1999 HIGH-COURT-AZAD-KASHMIR Bookmark this Case MAJID HUSSAIN VS FARAH NAZ S. 5 & Sched.—Dissolution of Muslim Marriages Act (VIII of 1939), Ss. 2(ii), 2(iv) & 2(viii)—Suit for dissolution of marriage—Non-payment of maintenance allowance—Non-performance of marital obligations by husband—Cruelty– Non-production of medical evidence of violence—Effect—Wife claimed dissolution of marriage on the grounds of cruelty, non-payment of maintenance allowance and non-performance of marital obligations— Validity—Under the Dissolution of Muslim Marriages Act, 1939 if the husband neglected or failed to provide maintenance for a period of two years or he failed to perform, without reasonable cause, his marital obligations for a period of three years then wife was entitled for decree of dissolution of marriage—Period of non-payment of maintenance and non-performance of marital obligations had not completed in the present case, therefore, wife was not entitled for dissolution of marriage on said grounds—Wife had failed to prove the allegation of cruelty through cogent and convincing evidence as her witnesses did not support her claim nor she produced medical evidence regarding violence—Statements of husband’s witnesses revealed that he had made his best efforts to settle his wife but she was not ready to  ———————————————————————————-COURT OF BALOCHISTAN live with him–Wife had even got recorded her statement wherein she categorically deposed that she did not want to live with her husband—Trial court had rightly appreciated the evidence of the parties and had rightly passed the decree for dissolution of marriage on the ground of ‘khula’ in consideration of dower—Appeals were dismissed. Citation Name: 2019 MLD 1999 HIGH-COURT-AZAD-KASHMIR Bookmark this Case MAJID HUSSAIN VS FARAH NAZ S. 5 & Sched.—Recovery of deferred dower and gold ornaments—Nikahnama entries—Presumption of truth—Scope–Wife claimed recovery of dower amount along with twenty five tolas ornaments—Trial Court decreed the dower amount—Validity—Perusal of Nikahnama revealed that dower of Rs. 2,00,000/- was fixed as deferred dower—Entries made in the Nikahnama had presumption of truth—Wife had failed to prove regarding bringing ornaments at the time of marriage and snatching of the same, however, she deposed that the ornaments were stolen away—Wife was not entitled for recovery of stolen ornaments—Husband deposed that he had paid the dower but could not produce any evidence of payment of dower—Trial court had rightly passed the decree of dower in favour of the wife—Appeals were dismissed. Citation Name: 2019 MLD 1301 HIGH-COURT-AZAD-KASHMIR Bookmark this Case Raja MUMTAZ AHMAD KHAN VS Mst. FOZIA ISMAIL Ss. 5, Sched., 13(3)(5) & 14(1)—Suit for recovery of dower—Execution petition—Instalments of decretal amount were sought by judgment-debtor– -Scope—Interlocutory order passed by Family Court—Appeal—Competency– Judgment debtor filed objection petition with the request to fix instalments for payment of decretal amount—Family  ———————————————————————————-COURT OF BALOCHISTAN Court directed the judgment debtor to pay entire decretal amount in lump sum and dismissed the objection petition–Validity—Family Court in its judgment directed the judgment debtor for lump sum payment of decretal amount which observation was upheld by the Supreme Court—Observation of Family Court for payment of lump sum decretal amount had attained finality—Executing Court did not commit any illegality while refusing fixation of instalments–Impugned order was passed at the stage of execution proceedings which did not fall within the definition of a “decision” or decree rather it was an interlocutory order—Only a decision or a decree passed by a Family Court was appealable before Shariat Appellate Bench of High Court- –Family Court had discretion to fix instalments if it deemed fit—Instalments could not be claimed as a matter of right—No appeal or revision had been provided under Azad Jammu and Kashmir Family Courts Act, 1993 against such direction for making payment of decretal amount—No appeal or revision had been provided against an interlocutory order passed by the Family Court—Appeal was dismissed, in circumstances. Citation Name: 2019 MLD 724 HIGH-COURT-AZAD-KASHMIR Bookmark this Case AAMARA AZAM VS MOHAMMAD NAWAZ KHAN S. 5—Suits for restitution of conjugal rights and jactitation of marriage by husband and wife respectively—Nonproduction of witnesses mentioned in Column No. 8 of Nikahnama—Effect—Wife had denied solemnization of Nikah and filed suit for jactitation of marriage—Trial Court decreed the suit for restitution of conjugal rights and dismissed the suit for jactitation of marriage—Validity—Wakil of bride shown in Column No. 6 of Nikahnama was not present at the time of execution of Nikahnama as per statements of witnesses—Father of bride, shown as wakil in Nikahnama, got registered an FIR when he got knowledge of forged Nikah—Witnesses of Nikah mentioned in Column No. 8 had not been produced by husband and were not even cited as witnesses—Husband had stated that he did not know the said  ———————————————————————————-COURT OF BALOCHISTAN witnesses while Nikah Khawan did not mention their presence at the time of Nikah—Husband’s witnesses negated the presence of witnesses of meeting at the time of Nikah—Names of witnesses of Nikah, mentioned in Column No. 8, had been written without their presence and their signatures were forged—Time of Nikah was shown as 2:00 p.m. whereas witnesses of wife stated that at 2:00 p.m. she was at her home—Prompt dower was shown as ornaments of Rs. 50,000 whereas none of the witnesses stated that it was paid in their presence—Nikah allegedly was solemnized on 12-1-2015, but it was kept secret till November, 2015—Nikah must be proclaimed and proclaimed openly so that it was known to people that spouses were validly married—Nikahnama remained unproved, therefore, it could not be read into evidence and neither a decree of restitution of conjugal rights could be granted on the basis of such Nikahnama—High Court accepted the appeal and passed the decree of jactitation of marriage and dismissed the suit for restitution of conjugal rights, in circumstances. Citation Name: 2019 YLRN 110 HIGH-COURT-AZAD-KASHMIR Bookmark this Case IMRAN KHAN VS HAMEEDA AKHTAR Ss. 5, 10, 11 & Sched.—Suit for recovery of dower—Pre-trial proceedings— Recording of evidence—Procedure— Scope—Wife’s claim of recovery of dower was partially decreed by the Trial Court—-Validity—Section 10 of Azad Jammu and Kashmir Family Courts Act, 1993 provides that when the written statement is filed, the court shall fix a date for pre-trial hearing of the case and issue a notice to parties for attending the court on the date which shall be fixed by the court and on the date fixed, the court shall examine the plaint, the written statement and documents and if the court deems fit, it shall record statements of parties or their counsel—Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties and if the parties fail to compromise or reconciliate the matter, then the court  ———————————————————————————-COURT OF BALOCHISTAN shall frame the issues and fix the date for recording evidence–Where parties fail to reach to a compromise or reconciliation, it is mandatory for the court to frame issues and fix a date for evidence of parties—Section 11 of Azad Jammu and Kashmir Family Courts Act, 1993 provides that when the evidence of plaintiff is concluded then the Family Court shall provide an opportunity to the other party for rebutting the same—Trial Court in the instance case failed to follow the procedure laid down in S. 10 and also failed to appreciate and even discuss the evidence of the witnesses of defendant– -Appeal was accepted and the case was remanded to the Trial Court for decision afresh. Citation Name: 2018 YLRN 247 SHARIAT-COURT-AZAD-KASHMIR Bookmark this Case LIAQUAT HUSSAIN SHAH VS Mst. FAKHIRA GILLANI S. 5, Sched.—Dissolution of Muslim Marriages Act (VIII of 1939), S. 2 (viii)— Non-payment of dower by husband— Dissolution of marriage on the basis of cruelty—Defendant-husband did not pay dower amount to the plaintiff-wife–Family Court dissolved marriage on the basis of cruelty—Validity—Defendant-husband did not make effort to pay dower to the wife as agreed by him through ‘Nikahnama’ and ‘Iqrarnama’— Conduct and attitude of husband caused mental torture to the wife which was sufficient to dissolve marriage—Impugned judgment and decree passed by the Family Court were maintained—Appeal was dismissed in circumstances. Citation Name: 2018 PLD 31 SUPREME-COURT-AZAD-KASHMIR Bookmark this Case SHAHZAD RAUF VS SHABANA YASMIN  ———————————————————————————-COURT OF BALOCHISTAN 1983 CLC 2923, 1990 CLC 301, 1995 CLC 1761, 1997 SCMR 1122, 2001 PCr.LJ 1257, 2004 YLR 173, 2005 CLC 1025, 2011 SCMR 1591, 2012 CLC 105, 2013 MLD 305, 2015 YLR 170, PLD 1977 Lahore 735, PLD 2006 Pesh. 189, PLD 2014 Lah. 498, PLD 2014 Lahore 498, S. 5—Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XIII, R. 3 —Suit for dissolution of marriage, recovery of dower, dowry articles and maintenance—Dispute as to snatching of gold ornaments given to the plaintiff (wife) in lieu of dower—Jurisdiction , question of—Cruelty—Scope— Technical mistake in filing petition to leave to appeal to Supreme Court— Effect—Appellant (Ex-husband) contended that Family Court should have granted dissolution of marriage on basis of Khulla instead of on the basis of cruelty—Respondent (Ex-wife) contended that appeal was liable to be dismissed as original counsel of the appellant had not obtained the required copies—Validity–Record revealed that counsel for the appellant obtained the copies on the day, when he was engaged, however, the power-of-attorney was signed by him the next day—In the affidavits required to be attached with the petition for leave to appeal, the name of the counsel engaged by appellant before (AJ&K) Shariat Court was entered inadvertently, which was a human error as the required affidavits were of the original counsel— Entering the name of other counsel who was actually counsel for the petitioner before the Shariat Court did not render the petition for leave to appeal/appeal incompetent—With the establishment of the Family Court , the jurisdiction of civil court was excluded–Supreme Court observed that the dower once fixed between the parties would remain as dower and would not change into civil liability in case the same was snatched by the husband from the wife—Dower , if paid to the wife and snatched by the husband , would automatically restore its liability to repay the same and the matter would be triable by the Family Court alone—If any dispute arose, in respect of property given in lieu of the dower, with any person other than the husband or the guarantor, then the case would be decided by the civil court-  ———————————————————————————-COURT OF BALOCHISTAN –Respondent (ex-wife) had taken a categorical stand about the conduct of the husband making her life miserable , which had not been rebutted— Neither any evidence had been led by the appellant in rebuttal nor the statement of the respondent had been cross-examined, hence the decree of dissolution of marriage on the ground of cruelty had rightly been granted by the Family Court—Respondent (wife) left the house of her husband due to cruel treatment, therefore, it was obligatory for the husband to pay her maintenance—-No illegality or infirmity having been noticed in granting decree for dowry articles, appeal was dismissed. Benazir v. Khalil Ahmed and 2 others (Civil Appeal No.285/2014, decided on 26-32015 overruled. Citation Name: 2018 SCMR 1885 SUPREME-COURT Bookmark this Case SAIF-UR-REHMAN VS ADDITIONAL DISTRICT JUDGE, TOBA TEK SINGH 1992 SCMR 2166, 1992 SCMR 710, 2002 MLD 784, 2004 MLD 306, 2006 SCMR 100, 2008 CLC 775, 2010 SCMR 1403, PLD 1998 Lahore 90, PLD 2000 SC 207, S. 14(2)—Suit for return of dowry articles—Amount decreed by the Trial Court less than the amount mentioned under S. 14(2) of the Family Courts Act, 1964 (i.e. Rs. 100,000)—No embargo on wife to file appeal against such decree–Only possible purposive and rational interpretation of S. 14(2) of the Family Courts Act, 1964 was that the right of appeal of a husband against whom a decree had been passed was curtailed, if the amount awarded was less than the amount mentioned in the said section—However, in no event the right of the wife to file an appeal was extinguished if she was dissatisfied with any decree in a suit for dower or dowry articles—Section 14(2) of the Family Courts Act, 1964 could not be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry had been partially or entirely declined—Such an interpretation would defeat the purpose and object of the Family Courts Act, 1964 and frustrate its beneficial nature.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 PLD 34 PESHAWAR-HIGH-COURT Bookmark this Case MUHAMMAD ARSHAD KHAN VS Mst. KULSOOM RIAZ S. 5, Sched.—Suit for dissolution of marriage by Khulla, recovery of dower and dowry articles—Khulla in lieu of returning dower already received by the wife—Scope—Absence of cruelty—Effect—Family Court decreed Khulla in lieu of which the wife would return gold ornaments received as dower— Petitioner-husband contended that Appellant Court had wrongly observed that gold ornaments could be considered as consideration for dissolution of marriage in lieu of Khulla—Validity—Record revealed that respondent had admitted in her cross-examination that she was never mistreated or misbehaved by the petitioner rather she admitted going for honeymoon and Jirga on behalf of petitioner for effecting compromise between the parties— Witness of the respondent admitted the factum of Jirga and also stated that the petitioner or any member of his family had not taken back the dower from her in his present—Petitioner had produced Nikahnama and relied on a marriage agreement wherein payment of 60 tolas of gold and four shops were stated to have received by the respondent—Wife was held responsible by the Family Court for the separation and no evidence regarding cruelty was established—In absence of any proof of cruelty as a ground for dissolution of marriage, the wife was legally bound to return the dower in lieu thereof—Held, that respondent would return the dower of twenty four tolas of gold along with four shops to the petitioner in lieu of decree for dissolution of marriage by way of Khulla while the petitioner would return the dowry articles as per the list attached by him—High Court modified the impugned judgment of Appellate Court accordingly—Constitutional petition was allowed. Citation Name: 2018 YLR 2663 PESHAWAR-HIGH-COURT Bookmark this Case SHAH HUSSAIN VS Mst. NADIA KHAN  ———————————————————————————-COURT OF BALOCHISTAN S.5, Sched.—Constitution of Pakistan, Art.199—Dissolution of marriage on the basis of Khula—Constitutional petition—Maintainability—Petitioner moved appeal before District Judge—Effect—Validity—Dissolution of marriage effected through Khula was neither revocable nor appealable and only decision regarding dower was appealable—Petitioner/ex-husband, could at the best invoke constitutional jurisdiction but he preferred family appeal at District Court—Present constitutional petition, in circumstances, was hit by the doctrine of “laches”—High Court, in circumstances would not decide the issue—Constitutional petition was dismissed accordingly. Citation Name: 2018 YLR 2663 PESHAWAR-HIGH-COURT Bookmark this Case SHAH HUSSAIN VS Mst. NADIA KHAN S.6(5)(a)—Family Courts Act (XXXV of 1964), S.5, Sched.—Suit for dissolution of marriage and recovery of dower–Payment of unpaid dower —Burden of proof—Petitioner/ex-husband contended that he had delivered all 15 tolas of gold ornaments in lieu of dower which were returnable in the wake of dissolution of marriage sought by respondent/ex-wife on Khula— Respondent/ex-wife contended that she was entitled to recovery of outstanding 13-½ tolas golden ornaments in lieu of dower—Validity— Evidence showed that respondent as well as her witness had categorically stated that she had never received outstanding gold ornaments from her husband—Husband, in circumstances, was to prove the payment of amount of dower or gold ornaments to have been given to the respondent/ex-wife- –Said burden had never been discharged by husband leaving room for acceptance of the claim of his wife to believe in its entirety—No illegality or infirmity had been noticed in the impugned judgment passed by the Family Court—Constitutional petition was dismissed accordingly.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 YLR 2505 PESHAWAR-HIGH-COURT Bookmark this Case NASIR SHAH VS Mst. NASIRA BIBI S. 5—Family Courts Act ( XXXV of 1964), S. 5, Sched.