EXECUTION OF DECREE
2004 SCMR 1352.
Muhammad Pervez V/S Nabila Yasmeen & 2 Others (SC.FB)
S.13 West Pakistan Family Courts Act, 1964. Warrant of arrest against the attorney of the judgment debtor. Suit for maintenance was decreed in favour of wife and minor daughter. Husband was living abroad and the whole proceedings were contested through an attorney. During execution proceedings, the attorney made a statement regarding payment of the decretal amount. Before next date of hearing, the husband revoked the power of attorney but the Executing court issued non-bailable warrants against the attorney. Plea raised by the attorney was that the warrants could not be issued against him as the suit was not decreed against him. All the courts below rejected the plea of the attorney. Validity. Once the decree was passed, the same could not be allowed to be set at nought through mala fide act of the judgment debtor whereby he might propose to revoke the power of attorney. Courts were aware of their authority and obligation to implement the decrees passed by them. Judgment-debtor was bound to satisfy the decree either himself or through the attorney who had been throughout representing the judgment-debtor in the suit. Orders of the courts below were based on sound and cogent reasons which were neither perverse nor capricious and were the result of proper appreciation of facts and law. LEAVE TO APPEAL REFUSED.
HOW TO HIRE A GOOD LAWYER
No one in any part of the world likes to visit court or hire a lawyer for redressal of their grievances, especially in Pakistan. But now a day’s 25 % of common people and 80 % businessmen have to engage a lawyer for suing others or defending their causes.
For a businessman, in most circumstances, using legal counsel will be in the context of a transaction or bringing in a key employee, etc. In less pleasant circumstances, it may be in the context of litigation. In either case, a businessman can make a difference in how effectively he works with legal counsel and in keeping the costs down. There are some tips which can be very useful if you are engaging a lawyer first time:-
NO.1: HIRE A RIGHT LAWYER: When engaging a lawyer or advocate in Pakistan, be sure to get someone who has experience with your particular type of case. Many people engage a lawyer without understanding that there are many types of lawyers as per their expertise in the field of law. The best experience lawyer in his particular field shall be time and money-saving for you. For example, if you select a criminal lawyer for s corporate work (even if he is your friend or close relative) he may waste your precious time and money as well. You may also engage a good lawyer through the internet from reliable websites like www.paklawyer.com, www.pklegal.org, and www.zallp.com, etc
To find the right lawyer, ask for recommendations from other business owners or friends, and then check websites for relevant experience. When you meet with a potential lawyer, ask lots of questions on the front end and make sure has already handled work similar to yours before you engage him.
NO.2 PRESENT YOUR CLEAR CASE: Before talking to you’re a lawyer, get organized and make sure you can convey succinctly and clearly what you want to do and when you need it. Too many clients dive into preliminary conversations or send cryptic e-mails leaving their lawyers confused about what they need.
NO.3 FLAT FEE: It shall always be better for a client to ask for a flat fee rate including all miscellaneous expenditures. Lawyers know their work very well, so do not accept to pay fee+ misc. expenditures but to do a total fee including all expenditures such as Notices, publication, copies etc.
NO.4 FOLLOW UP: A good client should be careful in following his own case. Do not always depend on your lawyer but keep in touch with the lawyer with updates on your case, at least a client should know the next date of hearing and short proceedings of the case. The mostly lawyers remain very much busy and they don’t have time to call every client to five then feedback but you should contact a lawyer before and after the hearing case regularly.
NO.5 TRUST YOUR LAWYER: I always suggest that a client should always engage a lawyer through the good reference of friend or relative on whom he can trust. Unfortunately, in Pakistan, you can’t trust every lawyer in the prevailing circumstance. If you like or dislike something about how your lawyer is performing, let him know and discuss the same with instead of thinking wrong about him. The dialogue will create a better relationship and service for you. But if you are sure that your lawyer is not much sincere with, without hesitation change your lawyer.
NO.6 CHECK CREDENTIAL OF LAWYER: If you are engaging a lawyer especially through the internet, check the credential of advocate/Lawyer from reliable sources. It can be easily satisfied through a website of Concern Bar councils, or Pakistan Bar Council. For example, if you are engaging a lawyer from Punjab, you can check his credential through the website of Punjab Bar Council or may also inquire about his credentials through telephone already provided on the website.
Pak-Lawyer Associates, Lahore, Pakistan hopes that these tips shall be helpful to hire a good lawyer for your case. If you have any complaint against your lawyer, you have the right to file a complaint against him before the concerned executive committee of bar counsel or file a suit for damages for you lose due to his professional negligence.
