PLJ 2012 Sh.C. (AJ&K) 14
Present: Iftikhar Hussain Butt, J.
FEHMIDA HAIDER--Appellant
versus
TASADDAQ ABBAS SHAH--Respondent
C.A. No. 82 of 2011, decided on 16.12.2011.
AZ&K Family Courts Act, 1993--
----S. 5--Exclusive jurisdiction of Family Court--Suit to extent of prompt dower was dismissed on ground of lack of jurisdiction--Suit for recovery of dower--After completion of proceedings passed a decree for recovery of deferred dower and suit to extent of prompt dower was dismissed on ground of lack of jurisdiction--Challenge to--Question of--Whether Family Court had got jurisdiction to adjudicate upon such type of cases or not--Validity--Suit for recovery of dower whether it had been paid or after payment it had been returned or snatched away by husband--Family Court had got exclusive jurisdiction for disposal such type of disputes which related to marriage and family affairs and for matters connected therewith, therefore, Family Court was quite competent to hear and dispose off the case for recovery of dower snatched away by husband--Family Court had failed to exercise its jurisdiction, therefore, decision and decree to extent of issue of snatching away of ornaments being without lawful authority was set aside--Case was remanded. [Pp. 17 & 20] A & B
PLD 2006 Pesh. 189 & 2009 SCR 167.
Raja Inamullah Khan, Advocate for Appellant;
Nemo for respondent;
Date of hearing: 16.12.2011.
Judgment
The above titled appeal has been preferred against the decision and decree of Senior Civil Judge empowered as Judge Family Court Mirpur whereby a suit of the appellant to the extent of the prompt dower Rs. 94,000/- was dismissed.
The necessary facts forming the background of the instant appeal are that Mst. Fehmida Haider filed a suit for recovery of dower Rs. 3,00,000/- before Judge Family Court Mirpur on 03.11.2007 and averred that she was married to the respondent on 21.06.2003 in lieu of prompt dower in shape of ornaments worth Rs.94,000/- and deferred dower Rs.2,06,000/- total Rs.3,00,000/-. She remained populated with respondent and has been performing her marital obligation till 19.05.2007. After physically ill-treating her, she was ousted from the house by the respondent. She further submitted that during the period of population ornaments worth Rs.94,000/- were snatched away by the respondent and he also did not pay the deferred dower which may be recovered from the respondent.
The respondent filed his written statement on 06.08.2007 and submitted that the appellant has got no cause of action and the Court has also got no jurisdiction. He further submitted that the ornaments worth Rs.94,000/- were handed over to the appellant at the time of Nikah Ceremony whereby remaining deferred dower was also paid to the respondent on her-demand. The respondent submitted for dismissal of the suit.
In the light of the pleadings of the parties following issues were framed:--
Issue No. 1. Whether the plaintiff was married in lieu of dower Rs.3,00,000/- ? (OPP)
Issue No. 2. Whether the dower in shape of ornaments worth Rs. 94,000/- was prompt and Rs. 2, 06,000/- was deferred? (OPP)
Issue No. 3. Whether during the population the ornaments wroth Rs.94,000/- were snatched away from the plaintiff? (OPP)
Issue No. 4. Whether the defendant has not paid deferred dower to the plaintiff? (OPP)
Issue No. 5. Whether the plaintiff has got cause of action? (OPP)
Issue No. 6. Whether the Court has got jurisdiction? (OPP)
Issue No. 7. Relief.
In support of her case the appellant appeared in the witness box and also produced Talib Hussain Shah and Syed Jallal Hussain Shah as her witnesses.
On the contrary, Zeeshan Abid and Syed Imran Abid appeared as witnesses on behalf of respondent and Kamran Abid also appeared as attorney for the respondent.
The learned Judge Family Court after completion of the proceedings passed a decree for recovery of deferred dower Rs.206000/- in favour of the appellant against the respondent however her suit to the extent of prompt dower was dismissed on the ground of the lack of jurisdiction of the Court vide its decision dated 18.08.2011. The aforesaid decision and decree have been assailed to the extent of Issue No. 3 through the instant appeal.
During the course of the arguments, Arshad Mahmood Malik, the learned Counsel for the respondent submitted that the respondent has not contacted him since long therefore, he cannot plead his case. His statement was recorded and consequently was allowed to withdraw his Vakalatnama thus, ex-parte arguments of the learned Counsel for the s appellant were heard.