—Suit for dissolution of marriage, possession of house in lieu of dower, recovery of maintenance allowance, gold ornaments and dowry articles—Entries of Nikah Nama; evidentiary value— Scope— Petitioner/ husband contended that only one room along with veranda of the house was given to the respondent in lieu of dower amount so, two Courts below had wrongly decreed the entire house in her favour—Respondent/wife contended that the entire house was given to her—Validity—Contents of Column No. 16 of exhibited Nikah Nama clearly showed that entire house with veranda was incorporated in said Nikah Nama–Petitioner admitted the contents of the columns of exhibited Nikah Nama as correct during the cross-examination and stated that in lieu of dower amount of Rs. 100000/-, one house along with verandah and courtyard was given to the respondent, which was then in her possession— Petitioner had never challenged the validity of Nikah Nama before any Court since the date of marriage—Petitioner had not objected the Nikah Nama at the time of its exhibition–Instrument of Nikah Nama was registered under S.5 of the Muslim Family Laws Ordinance, 1961 which had got sanctity under the law and held the status of primary evidence in the matrimonial matters and determined the terms and conditions of the marriages between the parties—Dower was to be paid in consideration of marriage to the wife by the husband and later on he could not deny or refuse the same to his wife unless and until wife waived off the same by herself or was so declared by the competent forum under the law—Documentary evidence in shape of Nikah Nama in matrimonial matters could not be bypassed on the basis of mere oral testimony of husband—No illegality or infirmity having been noticed in the impugned judgments passed by the two Courts below, constitutional petition was dismissed accordingly.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 YLR 1231 PESHAWAR-HIGH-COURT Bookmark this Case ASLAM KHAN MARWAR VS Mst. ATIA GUL 2003 CLC 1787, 2005 CLC 667, 2013 CLC 32, S. 5, Sched., Ss.7(ii) & 12—Suit for recovery of maintenance allowance, dower and dowry articles—Application for additional evidence—Scope-Petitioner/ defendant contended that appearance of Secretary Union Council was necessary for just adjudication of the dispute—Respondent/plaintiff contended that instead of producing his evidence petitioner was applying delaying tactics to enhance agony of plaintiff—Validity-Record revealed that suit was instituted in the year 2014 but it had not been decided yet—Under the provision of S. 12 of the Family Courts Act, 1964, it was mandatory for the Court to decide suit positively within six months from the date of its institution–Courts below had rightly declined the petitioner’s prayer for the production of documents at later stage, which had not been referred to in the memo of written statement or Schedule appended thereto, mentioning of the same in terms of S.7 of Family Courts Act, 1964 being mandatory— Family Court, legally, was not permitted to allow additional evidence or to add names of witnesses in the Schedule—Constitutional petition was dismissed accordingly. Citation Name: 2018 MLD 2001 PESHAWAR-HIGH-COURT Bookmark this Case MUHAMMAD ASHAR MALIK VS SANA ASHAR 2001 SCMR 2000, 2009 CLC 905, PLD 2009 Lah. 484, PLD 2009 Lahore 484, PLD 2012 SC 66, Ss. 25 & 12—Family Courts Act (XXXV of 1964), Ss. 5, Sch. & 7—Family Courts Rules, 1965, R. 6—Suit for custody of minors, recovery of dower, dowry articles and personal belongings by mother/ex-wife—Territorial jurisdiction–  ———————————————————————————-COURT OF BALOCHISTAN -Scope—Plaint did not include the prayer for dissolution of marriage—Effect– -Permanent residence of Spouses—Determination—Marriage had already dissolved on the basis of Khula at “K” and thereafter mother of minors moved from “K” to “P” without minors—Application for interim custody of minors by the mother/plaintiff was accepted—Petitioner/Father raised objection to the territorial jurisdiction of the Family Court at “P” with the plea that both the spouses last resided along with minors at “K” where he was permanently residing with the minors–Respondent/mother contended that petitioner/father was permanent resident of “P” where she had moved the Family Court—Validity—Nikah Nama and marriage registration certificate showed that parties were permanent residents of “P”—Despite husband’s claim of permanent residence at “K”, the petitioner had brought nothing on record to suggest that he had abandoned his permanent abode at “P” for good and had permanently settled at “K”—For the purpose of determining territorial jurisdiction of Family Court, Family Courts Act, 1964 and Family Courts Rules, 1965, were to be taken into account and not the provisions of S. 25 of the Guardians and Wards Act, 1890—Section 5 & Sched. of Family Courts Act, 1964 included custody of children and visitation rights of the parents to meet them, while proviso to R. 6 of Family Courts Rules, 1965 in case of suit for dissolution of marriage or dower, allowed the wife to move the Court within the local limits of which she ordinarily resided—Second proviso to S. 7(2) of Family Courts Act ,1964 introduced, [in the year 2002], the concept of composite suit/plaint by making the provision that plaint for dissolution of marriage could contain all claims—Plaint did not, in the present case, include the prayer for dissolution of marriage, however, proviso to R. 6 of Family Courts Rules, 1965 would come to rescue of the respondent in the matter of jurisdiction of Family Court at “P” to entertain, hear and adjudicate the suit of the respondent also for custody of minors—Plaintiff, other than for dissolution of marriage, could claim a prayer for the custody of minors–Not only respondent ordinarily resided at “P”, rather both the parties had their permanent residences at “P”, where their marriage took place, therefore, the  ———————————————————————————-COURT OF BALOCHISTAN Family Court at “P” had jurisdiction to entertain, hear and adjudicate upon suit of the respondent for dower etc. including custody of minors—No illegality or infirmity having been noticed in the impugned order passed by the Family Court, constitutional petition was dismissed accordingly. Citation Name: 2018 MLD 1811 PESHAWAR-HIGH-COURT Bookmark this Case MUHAMMAD ABBASS VS Mst. SAWAIRA PLD 2003 Pesh. 146, S. 5, Sched.—Suit for dissolution of marriage and recovery of dower— Plaintiff/respondent (wife) sought annulment of Nikah or dissolution of marriage on the basis of Khulla—Four tolas gold ornaments in lieu of dower; half paid was kept in custody of third party by the petitioner— Petitioner/defendant (husband) contended that Trial Court had dissolved the marriage on the basis of Khulla but without an order of returning of dower—Respondent contended that as she had developed hatred towards petitioner due to his attitude so she sought dissolution of marriage on the basis Khulla—Validity—Concept of Khulla had been enshrined by the Holy Quran—History of Khulla commenced with two often quoted instances of Khulla ordered by the Holy Prophet (PBUH)—Two Courts below had rightly noticed the demeanor of the petitioner, in the present case, who had given two tolas gold ornaments to the third party for its safe custody while remaining two tolas gold ornaments were never given to the respondent— Petitioner, not only applied delaying tactics during the trial but also dragged the respondent in criminal case—Hatred of wife towards her husband was apparent, thus, when the option of annulment of the marriage on account of Khulla was prayed in the plaint, the same was rightly thought of for its decree–Court had powers to refuse the return of the dowered property/amount to the husband—Respondent/wife in the present case, was lodged in Darul-Aman on account of fear at the hands of the petitioner- –Constitutional petition was dismissed accordingly.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 MLD 870 PESHAWAR-HIGH-COURT Bookmark this Case Mst. BASMINA VS IMRAN S.5 & Sched.—Suit for dissolution of marriage and recovery of dower and custody of minor—Cruelty—Scope—Wife leaving the house of her husband on her own and did not demand custody of minor for a long time—Effect— Past maintenance allowance —Scope—Gold ornaments in lieu of dower— Petitioner/ex-wife contended that Appellate Court had wrongly ordered to surrender half of 7 tolas of gold ornaments in lieu of dower in the wake of dissolution of marriage on the basis of cruelty instead of khula— Respondent/ex-husband contended that the petitioner could not prove cruelty and she was not entitled for custody of minor as she had not demanded post maintenance and custody of minor for a long time—Validity- –Record revealed that petitioner though claimed dissolution of marriage on the basis of cruelty but she had stated as witness that she was not ready to live with the respondent and would rather prefer death—Evidence showed that the petitioner remained in the house of respondent for a considerable long time even when the respondent had left for abroad and that father of respondent also took amount during the period the petitioner was living with her father; which demonstrated that petitioner left the house of her husband with her free will–Cruelty, though could not be proved through direct evidence but, in the present case, mere assertion of the petitioner that she had heard disparaging remarks about her on the telephone could not be considered as proven fact about cruelty—Seven tolas gold ornaments was proved as dower of the petitioner and was not denied in evidence—Where wife herself was seeking Khula, she was bound to surrender the dower— Husband, during subsistence of marriage could not be allowed to neglect his wife in paying maintenance to her; it was his legal, moral and social duty under the Islamic Law to maintain his wife to live respectable life till the subsistence of marriage—Family Court had rightly granted past maintenance allowance for one year till the expiry of iddat—Wife when left the house of  ———————————————————————————-COURT OF BALOCHISTAN husband had not asked for the custody of her minor son for a considerable time, therefore, Family Court had dealt judiciously with the issue relating to custody of minor and had recorded observation in details—High Court modified the decree and judgment of Appellate Court regarding past maintenance—Constitutional petition was disposed off accordingly. Citation Name: 2018 MLD 734 PESHAWAR-HIGH-COURT Bookmark this Case MUHAMMAD RIZWAN VS Mst. RUBINA KANWAL 1986 CLC 620, 1991 MLD 1321, 2013 CLC 492, 2013 SCMR 1049, 2014 CLC 1307, 2017 SCMR 321, PLD 1999 Lah. 33, PLD 1999 Lahore 33, Ss.12 & 14—Execution proceedings of decree for dissolution of marriage, recovery of dower amount, articles and maintenance allowance—Decree of gold ornaments or its market value—Prevailing market price, question of– Interlocutory order—Appeal and constitution petition against interlocutory Order of Executing Court–Maintainability—Petitioner/Judgment debtor contended that Executing Court had wrongly directed him to deposit existing price of gold ornaments as prevailing market rate would be the one when the suit was instituted–Respondent/decree holder contended that prevailing market price would be the one when actually payment was to be made and that constitutional petition against order of Executing Court was not maintainable—Validity—Section 14(3) of the Family Courts Act, 1964 provided that no appeal or revision was competent against the interlocutory order of the Family Court—Interlocutory order was not a “decision” within the meaning of S. 14 of Family Courts Act, 1964–Since the execution petition was pending in the present case and the same had not been decided, rather direction was made by the Executing Court for the deposit of the decreed amount, therefore, such order could not be held to be a “decision” within the meaning of S. 14 of the Family Courts Act, 1964—Family Court while awarding the decree, had not mentioned the amount but referred the same as decree of 05 tolas of gold ornaments or its market value—Said gold  ———————————————————————————-COURT OF BALOCHISTAN ornaments remained unpaid for the last about eight years, the execution of the decree to that extent remained delayed—Market value of the gold would not remain static endlessly and the same would be considered at the time when it was actually paid to the decree holder, particularly in family matter– -Prevalent market value of 5 tolas gold ornaments had already been deposited, therefore, High Court declined to order payment of market value of the gold when the same had been actually paid—No illegality or infirmity having been noticed in the impugned order of the Executing Court, constitutional petition was dismissed accordingly. Citation Name: 2018 MLD 444 PESHAWAR-HIGH-COURT Bookmark this Case Mst. SAIRA BANO VS Syed SAQI HUSSAIN SHAH S.5, Sched.—Suit for recovery of dower, gold ornaments and past maintenance allowance by wife—Family Court decreed cash amount of dower while Appellate Court decreed the past maintenance as well—Wife had also alleged snatching of her gold ornaments by the mother-in-law; such was a personal specific act against her, instead of appearing herself to substantiate the allegation, she opted to appear through her attorney— Effect—Dower amount incorporated in the Nikahnama as well as agreement- –Scope—Husband contended that dower amount was not outstanding against him and wife was not entitled for the past maintenance as she had left his house on her own–Record revealed that wife had produced PetitionWriter who wrote the agreement, Nikah Khawan, Notary Public, Stamp Vendor and her attorney and all of them exhibited relevant documents in her favour—Alleged act of snatching of gold ornaments had not been established through evidence recorded by the wife; the act of snatching was absolutely a personal specific act against the wife but she did not opt to appear in support of her contention, and her attorney as a witness had also not stated anything specifically regarding the alleged snatching—Held, that both the courts below had properly addressed the claim of the wife which  ———————————————————————————-COURT OF BALOCHISTAN had rightly been rejected—Husband could not prove through confidence inspiring evidence that the wife was self-deserted—No misreading or nonreading of evidence in the findings of the both courts below, constitutional petition was dismissed accordingly. Citation Name: 2018 CLC 887 PESHAWAR-HIGH-COURT Bookmark this Case AKHTAR KAMAL VS Mst. SAMREEN AKHTAR 1991 SCMR 543, 2000 CLC 1384, 2006 SCMR 1670, 2006 YLR 33, 2009 CLC 374, 2009 MLD 1124, 2010 YLR 3264, 2011 YLR 2231, 2016 MLD 200, PLD 2012 Lahore 418, PLD 2015 Lahore 88, PLD 2015 SC 166, S. 9(1a)(1b)—Suit for restitution of conjugal rights by husband—Wife seeking recovery of maintenance and dower in written statement—Admissibility— Obligation of husband to pay dower—Scope—Question was whether separate suit was required by wife for recovery of maintenance and dower– -Petitioner/husband contended that wife in her written statement in family suit could claim dissolution of marriage only—Respondent/wife contended that no separate suit was required for her claims of recovery of dower and maintenance allowance of minor—Validity—Under subsections (1a) and (1b) of S.9 of Family Courts Act, 1964, either party could submit his/her claim in written statement—Though in subsection (1b), the relief of only dissolution of marriage including Khula was mentioned as a claim to be set up by the wife, however, in said subsection the word “including Khula” was used which had enlarged its scope—Merely specifying the words dissolution of marriage including Khula would not mean that wife could claim only such reliefs in her written statement but the word “including” used in S.9(1b) of Family Courts Act, 1964 would enlarge its scope and the wife was not supposed to file separate suit for maintenance allowance of minor etc., instead all such claims could be joined in the written statement—Words used in the concluding para of subsection (1b) was also very relevant which supported the case of the wife, i.e. “shall be deemed as a plaint and no separate suit shall lie for it” and it further strengthened the case of the wife, and whatever  ———————————————————————————-COURT OF BALOCHISTAN she claimed in her written statement would be considered as if she had filed a separate suit to such effect—Father was morally and legally bound to maintain the children and he could not escape from the liability on any pretext even if the custody of the minor was with the mother—Claim of dower of the wife was based upon a dower deed duly proved in the evidence and never rebutted in clear terms by the husband–Payment of dower was obligatory upon the husband which was the entitlement of wife as consideration of the marriage—Husband on contracting second marriage without permission of first wife or Arbitration Council, became liable to pay to first wife entire dower amount either prompt or deferred—No illegality or infirmity having been noticed in the impugned judgment passed by the Appellate Court, Constitutional petition was dismissed accordingly. Citation Name: 2018 CLC 708 PESHAWAR-HIGH-COURT Bookmark this Case LIAQAT KHAN VS BAKHT BIBI 2002 SCMR 1801, 2004 SCMR 1259, PLD 2008 SC 140, S. 5 & Sched.