2017-01-08

Tags:

KHULA/divorce  and HAQ MEHAR / Dower

Citation Name : 2016 PLD 1 PESHAWAR-HIGH-COURT

Side Appellant : SAJED ULLAH
Side Opponent : Mst. SHAKEELA NAZ
S. 5 & Schd.—Muslim Family Laws Ordinance (VIII of 1961), Ss.7, 8, 9 & 10—Constitution of Pakistan, Art. 199—Constitutional petition—Talaq/khula ‘ pronounced through Jirga/arbitration—Respondent/wife filed suit for recovery of dower amount with fine, dowry articles, maintenance for herself and for minor and medical expenses against petitioner/husband claiming that petitioner had ousted her out of his house forcibly taking gold ornaments and dowry articles from her—Petitioner denied all the allegations—Trial Court, after recording evidence decreed the suit regarding dower without fine and maintenance of respondent/wife till completion of Iddat, maintenance of minor with ten per cent annual increase and medical allowance partially, and dismissed the suit regarding dowry articles—Appellate court dismissed appeals filed by both parties except dismissing the claim for recovery of medical expenses—Petitioner contended that Talaq was pronounced on basis of khula ‘ upon decision of Jirga/Arbitrators as agreed and desired by wife, and she was not entitled to recovery of dower amount as she had given her consent to proceedings of Jirga for khula ‘ which were binding on her—Wife argued that Trial Court had rightly decreed medical charges spent during delivery of minor and she had never demanded Talaq nor had she participated in any Jirga/Arbitration proceedings or gave her consent for the same—Validity—Wife had a right to seek divorce on basis of khula ‘ in lieu of returning benefits which she had received from her husband—khula ‘ could be granted through court and could not be decreed by force without consent of wife—Decision of arbitrators had no sanctity in law, and divorce on basis of khula ‘ could not be pronounced by arbitrators/Jirga nor could the decision be imposed upon wife—Divorce pronounced by husband, in circumstances, was to be treated as Talaq not on basis of khula ‘—Free consent of wife was mandatory in case of divorce on basis of khula ‘—Husband pronounced Talaq on basis of khula ‘ upon decision of arbitrators without consent of wife and the same could not be treated divorce on basis of khula ‘—Courts below rightly held that divorce pronounced by husband was Talaq and not Talaq on basis of khula ‘—Wife was entitled for recovery of dower amount along with other reliefs—Husband admitted fixation of dower amount as claimed and wife was entitled to recover the same—Trial court rightly appreciated facts. circumstances, evidence and relevant law while holding the recovery of dower—Wife produced evidence in support of her claim regarding medical expenses and appellate court had rightly reversed findings of Trial Court regarding medical treatment charges—Findings of appellate court were based on proper appreciation of evidence and needed no interference—Constitutional petition was dismissed.

Citation Name : 2015 YLR 1547 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : ASIF JAHANGIR
Side Opponent : Mst. ZAHEEN KAUSAR
Ss. 5, Sched. & 14—Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ii), (iv), (viii)—Suit for dissolution of marriage and for restitution of conjugal rights—Wife filed suit for dissolution of marriage before Family Court on the grounds of cruelty, non-payment of maintenance allowance, non-performance of marital obligations and in the alternative on the ground of khula —Husband filed suit for restitution of conjugal rights and moved contempt applications on the ground that wife had contracted second marriage during pendency of appeal—Family Court passed decree for dissolution of marriage on ground of khula , without return of dower amount as consideration for khula , and suit by husband for restitution of conjugal rights was dismissed—Wife had averred in her plaint as well as in her statement that ornaments were snatched away from her by the husband, and he did not rebut the version of wife in cross-examination, which amounted that he had admitted said fact—Witnesses had also supported the version of wife—Family Court, in circumstances had rightly appreciated evidence of parties in its true perspective—Decree for dissolution of marriage could be passed without consideration for khula ; and it was not lawful for husband to take back anything from his wife, particularly when khula was due to some fault on the part of husband—In the present case, fault of husband was that he had snatched away ornaments, and turned her out from his house, which fact was fully established by the evidence—Family Court had not committed any illegality while passing decree for dissolution of marriage on the ground of khula without consideration—Record had revealed that service upon wife was effected after contracting second marriage by her—Appeal as well as contempt application were dismissed, in circumstances.