Raja Inamullah Khan, the learned Counsel for the appellant vehemently argued that the factum of marriage and fixation of the dower is admitted between the parties. According, to the learned Counsel as the respondent did not file any appeal against impugned decision and decree therefore, the matter of the Recovery of deferred dower Rs.206000/- has attained finality therefore, the dispute between the parties remains only to the extent of recovery of the prompt dower Rs.94,000/-. The learned Counsel further contended that the Court below fell in grave error while holding that the Court has got no jurisdiction about the recovery of the snatched ornaments given in lieu of prompt dower worth Rs.94,000/-, The learned Counsel pointed out that the Family Court has exclusive jurisdiction to hear and dispose off all the matters specified in the schedule under Section 5 of the Azad Jammu & Kashmir Family Courts Act, 1993 (hereinafter to be referred as Act) whereas the dower appears in the schedule as item 2 but the learned Judge Family Court committed an illegality while holding that once dower is paid its liability is satisfied and taking away of dower after marriage is a civil liability which can only be sought through civil suit. The learned Counsel further maintained that it has been abundantly proved by the appellant on the record that during the period of population the respondent snatched away the ornaments whereas on the other hand the respondent did not appear before the Court to rebut the claim of the appellant and produced three real brothers Zeeshan Abid, Imran Abid and Kamran Abid in support of his version but failed to refute the claim of the appellant. The learned Counsel finally submitted that the decree for recovery of prompt dower Rs.94,000/- may also be granted in favour of the appellant. In support of the arguments reliance was placed upon 2009 SCR 167.
In the light of the arguments addressed at Bar I have examined the record carefully.
As no counter appeal has been filed by the respondent against impugned decision and decree therefore, the impugned decision to the extent of recovery of deferred dower Rs.2,06,000/- has attained finality therefore, the dispute remains only to the recovery of the prompt dower given in shape of ornaments worth Rs.94,000/- which according to appellant were snatched away by the respondent. Now the question arises as to whether the Family Court has got jurisdiction to adjudicate upon such type of cases or not. The plain reading of Section 5 of the Act alongwith item 2 of the schedule makes it crystal clear that suit for recovery of dower whether it has been paid or after payment it has been returned or snatched away by the husband, the Family Court has got exclusive jurisdiction for disposal of such type of disputes which relate to marriage and family affairs and for matters connected therewith, therefore, the Family Court is quite competent to hear and dispose off the case for recovery of dower snatched away by the husband. In this regard reference can be made to a case titled Muhammad Ashfaq Vs. Mst. Aqsa and three others 2009 SCR 167, wherein the following principle has been enunciated at page 171 of the report:
"As far the second point is concerned, suffice it to say that the suit for recovery of dower is cognizable by the Family Court under the Family Courts Act, 1993 which Act provides adjudication of all the cases by the Family Courts in respect of disputes relating to marriage and family affairs and for matters connected therewith. When the purpose of the Family Courts Act, 1993, is considered in light of Section 5 read with the schedule thereto it is abundantly clear that the suit for dower is also to be heard by the Family Court. The finding is further strengthened by the provisions of Section 21 of the same Act which provides that the Family Court shall be deemed to be the District Judge for the purpose of Guardian and Ward Act, 1890."