With best wishes from
GULL HASSAN KHAN
Advocate High Court
Pak-Lawyer Associates, 4 Mozang, Road, Lahore Pakistan
ORAL MARRIAGE AND NON-REGISTRATION OF MARRIAGE:
The Marriage Establishes a firm bond of love, confidence, affection and mutual trust, i.e ‘both of them build up marital life on the basis of mutual trust and understanding. The Nikah (Marriage) is defined in Section 239 of Muhammadan Law, which reproduced as under:-
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. (2017 MLD 1677 SHARIAT-COURT-AZAD-KASHMIR)
“Marriage (Nikah) is defined to be a contract which has for its object the procreation and legalization of children.”
The Honorable Superior Courts of Pakistan have declared that:-
“The marriage under Islamic law is a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Quran and it is for the comfort, love and compassion.”
(2007 MLD 570, 2003 CLC 702, 2003 CLC 878).
“Marriage in Islam is in the nature of civil contract entered into between a man and woman and no formal deed, as per Sharia, is necessary to be drawn to prove that a valid marriage has come into being.” ( 2004 PCr.LJ 622 ).
“Islam enjoins that when a male or a female attains puberty/ majority, they are free to contact Marriage according to the rites/canons of Islam and there is no prohibition on solemnization of marriage.” (2000 YLR 488).
The Honorable Superior Courts of Pakistan have also declared that registration of marriage is a requirement of law but its non-registration does not make the marriage invalid. Honourable Court in Many Judgments also declared as under:-
“Under Muslim law, nikah can be performed orally and such a nikah is not invalid merely because it is not registered according to provisions of Muslim Family Laws Ordinance, 1961. If it is otherwise proved to have taken place in accordance with the requirement of Islamic law. (PLD 1990 SC 28)”
“If the spouses claim themselves to be husband and wife, the other formalities can be ignored and their simple statement is sufficient to prove the same.” ( 2005 YLR 1859, 2000 YLR 577, PLD 1982 FSC 42).
Acknowledgement by a Muslim father rendered a son or daughter a legitimate child or heir. 2018 PCrLJ Note 29
“For Valid Nikah, the presence of witnesses is mandatory but when both man and woman admit that the factum of Nikah and solemnizing the marriage with each other, the requirement of two witnesses under the law is not mandatory”. (2004 YLR 239)
“In Islamic law when a woman and a man acknowledge their Nikah a presumption of truth is attached to it”.(2004 YLR 2836).
In a case titled “Abdul Majid Khan another Vs Mst Anwar Begum” reported as PLD 1989 SC 362, the Honourable Supreme Court of Pakistan has laid down that the presumption regarding Muslim Marriage, in absence of direct proof can be raised and acted upon, in the following instances;-
(a) Prolonged and continues cohabitation as husband and wife;
(b) The fact of acknowledgement by the man, of paternity of children born to the women, provided all the conditions of valid acknowledgement are fulfilled; or
(c) The fact of the acknowledgement by the man, of the women, as his wife.
CONSEQUENCES OF NON REGISTRATION:
Accordingn to Muslim Family Laws Ordinance 1961, regsitration marriage is mandatory and in failure, it may lead to a sentence and fine by court. Section 5 of MFLO, 1961 is reproduced here;
” 5.Registration of marriages.– (1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.
[7][(2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars.]
(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage.
(4) Whoever contravenes the provisions of sub-section (3) shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
(5) The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of nikahnama shall be supplied to the parties, and the fees to be charged therefor, shall be such as may be prescribed.
(6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under sub-section (5), or obtain a copy of any entry therein.”
That in view of above-said citation/Judgment of the superior court of Pakistan it is quite clear the non- registration of marriage do not invalidate a marriage if both parties accept the same and where children from that marriage and paternity of children are also admitted by the husband, however non registration of marriage ispunishable offence and offender may face a simple impriosnment upto 3 months .
COURT MARRIAGE PROCEDURE IN PAKISTAN
To facilitate the people, a Team of professional lawyers at Lahore is providing best LEGAL services for court marriages in Lahore, Islamabad, Rawalpindi, Faisalabad Gujrat, Gujranwala and other major cities of Pakistan. Pak-Lawyer Associates based in Lahore, Pakistan also owned sub-office in other major cities of Punjab and Karachi.
The court marriage procedure in Pakistan is slightly different as compared to other western countries. Every major male and female in the age of puberty have the right to contract a marriage with each other and the Constitution of Pakistan provides protection to family and also give rights to celebrate marriages. Same-sex marriages are not allowed in Pakistan.
STEP BY STEP PROCEDURE FOR COURT MARRIAGE:-
- You need to engage us at least 2 days before and to make minimum 25 % advance payment.