—Registration Act (XVI of 1908), S.7—Suit for recovery of maintenance allowance, dower and dowry articles—One House/gold ornaments in lieu of dower—Execution of the relinquishment deed by Parda Nasheen lady–Scope and effect—Reasonable annual increase in maintenance allowance—Scope—Petitioner/defendant contended that Family Court had rightly dismissed the claim of the plaintiff for dower as she had received 30 tolas gold ornaments in lieu of dower and had executed relinquishment document and marginal witnesses therefore were produced before the Court—Respondent/plaintiff contended that appellate court had ridiculously decreed her dower amounting to Rs.99/- only instead of her claimed dower valuing half of the house—Validity—Admittedly, the dower was initially fixed in Nikahnama as Rs.50,000/-, and 8 tolas gold ornaments and details of entire dower had been provided in two deeds—Petitioner through a deed had transferred his share (half of the house) to the respondent in lieu of the dower i.e. Rs.50,000/- and 8 tolas gold ornaments,  ———————————————————————————-COURT OF BALOCHISTAN however, at the bottom of the deed a value of Rs.99/had been given for the purpose of execution of the deed—Same appeared to avoid the consequences of the compulsory registration under the Registration Act, 1908—Said exhibited deed showed that half of the said house was given to the wife/respondent in lieu of the dower—Appellate Court instead of decreeing the half of the said house or its market value, had decreed an amount of Rs.99/- as the value of the house—Interpretation of the document by Appellate Court, would deprive the wife from her dower which had been agreed in unequivocal terms—Only interpretation, hence, discernable from the reading of Nikahnama and deeds was that the husband had agreed to transfer half of the house to the wife in lieu of dower—Findings of Appellate Court, in circumstances, were not sustainable which were modified by the High Court to the effect that respondent/plaintiff was entitled to half of the house mentioned in the said deed or its market value—Identification of Pardanasheen or illiterate woman while executing the document must be established beyond doubt and court must be vigilant in taking extra care to ascertain the genuineness of such document—Pardanasheen lady normally, did not on her own execute the document relating to her valuable rights unless accompanied by the male member of her family—Even otherwise, from the close perusal of the testimony of the marginal witnesses and Notary Public, it could not be established that 30 tolas gold ornaments were received by the respondent/plaintiff—Consideration of the document had to be independently established in case the executor denied the same— Document in question and its contents had been rightly disbelieved by the Appellate Court— Appellate Court, however, had enhanced the “increase of 5% per annum” to 35% per annum but without considering circumstances or financial position of the petitioner —High Court observed that 15% increase would be sufficient to meet the requirement of the child keeping in view the inflation and modified the impugned judgments and decrees passed by the two Courts accordingly—Constitutional petition was disposed off.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 CLC 93 PESHAWAR-HIGH-COURT Bookmark this Case MOHAMMAD RAZIQ VS Mst. FARHANA BIBI 2003 YLR 599, 2014 YLR 1743, S. 5 & Sched.—Suit for dissolution of marriage and recovery of dower—Wife claimed gold ornaments or its market price as dower and alleged cruelty by the husband—Husband sought decree for restitution of conjugal rights— Wife seeking dissolution of marriage on the ground of cruelty—Scope— Development of hatred by wife against husband–Effect—Husband contended that Trial Court had wrongly decreed the suit of wife as she had failed to prove factum of cruelty as well as claim of dower—Wife contended that in the wake of behaviour of the husband she had developed hatred against him—Effect—Record revealed that in respect of dower amount wife herself appeared and reiterated the stance as taken in the plaint and in spite of lengthy cross-examination her statement in respect of unpaid dower could not be shattered—Version of the wife was duly supported by her witnesses in their statements—Husband on the other hand was sole witness of himself however, when cross-examined he had showed total ignorance to the factum of period between his Nikah and marriage with the lady and he even could not remember the name of Nikah-Khawan and other family members of the Majlis; he made admission to the effect that he had no receipt of the dower amount for four tolas of gold ornaments and admitted that four (4) tolas gold was fixed as dower—Wife had alleged cruelty and maltreatment at the hands of her husband but she failed to prove the factum of cruelty however, she stated that she had developed such enormous hatred against the husband that she would prefer death instead of living as his wife– Husband though sought decree for restitution of conjugal rights but it was an admitted fact on record that wife was subjected to mental depression by the husband and even she had been given oral Talaq several times by him, therefore, he was not entitled to the grant of decree for restitution of conjugal rights, which position stood rightly appreciated by the two Courts  ———————————————————————————-COURT OF BALOCHISTAN below—No illegality or infirmity having been noticed, constitutional petition of husband was dismissed accordingly. Citation Name: 2018 PCrLJ 141 PESHAWAR-HIGH-COURT Bookmark this Case SHARAFAT ALI VS State S. 497—Penal Code (XLV of 1860), Ss.506, 452, 459, 447, 354 & 337-F(vi)— Criminal intimidation, house trespass after preparation for hurt assault or wrongful restraint, criminal trespass, causing grievous hurt while committing lurking house trespass or house breaking, assault or criminal force to woman with intent to outrage her modesty, causing Munaqqilah—Bail, refusal of— Complainant who was wife of accused, filed suit for recovery of annulment of Nikah, recovery of dower and maintenance allowance—Accused entered the house of his in-laws, where the complainant/wife was residing, for her criminal intimidation in order to avoid appearing before the Family Court– Accused caught hold her collar, torn her shirt, beaten her harshly and injured different parts of her body—Accused repeated the offence and while entering house of in-laws where he in presence of mother and sisters of the complainant assaulted the complainant by using criminal force against her with the intention to outrage her modesty–Medical evidence showed that the injury had been caused with blunt weapon falling under S. 337-F(vi), P.P.C., which invited punishment of the daman and could also be punished with imprisonment of either description for a term which could extend to seven years as Ta’zir and was not bail able. Citation Name: 2018 PLD 735 LAHORE-HIGH-COURT-LAHOREBookmark this Case NARGIS NAUREEN VS JUDGE FAMILY COURT, MULTAN Ss. 5, Sched., 14, 17 & 21-A—Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2—Suit for recovery of dower—  ———————————————————————————-COURT OF BALOCHISTAN Application for temporary injunction/interim relief—Interlocutory order— Determination of—Procedure—Appeal–Maintainability—Plaintiff along with suit filed an application under O.XXXIX, Rs.1 & 2, C.P.C. for grant of temporary injunction which was dismissed by the Family Court—Validity—Application filed by the petitioner for temporary injunction/interim order was in fact an application under S.21-A of the Family Courts Act, 1964—Family Court had jurisdiction to entertain and decide the said application—Said application had been dismissed and had resulted into a final decision declaring the plaintiff not entitled to interim relief during pendency of suit—Decision rendered by the Family Court was appealable provided same was not a decision of interlocutory nature—Every order passed during the pendency of a family suit could not be treated as an interlocutory order if said order had finally determined an issue—Appeal under S.14 of Family Courts Act, 1964 was not barred against every interlocutory order–Remedy of appeal unless specifically barred would be available against a decision relating to a right or a remedy provided under the law subject to condition that finality was attached to such an order or decision and nothing remained to be further decided between the parties on the said issue—Dismissal of application under S.21-A of Family Courts Act, 1964 would tantamount to declining the relief of preservation and protection of property that might be available to a party during pendency of suit which would amount to final determination of claim to that extent—Impugned order would amount to ‘a decision given’ in terms of S.14 of Family Courts Act, 1964 and an appeal against the same was available before the Appellant Court—Constitution petition being not maintainable due to availability of alternate remedy was dismissed. Citation Name: 2018 YLR 2586 LAHORE-HIGH-COURT-LAHOREBookmark this Case FAIZ MUSTAFA VS JUDGE FAMILY COURT S. 5, Sched. & S.10(5)—Suit for recovery of dower, dowry articles and maintenance allowance—Maintenance allowance for minor—Quantum—  ———————————————————————————-COURT OF BALOCHISTAN Scope—Income of father—Effect—Non-availability of right of appeal– Constitutional petition against such judgment— Maintainability— Gold ornaments and house in lieu of dower–Scope—Petitioner/father contended that maintenance allowance of the minor to the tune of Rs. 4000/- per month was exorbitant as he had no permanent monthly income for being daily wager in a factory—Respondent contended that petitioner was running many businesses—Validity—Respondent had stated during her crossexamination that petitioner was doing job in a factory—Family Court concluded that monthly income of the petitioner could be Rs. 14,000/—-No evidence had been led by the parties to show that maintenance allowance amounting Rs. 4000/- was exorbitant, therefore, Family Court had rightly determined the quantum of maintenance allowance of the minor– Maintenance allowance of Rs. 5000/- per month or less was not challengeable in appeal—Constitutional petition could not be used as alternate of appeal without proving any illegality or jurisdictional defect— Respondent claimed dower of three tolas gold ornaments and two Marlas’ house—Column No. 13 of Nikah Nama mentioned that one Tola gold ornament had been paid, therefore, Family Court had rightly disallowed the said claim, however, two Marla house was mentioned in Column No. 16 of the Nikah Nama was payable—Family Court had observed that as the marriage of the parties had been dissolved on the basis of Khulla, therefore, under S.10(5) of Family Courts Act, 1964, respondent was entitled to receive 75% of dower i.e. 2 Marla constructed house or its alternate value of Rs. 100000/- as mentioned in the Nikah Nama which came to be Rs. 75000/—- Petitioner had failed to show that the dower had been paid to the respondent—Family Court after evaluating the evidence had rightly fixed the alternate price of dowry articles equal to Rs.100000/—-Decree for recovery of dowry articles amounting to Rs. 100000/- or less was not appealable and constitutional petition could not be used as alternate of appeal unless some illegality, perversity or jurisdictional defect was pointed out—No illegality or infirmity having been noticed in the impugned judgment and decree passed by the Family Court, constitutional petition was dismissed accordingly.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 YLR 2562 LAHORE-HIGH-COURT-LAHOREBookmark this Case SUMAIA BIBI VS ADDITIONAL DISTRICT JUDGE 2002 SCMR 1408, 2011 CLC 726, 2016 MLD 925, 2017 MLD 1101, PLD 2015 Lah. 88, PLD 2015 Lahore 88, PLD 2016 SC 613, S. 5 & Sched.—Suit for recovery of dower/Haq-ul-Mehr—Property in lieu of dower incorporated in Column No. 16 of Nikahnama— Scope— Entries in Nikahnama— Presumption of truth—Scope—Petitioner/ex-wife contended that Appellate Court had wrongly concluded that property mentioned in column No. 16 of Nikahnama could not be treated as dower— Respondent/ex-husband contended that Appellate Court had rightly set aside the decree passed by the Family Court as said entries in Nikahnama were made afterwards in connivance with “Nikah Khawan”—Validity–Record revealed that respondent had conceded during cross-examination that he had signed Nikahnama and he had never challenged the entries therein— Documents could not tell lie—Nikahnama had established the claim of petitioner for recovery of 4-Marla land or in alternate its market price— Nikahnama being a public document did not require any formal proof— Strong presumption of truth was attached to entries made in Nikahnama— Respondent had mentioned in said Nikah Nama that landed property would be transferred in favour of bride as Haq-ul-Mehr, thus no scholarly interpretation of entries in Column No. 16 was needed—High Court set aside impugned judgment and decree passed by Appellate Court—Constitutional petition was allowed accordingly. Citation Name: 2018 YLR 1682 LAHORE-HIGH-COURT-LAHOREBookmark this Case ASIF SHEHZAD VS ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH  ———————————————————————————-COURT OF BALOCHISTAN S. 5, Sched. & S. 10(5)—Suit for dissolution of marriage and recovery of dower- –Return of dower in case of Khula–Scope—Entry in Nikahnama—Effect— Appreciation of evidence in toto—Scope—Petitioner/ex-husband contended that respondent/ex-wife was not entitled for recovery of dower as in plaint as well as in evidence/cross-examination she had not claimed seven Marlas, house as outstanding dower— Respondent/wife contended that two Courts below had rightly granted her dower as per entry in the Nikahnama— Validity— Record revealed that in the relevant paragraph of the plaint, Nikahnama and affidavits submitted in evidence, seven Marlas house had specifically been mentioned—Document as well as evidence had to be read as a whole and not in piecemeal—High Court observed that, to negate the version of respondent , petitioner could easily produce the Nikah-Registrar on his behalf to disprove the claim of petitioner that relevant entry in Nikahnama was result of interpolation and afterthought—Petitioner had failed to bring on record the evidence of witnesses of Nikahnama—Admitted document need not be proved and presumption of truth was attached to such document—When the marriage was dissolved on the basis of Khula’ then the remaining dower became payable and the deferred dower, which was the liability of the husband, was to be paid to the wife to the extent of 50% in terms of S.10(5) of Family Courts Act, 1964—High Court under constitutional jurisdiction could not substitute findings of facts nor could give the opinion regarding quality or adequacy of the evidence—No illegality or infirmity having been noticed in the impugned judgments passed by the two courts below, constitutional petition was dismissed accordingly. Citation Name: 2018 YLR 1251 LAHORE-HIGH-COURT-LAHOREBookmark this Case MUHAMMAD KAMRAN VS Mst. SAMERA MAJEED 2006 MLD 83, PLD 2007 Lah. 626, PLD 2007 Lahore 626, PLD 2013 Pesh. 88, S. 5, Sched.—Dissolution of marriage on basis of ‘khula’—dower (haq-Mehr), return of—Scope—Where wife obtained decree for dissolution of marriage  ———————————————————————————-COURT OF BALOCHISTAN on basis of khula, it was subject to return of dower amount and she subsequently could not claim it as of right—In case of khula, wife would have to either remit the dower amount, if she had not received it or pay back the same to the husband if she had received it. Citation Name: 2018 YLR 616 LAHORE-HIGH-COURT-LAHOREBookmark this Case FIDA HUSSAIN VS JUDGE FAMILY COURT, MUZAFFARGARH 2008 SCMR 1584, 2012 MLD 756, 2013 CLC 698, 2013 MLD 800, PLD 2016 SC 613, S.5 & Sched.