Procedure in Impotency Cases

 PLJ 2022 Peshawar 113

[Mingora Bench, Sawat)]

Present: Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ.

UMAR KHITAB--Petitioner

versus

Mst. SANA SHAH and another--Respondents

W.P. No. 932-M of 2021 With Interim Relief (N), decided on 9.3.2022.

Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)--

----S. 2(v)(vi)(ix)(c)--Constitution of Pakistan, 1973 Arts. 2-A & 199--Suit for dissolution of marriage--Impotency of petitioner--Application for Medical Examination of petitioner during pendency of suit--Allowed--Determination of impotency of petitioner--Direction to--Denial of allegations of impotency--Second marriage of petitioner--Mode, manner and methodology adopted by Judge Family Court for determination of issue in hand is neither legal nor lawful nor justified, especially when such a controversy has already been pleaded by parties, issue in this respect has been framed and when they are yet to produce their respective evidence in support of their respective stance--Petitioner has contracted a second marriage with Mst. Aziza Bibi and who have gave birth to a baby boy and thus if impugned direction of appearance before Medical Board is allowed to sustain, then it will cause to cast a doubt over legitimacy of new born baby--Procedure adopted by Judge Family Court for determination of impotency of petitioner is declared as alien to law on subject, we hold that petitioner has not been treated in accordance with law--He has been compelled to do which law does not require him to do and petitioner has been deprived of protection of law of land--Petition allowed.

                                                                      [Pp. 119 & 120] A, B & C

Malak Ahmad Jan, Advocate for Petitioner.

Mr. Tariq Aziz, Advocate for Respondent No. 1.

M/s. Barrister Dr. Adnan Khan and Abdul Nasir, Advocates as amicus curiae.

Dates of hearing: 1 & 9.3.2022.

Judgment

Muhammad Ijaz Khan, J.--Through the instant petition, the petitioner has challenged the order of Respondent No. 2 i.e. Judge Family Court-I, Swat dated 28.09.2021, whereby petitioner was directed to appear before Medical Board for his medical examination so as to ascertain the factum or otherwise of his impotency.

2. Precisely the facts of the case are that Respondent No. 1 namely Mst. Sana Shah had filed a suit for dissolution of her marriage on the ground of impotency of the petitioner, non-payment of maintenance as well as cruelty. She has also prayed for payment of maintenance as well as for the return of dowry articles as per list attached with the plaint.

3. Petitioner, then defendant, was summoned who submitted his written statement, whereby all the allegations leveled against him by the plaintiff/Respondent No. 1 were denied, specially with respect to his impotency as he has annexed his medical report from a famous laboratory and he has also stated that in-fact it was Respondent No. 1/plaintiff who is not ready to perform marital obligation and failure of all jirga, he has contracted second marriage and are living a happy life. The controversies between the parties were reduced into as many as seven issues, including the issue of dissolution of marriage on the basis of non-fulfillment of marital obligations.

4. At the stage of recording evidence of the plaintiff/ Respondent No. 1, it was on 29.05.2021, when Respondent No. 1/ plaintiff namely Mst. Sana Shah submitted an application for sending the present petitioner for medical examination regarding the impotency or otherwise before the trial of the suit, which application was strongly resisted by the present petitioner by submitting a detailed reply, however, the learned Judge Family Court vide impugned order dated 28.09.2021 allowed the aforesaid application with the following observations:

“Thus, in the light of the above, application is allowed and the defendant Umar Khitab is directed to appear before the Medical Board for his medical examination. Moreover, the Medical Superintendent D.H.Q. Hospital Saidu Sharif shall be addressed through a separate letter to constitute a Medical Board for the purpose of determining that whether respondent/defendant Umar Khitab is able to perform sexual intercourse/fulfill his conjugal rights or not. The report shall be submitted on or before date fixed. The medical/ examination expenses shall be borne by plaintiff.”

The petitioner has challenged the aforesaid order before this Court through the instant petition.

5. We have heard arguments of learned counsel for the parties as well as learned amicus curiae in detail and perused the record with their able and valuable assistance.