- Bride and groom have to arrive at our office at a given time. we will provide them with excellent services with full privacy and also arrange Nikkah Khawan/ Nikkah Registrar, Stamp vendor and Notary Public or Oath commissioner under one roof.
- Consultation with a lawyer regarding fixation of Dower/ Haq Mehar and maintenance of wife and other rights of couples etc will be provided.
- Nikkah Khawan shall solemnize the Nikkah as per Islamic tradition and same shall be registered accordingly in concern Union Council. You may also ask us for a computerize Nadra Marriage certificate.
- After Nikkah an affidavit regarding free will of the bride shall be issued by stamp vendor, (we shall prepare the same ) which shall be signed by her and after affirmation, It shall be attested by the Oath Commissioner or Notary Public.
- If a party required protection to avoid any action from the parent’s side, bride statement could be recorded before Justice of peace or Area Judicial Magistrate.
COURT MARRIAGE PROCEDURE FOR CHRISTIANS.
The Court Marriage procedure in Pakistan for Christians is almost the same as only their nikkah ceremony shall be solemnized as per Christians Laws through a Padri, rest procedure for marriage shall be same.
DOCUMENTS REQUIRED FOR COURT MARRIAGE PROCEDURE.
- CNIC copies of the couple or;
- B-Form or any other educational documents for age proof
- Two passport size pics of Bride
- Two witnesses having CNIC (Can be arranged by us)
- Affidavit of Bride of free will, consent and being sui juris no objection of marrying (prepared by us).
COURT MARRIAGE FEE AND CHARGES
To get a Quotation, please ask us by Telephone at + 92 42 37110092 or email us at ask@paklawyer.com. Payment can be paid thorugh bank transfer or cash payment at our office in advance.
See our posts on Facebook.
Online Marriage or Nikkah through Skype
NIKAH HALALA OR INTERVENING MARRIAGE
Nikah Halala or Halala (Urdu: حلالہ): Nikah means marriage and Halala means to make something lawful which is currently unlawful. Halala marriage makes the divorced wife lawful to the former husband, after she had become unlawful due to the three times divorce.
A man pronounces third irrevocable divorce, the wife is separated from him. He cannot remarry her unless she enters an intervening marriage to another man who divorces her after consummation of marriage or he dies and the wife observes Iddah (waiting period). On the expiry of Iddah they can be re-united. There is no disagreement among the jurists regarding the validity of such marriage contract if it is free from the condition of divorce, and there is no collusion among the parties. On, the contrary if the purpose of this intervening marriage I to divorce her and facilitate re-marriage between a divorced couple, then such marriage is a point of disagreement among the jurists.
According to the Quran :
“Allah says (interpretation of the meaning): “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” [al-Baqarah 2:230].
It is stipulated that this marriage which will make her permissible for her first husband should be a valid marriage. Temporary marriage (mut’ah marriage) or marriage for the purpose of making her permissible for her first husband then divorcing her (tahleel marriage) are both haraam and invalid according to the vast majority of scholars, and it does not make the woman permissible for her first husband. See: al-Mughni (10/49-55).
According to Sunnah :
There are saheeh ahaadeeth from the Prophet Muhammad (PBUH) which show that tahleel marriage (Nikah Halala) is haraam.
Abu Dawood (2076) narrated that Muhammad (PBUH) said: “Allah has cursed the muhallil and the muhallal lahu.” This was classed as saheeh by al-Albaani in Sunan Abi Dawood. A muhallil is one who marries a woman and divorces her so that she can go back to her first husband, and the muhallal lahu is the first husband.
Ibn Majaah (1936) narrated from ‘Uqbah ibn ‘Aamir that Muhammad said: “Shall I not tell you of a borrowed billy-goat.” They said, Yes, O Messenger of Allah. He said, “He is al-muhallil. May Allah curse al-muhallil and al-muhallal lahu.” Classed as hasan by al-Albaani in Saheeh Sunan Ibn Maajah.
The Muslim jurists have the following opinion regarding the status of this marriage.
VIEWPOINT OF HANAFI JURISTS:
Hanafi Jurists hold the opinion that such Nikah Halala / intervening marriage is though valid but abominable and improper (makruh). Imam Abu Yousef differing from prevailing view in Hanafi Law, holds that this marriage is invalid, and consequently cannot validate re-marriage between the divorcing couple. He supports his viewpoint by a rolling Hadrat “Umar ruled who said, if a muhallil and a muhallilah are brought to our court, I will have them stoned to death”. Ibn “Umar ruled that man and woman are adulterers, even if they stay together for twenty years. In the opinion of Imam Muhammad, the marriage is valid but the woman does not become lawful by such marriage for her former husband. Imam Abu Hanifah regards it valid and the second husband has the right to ignore the condition and not to divorce his wife.