—Suit for recovery of dower, dowry articles and maintenance allowance—Entries in Nikahnama–Scope—Defendant claimed that Rukhsati had not taken place—Petitioner/husband contended that he had already paid cash and gold ornaments to the plaintiff in lieu of dower and property mentioned in Nikahnama was not part of dower rather petitioner paid amount to previous owner of property and had got transferred in the name of plaintiff/wife—Wife contended that Rukhsati took place and she performed her matrimonial obligation so she was entitled for benefits mentioned in Nikahnama in lieu of dower—Validity—Record showed that wife appeared as witness and categorically stated that Rukhsati had taken place and got recorded details of the ceremony , she also produced marriage registration certificate and photograph of the spouses—Plaintiff also produced a witness who concurred the version of the plaintiff, both witnesses were thoroughly cross-examined, however, they remained consistent—On the contrary, defendant though claimed that Rukhsati did not take place but he failed to produce any evidence on record rather his own witness conceded that neither he had any knowledge of family life of the defendant nor Rukhsati, thus, it was established that after Nikah, Rukhsati had taken place—Brother of the plaintiff appeared and deposed that he along with his mother purchased dowry articles and plaintiff also produced receipts of purchase in documentary evidence, thus, Family Court rightly  ———————————————————————————-COURT OF BALOCHISTAN decreed the dowry articles in favour of plaintiff—Plaintiff had appeared herself as a witness to support her claim—Defendant had not denied that plot was fixed in lieu of dower, however, he had deposed that land/house fixed in lieu of dower had been transferred in favour of plaintiff along with cash and gold ornaments—Record revealed that record keeper was produced as a court witness who deposed that respondent/plaintiff purchased the property in question and that petitioner/ defendant never approached him— Held, cash, gold ornaments and property as per contents of Nikahnama were fixed in consideration for marriage—No illegality having been noticed in the judgments of the two Courts below, constitutional petition was dismissed accordingly. Citation Name: 2018 PLD 429 LAHORE-HIGH-COURT-LAHOREBookmark this Case MUHAMMAD IMRAN VS ADDITIONAL DISTRICT JUDGE, MULTAN 2006 MLD 555, 2010 YLR 2452, 2011 CLC 726, 2017 MLD 1101, PLD 1986 Quetta 185, PLD 2016 SC 613, S. 5, Sched.—Recovery of dower—Entries made in Column Nos. 13 & 16 of Nikahnama—Undertaking for dower–Effect—Matters arising out of Nikahnama—Family Court, jurisdiction of—Scope—Plaintiff-wife filed suit for recovery of dower according to the entries made in Column No. 16 of Nikahnama which was decreed concurrently–Validity—Specification of property/plot with constructed house was not mentioned in Column No. 13 of Nikahnama wherein only amount of Rs.2,00,000/- was mentioned in the shape of gold ornaments (prompt)—Condition of five Marla plot with constructed house was accepted by the defendant-husband at the time of marriage and same was mentioned in Column No.16 as dower– Besides the fact of fixation of dower specifically it could more or less be treated as a valid undertaking for dower mentioned in the Purt Nikah—When husband had agreed to pay the dower then irrespective of the fact of mentioning the dower fixed in the specific column of Nikahnama would become redundant-  ———————————————————————————-COURT OF BALOCHISTAN –Husband could not be allowed to release from his undertaking and he was bound to provide the plot with constructed house to the wife in lieu of dower—Entry of Column No. 16 of Nikahnama was validly accepted by the husband—Decree with regard to the said entry was enforceable—Family Court had jurisdiction to entertain and decide the matters arising out of Nikahnama whether same were mentioned as dower or undertaking for the satisfaction of dower—Defendant was bound to specify a jurisdictional defect or error with regard to judgments of Courts below to invoke constitutional jurisdiction of High Court—No illegality or error in the impugned judgments passed by the Courts below had been pointed out—Constitutional petition was dismissed in circumstances. Citation Name: 2018 CLC 1844 LAHORE-HIGH-COURT-LAHOREBookmark this Case MUHAMMAD ASIF VS Mst. NAZIA RIASAT 2008 SCMR 186, 2015 YLR 1235, PLD 2012 Lah. 245, PLD 2012 Lahore 245, S.5 & Sched.—Suit for recovery of amount on account of divorce— Pronouncement of divorce by husband–Conditions—Scope—Entry in Nikahnama—Effect—Petitioner/ex-husband contended that both the Courts below had wrongly granted dower to respondent/ex-wife as no condition could be attached to the right of husband to divorce his wife— Respondent/ex-wife contended that she was entitled for recovery of Rs. 100,000/- as incorporated in Column No. 19 of Nikahnama—Validity—Islam provided right to the husband to divorce his wife free from any encumbrance and such right could not be abridged with conditions, as the relationship between husband and wife could continue only with their free consent and tie of marriage was beyond any restrictions—In the present case, marriage was dissolved, by a divorce deed by the husband without intervention of the Court—Claim of the wife solely rested upon the entry in Nikahnama, which in no way could override the Injunctions of Islam—Both the Courts below had erred in law while holding wife entitled to claim  ———————————————————————————-COURT OF BALOCHISTAN Rs.100,000/- on account of divorce—High Court set aside impugned judgments passed by two Courts below—Constitutional petition was allowed accordingly. Citation Name: 2018 MLD 923 LAHORE-HIGH-COURT-LAHOREBookmark this Case Mst. Hafiza SAMINA SULTAN VS MUHAMMAD ABID S. 9—Family Courts Rules, 1965, R. 13—Suit for dissolution of marriage and recovery of dower and dowry articles–Ex-parte decree, setting aside of— Limitation—Petitioner/ex-wife contended that Appellate Court had wrongly accepted the time-barred application of the respondent/judgment debtor to set aside ex-parte decree as he intentionally avoided appearance before the court—Respondent/ex-husband contended that he was not aware of the case and that if matter was not re-opened he would not be able to receive back the gold ornaments given by him in lieu of dower–Validity—Record revealed that respondent/judgment debtor refused to accept the service, therefore, warrants for arrest were issued against him—Bailiff faced grave resentment and he requested for provision of Police assistance and succeeded to execute the warrants of arrest with the assistance of Police— Said events showed that the respondent was well aware about passing of decree and when he was produced before the court, he paid Rs. 25,000/- towards part satisfaction of decree—Rule 13 of Family Courts Rules, 1965 stipulated that judgment debtor was bound to move for setting aside the exparte judgment and decree within 30 days from the date of passing of the same whereas, in the present case, respondent filed such application after more than five months of passing of the same—High Court observed that the dissolution of marriage was decreed on the ground of cruelty, and not on the basis of Khula, so there was no question of return of dower—High Court set aside the impugned judgment passed by the Appellate Court– Constitutional petition was allowed accordingly.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 MLD 320 LAHORE-HIGH-COURT-LAHOREBookmark this Case TANZEELA BUTT VS ADDITIONAL DISTRICT JUDGE, SARGODHA S. 5 & Sched.—Suit for recovery of dower—Third party (brother of wife) executing agreement between the spouses— Effect—Rights and obligations of the third party—Scope—House as dower incorporated in Nikahnama—Scope–Non-mentioning of details of such house—Effect—Petitioner/ex-wife contended that as per agreement executed at the time of marriage she was entitled to recover deferred dower as well as the house incorporated in the Nikahnama–Husband contended that she was not entitled for the house as he had paid the remaining dower- –Validity—Record revealed that an agreement was executed between the brother of the petitioner and the respondent and the petitioner was neither party nor signatory of the said agreement—Terms of the agreement showed that after the death of the respondent, the petitioner would be his legal heir and in case of death of the petitioner, her brother would be her legal heir and would become exclusive owner of the legacy of the petitioner—High Court observed that the legal heir could only be determined according to the Shariah and law of inheritance, thus, agreement in question had no legal value in the eye of law since the same was not executed between the petitioner and the respondent—Right of third party could not confer rights or impose obligations on another person except the party thereto—Petitioner neither produced her brother as witness who was alive, so best evidence was withheld by her—No details of the house were given in Nikahnama and wordings were vague and did not specify as to which property it referred to, therefore, the petitioner, who was not even a party to the said agreement, had failed to establish her case—Respondent proved through cogent evidence that at the time of divorce he gave Rs. 100,000/- to the petitioner regarding as unpaid dower and maintenance allowance for Iddat period which was not rebutted rather admitted by the petitioner—By receiving the whole amount mentioned in Nikahnama she had waived off her right of the  ———————————————————————————-COURT OF BALOCHISTAN property in lieu of dower—No illegality or infirmity having been noticed in the impugned judgment of Appellate Court, Constitutional petition was dismissed accordingly. Citation Name: 2018 CLC 836 LAHORE-HIGH-COURT-LAHOREBookmark this Case SHABBIR AHMAD VS CHAIRMAN, ARBITRATION COUNCIL S. 9(1-A)—Suit for recovery of dower and maintenance of minors—Parties, earlier had approached the Chairman Arbitration Council for resolution of the matter—Family Court—Jurisdiction—Scope—Father contended that matter in issue was resolved before Arbitration Council and mother of minors having not availed the remedy against such order, order of the Chairman Arbitration Council had attained finality—Validity—Section 9 of Muslim Family Laws Ordinance, 1961 stipulated that the same would come into play on failure of husband to maintain his wife adequately or where there were more wives than one and husband failed to maintain them equitably, the wife, or all or any of the wives could, in addition to seeking any other legal remedy available, apply to the Chairman who would constitute an Arbitration Council to determine the matter and Arbitration Council, in pursuance thereof, could issue a certificate specifying the amount which would be paid as maintenance by the husband—Subsection (1-A) of S.9 of Muslim Family Laws Ordinance, 1961 authorized the mother or grandmother of the minor children to seek the same remedy–So remedy available under S.9 of Muslim Family Laws Ordinance, 1961 neither imposed any embargo on institution of suit as was the present one nor any clog on the powers of the Family Court to proceed with such suit—Proceedings instituted in terms of S.9 of the Muslim Family Laws Ordinance, 1961 could not erode the suit instituted before the Family Court under the provisions of the Family Courts Act, 1964- –No illegality or material irregularity having been noticed in the judgment/order, constitutional petition was dismissed in limine.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 YLRN 4 LAHORE-HIGH-COURT-LAHOREBookmark this Case AHMAD TAQUEER VS ANJUM SHAHNAZ O. XXIII R. 1—Punjab Partition of Immovable Property Act 2012 (IV of 2013), S.4—Suit for partition of house— Plaintiff claimed ownership of share of the house given to her in dower through registered gift-deed—Preliminary decree was passed and Tehsildar was directed to ascertain whether the property was partition-able or not— Defendant challenged the assertion of the plaintiff claiming that previous suit filed by the plaintiff was withdrawn by her unconditionally— Maintainability of fresh suit—Scope—Defendant/ petitioner submitted that preliminary decree was illegally passed because plaintiff took different stance in her plaint and in evidence—Plaintiff/respondent contended that fresh cause of action had accrued and filing of second suit on the same subject matter was not barred by law–Validity—Record showed that a registered giftdeed executed in favour of plaintiff/respondent was exhibited by the plaintiff whereby land was transferred in her name in lieu of dower—Stance taken by the petitioners/defendants in written statement was that the plaintiff had earlier filed a suit for possession through partition in year 2009 and after 6 months compromise was effected between the parties and the plaintiff was compensated through payment of Rs. 100,000/- , consequently she withdrew the suit filed against the petitioners/defendants—Primary stance taken by the petitioners was that in terms of O.XXIII, R.1, C.P.C. withdrawal of earlier suit unconditionally, without seeking permission to file a fresh suit on the same subject matter was not maintainable—Such aspect of the case had been dealt with by the trial as well as the appellate court that it was a simple withdrawal on the statement made by the counsel for the plaintiff/respondent in year 2010, whereas cause of action in a suit for partition was always recurring, therefore, fresh suit was not barred—Plaintiff admittedly had left her husband/ petitioner because of strained matrimonial relations and during that course a similar suit was filed by the  ———————————————————————————-COURT OF BALOCHISTAN plaintiff/respondent in the year 2009–Petitioner and respondent had admitted in their pleadings that a compromise had taken place between the parties upon which respondent had withdrawn the suit—Property in dispute had already been gifted through a registered deed in favour of respondent in lieu of her dower, therefore, element of recurring cause of action was very much plausible and applicable to the present case particularly where at one point of time the relations were cordial and subsequently became strained between the spouses—High Court declined interference in the concurrent findings of the courts below—Revision petition was dismissed accordingly. Citation Name: 2018 CLCN 108 LAHORE-HIGH-COURT-LAHOREBookmark this Case MOHAMMAD NADEEM VS ADDITIONAL DISTRICT JUDGE, MULTAN S. 5, Sched.—Suit for recovery of maintenance allowance and dower—Dower- –Scope—Gold ornaments and house in lieu of dower/Haq ul Meher—Entries of Nikah Nama regarding payment of dower—Effect—Petitioner/husband contended that he had already paid the entire dower amount as evident from the entries of Nikah Nama–Respondent/wife contended that the petitioner had not paid her Haq ul Meher for house—Validity—Petitioner had not denied in his written statement and evidence that 4 Kanals land with constructed house was mentioned as Haq ul Meher in the Nikah Nama, therefore, the claim of the petitioner that he had paid all the Haq ul Meher to the respondent should have been substantiated by leading some evidence on the record—Petitioner had failed to place anything on the record to show that 4 Kanals land had been transferred to the respondent— Besides he had not denied that such land was fixed as Haq ul Meher rather in his cross-examination he admitted that in Column 16 of Nikah Nama the land measuring one Bigha with constructed house and boundary wall was mentioned in the Nikah Nama—  ———————————————————————————-COURT OF BALOCHISTAN Petitioner had, on the one hand, admitted the said property to be given as Haq ul Meher as per Column of the Nikah Nama and on the other hand, failed to establish that Haq ul Meher had been paid—Entries in Column Nos. 13 and 14 of the Nikah Nama only showed payment of Haq ul Meher @ Rs. 1000/- as well as 2 Tolas gold ornaments, which could not be extended beyond its context to mean that entire Haq ul Meher had been paid—No illegality or infirmity having been noticed in the impugned judgments passed by the two Courts below, constitutional petition was dismissed accordingly. Citation Name: 2018 CLCN 104 LAHORE-HIGH-COURT-LAHOREBookmark this Case Mst. SHEHNAZ MAI VS GHULAM ABBAS 1991 CLC 1142, 2009 MLD 671, 2018 CLC 708, PLD 2000 Lah. 355, PLD 2000 Lahore 355, PLD 2015 Lah. 88, PLD 2015 Lahore 88, PLD 2016 SC 613, S. 5 & Sched.