The aforesaid view also finds support from an unreported judgment of the Apex Court in Civil Appeal No. 103 of 2010 titled Muhammad Ajaib Vs. Tasleem Wakeel dated 23.11.2011 wherein while dealing with the case of recovery of amount of Khulla, it has been observed as under at Page 6:--
"The interpretation of Section 13 of the Family Courts Act, 1993, demands that the whole scheme of law laid down in this Act along with preamble has to be considered and appreciated. The intention of the legislature is clearly ascertainable that the purpose of the enforcement of the Family Courts Act is; expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith. Once a question of fact has been determined by the Family Court after due appreciation of evidence, dragging the parties on the same question of fact in civil suit, amounts to defeat the very purpose of this special law. Therefore, in our considered view the matter which falls within the jurisdiction of the Family Court relating to the payment of money is determined by the Family Court and a specific order is passed in this regard, such order will fall within the scope of Section 13 and the same can be enforced or executed by the Family Court or it so required under the provisions of sub-section (4) of Section 13 by any other Civil Court if so directed by special or general order of District Judge. Therefore, the impugned judgment of the Shariat Court is modified to the extent that for recovery of the amount of Khulla, determined by the Family Court, separate civil suit is not required and such order is executable under the provisions of Section 13 of the Azad Jammu & Kashmir Family Courts Act, 1993. The learned Judge Shariat Court has placed reliance on a reported case 2008 SCR 277. Although this is an observation of a single Judge in the petition for leave to appeal without taking into consideration the relevant statutory provisions and in support of this view another reported case titled Mst. Kousar Nisar Vs. Raja Muhammad Maqsood 2000 SCR 404 has been relied, wherein this Court has observed in the following words:--
"In view of the finding of the Courts below that spouses can no more live within the limits ordained by the God, the marriage stood dissolved and return of benefits by wife to husband remains merely a liability of civil nature which can be enforced by the husband through appropriate means."
Thus, it is clear that in the relied case it has not been held that the amount of Khulla determined by the Family Court is recoverable through a civil suit. The spirit of observation of the Court is that it is a civil liability which can be enforced through an appropriate means. The execution of the order relating to payment of money by the Family Court is the most appropriate means. Except the word "separate suit" the spirit of the judgment reported as 2008 SCR 277 is in line with the spirit and the principle of law enunciated by this Court in Mst. Kausar Nisar's case. Thus with due respect the opinion of the learned Judge expressed in the case reported as 2008 SCR 277 to the extent of "separate suit" is overruled"
The abovementioned view finds further support from a case titled Muhammad Tariq Vs. Mst. Shaheen and two others PLD 2006 Peshawar 189 (DB) which is fully attracted to the instant case. It has been opined by the Court at Page 194 of the report as under:--
18. "Now adverting to the point under discussion, in our humble view, dower remains as dower, neither it undergoes any change nor it is transformed to a civil liability in case it is snatched or taken back forcibly from wife by the husband.
Neither Muslim Family Laws Ordinance, 1961 nor the provisions of the Family Court Act, 1964 has provided either impliedly or expressly that when the dower paid is snatched by the husband then for its retrieval, the wife shall have to make recourse to the Civil Court. The view held in the cited case amounts to taking away the absolute and exclusive jurisdiction of the Family Court which has never been the intention of the Law Makers, otherwise it would have provided for such course either expressly or by necessary implication.
19. The fundamental principle for construing a statute is that Court shall strive in search of that construction which would advance the cause of justice by providing relief to a party entitled to it and to suppress the mischief of denying such right on the ground of unessential technicality. Once a Tribunal of exclusive jurisdiction is established/constituted for the trial of particular cases/disputes then in the absence of express provision, its jurisdiction cannot be taken away on the ground that the matter triable by it has undergone a trivial change due to the act or omission of the party at fault. Looked at from this angle too, dower paid to the wife and snatched by the husband would automatically restore his liability to repay the same and it shall remain as a dower due to the wife, triable by the Family Court alone.
20. Due to the amendment introduced in the schedule to the Act, 1964 by now the disposal or in other words misappropriation of the wife property has been made triable by the Family Court. Judged from this aspect, once dower is paid then it becomes the property of the wife as her complete domain is established over it, therefore, the act of its snatching would amount to the disposal of her property and the Family Court alone would have jurisdiction to take cognizance for the recovery of the same."
In view of the above discussion the learned Judge Family Court has failed to exercise its jurisdiction therefore, the impugned decision and decree to the extent of Issue No. 3 being without lawful authority is set-aside.
I cannot subscribe to the view of the learned counsel for the appellant that this Court should also decide Issue No. 3 after perusing the evidence on the record. Suffice to note that it will not be in the interest of justice to pre-empt the function of the Judge Family Court therefore, I am not persuaded to appraise the evidence of the parties relating to Issue No. 3.
For the reasons listed above, while accepting appeal the impugned decision and decree to the extent of Issue No. 3 is set-aside and trial Court is directed to decide Issue No. 3 afresh. As the case was presented on 3.11.2007 which was decided on 18.8.2011 therefore, Issue No. 3 shall be decided positively by the Courts below within fifteen days after receipt of the file. No order as to costs.