6. In this case, the questions before this Court for determination are that;

i.        As to how and in what manner the impotency of an husband is to be ascertained and determined when such allegations are leveled against him by his wife?

ii.       As to whether the mode and manner adopted by the learned Judge Family Court by directing the petitioner to appear before the Medical Board for his medical examination so to as ascertain his impotency or potency as the case may be, is legally correct as per the law of the land? And

iii.      As to whether the petitioner has been treated/dealt with in accordance with the law of the land?

7. As far as the first and second questions are concerned, to answer these question, Section 2 clauses (v), (ix) and proviso (c) of clause (ix) of The Dissolution of Muslim Marriages Act, 1939 are relevant, which are reproduced hereunder:-

“2. Grounds for decree for dissolution of marriage.--A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

(i)                                                                                            

(ii)                                                                                           

(iii)                                                                                          

(iv)                                                                                          

(v)      That the husband was impotent at the time of the marriage and continues to be so;

 (vi)                                                                                         

(vii)                                                                                         

 (viii)                                                                                       

(ix)     on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law:

          Provided that--

(a)----------------------------------------------------------------------------------

(b)----------------------------------------------------------------------------------

(c)      Before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.”

The aforesaid provision makes it unmistakably clear that for passing a decree on the ground of impotency of an husband, the Court is not required to send the husband to appear before a Medical Board for its report but what is required from a Judge Family Court is that it has to pass an order requiring the husband to satisfy it within a period of one year from the date of such order to the effect that the husband has ceased to be impotent and if the husband satisfies the Court, then no decree shall be passed on the said ground.

8.  It would also be relevant for the purpose of the present controversy to quote some extracts from مجموعہ قوانین اسلام authored by Dr. Tanzeel-ur-Rehman:

"تفریق بسبب نامردی:

"122۔ (i) جس عورت کا نکاح شرع اسلام کے بمو جب منعقد ہوا ہو بدیں بناء عدالت سے تنسیخ نکاح کا حکم حاصل کر سکتی ہے کہ اس کا شوہر بوقت نکاح نامرد تھا نیز یہ کہ اس کی وہ حالت برقرار ہے۔

(ii) شوہر کی درخواست پر عدالت پر لازم ہو گا کہ بر بناء نامر دی تنسیخ نکاح کا حکم جاری کرنے سے قبل شوہر کو ایک سال کی مہلت دے تا کہ شوہر اس ایک سال کی مدت میں عدالت کو مطمئن کر سکے کہ وہ نامرد نہیں رہا ۔ اگر شوہر اس مدت میں عدالت کو مطمئن کر سکا تو عدالت نامردی کی بناء پر تنسیخ نکاح کا حکم دینے کی مجاز نہ ہو گی ۔

تشریح

 نامر د کی تعریف:

 فقہی اصطلاح میں نامرد ( عنین ) اس شخص کو کہتے ہیں جو عضو تناسل رکھنے کے باوجود عورت سے جماع کرنے پر قادر نہ ہو ، خواہ یہ حالت پیدائشی ہو یا کسی مرض کے سبب پیدا ہوئی ہو یا کمزوری یا بڑھاپے یا کسی اور وجہ سے پیدا ہوئی ہو ۔ اگر کوئی ایسا شخص جو بعض عورتوں سے جماع کرنے پر قادر ہے مگر بعض عورتوں سے جماع کرنے پر قادر نہیں تو وہ شخص ان بعض عورتوں کے حق میں جن سے جماع کرنے پر قادر نہیں ہے نامرد سمجھا جاۓ گا یا جس مرد کو عورت کی مخالطت سے قبل ہی انزال ہوجا تا ہو ، نامرد سمجھا جائے گا ۔

 ایسے مرد کی زوجہ کو جو اس سے جماع کرنے پر قادر نہ ہوا ہو شرع نے بذریعہ عدالت طلب تفریق کا اختیار دیا ہے اور یہ اختیار زوجہ کے مطالبہ کی تاخیر سے خواہ کتنا عرصہ گزر جائے باطل نہیں ہوتا ۔