—Suit for recovery of maintenance allowance and dower by wife—Quantum of maintenance allowance—Scope—Entry in Nikahnama— Presumption of truth—Scope—Stipulation in Column No. 17 of Nikahnama; undertaking by husband to give residential house to the wife—Effect— Deferred dower—Scope—Petitioner/wife contended that Appellate Court had wrongly awarded her maintenance allowance lesser than the amount already incorporated in Column No.20 of the Nikahnama—Wife also claimed 5-marlas house as per stipulation in Column No. 17 of Nikahnama —Husband contended that Appellate Court had rightly set aside decree in favour of wife regarding the house as only civil suit could be filed regarding such stipulation in the Nikahnama—Validity—Record revealed that both the parties with their consent, even prior to the accrual of dispute regarding quantum of maintenance, had settled maintenance allowance @ Rs. 5000/- per month—Courts below had not, while fixing maintenance allowance for  ———————————————————————————-COURT OF BALOCHISTAN the wife, taken into consideration said vital condition—Husband was bound by self-imposed condition—Neither any valid reason had been pleaded nor existed to depart from such condition–Observation of the Appellate Court regarding stipulation of house in the Nikahnama, was not in consonance with law as per entries against Column No. 17 of exhibited Nikahnama, husband had agreed to give 5-marla residential house to the wife and under the law, presumption of truth was attached to the entries of Nikahnama— Wife was entitled to recover said house from the husband as dower/gift, however, admittedly, the marriage between the parties still existed whereas said stipulation of Nikahnama was to be treated as deferred dower so the wife would be entitled to recover said house on dissolution of marriage either in case of death or divorce by the respondent/husband—High Court modified the impugned decrees and judgments and wife was held entitled to recover maintenance allowance @ Rs.5,000/- per month with 10% annual increase and she would also be entitled to recover 5-marla residential house as deferred dower in case of dissolution of marriage, on death or divorce— Constitutional petition was allowed accordingly. Citation Name: 2018 CLCN 52 LAHORE-HIGH-COURT-LAHOREBookmark this Case MUHAMMAD ASHRAF VS ADDITIONAL DISTRICT JUDGE S.5 & Sched.—Suit for maintenance allowance and recovery of dower by wife- –Gold ornaments in lieu of dower and maintenance allowance were incorporated in Nikahnama—Entries of Nikahnama—Effect—Husband, who had divorced the wife contended that no dower was outstanding and he had been paying maintenance allowance to her so findings of the courts below were illegal—Wife (divorcee) contended that he had expelled her from his house after physical torture and had usurped her gold ornaments in lieu of dower—Marriage between the spouses was admitted and Nikahnama had been produced by the lady in evidence, wherein a condition had been imposed on the man that he would pay Rs. 4000/- per month to  ———————————————————————————-COURT OF BALOCHISTAN the wife as maintenance allowance—Lady had categorically deposed that she remained in the house of petitioner for 11 months and after that she was divorced—Man though had averred that she had never been deprived of maintenance allowance but nothing had been produced on the record to establish that she was ever provided maintenance and the Family Court had lawfully held the plaintiff entitled to receive maintenance allowance at the rate of Rs.4000/- per month from date of marriage till legally debarred—Lady had also averred in suit that five tolas gold was fixed as dower and the said gold ornaments were still in possession of the ex-husband and such claim was also supported by herself and her witnesses—On the other hand, exhusband though had claimed that no dower was outstanding against him, however, exhibited Nikahnama which specifically stipulated that he had to pay five tolas of gold ornaments within two years as Ghair-Moajjal dower— Ex-husband had conceded in his statement that he had not paid any dower nor any maintenance allowance was paid by him to the ex-wife—Family Court had rightly held that in addition to maintenance allowance the lady was entitled to five tolas gold ornaments—No illegality or infirmity having been noticed, constitutional petition was dismissed accordingly. Citation Name: 2018 CLCN 2 LAHORE-HIGH-COURT-LAHOREBookmark this Case QASIM RAZA VS ADDITIONAL DISTRICT JUDGE MAILSI DISTRICT VEHARI S. 6(5)(a)—Family Courts Act (XXXV of 1964), S. 5 & Sched.—Suit for recovery of maintenance allowance and dower by wife—Allegation of wife was that Husband had contracted second marriage without her consent—Wife claimed recovery of dower incorporated in Nikahnama—Condition incorporated in Nikahnama—Scope—Payment of dower in case of second marriage by husband—Scope—Petitioner(husband) contended that both courts below had wrongly decreed the suit of respondent (wife) regarding recovery of gold ornaments and a house incorporated in Nikahnama as marriage was not dissolved—Respondent (wife) contended that under  ———————————————————————————-COURT OF BALOCHISTAN condition No.13 of Nikahnama, she was liable for decree of gold ornaments and the house in case of second marriage of husband—Validity—Decree had been passed in favour of the respondent (wife) as deferred dower and, admittedly, the marriage still persisted between the parties—Contention of the petitioner (husband) was that deferred dower would be payable only in the eventuality of dissolution of marriage, death of husband or divorce—Case of respondent (wife) was that petitioner had contracted marriage without her permission during subsistence of earlier marriage which version had not been controverter by petitioner in the statement recorded in the trial court– -Section 6(5)(a) of Muslim Family Laws Ordinance, 1961 stipulated that husband who contracted second marriage during the subsistence of earlier one, without the permission of the Arbitration Council was liable to pay entire amount of dower either prompt or deferred–No illegality or irregularity having been found, constitutional petition was dismissed. Citation Name: 2018 CLCN 84 KARACHI-HIGH-COURT-SINDH Bookmark this Case KAMRAN BHUTTO VS Mst. FARSA MANZOOR 2003 YLR 365, 2010 YLR 2325, 2013 YLR 1509, 2016 MLD 425, PLD 2011 Lahore 569, S. 5 & sched.—Suit for dissolution of marriage, recovery of dower and dowry articles—Territorial jurisdiction— Concealment of fact by the party—Effect—Petitioner/ex-husband contended that Family Court had no jurisdiction to adjudicate the matter as respondent/ex-wife was not permanent resident of territorial jurisdiction of the Family Court–Respondent contended that petitioner had concealed the fact that Family Court had dismissed his stance regarding jurisdiction after framing preliminary issue—Validity—Petitioner had concealed the order passed by the Family Court with respect to jurisdiction—Issue of territorial jurisdiction was dealt appropriately by the Family Court and the same had  ———————————————————————————-COURT OF BALOCHISTAN also been addressed in detail by the Appellate Court in appeal and, admittedly, order in appeal was not assailed by the petitioner, thus, the same had attained finality—Impugned judgments were not only in consonance with law but the conduct of petitioner before the High Court disentitled him from any discretionary relief—No illegality or infirmity having been noticed in impugned order passed by the two Courts below, constitutional petition was dismissed accordingly. Citation Name: 2018 CLCN 14 KARACHI-HIGH-COURT-SINDH Bookmark this Case Malik AMEER KHAN VS CIVIL JUDGE/FAMILY JUDGE-XVI, KARACHI SOUTH S. 5, Sched. Ss. 12 & 17-A—Civil Procedure Code (V of 1908), S. 12(2)—Suit for dissolution of marriage, recovery of dower amount, dowry articles and maintenance allowance of minor—Execution proceedings—Ex parte decree- -Scope—Plea of having no knowledge of proceedings—Scope—Delaying tactics of judgment-debtor—Effect— Petitioner contended that he was unaware of the proceedings before Family Court and that he had appeared before the Family Court wherein his defence was struck off for non-deposit of ad interim maintenance allowance of the minor–Record showed that suit was filed by the respondent in the year 2007 which was partly decreed to the extent to grant of Khula and later the suit was decreed and execution application, filed in the year 2013, was ultimately allowed by the Family Court after eight years of filing the suit—Perusal of the counter affidavit by respondent revealed that she had categorically denied the contention of the petitioner regarding his unawareness about the proceedings—Record revealed that petitioner appeared before the Family Court with his counsel on several dates and filed his written statement and was also present at the time of pre-trial proceedings between the parties, thus the petitioner was aware about the proceedings of the suit right from its inception—Contention of the petitioner,  ———————————————————————————-COURT OF BALOCHISTAN therefore, was patently absurd, which adversely reflected upon his conduct, who by filing the application to delay the satisfaction of the decree, and to deprive his ex-wife and his son of the fruits of decree, which included right of maintenance of the said minor—No illegality or infirmity having been found in the impugned order, constitutional petition was dismissed accordingly. Citation Name: 2018 MLD 454 ISLAMABAD Bookmark this Case Major ANEES-UR-REHMAN VS ADDITIONAL DISTRICT JUDGE, ISLAMABAD S. 5 & Sched.—Suit for recovery of dower and dowry articles—Allegation by wife of snatching gold ornaments— Paying the price of gold ornaments and dowry articles through local commission—Scope—Objections by ex-wife to the report of local commission- –Effect—Petitioner/ex-husband contended that Appellate Court had wrongly granted decree of gold ornaments allegedly snatched as he had paid the amount to respondent/ex-wife in lieu of gold ornaments (dower) and the discrepancies in the dowry articles—Respondent/ex-wife contended that gold ornaments snatched by her ex-husband were not included in the said amount so Appellate Court had rightly decreed the same– Respondent/ex-wife in her evidence did not describe that the gold ornaments were snatched from her by the respondent and failed to produce the receipts of the 07 tolas of gold ornaments which she claimed to have been given by her parents—Held, that simply because no payment had been made by the petitioner/ex-husband for the 07 tolas of gold ornaments, the allegation as to snatching of gold ornaments stood proved—Even if it was assumed that the gold ornaments were snatched by the ex-husband from the ex-wife, the fact remained that according to the report of the local commission the dowry articles (with some discrepancies) were returned by the ex-husband through her brother–Said dowry articles included the gold ornaments in the list submitted by the ex-husband as well as the list she submitted—Report of local commission, did not find mention of the  ———————————————————————————-COURT OF BALOCHISTAN discrepancies relating to the gold ornaments—In lieu of the discrepancies, Rs.84,000/- had been paid by the ex-husband—Had the discrepancies in the dowry articles handed over by ex-husband been referable to the gold ornaments, she would have certainly filed objections to the report of local commission—Since ex-wife had not taken any objection to the report of local commission, such fact disentitled her to assert that she had not received the gold ornaments mentioned in the list of dowry articles–Appellate Court had misread the evidence on record, judgment and decree passed by the said court was set aside–Judgment and decree passed by the Family Court was restored by the High Court—Constitutional petition was allowed accordingly. Citation Name: 2018 CLC 1337 ISLAMABAD Bookmark this Case Syeda MEHWISH VS ADDITIONAL DISTRICT JUDGE, ISLAMABAD (WEST) S. 5, Sched. & S. 10(4)—Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), Ss. 2(a) & 5—Dissolution of marriage on the basis of khula—Suit for recovery of gold ornaments by ex-husband—Personal property and belongings of wife—Scope—Question as to jurisdiction of Family Court or civil court—Bridal gifts—Scope–Petitioner/ex-wife contended that only Family Court had exclusive jurisdiction to entertain and adjudicate upon “Personal property and belongings of wife ” being one of the nine subjects/items in the Schedule of the Family Courts Act, 1964—Respondent/ex-husband contended that he moved the civil court in wake of the judgment passed by the Family Court when petitioner moved the civil court for dissolution of marriage—Validity—All gifts (not limited to bridal gifts) given to wife during the subsistence of the marriage became her personal property and belongings, therefore, a suit with respect to personal property and belongings of wife was to be filed before a Family Court– Conjoint reading of Ss. 2(a) & 5 of Dowry and Bridal Gifts (Restriction) Act, 1976 showed that presents and gifts given to the bride at or after marriage by the bridegroom or his parents absolutely vested in bride—Bridal gifts  ———————————————————————————-COURT OF BALOCHISTAN given by a husband were the absolute property of wife and could not be taken away from her—Bride could always recover the articles of bridal gifts, wari, and presents given to her by bridegroom or his family at the time of marriage–However, husband would be well within his rights to institute a suit for recovery of gifts from the wife which were given to her in lieu of dower and entered as such in the Nikahnama—Admittedly, in the present case, gold ornaments the recovery whereof was sought by the husband were not given in lieu of dower but as gifts—Previously, petitioner ex-wife had obtained decree for dissolution of marriage on the basis of khula, consequently, she would be bound to return the haq Mahr/dower (as specified in the Nikahnama) received by her from the husband—Under the proviso to subsection (4) of S. 10 of the Family Courts Act, 1964, Family Court could pass decree for dissolution of marriage and restore Haq Mehr received by wife in consideration of marriage—Wife was not required to return the gifts to the husband when decree for dissolution of marriage was passed—- Family Court committed a jurisdictional error by holding that wife having obtained decree for dissolution of marriage on the basis of Khula, was bound to return the gifts received from husband at the time of marriage—High Court set aside the judgments and decrees passed by the Appellate Court as well as civil court—Revision petition was allowed accordingly. Citation Name: 2018 PLD 25 HIGH-COURT-AZAD-KASHMIR Bookmark this Case SABA YASIR VS SENIOR CIVIL JUDGE, MUZAFFARABAD 1995 CLC 1102, 1997 SCMR 323, 2002 SCMR 1950, 2016 MLD 1430, PLD 1960 Kar. 594, PLD 1966 SC 88, PLD 1969 Kar. 109, PLD 2003 Pesh. 63, Ss. 13 & 17—Civil Procedure Code (V of 1908), Ss. 46, 13, 14 & 2 (5)(6)—Family Courts Act (XXXV of 1964), S. 5, Sched. & S.13—Suit for recovery of maintenance allowance and dower— Execution of decree of Pakistan (foreign) Court in Azad Jammu and Kashmir-  ———————————————————————————-COURT OF BALOCHISTAN –Scope—Suit was filed before Family Court in Pakistan which was contested by the defendant-husband and was decreed—Wife-decree-holder moved application before Family Court for sending precept to Family Court in Azad Jammu and Kashmir for execution of said decree which was allowed—Family Court in Azad Jammu and Kashmir returned the said execution petition with the observation that decree passed by Foreign Courts could not be executed in Azad Jammu and Kashmir—Validity—No procedure for execution of a foreign decree had been provided in S. 13 of Azad Jammu and Kashmir Family Courts Act, 1993—Family Court could exercise inherent powers in such circumstances in the interest of justice—Decree passed by the Family Court was to be executed either by the Court passing it or by any other Civil Court as directed by District Judge—Powers to execute said judgment/decree provided in Civil Procedure Code, 1908 in such situation could be followed by the Family Court—Court upon application of decreeholder might issue precept to any other Court which was competent to execute such decree—Precept, in the present case, was sent to District Judge in Pakistan in order to forward the same to the concerned Court at Muzaffarabad—District Judge had been empowered to direct any other civil Court for execution of a decree—District Judge in Pakistan while sending precept to the District Judge in Azad Jammu and Kashmir followed the relevant law and did not commit any illegality—Courts in Pakistan were foreign Courts and Azad Jammu and Kashmir was a foreign territory— Judgments/decrees passed by Pakistan Courts could be executed in Azad Jammu and Kashmir under S.13 of Civil Procedure Code, 1908—Foreign decree could be executed when defendant appeared in foreign Court and pleaded to the merits of case and submitted to the jurisdiction of said Court voluntarily—Judgment-debtor, in the present case, appeared before the foreign Court voluntarily—Defendant now could not be allowed to turn around and impeach the judgment and decree on the ground of incompetency of the Court passing it when same was sought to be enforced in another country—Impugned order passed by the Family Court in Azad Jammu and Kashmir was set aside and it was directed to continue the proceedings of execution of decree—Writ petition was allowed accordingly.