(R.A.) Appeal accepted
Present: Iftikhar Hussain Butt, J.
FEHMIDA HAIDER--Appellant
versus
TASADDAQ ABBAS SHAH--Respondent
C.A. No. 82 of 2011, decided on 16.12.2011.
AZ&K Family Courts Act, 1993--
----S. 5--Exclusive jurisdiction of Family Court--Suit to extent of prompt dower was dismissed on ground of lack of jurisdiction--Suit for recovery of dower--After completion of proceedings passed a decree for recovery of deferred dower and suit to extent of prompt dower was dismissed on ground of lack of jurisdiction--Challenge to--Question of--Whether Family Court had got jurisdiction to adjudicate upon such type of cases or not--Validity--Suit for recovery of dower whether it had been paid or after payment it had been returned or snatched away by husband--Family Court had got exclusive jurisdiction for disposal such type of disputes which related to marriage and family affairs and for matters connected therewith, therefore, Family Court was quite competent to hear and dispose off the case for recovery of dower snatched away by husband--Family Court had failed to exercise its jurisdiction, therefore, decision and decree to extent of issue of snatching away of ornaments being without lawful authority was set aside--Case was remanded. [Pp. 17 & 20] A & B
PLD 2006 Pesh. 189 & 2009 SCR 167.
Raja Inamullah Khan, Advocate for Appellant;
Nemo for respondent;
Date of hearing: 16.12.2011.
Judgment
The above titled appeal has been preferred against the decision and decree of Senior Civil Judge empowered as Judge Family Court Mirpur whereby a suit of the appellant to the extent of the prompt dower Rs. 94,000/- was dismissed.
The necessary facts forming the background of the instant appeal are that Mst. Fehmida Haider filed a suit for recovery of dower Rs. 3,00,000/- before Judge Family Court Mirpur on 03.11.2007 and averred that she was married to the respondent on 21.06.2003 in lieu of prompt dower in shape of ornaments worth Rs.94,000/- and deferred dower Rs.2,06,000/- total Rs.3,00,000/-. She remained populated with respondent and has been performing her marital obligation till 19.05.2007. After physically ill-treating her, she was ousted from the house by the respondent. She further submitted that during the period of population ornaments worth Rs.94,000/- were snatched away by the respondent and he also did not pay the deferred dower which may be recovered from the respondent.
The respondent filed his written statement on 06.08.2007 and submitted that the appellant has got no cause of action and the Court has also got no jurisdiction. He further submitted that the ornaments worth Rs.94,000/- were handed over to the appellant at the time of Nikah Ceremony whereby remaining deferred dower was also paid to the respondent on her-demand. The respondent submitted for dismissal of the suit.
In the light of the pleadings of the parties following issues were framed:--
Issue No. 1. Whether the plaintiff was married in lieu of dower Rs.3,00,000/- ? (OPP)
Issue No. 2. Whether the dower in shape of ornaments worth Rs. 94,000/- was prompt and Rs. 2, 06,000/- was deferred? (OPP)
Issue No. 3. Whether during the population the ornaments wroth Rs.94,000/- were snatched away from the plaintiff? (OPP)
Issue No. 4. Whether the defendant has not paid deferred dower to the plaintiff? (OPP)
Issue No. 5. Whether the plaintiff has got cause of action? (OPP)
Issue No. 6. Whether the Court has got jurisdiction? (OPP)
Issue No. 7. Relief.
In support of her case the appellant appeared in the witness box and also produced Talib Hussain Shah and Syed Jallal Hussain Shah as her witnesses.
On the contrary, Zeeshan Abid and Syed Imran Abid appeared as witnesses on behalf of respondent and Kamran Abid also appeared as attorney for the respondent.
The learned Judge Family Court after completion of the proceedings passed a decree for recovery of deferred dower Rs.206000/- in favour of the appellant against the respondent however her suit to the extent of prompt dower was dismissed on the ground of the lack of jurisdiction of the Court vide its decision dated 18.08.2011. The aforesaid decision and decree have been assailed to the extent of Issue No. 3 through the instant appeal.
During the course of the arguments, Arshad Mahmood Malik, the learned Counsel for the respondent submitted that the respondent has not contacted him since long therefore, he cannot plead his case. His statement was recorded and consequently was allowed to withdraw his Vakalatnama thus, ex-parte arguments of the learned Counsel for the s appellant were heard.