جب زوجہ اپنا معاملہ عدالت کے روبرو پیش کرے تو قاضی کے لئے لازم ہے کہ وہ شوہر سے حقیقت حال معلوم کرے ۔ اگر شوہر اس بات کا اقرار کرے کہ وہ اس عورت سے جماع کرنے پر قادر نہیں ہواتو حاکم عدالت علاج کرنے کے لئے اسکو ایک سال کی مہلت دے گا ۔ لیکن اگر شوہر عورت سے جماع کرنے کا ادعا کرے اور عورت کنواری ہونے کی مدعی نہ ہو تو شوہر سے حلف لیا جاۓ گا اگر اس نے قسم کھالی کہ اس نے اس عورت سے جماع کیا ہے تو عدالت زوجہ کی درخواست مسترد کر دے گی لیکن اگر شوہر حلف لینے سے انکاری ہو تو عدالت اس کو علاج کرنے کے لئے ایک سال کی مہلت دے گی ۔ لیکن اگر عورت اس بات کی مدعی کی ہے کہ وہ کنواری ہے تو عدالت اس عورت کے طبی معائنہ کا حکم دے گی اگر طبی معائنہ کی رو سے عورت کا باکرہ ہونا ثابت نہ ہو تو شوہر سے حلف لیا جائے گا اگر اس نے قسم کھائی کہ اس نے اپنی ز وجہ سے جماع کیا ہے تو عدالت تفریق کا حکم جاری نہ کرے گی لیکن اگر شوہر حلف لینے سے انکار کرے تو عدالت ایک سال کی مہلت دے گی ۔ لیکن اگر طبی معائنہ سے یہ ثابت ہو کہ عورت اس وقت تک کنواری ہے تو عدالت شوہر سے حلف لئے بغیر اس کو علاج کی غرض سے ایک سال کی مہلت دے گی ۔ اسی طرح اگر عورت اپنے ثیبہ ہونے ( کنوارے پن کے ازالہ ) کے متعلق یہ کہے کہ شوہر نے اسکا ازالہ انگلی سے یا کسی دوسرے طریقے سے کیا ہے وطی سے نہیں اور شوہر وطی کرنے کا مدعی ہو تب بھی یہی حکم ہو گا ۔ حنیفہ کے نزدیک ڈاکٹری معائنہ کا نتیجہ کہ اسکی بکارت کس طرح زائل ہوئی معتبر ہو گا لیکن افضل یہ ہے کہ ڈاکٹر نیوں کی تعداد 2 ہو ۔

 ایک سال کی مدت حاکم عدالت کے مہلت دینے کی تاریخ سے شمار ہو گی اس سے پہلے خواہ کتنی ہی مدت گزر چکی ہو اس کا اعتبار نہ کیا جائے گا ۔

اگر ایک سال کی مدت میں شوہر کسی طرح علاج کر کے تندرست ہو گیا اور ایک مرتبہ بھی عورت سے جماع کرنے پر قادر ہو گیا تو عورت کا اس بناء پر فسخ نکاح کا حق باطل ہو جائے گا ۔

لیکن اگر اس ایک سال کی مدت میں شوہر ایک بار بھی عورت سے جماع پر قادر نہ ہو سکا تو عدالت عورت کی خواہش پر ، شوہر کو طلاق دینے کا حکم دے گی ۔ اگر شوہر طلاق دینے سے منکر ہو تو عدالت خود تفریق کر دے گی ۔ "

A comparison of the abovementioned extracts from مجموعہ قوانین اسلام and provisions of The Family Courts Act would show that Section 2 (v), (ix) and proviso (c) of clause (ix) of The Act of 1939 is in line and conformity of Sharia, therefore no deviation could be allowed to sustain in the form of the impugned order of the Judge Family Court.