Citation Name : 2015 SCMR 804 SUPREME-COURT
Side Appellant : MUHAMMAD ARIF
Side Opponent : SAIMA NOREEN
S. 2(viii)—West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched.—Dissolution of marriage—Grounds—Cruelty by husband—Proof—Cruelty by husband not proved—Effect—Decree for dissolution of marriage on basis of cruelty converted into khula —Wife filed a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty—Family Court found that wife had failed to prove cruelty, but still decreed the suit on the basis that the relations between the parties had become strained and there seemed no possibility of reunion, and if they were constrained to live together, they may transgress the limits of Almighty Allah and their union may not last longer, hence, their separation had become inevitable—Decree passed by Family Court was upheld both by the Appellate Court as well as by the High Court—Validity—Family Court had reached the conclusion that indeed no cruelty could be proved by the wife, hence in such circumstances the Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under the Dissolution of Muslim Marriages Act, 1939—Only way out and the logical conclusion was that the marriage should have been dissolved on the basis of khula in which event the wife would have to forego the dower amount—Supreme Court decreed the suit of the wife for dissolution of her marriage on the basis of khula only, and directed that mutation for the plot given by the husband to his wife as dower would now revert back to the husband—Order accordingly.

DOWER

Citation Name : 2016 YLR 440 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : TAHIR HANIF
Side Opponent : SAIRA KOSAR
Dower —‘Deferred/delayed Dower ‘—Meaning—Deferred/delayed Dower was payable on demand or on the eve of dissolution of marriage by Talaq or death if no condition was specified in the Nikah Nama.

Dower —‘Mehr Ghair Muwajjal’—Meaning—Mehr Ghair Muwajjal meant deferred Dower which would become prompt on demand of wife at any time after consummation of marriage and husband would be bound to pay balance amount of Dower to the wife immediately.

Dower —Payment of—Limitation—If period was fixed for payment of Muajjal Dower then it would become payable on the completion of stipulated period.

S. 5, Sched—Dower —Payment of—Classification of Dower —Scope—Contention of husband was that Dower was deferred and same was payable in case of dissolution of marriage on his death or on divorce—Suit was decreed by the Family Court—Validity—No misreading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Family Court—Amount of Dower was to be paid within the period fixed in the Nikah Nama—Classification of Dower as prompt or deferred had no sanction behind it except for convenience of the parties—Payment of Dower was an obligation of husband and failure thereto would tantamount to injustice and inequity—Dower was demanded by the wife at the time of Rukhsati and same was agreed to be paid within one year—Family Court had rightly passed impugned judgment and decree in favour of wife—Appeal was dismissed in circumstances.

Citation Name : 2016 YLR 371 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : AZHAR BASHIR
Side Opponent : SADIA SHAFIQUE
S. 5, Sched—Suit for dissolution of marriage, recovery of maintenance charges and Dower —Cruelty—Scope—Cruel attitude was not confined only to the extent of physical violence but it would include mental torture, hateful attitude of husband or other inmates of the house and also included the circumstances in presence of which wife was forced to abandon the house of her husband—Wife had failed to prove cruelty in the present case—Family Court had correctly passed decree on the ground of ‘khula’—Husband was bound to pay maintenance charges to the wife till she was faithful to him and lived with him and if she had voluntarily left the house of her husband then she was not entitled to maintenance charges—Wife had voluntarily left the house of her husband and she was not entitled to maintenance charges—Dower once paid could not be demanded for second time—Appeal filed by the wife was partly accepted to the extent of maintenance charges—Decree of maintenance charges passed by the Shariat Court was set aside.