Raja Inamullah Khan, the learned Counsel for the appellant vehemently argued that the factum of marriage and fixation of the dower is admitted between the parties. According, to the learned Counsel as the respondent did not file any appeal against impugned decision and decree therefore, the matter of the Recovery of deferred dower Rs.206000/- has attained finality therefore, the dispute between the parties remains only to the extent of recovery of the prompt dower Rs.94,000/-. The learned Counsel further contended that the Court below fell in grave error while holding that the Court has got no jurisdiction about the recovery of the snatched ornaments given in lieu of prompt dower worth Rs.94,000/-, The learned Counsel pointed out that the Family Court has exclusive jurisdiction to hear and dispose off all the matters specified in the schedule under Section 5 of the Azad Jammu & Kashmir Family Courts Act, 1993 (hereinafter to be referred as Act) whereas the dower appears in the schedule as item 2 but the learned Judge Family Court committed an illegality while holding that once dower is paid its liability is satisfied and taking away of dower after marriage is a civil liability which can only be sought through civil suit. The learned Counsel further maintained that it has been abundantly proved by the appellant on the record that during the period of population the respondent snatched away the ornaments whereas on the other hand the respondent did not appear before the Court to rebut the claim of the appellant and produced three real brothers Zeeshan Abid, Imran Abid and Kamran Abid in support of his version but failed to refute the claim of the appellant. The learned Counsel finally submitted that the decree for recovery of prompt dower Rs.94,000/- may also be granted in favour of the appellant. In support of the arguments reliance was placed upon 2009 SCR 167.
In the light of the arguments addressed at Bar I have examined the record carefully.
As no counter appeal has been filed by the respondent against impugned decision and decree therefore, the impugned decision to the extent of recovery of deferred dower Rs.2,06,000/- has attained finality therefore, the dispute remains only to the recovery of the prompt dower given in shape of ornaments worth Rs.94,000/- which according to appellant were snatched away by the respondent. Now the question arises as to whether the Family Court has got jurisdiction to adjudicate upon such type of cases or not. The plain reading of Section 5 of the Act alongwith item 2 of the schedule makes it crystal clear that suit for recovery of dower whether it has been paid or after payment it has been returned or snatched away by the husband, the Family Court has got exclusive jurisdiction for disposal of such type of disputes which relate to marriage and family affairs and for matters connected therewith, therefore, the Family Court is quite competent to hear and dispose off the case for recovery of dower snatched away by the husband. In this regard reference can be made to a case titled Muhammad Ashfaq Vs. Mst. Aqsa and three others 2009 SCR 167, wherein the following principle has been enunciated at page 171 of the report:
"As far the second point is concerned, suffice it to say that the suit for recovery of dower is cognizable by the Family Court under the Family Courts Act, 1993 which Act provides adjudication of all the cases by the Family Courts in respect of disputes relating to marriage and family affairs and for matters connected therewith. When the purpose of the Family Courts Act, 1993, is considered in light of Section 5 read with the schedule thereto it is abundantly clear that the suit for dower is also to be heard by the Family Court. The finding is further strengthened by the provisions of Section 21 of the same Act which provides that the Family Court shall be deemed to be the District Judge for the purpose of Guardian and Ward Act, 1890."
The aforesaid view also finds support from an unreported judgment of the Apex Court in Civil Appeal No. 103 of 2010 titled Muhammad Ajaib Vs. Tasleem Wakeel dated 23.11.2011 wherein while dealing with the case of recovery of amount of Khulla, it has been observed as under at Page 6:--
"The interpretation of Section 13 of the Family Courts Act, 1993, demands that the whole scheme of law laid down in this Act along with preamble has to be considered and appreciated. The intention of the legislature is clearly ascertainable that the purpose of the enforcement of the Family Courts Act is; expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith. Once a question of fact has been determined by the Family Court after due appreciation of evidence, dragging the parties on the same question of fact in civil suit, amounts to defeat the very purpose of this special law. Therefore, in our considered view the matter which falls within the jurisdiction of the Family Court relating to the payment of money is determined by the Family Court and a specific order is passed in this regard, such order will fall within the scope of Section 13 and the same can be enforced or executed by the Family Court or it so required under the provisions of sub-section (4) of Section 13 by any other Civil Court if so directed by special or general order of District Judge. Therefore, the impugned judgment of the Shariat Court is modified to the extent that for recovery of the amount of Khulla, determined by the Family Court, separate civil suit is not required and such order is executable under the provisions of Section 13 of the Azad Jammu & Kashmir Family Courts Act, 1993. The learned Judge Shariat Court has placed reliance on a reported case 2008 SCR 277. Although this is an observation of a single Judge in the petition for leave to appeal without taking into consideration the relevant statutory provisions and in support of this view another reported case titled Mst. Kousar Nisar Vs. Raja Muhammad Maqsood 2000 SCR 404 has been relied, wherein this Court has observed in the following words:--
"In view of the finding of the Courts below that spouses can no more live within the limits ordained by the God, the marriage stood dissolved and return of benefits by wife to husband remains merely a liability of civil nature which can be enforced by the husband through appropriate means."