9. In the case in hand, petitioner being an husband and who in his written statement has taken a specific plea that when the aforesaid allegations of impotency were made by the Respondent No. 1, then plaintiff, in presence of his father-in-law, thereafter her parents required the present petitioner to undergo necessary medical test which he has accordingly conducted from a laboratory and as per the report of the laboratory dated 04.06.2020, petitioner has been declared as a healthy and potent man. Therefore, the legal worth of the aforesaid report and plea of the petitioner of being a healthy and potent man was yet to be determined by the learned Judge Family Court after recording of pro & contra evidence, however in the middle of the way, the Judge Family Court by allowing the application of the Respondent No. 1/plaintiff has directed the present petitioner to appear before the Medical Board for ascertainment of the impotency or otherwise of the petitioner, and thus the mode, manner and methodology adopted by the Judge Family Court for the determination of the issue in hand is neither legal nor lawful nor justified, especially when such a controversy has already been pleaded by the parties, issue in this respect has been framed and when they are yet to produce their respective evidence in support of their respective stance, therefore we believe that the Judge Family Court has erred in law by allowing application of the Respondent No. 1, then plaintiff, and by restoring to a procedure, which is alien to law on the subject.

10. It is also a matter of record and as stated in Paras-v, vi & vii of the instant petition that petitioner has contracted a second marriage with one Mst. Aziza Bibi and who have gave birth to a baby boy and thus if the impugned direction of appearance before the Medical Board is allowed to sustain, then it will cause to cast a doubt over the legitimacy of the new born baby, so on this score too, petitioner would face an unending social humiliation and as such would amount to deprive him of an opportunity of social justice as guaranteed to him by the preamble and Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973.

11. To answer the Question No. 3, it may be noted that it is the inalienable right of every citizen to be treated in accordance with the law of the land, so it would be relevant to trace the aforesaid right of the petitioner being a citizen of Pakistan in the Constitution of Islamic Republic of Pakistan, 1973, the following provisions would be relevant:

“Preamble.--Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him in a sacred trust;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein the Muslim shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;”

Under Article 2-A of The Constitution of lslamic Republic of Pakistan, 1973, the objective resolution has been declared as substantive part of The Constitution, where the following provisions are relevant for the fact in issue:-

“Wherein the principles of democracy, freedom, equality, tolerance and social justice as annunciated by Islam shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;

Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Article 4. Right of individuals to be dealt with in accordance with law, etc.--(1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular--

(a)    No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b)    No person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c)    No person shall be compelled to do that which the law does not require him to do.”

Article 25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.”

12. So keeping in view the aforesaid mandate of the Constitution of Islamic Republic of Pakistan, 1973, the procedure adopted by the learned Judge Family Court for determination of the impotency of the petitioner-husband is declared as alien to law on the subject, we hold that petitioner has not been treated in accordance with law. We also hold that he has been compelled to do which the law does not require him to do and as such we further hold that petitioner has been deprived of the protection of law of the land.

13. In view of the aforesaid discussion, the instant writ petition is allowed, the impugned order of Respondent No. 2 i.e. Judge Family Court-I, Swat dated 28.09.2021 is set aside and consequently the learned Judge Family Court-I, Swat is directed to proceed in the case in accordance with law and as per the aforesaid mode and manner for determination of the impotency of the petitioner-husband, if any, essential for a just and fair decision between the parties.

(Y.A.)  Petition allowed

Custodial Rights of Maternal Grandparents

 PLJ 2024 Lahore (Note) 126

[Multan Bench, Multan]

Present: Raheel Kamran, J.

Mst. AMEER MAI etc--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 11228 of 2023, decided on 20.2.2024.

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan, 1973, Art. 199--Application for custody of minor--Pendency of litigation--Appeal--Dismissed--Visitation schedule--Maternal grand parents--Visitation rights--Challenge to--Undisputedly minor had been resided with her grandmother since her birth--She was of tender age of about 2½ years--No emotional bond had been developed between minor and her father and paternal relations, abrupt withdrawal of her custody from her maternal grandparents might be very traumatic for minor--Documents qua early retirement of Respondent No. 3 and admission of brother of minor in F.G. Public School No.1 (Boys), Gujranwala Cantt did not form part of evidence as those came into existence after decision of Guardian Court--High Court deemed it appropriate to remand matter to trial Court concerned for determination of custody of welfare of minor after permitting parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à-vis minor twice every month on weekends for two hours each time so that bond of love and affection between minor and her father was allowed to be developed--Petition disposed of.               

                                                                                  [Para 6] A, B & C

Mr. Muhammad Nadeem Fareed, Advocate for Petitioners.

Rao Muhammad Adnan, Advocate for Respondent No. 3.