Citation Name : 2015 YLR 2533 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : Mst. MAZLOOM BIBI
Side Opponent : MUHAMMAD AJAZ AWAN
Dower , payment of—Scope— Consummation of marriage—Husband would be bound to pay full Dower to his wife in case of consummation of marriage and if he had not consummated the marriage, half of the Dower would be the right of bride.

Citation Name : 2015 YLR 2533 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : Mst. MAZLOOM BIBI
Side Opponent : MUHAMMAD AJAZ AWAN
S. 5, Sched. —Suit for recovery of Dower —Material contradictions were on record in the deposition of husband— Dower was never paid in the shape of land or cash to the wife—Family Court had failed to determine the conduct of husband with regard to changing of views on different stages—Husband was responsible to pay full Dower to the wife as he had consummated marriage—Husband had played fraud with wife for Dower and other ornaments—Impugned judgment and decree were not sustainable—Suit of wife had been wrongly dismissed by the Family Court—Judgment and decree passed by the Family Court were set asidi and. decree for recovery of Dower was passed in favour of wife—Appeal was, accepted in circumstances.

Citation Name : 2015 CLC 171 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : WASEEM AHMAD RATHORE
Side Opponent : Mst. FOZIA RAHEEM
S. 5, Sched.—Dissolution of marriage—Khula—Restoration of property/Dower received by the wife—Scope—Family Court dissolved marriage in consideration for khula by fixing an amount which was not incorporated in the Nikah Nama—Contention of husband was that the amount fixed by the Family Court as consideration for khula was not mentioned in the Nikah Nama—Validity—Wife could not prove that she was entitled to obtain decree for dissolution of marriage on the grounds of cruelty, non-performance of marital obligations and non-payment of maintenance allowance as her husband was out of country—Person who had asserted a point must prove the same—Wife was bound to prove her claim that ornaments were snatched away from her, by her husband or his sister or brother which she could not prove—Decree for dissolution of marriage could be passed without consideration of khula—When khula was due to some fault on the part of husband then it was not lawful for him to take back anything from his wife—Wife herself deserted in the house of her parents and she filed a suit for dissolution of marriage—Wife did not live with her husband continuously—Wife had been granted a decree on ground of khula due to hatred against her husband—No fault was pointed out on the part of husband and Family Court was bound to restore the property/Dower received by the wife—Husband was entitled to receive entire Dower amount from wife instead of amount fixed by the Family Court in case of dissolution of marriage on khula when snatching of ornaments had not been proved—Wife had not arrayed party to the sister and brother of husband against whom allegation of snatching away ornaments was levelled—When wife had demanded khula as of right then marriage had to be dissolved on restoration of what she had received in consideration of marriage when parties would not observe the limits ordained by Almighty Allah—Family Court had rightly dissolved the marriage on the basis of khula but failed to fix amount as consideration for khula as marriage was to be dissolved on the condition of repayment of Dower amount received by wife—Dower in the form of gold ornaments was paid to the wife and specific amount of ornaments had been incorporated in the Nikah Nama—Marriage of the spouses should have been dissolved in consideration for khula i.e. amount incorporated in Nikah Nama instead of amount fixed by the Family Court—Wife would be entitled to obtain a decree for dissolution of marriage on the condition of repayment of entire Dower amount incorporated in the Nikah Nama as consideration for khula—Appeal was accepted accordingly.

Citation Name : 2015 SCMR 804 SUPREME-COURT
Side Appellant : MUHAMMAD ARIF
Side Opponent : SAIMA NOREEN
S. 2(viii)—West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched.—Dissolution of marriage—Grounds—Cruelty by husband—Proof—Cruelty by husband not proved—Effect—Decree for dissolution of marriage on basis of cruelty converted into khula—Wife filed a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty—Family Court found that wife had failed to prove cruelty, but still decreed the suit on the basis that the relations between the parties had become strained and there seemed no possibility of reunion, and if they were constrained to live together, they may transgress the limits of Almighty Allah and their union may not last longer, hence, their separation had become inevitable—Decree passed by Family Court was upheld both by the Appellate Court as well as by the High Court—Validity—Family Court had reached the conclusion that indeed no cruelty could be proved by the wife, hence in such circumstances the Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under the Dissolution of Muslim Marriages Act, 1939—Only way out and the logical conclusion was that the marriage should have been dissolved on the basis of khula in which event the wife would have to forego the Dower amount—Supreme Court decreed the suit of the wife for dissolution of her marriage on the basis of khula only, and directed that mutation for the plot given by the husband to his wife as Dower would now revert back to the husband—Order accordingly.