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2018 PLD 1 FEDERAL-SHARIAT-COURT Bookmark this Case MUHAMMAD HASSAN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Human Rights of Pakistan, Islamabad S. 8—Khula—Pre-requisites—Return of dower—Dissolution of marriage by way of Khula was always and invariably subject to return of dower, unless waived off by the husband as a matter of grace. Citation Name: 2017 YLR 2481 SHARIAT-COURT-AZAD-KASHMIR Bookmark this Case MOHAMMAD SAJJAD VS NEELUM SHAHEEN S. 5, Sched.—Marriage was dissolved on the basis of khula in consideration of deferred dower—Validity—Once wife had claimed khula, she had to return what she received as dower or she could make any offer to give something to her husband as ‘badl-e-khula’—Family Court, in the present case, had fixed the consideration of khula the surrender of her right to recover the deferred dower—No illegality had been committed by the Family Court in circumstances—Even otherwise wife was entitled for deferred dower when husband divorced her—Wife was not divorced in the present case by the husband rather their marriage was dissolved by the Court on the ground of khula which was claimed by wife—Once wife demanded the deferred dower from her husband even before divorce, it would become payable and could be treated as prompt dower—Right of deferred dower of wife had been accepted as consideration for khula in the present case—No prejudice had been done to the wife in circumstances—Appeal was dismissed in circumstances. Citation Name: 2017 MLD 1677 SHARIAT-COURT-AZAD-KASHMIR Bookmark this Case  ———————————————————————————-COURT OF BALOCHISTAN Syed SHOUKAT GILLANI VS Mst. ANSAR GILLANI dower—dower could either be prompt or deferred—Prompt dower was either paid at the time of Nikah or was payable at the demand of wife whereas deferred dower was payable when marriage was dissolved between the spouses because of divorce or death of husband. Citation Name: 2017 MLD 1677 SHARIAT-COURT-AZAD-KASHMIR Bookmark this Case Syed SHOUKAT GILLANI VS Mst. ANSAR GILLANI S. 5, Sched.—Dissolution of marriage on the basis of Khula—Scope—Concept of marriage in Islam was to commence a marital life within the limits ordained by Allah—Marriage required mutual trust and understanding between the spouses—If a partner had lost trust in her counterpart then spouses could not live within the limits fixed by Shariah—In the present case, house fixed as prompt dower was never transferred in the name of wife—Payment of gold ornaments was not proved from the evidence of husband—No chance for rehabilitation existed between the parties as spouses—Court below had no option but to dissolve the marriage on the basis of khula—Decree for dissolution of marriage on the basis of khula had rightly been passed by the Court below—Wife was entitled to dissolution of marriage on the basis of khula in lieu of house fixed as dower—Appeal was dismissed in circumstances. Citation Name: 2017 CLC 214 SHARIAT-COURT-AZAD-KASHMIR Bookmark this Case ABDUL HAMEED KHAN VS SAKEENA BEGUM 1987 SCMR 1161, 1988 CLC 1644, 1988 CLC 1645, 1995 SCMR 1720, 2016 MLD 618, PLD 1968 Lah. 987, PLD 1978 Lah. 716,  ———————————————————————————-COURT OF BALOCHISTAN Ss. 5, Sched., 14 & 15—Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982, Rr.40 & 41—Suit for recovery of dower amount and maintenance allowance—Appeal without affixing court-fee on memo. of appeal—Two suits, one for recovery of dower amount, and the other for maintenance allowance were decreed by the Trial/Family Court; defendants feeling dissatisfied from the judgment of the Family Court filed appeal, without affixing court-fee on the memo. of appeal—Objection was raised regarding maintainability of appeal without affixing court-fee–Validity— Under S.14 of Azad Jammu and Kashmir Family Courts Act, 1993 right of appeal was provided to an aggrieved person from a decision or decree passed by a Family Court—No specific procedure for filing appeal was provided in the Act—Constitution of Shariat Court and procedure for filing of appeals and other proceedings before the Shariat Court, was provided under Azad Jammu and Kashmir Shariat Court Act, 1993—For regulating procedure of the Act, Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 had been enforced; which dealt with form and contents of appeal and its presentation, and no court-fee was required on those appeals- –Provisions of the Court Fees Act, 1870, were applicable to the proceedings before the Shariat Court to the extent of Rr.40 & 41 of the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982—Fixation of court-fee on the memo of appeal and other documents, had been impliedly excluded—Family Court, though was a civil court, but plaint before such court, was exempted from the court-fee under S.19 of the Azad Jammu and Kashmir Family Courts Act, 1993—No court-fee was required to be paid on the memo of appeal, in circumstances. Muhammad Imtiaz Khan v. Shakeela Zafeer and another 2016 MLD 618 overruled. Citation Name: 2017 YLRN 218 SHARIAT-COURT-AZAD-KASHMIR Bookmark this Case WALAYAT HUSSAIN VS IQRA KIRAN  ———————————————————————————-COURT OF BALOCHISTAN S. 5 & Sched.—Suit for recovery of dower and maintenance—Nikah without Rukhsati and consummation of marriage–Effect—Payment of dower—Scope- –Petitioner/defendant (husband) contended that Nikah was solemnized without his consent at gun point and dower amount was also written accordingly—Petitioner/ defendant submitted that he never visited house of parents of plaintiff/respondent (wife) for consummation so she was not entitled for recovery of deferred dower amount—Plaintiff/respondent contended that she performed matrimonial obligations at her parents’ house and whole deferred amount must be paid to her as defendant had suddenly divorced her—Plaintiff submitted that Rukhsati could not take place because husband did not fulfill settled condition to provide her gold ornaments and other articles—Validity—No proof on the file was available on the basis of which it could be said that the Nikah was solemnized on gun point, however, from the perusal of evidence it became crystal clear that the Nikah was not solemnized in pleasant atmosphere either on the point of determination of dower or on the issue of gold ornaments–However, Nikah of the spouses was proved and the dower of Rs. 5,00,000/- was also proved—Contention of defendant was that Rukhsati did not take place hence, the marriage was not consummated, though the witnesses of plaintiff stated in their statements that defendant several times came to the house of plaintiff and the plaintiff in her statement also stated the same fact and deposed that she continued performing matrimonial obligations but mere on the oral statements, in the circumstances when the Rukhsati was not taken place it could not be said that the marriage was consummated because it was proved from the evidence produced by the parties that Nikah was not solemnized in a pleasant atmosphere—Wife was entitled to the dower fixed at the time of Nikah, however, in accordance with the Sharia if the marriage was not consummated, the wife was entitled for only half the dower— Consummation of marriage was not proved therefore, the plaintiff/respondent was entitled only half of the dower amount which was Rs. 2,50,000/—Admittedly the Nikah was solemnized and the plaintiff remained wife of the defendant for two months and being husband he was duty bound to pay her maintenance for said period and that of iddat—If the  ———————————————————————————-COURT OF BALOCHISTAN stance of the defendant that the Nikah was solemnized at gun point was accepted even then he might divorce her forthwith after departure from the house of plaintiff, therefore, the plaintiff was entitled to the maintenance allowance for the period she remained wife of the defendant and for Iddat period—Appeal was partly accepted. Citation Name: 2017 YLRN 149 SHARIAT-COURT-AZAD-KASHMIR Bookmark this Case Mst. NAZMEEN AKHTER VS LAL KHAN S. 5, Sched—Dissolution of marriage on the basis of khula’—Scope—Decree for dissolution of marriage was passed on the basis of khula against consideration of dower amount—Contention of plaintiff-wife was that ornaments had been snatched away by the defendant-husband—Validity— Plaintiff-wife had not filed any suit for recovery of ornaments—Plaintiff-wife had failed to prove her stance with regard to snatching away ornaments— Spouses could not be forced to a life devoid of harmony and happiness—If parties could not live together within the limits ordained by Almighty Allah then the proper course would be separation—Plaintiff-wife could not point out any fault of defendant-husband to populate her—No possibility for reunion of spouses existed in the present case—If husband was not at fault then there had to be restoration of whole property received by the wife— Family Court might take into consideration reciprocal benefits received by the husband and direct a partial or total restoration of benefits received by the wife—No illegality had been committed by the Family Court while dissolving the marriage on the ground of khula against consideration of dower/ornaments—Appeal was dismissed in circumstances. Citation Name: 2017 CLCN 105 SHARIAT-COURT-AZAD-KASHMIR Bookmark this Case  ———————————————————————————-COURT OF BALOCHISTAN SHER MUHAMMAD AZAD VS ASHKAR JAN S. 5 & Sched.—Suit for dissolution of marriage, recovery of dower and maintenance—Oral divorce—Husband’s suit for restitution of conjugal rights- –Entitlement of outstanding dower and maintenance—Scope— Appellant/husband contended that allegation of cruelty and maltreatment by wife were baseless and he was ready to continue the marriage— Wife/respondent contended that she was divorced orally by the appellant so she had right to receive remaining unpaid dower—Wife/respondent claimed maintenance allowance also—Validity—Record revealed that Nikah of the spouses was solemnized in lieu of dower Rs. 2,50,000 out of which Rs. 50,000 was paid promptly and Rs. 2,00,000 was deferred by husband—Wife sought dissolution of marriage on the basis of cruelty and “oral divorce”; she produced only one witness in support of her claim who deposed that respondent told him that her husband had divorced her—Said witness did not say anything regarding maltreatment with the respondent—Respondent also got recorded her statement before the Court and stated that she went to her parents’ home out of her will and admitted that appellant tried to continue with the marriage but she refused because he had divorced her— Respondent also stated that she did not want to stay with appellant at any cost—Respondent deposed that behaviour of appellant was good during the period she remained his wife—Factum of oral divorce and maltreatment was not proved from the statement of respondent as well as her witness— Evidence produced by the husband proved that wife went to the home of her parents out of her free will and refused to stay with the husband despite his hectic efforts—If wife refused to live with her husband and left the house of husband, she was not entitled to maintenance as it was proved through evidence that she had left the house of appellant without any reason and refused to perform her matrimonial obligations despite efforts on the part of appellant—Respondent having refused to live with the appellant, therefore, she could not be compelled to live or surrender conjugal rights—Appellant (husband) having admitted that Rs. 2,00,000 was outstanding which was also proved from evidence produced by the parties—Admitted facts need not  ———————————————————————————-COURT OF BALOCHISTAN to be proved–Shariat Court (AJ&K) granted decree of dissolution of marriage in favour of respondent on the basis of Khula, resultantly she would not claim remaining amount of dower of Rs. 2,00,000—Suit for maintenance as well as suit for restitution of conjugal rights were dismissed—Appeals were disposed off accordingly. Citation Name: 2017 CLC 758 SUPREME-COURT-AZAD-KASHMIR Bookmark this Case TANVEER ASLAM DAR VS Mst. RASHIDA S. 5, Sched—Suit for recovery of dower—Scope—Nothing was on record to show the handing over of dower to the wife—Husband admitted that the ornaments given in lieu of dower had been taken from the wife by him—Trial Court had ignored the material aspect while appreciating the evidence on record—Husband had failed to prove that dower was paid or satisfied— Whole amount of dower was unsatisfied—Suit for recovery of dower was rightly decreed in circumstances—Appeal was allowed accordingly. Citation Name: 2017 CLC 234 SUPREME-COURT-AZAD-KASHMIR Bookmark this Case MUHAMMAD SAJID VS Mst. SAJIDA RASHEED S. 5, Sched.—Suit for recovery of dower—Once dower was paid and subsequently snatched by the husband, wife could not file suit under Azad Jammu and Kashmir Family Courts Act, 1993 for recovery of dower—Family Court had no jurisdiction to entertain such a suit—Suit to the extent of recovery of dower allegedly snatched by the husband was not maintainable- –Suit was maintainable to the extent of deferred amount of dower—Decree of Family Court and Shariat Court were modified and plaintiff was declared entitled for deferred amount of dower—Appeal was partially allowed accordingly.  ———————————————————————————-COURT OF BALOCHISTAN Citation Name: 2017 CLCN 101 SUPREME-COURT-AZAD-KASHMIR Bookmark this Case MUKHTAR HUSAIN VS FARHAT BIBI S. 5 & Sched.—Suit for dissolution of marriage, recovery of dower and dowry articles and maintenance—Settlement of family matters under agreement/Jirga long time ago—Limitation—Raising of matter at appropriate forum—Scope–Plaintiff contended that dower amount of only R. 10,000 was paid to her and she was entitled to get remaining amount of Rs. 40,000 as promise of transfer of land by the defendant in lieu of remaining amount was not fulfilled–Plaintiff submitted that the defendant was liable to give maintenance of minor daughter under her custody—Defendant contended that claim of recovery of dower was time-barred and submitted that custody of minor daughter to the plaintiff under agreement was given with the condition that no claim of maintenance would be sought—Validity–Family court had rightly found that plaintiff was divorced long time ago, therefore, the question of dissolution of marriage did not arise—Contention of the defendant that the suit for dower was time-barred, was devoid of any force- -Record of Trial Court revealed that in the light of the pleadings of the parties, issues were framed but there was no issue on the question of limitation— Perusal of the judgment under appeal further revealed that the point of limitation had not been taken before the Shariat Court—Question which had not been raised before the Family Court or the Shariat Court could not be allowed to be raised for the first time before the Supreme Court—If the question was argued but had not been decided by the Shariat Court, then it was the duty of the party to file affidavit stating therein that the question was raised before the Shariat Court but escaped the notice of the Court, only in such an eventuality, the question could be taken up by the Supreme Court– -No such course had been adopted by the appellant, therefore, Supreme Court declined to disturb the findings recorded by the Family Court as well was Shariat Court on the point–Shariat Court had enhanced the amount suo motu, without any appeal or appropriate proceedings, which was not  ———————————————————————————-COURT OF BALOCHISTAN permissible in law—Judgment of Shariat Court stood modified to the extent that minor daughter would be entitled only maintenance allowance as decreed by Family Court—Appeal was partly accepted accordingly. Citation Name: 2017 SCMR 608 SUPREME-COURT Bookmark this Case Sardar ARSHID HUSSAIN VS Mst. ZENAT UN NISA 1999 SCMR 837, 2004 SCMR 530, S. 53-A—Registration Act (XVI of 1908), S. 50(1)—Immoveable property—Rival claimants—‘Unregistered sale/dower deed’ and ‘registered gift deed’ in respect of same property—Circumstances in which unregistered sale deed could be given preference over registered deed—Although a registered deed reflecting transfer of certain rights qua a property had sanctity attached to it regarding its genuineness, and strong evidence was required to cast aspersions on its correctness but it could not be given preference over an unregistered deed vide which physical possession of the property had also been given—Section 50(1) of the Registration Act, 1908 also provided that a registered document regarding transfer of certain rights in an immovable property would have effect against every unregistered document relating to the same property and conferring the same rights in the property as shown in the registered document but the law had also provided certain exceptions- –Where a person in favour of whom an unregistered deed qua transfer of certain rights in property had been executed, also had possession of the property, he could legally protect his rights in the property and even a registered deed subsequent in time would not affect his/her rights—First proviso to S. 50 of the Registration Act, 1908 provided that such rights in the property could be protected under S. 53-A of the Transfer of Property Act, 1882—Claimant/wife in whose favour property was transferred vide unregistered sale in lieu of dower was also given possession of the same— Report of the Forensic Science Laboratory also confirmed the signatures of her husband/transferor on the said deed—Irrespective of the fact that the rival claimants/petitioners had a registered gift deed in their favour, the same  ———————————————————————————-COURT OF BALOCHISTAN was subsequent in time to the unregistered deed and petitioners had no possession of the property, thus, they could not get any advantage of the same—Besides, the petitioners had claimed the gift in their favour vide the registered deed but the basic ingredients of gift i.e. offer, acceptance and delivery of possession had not been proved by them—Petition for leave to appeal was dismissed accordingly. Citation Name: 2017 YLR 2349 QUETTA-HIGH-COURT-BALOCHISTAN Bookmark this Case KHUDAI NOOR VS DISTRICT JUDGE, PISHIN S. 5 & Sched.