Date of hearing: 20.2.2024.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed judgment dated 06.07.2023 passed by the learned Additional District Judge, Taunsa Sharif whereby her appeal against the judgment dated 27.04.2023 passed by the learned Guardian Judge, Taunsa Sharif about custody of minor namely Rukhsar Bano aged 2½ years to her real father i.e. Respondent No. 3 was dismissed.

2. Learned counsel for the petitioner contends that impugned judgments of the learned Courts below are unsustainable as Respondent No. 3 is serving in Pakistan Army who is not residing within the village and is unable to devote time for proper upbringing of the minor, whereas the minor has been residing with her maternal grandmother since her birth. He maintains that no effort has been made by Respondent No. 3 to exercise his visitation rights during pendency of proceedings before the learned trial Court, learned Appellate Court or this Court, therefore, there is no bond of love and affection between minor and her father. He adds that application for custody of the minor has been moved with malafide to deprive maternal grandparents from custody of minor and entrust the same to her paternal grandparents which hardly serve welfare of the minor. Reliance has been placed on judgments in the cases of Raja Muhammad Owais vs. Mst. Nazia Jabeen and others (2022 SCMR 2123) and Mst. Anwari Bibi vs. Hidayat Ulah Khan and others (2020 MLD 302).

3. Conversely, learned counsel for the Respondent No. 3 has supported the impugned judgments for the reasons that stated therein. He has emphasized that not only father of the minor is her natural guardian who, in the absence of any disqualification in law, is entitled to her custody but he is with better means and resources to ensure welfare of the minor and her upbringing with the assistance of his mother and sister. He adds that the minor would be better off to be brought up in the company of her brother who is already in the custody of her father. It has been emphatically argued that custody of the minor could not be entrusted to maternal grandparents who are delinquent in upbringing their own granddaughter and litigation in this regard is pending adjudication before the learned Family Court which has been filed by their daughter- in-law for the provision of her maintenance. He maintains that in order to properly bring up his minor children, the Respondent No.3 has applied for early retirement and his son has already been enrolled at F.G. Public School No. 1 (Boys), Gujranwala Cantt since July 2023 where he is residing with his paternal grandmother and paternal aunt. Reliance has been placed on the case of Shabana Naz vs. Muhammad Saleem (2014 SCMR 343).

4. Father of the minor, present in the Court, submits that he has not been allowed to meet the minor rather threats have been extended to him whenever he made any such attempt of visitation. Documents i.e. Fee Card of Muhammad Saqlain issued by F.G. Public School No. 1 (Boys) Gujranwala Cantt, application regarding retirement submitted by the Respondent No. 3 and Residency Certificate are produced by the learned counsel for the Respondent No.3, copies whereof has been retained and original documents have been returned to the learned counsel for the Respondent No. 3.

5. Arguments heard. Record perused with the able assistance of learned counsel for the parties.

6. Welfare of the minor is the primary consideration governing the grant of custody of minors. While this Court is of the considered opinion that in the absence of his disqualification, a father cannot be deprived of custody of the minor as ordinarily welfare of the minor lies with his or her parents. In exceptional cases and for valid reasons, a parent can be denied the right of custody while entrusting it to the grandparents, when it is absolutely necessary and in the welfare of the minor to do so. In the instant case, undisputedly the minor has been residing with her grandmother since her birth. She is of tender age of about 2½ years. Undeniably, no emotional bond has been developed between the minor and her father and paternal relations, therefore, abrupt withdrawal of her custody from her maternal grandparents may be very traumatic for the minor. Additionally, documents qua early retirement of Respondent No.3 and admission of brother of the minor in the F.G. Public School No.1 (Boys), Gujranwala Cantt do not form part of the evidence as those came into existence after decision of the Guardian Court. Therefore, to allow fair opportunity to either side, this Court deems it appropriate to remand the matter to the learned trial Court/Guardian Judge concerned for determination of custody of welfare of minor after permitting the parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à- vis the minor twice every month on the weekends for two hours each time so that the bond of love and affection between the minor and her father is allowed to be developed. For that purpose, schedule of visitation shall be set down on an application to be moved by Respondent No.3. The learned Guardian Judge shall ensure that visitation right is allowed to be exercised by the Respondent No. 3 without any hindrance or intimidation whatsoever. Accordingly, the impugned judgments shall be set aside and application of Respondent No. 3 shall be deemed to be pending before learned Guardian Judge concerned who shall decide the same afresh within a period of three months and a compliance report in that regard shall be submitted to the Deputy Registrar (Judicial) of this Court.