Citation Name : 2015 YLR 2375 PESHAWAR-HIGH-COURT
Side Appellant : Mst. KULSOOM BIBI
Side Opponent : MUHAMMAD WASEEM
S. 5, Sched.—Limitation Act (IX of 1908), Art. 103 & S. 13—Constitution of Pakistan, Art.199—Constitution petition—Suit for recovery of prompt Dower —Limitation—Exclusion of time of defendant’s absence from Pakistan—Scope—Defendant’s plea was that plaintiff had made demand for payment of prompt Dower in November/December, 2007 while suit was filed in February 2011, which was beyond the period of limitation provided by Art. 103 of Limitation Act, 1908—Validity—Held, if plaintiff had made demand for Dower in Pakistan in the month of November/December, 2007, limitation for suit for recovery of Dower was the one as provided by Art. 103 of Limitation Act, 1908—On the contrary, if plaintiff had demanded payment of Dower outside the country, then applicability of S. 13 of Limitation Act, 1908 would be attracted—According to S. 13 of Limitation Act, 1908 period of absence of plaintiff from Pakistan would be excluded for reckoning period of limitation—In computing period of limitation prescribed for any suit, time during which defendant had been absent from Pakistan from territories beyond Pakistan under administration of Federal Government should be excluded—Section 13 of Limitation Act, 1908 made no exception for cases in which cause of action arose in a foreign country or for cases in which defendant was in foreign country at the time of accrual of cause of action—Time during which defendant had been absent from Pakistan must be excluded in computing the period of limitation—Section 13 of Limitation Act, 1908 did not state that it must be one continuous period and there was no scope for interpretation, that if defendant had at intervals been within Pakistan, plaintiff could not get benefit of said section—Even if defendant was absent for not a continuous stretch, but at intervals, still it would be the time during which defendant had been absent from country and plaintiff would be entitled to deduct total period of absence of defendant from Pakistan—Marriage between parties had taken place in the month of July, 2007 and defendant left for United Kingdom in the same month, likewise plaintiff left the country for United Kingdom after three months, meaning thereby that till month of October, 2007 spouses had left the country and shifted to United Kingdom, therefore, question of demand of Dower in November/December 2007 inside Pakistan would not arise—After three months of marriage, neither married couple was available in Pakistan nor demand of prompt Dower in November/December of 2007 was possible—Plaintiff was divorced at United Kingdom and till date none had returned to Pakistan—According to S. 13 of Limitation Act, 1908, time during which party had remained abroad, should be excluded in computing period of limitation—Suit of petitioner was within time and findings of courts below was reversed—Constitutional petition was allowed, accordingly.

Citation Name : 2015 YLR 1667 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD AAMIR
Side Opponent : NAZIA BIBI
Ss.5, Sched. & 10(4)—Constitution of Pakistan, Art. 199—Constitutional petition—Suit for dissolution of marriage—Return/restoration of Dower amount—Wife filed suit for dissolution of marriage on the basis of “khula” before Family Court—Suit for dissolution of marriage was decreed by the Family Court with a direction to wife for returning Dower amount as mentioned in the “Nikah Nama”—Contention of the petitioner husband was that wife had received the Dower amount in shape of gold ornaments, therefore she was bound to return the Dower or cash as per prevalent rate of gold and that the order of Family Court was not sustainable—Validity—Copy of Nikahnama reflected that “Mehr” was fixed in shape of money (Thirty Six Thousand Rupees), the same had been paid in terms of gold ornaments of same value—Dower had neither been fixed in the form of gold ornaments nor the weight/description of gold ornaments was mentioned in Nikhanama, in the absence of which no valid order could be passed for return of gold ornaments—Order of Family Court was strictly in consonance with the provisions of law—Constitutional petition was dismissed.