—Family Courts Rules, 1965, R. 4—Civil Procedure Code (V of 1908), O. VI, Rr. 14 & 15—Suit for dissolution of marriage, recovery of dowry articles, dower and maintenance—Allegation of cruelty—Scope—Dower amount still outstanding—Non-affixation of thumb impression or signature of the plaintiff on the plaint and affidavit–Effect—Petitioner (husband) contended that earlier arbitrator was appointed who decided that dowry articles in possession of either party would deem to be property of respective party and that the respondent (wife) had failed to prove that dower amount was outstanding—Petitioner objected that signature or thumb impression was not affixed by the respondent on the plaint and affidavit, thus her claim was liable to be dismissed—Respondent contended that two courts below had rightly passed judgment and decree in her favour—Validity—Petitioner was mainly aggrieved from the judgment and decree to the extent of dower amount, dowry articles and maintenance allowance—Question before High Court was whether respondent was entitled for dower amount, dowry articles and maintenance allowance since her departure from the house of petitioner—Held, as far as objection of the petitioner regarding maintainability of the suit with regard to non-affixation of thumb impression of the plaintiff on the plaint and affidavit was concerned, though in crossexamination respondent had admitted that she had not affixed thumb impression on the plaint and affidavit but in this regard the language of R. 4  ———————————————————————————-COURT OF BALOCHISTAN of Family Courts Rules, 1965, requiring the signing, verification and presentation of the plaint was identical to the provisions of Rr.14 & 15 of O. VI, C.P.C.—Any omission or irregularity in the signing and verification of the pleadings, and presentation of the plaint was rectifiable at a subsequent stage–Plaint could not be rejected and a suit could not be dismissed for any of the irregularities in performing certain acts–Omission or mistake to sign the pleadings was merely an irregularity and could be cured/rectified subsequently at any stage—No dispute existed between the parties in respect of fixation of dower of Rs. 4,80,000/- at the time of marriage, because in the statement of petitioner before the Trial Court and one of his witnesses had specifically stated that Haq Meher was fixed Rs. 4,80,000/- and also maintained the same during cross-examination, so the findings of courts below regarding dower amount were in accordance with law—Plaintiff though had failed to place on record any list or receipt of dowry articles but the petitioner during cross-examination had admitted certain dowry articles which were brought by the respondent at the time of marriage so the findings of the courts below were in accordance with law–Respondent wife had alleged cruelty and also urged that she was expelled by the defendant from his house in her own wear and since then she was residing with her parents—Two witnesses fully supported the statement of respondent, she therefore established the cruelty on the part of her husband—Cruelty was not limited to physical beating rather that could be either mental or even by conduct, so, when wife was abused, misbehaved and disrespected that was also “cruelty” and on the basis thereof she might refuse to live with her husband and was entitled to the maintenance allowance—Plea of husband that she left the house of her own was not understandable as how a wife having one child could adopt such an irresponsible behavior—Muslim wife was entitled to get maintenance as of right from her husband—Plaintiff had attained the status of wife more than a decade ago before filing the suit— Divorce effected by Khula operated as a release did not effect the liability of husband to maintain the wife during her Iddat—Even if Rukhsati had not taken place the wife was entitled to have maintenance from her husband during subsistence of marriage—No illegality or irregularity having been  ———————————————————————————-COURT OF BALOCHISTAN found by the High Court in the impugned judgments, constitutional petition was dismissed accordingly. Citation Name: 2017 YLR 1481 QUETTA-HIGH-COURT-BALOCHISTAN Bookmark this Case TANIA NASEER VS MUHAMMAD ZUBAIR 1991 CLC 1696, 2008 SCMR 186, Dowry and Bridal Gifts (Restriction) Act 1976–2 , The Family Courts Act 1964- -7 , The Family Courts Act 1964– SCHEDULE , S. 7 & Sched.—Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S.2(a)– -Dissolution of marriage on basis of khula—Return of bridal gifts to husband- –Scope—Petitioner/Ex-wife got decree of dissolution of marriage on the basis of khula in consideration of her unpaid dower amount and contended that anything given by husband was to be considered as bridal gifts which were not liable to be recovered—Respondent (ex-husband) contended that gold ornaments, clothes and shoes given by him to the petitioner were returnable on dissolution of marriage—Validity–Section 2(a) Dowry and Bridal Gifts (Restriction) Act, 1976 defined ‘Bridal gift’; ‘dowry’ and ‘present’ which showed that the articles of ‘dowry’, ‘bridal gifts’, ‘presents’ or all other movable property were the belongings of bride—Bridal gifts given by husband were absolute property of wife and could not be snatched from her—Under the Sharia, the marriage between a man and a woman could be dissolved on the basis of Khula, for which some consideration which was in the form of dower which the wife was entitled to receive at the time of marriage or on demand was to be forgiven—In the present case, only certain amount was mentioned in Column No. 13 of the Nikah Nama as dower money, however, there was no mention of gold ornaments therein— Consideration for marriage was dower amount which had not been paid to the wife—Petitioner (wife) had waived her dower amount in consideration  ———————————————————————————-COURT OF BALOCHISTAN of Khula which was enough—Appellate Court had failed to consider such aspect of the case which was an illegality—Marriage on the basis of Khula could be dissolved on the basis of dower mentioned in the column No. 13 of the Nikahnama—Constitutional petition was accepted accordingly. Citation Name: 2017 YLR 275 QUETTA-HIGH-COURT-BALOCHISTAN Bookmark this Case MUHAMMAD KALEEMULLAH VS Mst. REHANA NASEER PLD 2010 SC 582, PLD 2016 SC 613, S. 5, Sched.—Suit for recovery of dower, dowry articles and maintenance allowance— Receipts / documentary evidence were received by the Trial Court in the statement of plaintiff—Appellate Court had not considered as to whether said receipts could have been allowed to be produced by the plaintiff in her statement and were admissible under the law—Impugned judgment and decree passed by the Appellate Court were set aside and case was remanded to the Appellate Court for decision on merits after providing an opportunity of hearing to the parties within a specified time— Constitutional petition was allowed in circumstances. Citation Name: 2017 CLC 35 QUETTA-HIGH-COURT-BALOCHISTAN Bookmark this Case AMANULLAH VS SADIA SHAH West Pakistan Family Court Act 1964–5 , West Pakistan Family Court Act 1964–SCHEDULE , S. 5, Sched.—Suit for recovery of dower amount and maintenance of wife and daughter—Plea of the husband, was that he had paid amount of dower in the shape of property—Trial Court, found that wife was not entitled for dower amount as the husband had proved that he had paid said amount to  ———————————————————————————-COURT OF BALOCHISTAN her in the shape of property—Appellate Court below reversed the findings of the Trial Court—Validity—Wife had herself admitted that property in question had been transferred in her name which fact had been mentioned in the divorce deed—Findings of the Trial Court had been discarded by the Appellate Court below on the ground that no evidence was available on record to show that the amount of dower was paid to the plaintiff, as divorce deed was not produced or exhibited—Findings of the Appellate Court below were based on misconstruction of evidence—Factum of divorce through divorce deed, arrived at between the parties, was neither in dispute, nor contents thereof, were under cloud—Question of non-exhibiting of divorce deed in evidence, would not affect the right of the party, as it was an admitted document—Non-production of divorce deed through evidence, would not change the admitted facts between the parties and it could be concluded that property was transferred in lieu of dower amount—Findings of Appellate Court, were reversed and that of the Trial Court, were upheld, in circumstances—Maintenance of daughter, which had been fixed by the Trial Court having not been assailed were not disturbed—Findings of the Appellate Court below that daughter of the plaintiff, was entitled for maintenance till attaining the age of majority, was not proper as daughter was entitled for maintenance till her marriage—Issue of maintenance of daughter was modified accordingly. Citation Name: 2017 YLR 1514 PESHAWAR-HIGH-COURT Bookmark this Case Mst. NOSHEEN BIBI VS ZIAULLAH 1998 SCMR 133, The Family Courts Act 1964–5 , The Family Courts Act 1964–SCHEDULE , S. 5, Sched.—Suit for dissolution of marriage and recovery of dower—Wife filed suit for dissolution of marriage on the basis of oral Talaq and recovery of dower—Family Court dissolved marriage on the basis of khula with the  ———————————————————————————-COURT OF BALOCHISTAN direction to the wife to return already received five Tola gold as dower to the husband—Contention of wife was that husband had snatched gold ornaments from her—Validity—Wife had failed to prove that husband had already divorced her—Entire statement and cross-examination should be read together and not in isolation—Husband could not be absolved from his duty to prove the fact which he had alleged in his written statement as well as in his statement on oath—Gold ornaments to be returned by the wife was already with the husband and no other benefits were proved to have been received by the wife—Wife could not be directed to return the said gold in lieu of dissolution of marriage on the basis of khula—Wife was not liable to return back which she had not in her possession–Findings with regard to return of five tolas gold by the wife were set aside—Constitutional petition was partly allowed in circumstances. Citation Name: 2017 CLC 1597 PESHAWAR-HIGH-COURT Bookmark this Case MUHAMMAD ZAHEER VS SAIMA BIBI S. 5, Sched—Recovery of dower—Scope—Onus of payment of dower was on the husband who could not adduce evidence to prove the payment of the same to the wife—Finding recorded by both the courts were based on proper evaluation of evidence adduced by both the parties—Judgments and decrees passed by both the courts below were based on evidence available on record—Constitutional petition was dismissed in circumstances. Citation Name: 2017 PLD 102 PESHAWAR-HIGH-COURT Bookmark this Case Mst. ZEENAT BIBI VS FAZAL HAQ S. 5, Sched.—Civil Procedure Code (V of 1908), O.XIV R.1 & O.XLI, R.24—Suit for recovery of dower—Non framing of issue—Effect—Territorial jurisdiction– -Determination of—Family Court decreed the suit but Appellate Court remanded the case on the ground that no specific issue was framed with  ———————————————————————————-COURT OF BALOCHISTAN regard to dower deed—Validity–Plaintiff-wife had set up her claim of dower on the basis of ‘Kabin Nama’—Proper issue had been framed on the subject matter—Even if no specific issue had been framed on a particular matter but evidence had been led in that behalf, Court was to go for resolution of the controversy on the evidence already adduced by the parties—Sufficient evidence was available to enable the Appellate Court to pronounce judgment—Where the wife ordinarily resided, Family Court of that territory had exclusive jurisdiction to deal with all the matrimonial disputes— Impugned judgment passed by the Appellate Court was set aside—Appellant Court had not decided the matter on merits—Case was remitted to the Appellate Court for decision in the light of available evidence on record— Constitutional petition was allowed in circumstances. Citation Name: 2017 YLRN 178 PESHAWAR-HIGH-COURT Bookmark this Case KHALID SHAH VS JAMAL SHAH S. 42—Suit for declaration—Inheritance— dower deed— Gift mutation—Proof of—Gift, ingredients of–Preponderance of evidence—Scope—Plaintiffs filed suit for declaration that they were owners in possession to the extent of their shari share—Suit was dismissed by the Trial Court but Appellate Court decreed the same—Validity–Court was to adjudicate matter upon preponderance of evidence—dower deed being 30 years old document, duly executed and proved, would have presumption of genuineness and its nonregistration would not invalidate the same–Fact which the defendants wanted to prove was neither mentioned in their written statement nor in the plaint, no documentary evidence was annexed therewith in that regard— Verifying witness of gift mutation was not produced nor Patwari or Revenue Officer had been examined—Ingredients of gift i.e. offer, acceptance and delivery of possession were required to be proved by the beneficiary— Factum of gift had not been proved in the present case–Judgment and decree passed by the Appellate Court declaring the gift mutation as null and  ———————————————————————————-COURT OF BALOCHISTAN void was correct—Courts below had not appreciated the evidence according to law with regard to dower deed—Judgments and decrees to the extent of dower deed were set aside—Suit of plaintiff was decreed—Revision was allowed in circumstances. Citation Name: 2017 YLRN 170 PESHAWAR-HIGH-COURT Bookmark this Case ASIM RAZIQ VS State S. 497—Penal Code (XLV of 1860), Ss. 365-B & 494—Kidnapping, abducting or inducing woman to compel for marriage etc., marrying again during lifetime of husband or wife—Bail, refusal of—Marriage of abductee with the complainant had not been denied by the accused, however, the stance of accused was that abductee was divorced by the complainant where after she entered into Nikah (wedlock) with the accused —Accused had produced Nikah Nama to the Investigating Officer which was available on file—Perusal of Nikah Nama revealed that in column “whether the bride is virgin or divorced” word “virgin” had been mentioned and did not find any mention of dower of either kind as well as any CNIC number of the witnesses and Nikah Khawan—None of the witnesses named in Nikah Nama had come forward in support of the stance of accused—Date of marriage mentioned in Nikah Nama was 03.01.2010 which was date of birth of minor daughter of complainant—Nothing was available on record suggestive of the fact regarding alleged divorce of abductee-accused by complainant—Record depicted that abductee had left her house on 15.02.2011 and on the same date the complainant had reported the matter to local police—Had abductee been divorced by complainant prior to the day of occurrence, she would have left the abode of her in-laws on the day of alleged divorce and would have not stayed with complainant thereafter—Record manifested that abductee had left the house of her husband with her paramour and got settled with him during subsistence of her marriage with complainant, so much so, had given birth to two children—Sufficient evidence had been  ———————————————————————————-COURT OF BALOCHISTAN collected during investigation in support of the stance of complainant to show their prima facie involvement in a case of elopement during subsistence of marriage of accused-abductee with complainant—Plea of subsequent Nikah seemed fallacious on the face of it, hence the grant of bail to both the accused and allowing them to live as husband and wife in a situation, particularly when Nikah of accused-abductee with the complainant still existed, would result in an odd situation—Bail was refused accordingly. Citation Name: 2017 YLRN 118 PESHAWAR-HIGH-COURT Bookmark this Case Mst. HILAL MURAD VS Haji AMIR ZAMAN S. 5, Sched.