7. Disposed of.

(Y.A.)  Petition disposed of

PLJ 2010 Lahore 338

 PLJ 2010 Lahore 338

[Rawalpindi Bench Rawalpindi]

Present: Jamila Jahanoor Aslam, J.

MUHAMMAD TAHIR SHERAZI--Petitioner

versus

A.D.J. RAWALPINDI etc.--Respondents

W.P. Nos. 1811 of 2008 & 476 of 2009, heard on 13.07.2009

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

----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction--Suit for dissolution of marriage, recovery of dowry articles and maintenance against petitioner--Suit was decreed to extent of dissolution of marriage u/S. 10(4) of Family Courts Act, 1964, prior to framing of issues on other two matters--Appeals were filed by both the parties--Appeal of lady was partly accepted and findings of trial Court had been reversed to extent of recovery of dowry articles which had been dismissed--Quantum of maintenance granted to lady for iddat period as well as for minor had not been modified and appeal of present petitioner was dismissed in toto--Challenge to--Dowry articles were brought after the parties returned from abroad were she proceeded with her husband--Receipts for purchase of dowry articles presented her are of the dates prior to the marriage--Her evidence has too many loopholes in it to make her version credible--Family Court has overlooked very cogent points and passed the judgment without proper reading of the evidence--Held: Observations of Courts below qua quantum of maintenance are agreeable, however order to extent of maintenance allowance for minor is modified and enhancement @ 10% per annum is made--Except for modification is maintenance allowance awarded to minor, both petitioner are without merits--Petition dismissed.

      [P. 340] A, B, & C

Ms. Amber Pervez, Advocate for Petitioner.

Sheikh Muhammad Ilyas, Advocate for Respondents.

Date of hearing 13.7.2009.

Judgment

This order shall dispose off Writ Petitions No. 1811 of 2008 and No. 476 of 2009 as the controversy is between the same parties and similar questions law and facts are involved.

2.  Background of the matter is that the Petitioner Mst. Shehnaz Bano in Writ Petition No. 476 of 2009 had filed a suit for dissolution of marriage, recovery of dowry articles and maintenance, which was contested by the present petitioner and was decreed to the extent of dissolution of marriage vide order dated 04.01.2008 under Section 10(4) of the Family Courts Act 1964, prior to framing of issues on the other two matters. The suit for recovery of maintenance and dowry articles was decreed vide judgment/decree dated 31.07.2008 and feeling aggrieved of the same both the parties preferred appeals. The appeal of Mst. Shehnaz Bano was partly accepted vide judgment/decree dated 16.10.2008 whereby the learned Additional District Judge Rawalpindi had reversed the findings of the learned trial Court to the extent of recovery of dowry articles which had been dismissed. However, the quantum of maintenance granted for Iddat period as well as for minor had not been modified and the appeal of present petitioner, Muhammad Tahir Sherizi was dismissed in toto. Being aggrieved of the judgment/decree of the learned A.D.J. Rawalpindi dated 16.10.2008, both the parties have invoked the Constitutional jurisdiction of this Court and impugned the said order. The main contention of the lady Mst. Shehnaz Bano is that Muhammad Tahir Sherazi has not appeared in person in the matter before trial Court. This is refuted by bare perusal of the order sheet dated 04.01.2008 wherein it is categorically mentioned that the defendant is present in person. She also claims her stance such qua dowry articles has not been refuted by the present petitioner and has prayed for setting aside of the judgment/decree dated 16.10.2008 and for restoration of judgment/decree dated 31.07.2008.

3.  On the other hand petitioner in Writ Petition No. 1811 of 2008 has agitated the quantum of maintenance granted to the lady and minor.