VIEWPOINT OF SHAFI’i JURISTS:
Shafi jurists hold the view that such a contract (Nikah Halala) is invalid only when the contract contains a condition that the husband will divorce her. But if they agreed before the marriage contract was concluded, or afterwards, then it will not affect the validity of the marriage. They do not give regard to the intention of the contracting parties, nor do they acknowledge the effectiveness of a condition which is not a part of the contract.
VIEWPOINT OF MALAKI AND HANBALI JURISTS:
In the viewpoint of Maliki and Hanbali jurists, Nikah Halala / intervening marriage intended to provide a facility of re-marriage between a divorced couple is invalid, regardless of the whether the divorce is stipulated in the contract or it was agreed upon by the invalid and the first husband cannot re-marry on the basis of this second marriage. If a couple hires services of a person for this purpose, they, in fact, disobey God, and they cannot get what they want, because when a muhallil is used, the process of using him does not achieve the result for which he is used i.e. the couple remains unable to marry lawfully because the condition for their marriage has not been full filled. Holy prophet (s.a.w.s.) has described such muhallil as “borrowed wed bull”. Thus, such marriage is invalid and cannot make the marriage between divorced couple lawful.
According to the Muslim Family Laws Ordinance, 1961:
Under section 7(6) of Muslim Family Law Ordinance, 1961 does not debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
In a landmark Judgment of Federal Shariat Court titled “SALEEM AHMAD versus GOVERNMENT OF PAKISTAN through Attorney General of Pakistan etc” it was held that:-
2014 PLD 43 FEDERAL-SHARIAT-COURT
Marriage, termination of—“Khula” and “Mubarat”—Single irrevocable divorce—Re- marrying without any intermediary carriage/”halala “—“Khula” and “Mubarat” operated as a single, irrevocable divorce—Even thereafter both the spouses could contract fresh marriage with mutual consent, of course, if they wanted to, without any intermediary marriage of the wife with another person, as was required in the case when a husband pronounced divorce for the third time; however, iddat shall be incumbent on the wife if she wanted to contract marriage with someone else.
That no other term of Nikah Halala has been used in the said ordinance and therefore in Pakistani laws there is no scope of any Nikah Hilala or intervene marriage.
Whersas in another case, after divorce was pronounced three time and then cohabiation lead a man to sentcened .
1994 PCRLJ 1856 FEDERAL-SHARIAT-COURT
Offence of Zina (Enforcement of Hudood) Ordinance 1979 —-S. 10(2)—Appraisal of evidence—Divorce given by accused to his female co-accused haring become effective could not be withdrawn by him—Accused admittedly had not remarried the female accused and no HALALA had taken place—Cohabitation between the accused after the divorce, therefore, amounted to commission of Zina—Conviction of accused was consequently maintained, but in view of the fact of the accused being not aware of the legal consequences of living together after non-withdrawal of the divorce, their sentences of imprisonment were substantially reduced.
FOR MORE INFORMATION ASK A LEGAL QUESTION.
KHULA PROCEDURE
To get Khula from Family Court is very easy and convenient for a wife. If you have finally decided to get a decree of dissolution of marriage (on the basis of Khula) first get legal advice from a Lawyer.
To know the procedure of Khula in detail, you may consider the following points;-
-
- Engage a lawyer for Khula / Divorce Decree. Engage a Family Lawyer for your case and discuss your matter in detail, especially contents of the Nikkah Nama, Child Custody, maintenance and Dowry articles etc.
- Reason for Khula. No specific reason or Grounds are necessary for taking Khula decree from court. Any women may take khula simply on the basis of hate from her husband . She may simply say that she dont like her husband and that’s all.
- Filing of suit for Khula before Family Court. Your Lawyer shall prepare a suit for dissolution of marriage on the basis of khula and you shall sign the suit and Power of attorney/Wakalat Nama. Your lawyer shall file the suit and same shall be referred to a family Judge on the next day.
- Issuance of Notices to Husband. The court shall issue the notices through Registered AD/TCS Courier and Publication in a newspaper for the appearance of defendant / Husband and fix a date for his appearance and written statement not more than 15 days.
- Written Statment. The defendant / Husband shall file a written statement on the fixed date and the court shall fix a date for reconciliation between parties.
- Reconciliation and Judgment. On the fixed date of hearing, if reconciliation fails court shall straightaway issue the decree of khula. The Court shall also order to the husband to pay the outstanding Dower amount if any.
- Divorce Certificate from Union Council. You shall get the certified copy of Judgment from court. And then you shall give the Notice of Divorce to concern Union council. The Chairman UC / Arbitration Council is bound to issue the effectiveness of divorce certificate within 90 days.