Citation Name : 2015 PLD 216 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZAHID RAHIM
Side Opponent : Mst. NIGHAT MUSHTAQ
Ss. 10(4) & 5, Sched—Constitution of Pakistan, Art.199—Law Reforms Ordinance (XII of 1972), S.3—Intra-court appeal—Dissolution of marriage on the basis of khula pending final decision with regard to controversy of return of Dower —Word “forthwith” mentioned in S.10(4) of West Pakistan Family Courts Act, 1964—Interpretation—Husband filed constitutional petition against preliminary decree for dissolution of marriage on the basis of khula which was dismissed holding that Family Court had rightly passed a decree for dissolution of marriage on the basis of khula pending final decision regarding controversy of return of Dower —Validity—Return of Dower had been asserted in the plaint by the wife but same had been denied by the husband in written statement which was fact in controversy—Wife had foregone her right to Dower in her statement for khula but said statement was not found against assertion in her plaint—Dissolution of marriage “forthwith” on failure of reconciliation had been envisaged in the proviso of S.10(4) of West Pakistan Family Courts Act, 1964 but restoration of Dower comes after the word “and” which had made the later part disjunctive—Restoration of Dower was not a condition precedent under the proviso of S.10(4) of West Pakistan Family Courts Act, 1964—Purpose of West Pakistan Family Courts Act, 1964 was “expeditious settlement and disposal of disputes with regard to marriage and family affairs and matters connected therewith”—Returning or taking back of Dower by the husband was the ‘matter relating to family affairs’ or at least same was ‘connected therewith’—No illegality, irregularity or jurisdictional defect was pointed out in the decision made by the Family Court in framing the issue with regard to Dower amount when return of the same had been asserted and denied by the parties—Intra court appeal was dismissed.

Citation Name : 2015 MLD 1767 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAFQAT ALI
Side Opponent : ADDITIONAL DISTRICT JUDGE, D.G. KHAN
S. 5, Sched.—Constitution of Pakistan, Art. 199—Constitutional petition—Suits for recovery of maintenance allowance, dowry articles and Dower —Maintenance allowance fixed by the courts below was reasonable under the circumstances—Husband was bound to prove the factum of Talaq as asserted by him—Both the courts below had rightly found that wife was entitled for maintenance allowance for previous one year from institution of suit till Iddat period—Wife and her mother had corroborated the list of dowry articles as mentioned in the plaint—Both the courts below had rightly decided the matter of dowry articles—Amount of Dower was fixed as Rs. 2,500 and 5-marla of plot in the Nikah Nama—Husband had made evasive reply to the assertions made by the wife in the plaint with regard to Dower and had failed to bring on record any documentary evidence nor proved the payment of Rs.2,500 or 5-marla of plot for which no documentary evidence with regard to transfer of said plot was brought on the court file—Courts below had rightly fixed Rs. 200,000 as value of the plot and wife was entitled for the same—No illegality or irregularity was pointed out in the impugned orders passed by the courts below—Constitutional petition was dismissed in circumstances.

Citation Name : 2015 PLD 208 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TASAWAR HUSSAIN
Side Opponent : Mst. FARZANA KAUSAR
S. 6(5)—West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.—Constitution of Pakistan, Art.199—Constitutional petition—Polygamy—Payment of Dower in case husband contracted a second marriage without permission of Arbitration Council—Scope—Suit for recovery of maintenance allowance, and Dower was decreed inter alia on the ground that the husband had taken a second wife without obtaining permission of the Arbitration Council in terms of S.6(5) of the Muslim Family Laws Ordinance, 1961—Contention of the husband/petitioner was that suit for recovery of downer could not be decreed as the Dower was deferred and not prompt—Held, that language of S.6(5)(a) of the Muslim Family Laws Ordinance, 1961 was very clear that in case a man contracted a second marriage without the requisite permission from the Arbitration Council concerned, he shall be liable to immediately pay to the existing wife/wives, the entire amount of the Dower due, whether the same was prompt or deferred—In the present case, nothing was on record which showed that the husband/petitioner obtained the necessary permission from the Arbitration Council concerned—No illegality, therefore, existed in the impugned order—Constitutional petition was dismissed, in circumstances.