Thus, it is clear that in the relied case it has not been held that the amount of Khulla determined by the Family Court is recoverable through a civil suit. The spirit of observation of the Court is that it is a civil liability which can be enforced through an appropriate means. The execution of the order relating to payment of money by the Family Court is the most appropriate means. Except the word "separate suit" the spirit of the judgment reported as 2008 SCR 277 is in line with the spirit and the principle of law enunciated by this Court in Mst. Kausar Nisar's case. Thus with due respect the opinion of the learned Judge expressed in the case reported as 2008 SCR 277 to the extent of "separate suit" is overruled"
The abovementioned view finds further support from a case titled Muhammad Tariq Vs. Mst. Shaheen and two others PLD 2006 Peshawar 189 (DB) which is fully attracted to the instant case. It has been opined by the Court at Page 194 of the report as under:--
18. "Now adverting to the point under discussion, in our humble view, dower remains as dower, neither it undergoes any change nor it is transformed to a civil liability in case it is snatched or taken back forcibly from wife by the husband.
Neither Muslim Family Laws Ordinance, 1961 nor the provisions of the Family Court Act, 1964 has provided either impliedly or expressly that when the dower paid is snatched by the husband then for its retrieval, the wife shall have to make recourse to the Civil Court. The view held in the cited case amounts to taking away the absolute and exclusive jurisdiction of the Family Court which has never been the intention of the Law Makers, otherwise it would have provided for such course either expressly or by necessary implication.
19. The fundamental principle for construing a statute is that Court shall strive in search of that construction which would advance the cause of justice by providing relief to a party entitled to it and to suppress the mischief of denying such right on the ground of unessential technicality. Once a Tribunal of exclusive jurisdiction is established/constituted for the trial of particular cases/disputes then in the absence of express provision, its jurisdiction cannot be taken away on the ground that the matter triable by it has undergone a trivial change due to the act or omission of the party at fault. Looked at from this angle too, dower paid to the wife and snatched by the husband would automatically restore his liability to repay the same and it shall remain as a dower due to the wife, triable by the Family Court alone.
20. Due to the amendment introduced in the schedule to the Act, 1964 by now the disposal or in other words misappropriation of the wife property has been made triable by the Family Court. Judged from this aspect, once dower is paid then it becomes the property of the wife as her complete domain is established over it, therefore, the act of its snatching would amount to the disposal of her property and the Family Court alone would have jurisdiction to take cognizance for the recovery of the same."
In view of the above discussion the learned Judge Family Court has failed to exercise its jurisdiction therefore, the impugned decision and decree to the extent of Issue No. 3 being without lawful authority is set-aside.
I cannot subscribe to the view of the learned counsel for the appellant that this Court should also decide Issue No. 3 after perusing the evidence on the record. Suffice to note that it will not be in the interest of justice to pre-empt the function of the Judge Family Court therefore, I am not persuaded to appraise the evidence of the parties relating to Issue No. 3.
For the reasons listed above, while accepting appeal the impugned decision and decree to the extent of Issue No. 3 is set-aside and trial Court is directed to decide Issue No. 3 afresh. As the case was presented on 3.11.2007 which was decided on 18.8.2011 therefore, Issue No. 3 shall be decided positively by the Courts below within fifteen days after receipt of the file. No order as to costs.
(R.A.) Appeal accepted
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