—Qanun-e-Shahadat (10 of 1984), Art. 129 (g)—Suit for recovery of dower—Dower deed—Proof of–Procedure—Plaintiff filed suit wherein she challenged the sale of suit land by her husband to the vendees, with the plea that her husband had orally agreed to transfer landed property in her favour as dower—Suit was dismissed concurrently—Validity—Plaintiff had not produced any Nikah Nama or Nikah Khawan in support of her stance with regard to oral fixation of dower between the spouses—Plaintiff should have produced Nikah Khawan and other witnesses of Nikah reciting ceremony in support of her stance but she had not examined the said witnesses—Best evidence had been withheld which had made the stance of plaintiff dubious- –If plaintiff had any grievance, same could be against her husband—Plaintiff was residing with her husband peacefully which proved the present case as benami one at the instance of her husband—Plaintiff produced stamp vendor and deed writer of dower deed but they did not produce relevant register for verification to prove date as well as entry of contents of dower deed— Date of issuance of stamp paper, record with regard to name of purchaser, chronological record of treasury department of the district were necessary to be proved for its authenticity—Husband of plaintiff filed suit with regard to same property which was dismissed—Plaintiff had been put forward after  ———————————————————————————-COURT OF BALOCHISTAN remaining unsuccessful by her husband basing on engineered dower deed which had no entry in the concerned register—If husband of plaintiff was sincere in fixation of dower in favour of his wife, he should have done the same just after the death of his father—Defendants/vendees had supported the stance taken with regard to purchase of suit property—Defendants had been recorded as owner in possession of suit property—Plaintiff did not appear in the Trial Court as her own witness and her explanation that she was Pardanasheen lady was not convincing—If plaintiff was Parda observing lady then why she came to District Courts twice for execution of alleged dower deed and special power-of-attorney—Both the Courts below had properly appreciated the evidence available on record—No illegality or irregularity or mis-reading, miscarriage of justice had been pointed out in the impugned judgments passed by the Courts below—Constitutional petition was dismissed in circumstances. Citation Name: 2017 CLCN 26 PESHAWAR-HIGH-COURT Bookmark this Case ZAHIR SHAH VS Mst. SEEMA S. 5, Sched—Limitation Act (IX of 1908), Art. 120—Constitution of Pakistan, Art. 199—Constitutional petition–Suit for dissolution of marriage, recovery of maintenance allowance and dower—Khula—Scope—Husband had contracted second marriage and was residing abroad—Tie of the spouses had not given birth to any child—Relation of the spouses was not cordial as depicted from the evidence—Wife was entitled for recovery of maintenance for six years instead of eight years—One Tola of dower was still outstanding against the husband and wife was entitled for the same—Serious allegations had been made by the wife in the plaint with regard to cruelty and maltreatment with the fact of second marriage and absence of husband living abroad—Maltreatment and cruelty did not only amount to physical beating etc. rather the agony she suffered and the behaviour of husband entangling her into litigation was sufficient to prove cruelty—Wife had failed to question the dissolution of marriage on the ground of khula with  ———————————————————————————-COURT OF BALOCHISTAN condition to return dower of six tolas before High Court in constitutional jurisdiction—Appeal of wife before the District Court against the decree of dissolution of marriage was not maintainable—Appellate Court had properly assessed the evidence available on file but had no jurisdiction to hear the appeal with regard to dissolution of marriage and to that effect findings regarding conversion of dissolution from the ground of khula to cruelty— Conclusion of Appellate Court with regard to dissolution of marriage was coram non judice—Findings of Appellate Court were modified to the extent that the marriage stood dissolved on the ground of khula; however, condition attached thereto was deleted—Dissolution of marriage on the ground of khula in all eventualities would not entitle the husband for getting benefits back from the wife—Impugned judgment passed by the Appellate Court was modified to the extent that marriage of the spouses stood dissolved on the ground of khula with no condition of return of any benefit and was maintained with regard to other relief including payment of one Tola by the husband to the wife—Constitutional petition was accepted, in circumstances. Citation Name: 2017 PLD 892 LAHORE-HIGH-COURT-LAHOREBookmark this Case MUHAMMAD NAWAZ VS Mst. SHAMIM MAI S. 7—Qanun-e-Shahadat (10 of 1984), Art. 128—DNA Test—Scope—Suit for recovery of dowry articles, dower amount and maintenance for herself and minors was filed by respondent/wife and the same was pending trial before Family Court—Petitioner/husband, during pendency of the suit, disowned two minor daughters and sought permission to conduct DNA Test— Application of petitioner / husband was dismissed by Family Court as well as by Lower Appellate Court— Validity— Birth certificates of two minor girls were brought on record which depicted that both minor girls were born when plaintiff was legally wedded wife of defendant and he did not dispute the same— Plea that minor girls were not born out of the wedlock of parties  ———————————————————————————-COURT OF BALOCHISTAN was raised for the first time in written statement—Nothing was brought on record from the side of petitioner/husband to establish that he had disputed legitimacy of children soon after their birth—Petitioner/husband remained silent till he filed written statement in the suit—DNA Test was always conducted with the consent of the person concerned and no such consent was available–Once consent was not given, DNA Test could not be conducted— High Court declined to interfere in orders passed by two courts below—Constitutional petition was dismissed in circumstances. Citation Name: 2017 YLR 2330 LAHORE-HIGH-COURT-LAHOREBookmark this Case FATIMA RANA VS BILAL AHMAD BHATTI S. 9, Sched. & Preamble—Suit for dissolution of marriage, recovery of maintenance allowance, dowery articles and cash—Personal property and belongings of wife—Wife contended that she had sent huge amount to husband, time to time, while serving abroad which she was liable to recover being her personal belonging and property—Husband raised question in respect of jurisdiction of Family Court to adjudicate the matter—Family Court accepted application of husband and advised wife to resort appropriate forum for relief—Validity—Wife had urged that the amount generated by her while serving abroad, after marriage and sent to husband, was nothing but her personal property and the Family Court had jurisdiction to entertain the matter—Preamble of a statute was incorporated to briefly mention the purposes of the statute and plain reading of the Preamble of Family Courts Act, 1964 showed that Family Court was established under the Act for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matter connected therewith—Contention of the wife, that she herself earned amount which was sent to her husband, was not a dispute relating to marriage or matters connected therewith—Claim of wife was of civil nature, for recovery of amount received by husband from her— Family Laws being special laws had its own procedure as well as fixation of  ———————————————————————————-COURT OF BALOCHISTAN time for disposal of the same—Family Court while acting under the principle of equity, natural justice and good conscious correctly observed and “advised” the wife to avail her remedy at proper forum against her claim for recovery of the amount—Constitutional petition was dismissed accordingly. Citation Name: 2017 YLR 1300 LAHORE-HIGH-COURT-LAHOREBookmark this Case SOHAIL FAROOQ VS FARZANA RAFIQUE 2011 YLR 2550, The Family Courts Act 1964–13 , S.13—Application for enhancement of maintenance allowance by mother before executing court—Father contended that executing court was not competent forum to adjudicate the matter—Mother contended that application of enhancement of maintenance was moved before Family Court where execution proceedings of the decree was already pending and that father’s previous conduct of reluctance to participate in legal proceedings was also to be taken into consideration—Validity—Record revealed that after the decree of maintenance and return of dowery articles, an application for enhancement of maintenance allowance was moved by mother before the Family Court—Execution proceedings were also in progress on the judgment and decree—During the pendency of application for enhancement of maintenance allowance, father firstly appeared and filed reply to the application and was proceeded ex parte and after the decision of the enhancement application father filed application for cancellation of enhancement order which was dismissed—Father was proceeded ex parte after affording him colossal opportunity and further he filed application for cancellation of enhancement order after about four months which showed his lack of interest—Bare perusal of the head note of application for enhancement of maintenance allowance filed by the mother vividly reflected that the same had been filed before the Judge of Family Court and not the  ———————————————————————————-COURT OF BALOCHISTAN executing court, therefore, mere writing “Execution Petition” on the headnote of order which was specifically passed on the application for enhancement of maintenance allowance filed by the mother before the Family Court could not defeat the right of the mother in any manner—Reply to the said application filed by the father also showed to be filed before the Judge Family Court—Family Court had exclusive jurisdiction to pass an order on application for enhancement of the maintenance allowance even after passing the final judgment and decree—Constitutional petition was dismissed. Citation Name: 2017 PLD 41 LAHORE-HIGH-COURT-LAHOREBookmark this Case Mst. GHANIA HASSAN VS SHAHID HUSSAIN SHAHID Islamic Law–TERM , “dower”—Additional dower—Exchange of gifts during matrimonial life between spouses could not be given status of “downer”/Additional dower. Citation Name: 2017 PLD 41 LAHORE-HIGH-COURT-LAHOREBookmark this Case Mst. GHANIA HASSAN VS SHAHID HUSSAIN SHAHID Islamic Law–TERM , Meaning–Term , ‘dower’—Meaning—dower was a consideration on the basis of which a Muslim man and woman entered into a marriage contract. Citation Name: 2017 PLD 41 LAHORE-HIGH-COURT-LAHOREBookmark this Case Mst. GHANIA HASSAN VS SHAHID HUSSAIN SHAHID  ———————————————————————————-COURT OF BALOCHISTAN 1983 CLC 663, 1989 SCMR 1871, 1999 CLC 163, PLD 2004 SC 10, Civil Procedure Code –Order XXXVII of C.P.C. Summary Procedure on Negotiable Instruments–2 , Civil Procedure Code –Order XXXVII of C.P.C. Summary Procedure on Negotiable Instruments–3 , Execution petition–Term , Summary suit–Term , O. XXXVII, Rr. 2 & 3—Summary suit—Execution petition—Objection— Additional dower—Scope—Executing Court attached property of judgmentdebtor—Contention of applicant was that she had entered into marriage with the judgment-debtor and property in question (attached property) had been given to her against dower—Objection petition was dismissed by the Executing Court—Validity—No concept of additional dower existed—Dower in question was allegedly settled after almost four years of the marriage— Spouses could exchange gifts during their matrimonial life but such gifted property could not be given the status of “dower”—Judgment-debtor had not finally transferred the property in question in favour of applicant—Applicant had filed a suit for recovery of her dower and till its final conclusion she could not claim to be having any lien over such property—Applicant could not frustrate the proceedings of execution of decree granted in favour of respondent—Appeal was dismissed in circumstances. Citation Name: 2017 MLD 1815 LAHORE-HIGH-COURT-LAHOREBookmark this Case SABIHA SARDAR VS ABID JAMEEL Ss. 435, 476, 6 & 561-A—Family Courts Act (XXXV of 1964), S.5 & Sched.—Suit for dissolution of marriage, recovery of dower, maintenance allowance and dowry—Allegation of producing of forged documents—Revision–Scope— Application under S.476, Cr.P.C., before Family Court was dismissed being incompetent—Order of Family Court was assailed through revision—  ———————————————————————————-COURT OF BALOCHISTAN Maintainability—Revisional court under S.435, Cr.P.C., could examine the correctness, legality or propriety of any finding, sentence or order passed by subordinate criminal court—Subordinate criminal court, for the purpose of S.435, Cr.P.C., meant the “court” as mentioned in S.6 of the Criminal Procedure Code, 1898—Admittedly, the Family Court did not fall within the classes of “criminal courts” as mentioned in S.6, Cr.P.C.—Family Court was established under the Family Courts Act, 1964; decision or decree passed by the Family Court was appealable to the High Court, or to the District court—Family Court could not be termed as subordinate criminal court within the meaning of S.435, Cr.P.C., thus any order or finding of the Family Court could not be called in question through criminal revision—Application filed under S.561-A, Cr.P.C., was allowed by setting aside order passed by the revisional court. Citation Name: 2017 MLD 1815 LAHORE-HIGH-COURT-LAHOREBookmark this Case SABIHA SARDAR VS ABID JAMEEL Ss. 561-A & 476—Penal Code (XLV of 1860), S. 193—Family Courts Act (XXXV of 1964), S.5 & Sched.— Petitioner filed suit for dissolution of marriage, recovery of dower, maintenance allowance and dowry articles in the Family Court which was partially decreed in her favour—Respondent moved application under S.476, Cr.P.C., against the petitioner with the contention that petitioner had produced certain receipts, which showed purchase of the dowry articles and those receipts were forged—Respondent applied for making all the owners of shops as party, from where said articles were allegedly purchased—Said application was dismissed by the Family Court being not competent– Respondent challenged the said order through revision petition, which was decided by the revisional court and matter was remanded to the Trial Court for fresh decision—Petitioner challenged the said order passed by the  ———————————————————————————-COURT OF BALOCHISTAN revisional court—Validity—Proceedings under S.476, Cr.P.C., could only be initiated by the Family Court if the said court had arrived at the conclusion that the receipts were dubious in nature or were fabricated—Family Court having not drawn any conclusion, proceedings under S. 476, Cr.P.C., were not warranted in the case—Record showed that respondent had made no serious efforts to challenge the authenticity of receipts as neither he summoned the shopkeepers concerned nor placed on record any material to raise suspicion about their genuineness—Shopkeepers were cited as accused in the petition by the respondent, which showed that proceedings under S.476, Cr.P.C., were aimed at using them as tool to secure positive ends in the litigation arising out of the decision of the Family Court—Application filed under S.561-A, Cr.P.C., was dismissed by the High Court by setting aside order passed by revisional court.