Citation Name : 2015 CLC 808 LAHORE-HIGH-COURT-LAHORE
Side Appellant : BABAR SHAHZADA
Side Opponent : BASHARATAN BIBI
S. 5, Sched & S.10(4)—Constitution of Pakistan, Art.199—Constitutional petition—Dissolution of marriage on the basis of Khula—Suit for recovery of gold ornaments by husband given at the time of marriage—Scope—Husband’s suit for recovery of gold ornaments was decreed by the Family Court but Appellate Court returned the plaint for presenting the same before civil court—Validity—Husband filed suit for recovery of gold ornaments which were given to the wife-defendant as part of Dower —Said Dower had been mentioned in the Nikah Nama—Suit for dissolution of marriage on ground of Khula filed by the wife-defendant was decreed under S.10(4) of West Pakistan Family Courts Act, 1964—Wife-defendant was required to return Haq Mehr to the husband-plaintiff which she had received at the time of Nikah—Issues which had arisen between the parties to a marriage and all matters which would fall under the Schedule of West Pakistan Family Courts Act, 1964 could be adjudicated upon by the Family Court—West Pakistan Family Courts Act, 1964 did not restrict that only claim of Dower filed by the wife could be entertained by the Family Court—Present suit was rightly filed before the Family Court and was rightly adjudicated upon by the said court—Appellate Court was wrong to hold that husband could not file suit for return of gold ornaments before the Family Court—Impugned judgment and decree passed by the Appellate Court were set aside—Appeal filed before the Appellate Court was to be deemed to be pending which should be decided within a specified period—Constitutional petition was accepted in circumstances.

Citation Name : 2015 PLD 88 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. NABEELA SHAHEEN
Side Opponent : ZIA WAZEER BHATTI
S.5, Sched.—Muslim Family Laws Ordinance (VIII of 1961), S.5— Constitution of Pakistan, Art.199-Constitutional petition-Suit for recovery of Dower —Registration of marriage-Interpolation in entries of Nikah Register—Remedy—Presumption of truth attached to duly registered Nikahnama—Scope—Suit filed by petitioner/wife was dismissed by Trial Court and the same was upheld by appellate Court— Contention of the wife was that both the courts below have misread the . contents of Nikahnama according to which an amount of Rupees Two Lac, Ten tolas gold and house was fixed as Dower — Respondent/husband took the plea that the entries mentioned in Nikahnama were forged, fabricated and manipulated with the connivance of Nikah Registrar—Validity—Nikahnama was a public document which was registered under the provisions of Muslim Family Laws Ordinance, 1961 and as such presumption of truth was attached to the same-According to law, four copies of the Nikahnama were prepared, out of which one was kept by Nikah Registrar, second was sent to the concerned Municipal Corporation or Union Council, third copy was supplied to the bride and the fourth one was given to the bridegroom—Very object behind providing copies to all concerned was that each party could verify the entries in Nikahnama according to the terms of marriage settled between them-If the respondent/husband was of the view that Nikah Registrar had interpolated in the entries of Nikah Register, he could approach the Deputy Commissioner who was the controlling authority and could get the same corrected but he did not bother to avail his remedy against the alleged interpolation in Nikahnama—Both the courts below had wrongly dismissed the suit of the petitioner/wife and she was entitled to recover the same Dower amount, gold and a house from the respondent husband as settled between them at the time of Nikah-Constitutional petition was allowed.