4.  After hearing the submission of the Counsel for the parties and thorough reading of the record, I am inclined to agree with the observations of learned A.D.J. Rawalpindi. It is obvious from the record that the lady was not given any dowry article as per her own admission. She claimed that the dowry articles were bought after the parties returned from abroad where she proceeded with her husband. The receipts for purchase of dowry articles presented by her are of the dates prior to the marriage. Her evidence has too many loopholes in it to make her version credible. However, Family Court has overlooked very cogent points and passed the judgment/decree dated 31.07.2008 without proper reading of the evidence. As far as the contention of present petitioner, qua the quantum of maintenance is concerned, I find the same totally without merit. In view of the fact, that he is working in Dubai and is fairly well-off, I am inclined to agree that the observations of the Courts below qua the quantum of maintenance, however I would like to modify the order to the extent of maintenance allowance for the minor and make it with an enhancement @ 10% per annum. In these days of double digit inflation, lower Courts must keep enhancement in mind while passing judgments/decrees on the quantum of maintenance allowance. As the children grow so, do their needs. Keeping enhancement in the maintenance in mind while passing judgments/ decrees, it would cut down on further litigation between the parties. The idea is to make lives of the people easier whereby they don't have to keep returning to the Courts to file new/fresh suits/applications for enhancement.

5.  In sequel of the above discussion, except for the modification to the extent of enhancement @ 10% per annum in the maintenance allowance awarded to the minor, both the petitions are without merits, thus I dismiss the writ petitions.

(Sh.A.S.)   Petition dismissed.

 

How to Get Rid of Oral Nikah?

We often hear that a girl and a boy contracted oral Nikah but later on the guy leaves the girl on her own. In such like circumstances, the Nikah is Sharai as well as legal. It doesn't matter whether it is documented or not, registered or not.

The only reason for contracting marriages is to secure oneself from indulging in any illicit relationship. Further it gives protection of law to parties to the contract of Nikah. If parties enter into Oral Nikah, it is considered as a Legal and Sharai relationship.

In Islamic Law a Nikah can end only if :-

a. The Husband Divorces his wife
b. The wife takes Khula from Husband
c. Any of the parties die during the relationship

A woman can only take Khula from the Qazi. In Pakistani Legal System a Family Judge is equal to Qazi. So for taking Khula a wife has to approach the Family Court and follow its procedures.

Any Muslim Woman can take Khula from Pakistani Family Court if she can prove that she contracted Nikah with her husband and the same is intact for one reason or the other.

In cases of Oral Nikah, the marriage is not documented but it is still a marriage under Islamic Law. In such like circumstances a wife can approach the Family Court and obtain Khula from her husband by following the legal procedure. For more you can consult lawyergolra@gmail.com

Regards,
Salman Yousaf Khan (Golra)
Family Lawyer
+92-333-5339880

PLJ 2015 FSC 33

PLJ 2015 FSC 33[Original Jurisdiction]

Present: Dr. Allama Fida Muhammad Khan, Sheikh Najam-ul-Hasan & Zahoor Ahmed Shahwani, JJ.

NADEEM SIDDIQUI--Petitioner

versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Ministry of Law, Justice and Parliamentary Affairs,
Islamabad--Respondent

Shariat Petition No. 5/L of 2013, decided on 16.4.2015.

W.P. Family Courts Act, 1964 (XXXV of 1964)--

----S. 5--Jurisdiction of Family Courts to entertain hear and adjudicate matters--Said act has already provided compromise or re-conciliation at pre-trial and post trial stages for that is definitely according to Injunctions of Islam--However, in case, compromise or re-conciliation fails and does not appear to be possible, then course to be adopted by Family Courts to settle matter has also been mentioned in said Act--It will be appreciated that Courts are constituted to resolve conflicts and settle disputes which crop up between various individuals including spouses, from time to time--Courts are bound by Constitution as well as by Injunction's of Islam to observe and administer justice between litigants/individuals in all circumstances--In case of spouses, jurisdiction to resolve their differences has been granted to Family Courts--On a Court question, as to how long Court should wait for passing an order in favour of one or other party, counsel was of opinion that family Court can not pass order for restitution of conjugal rights--Counsel could not satisfy Court as to how impugned section which authorizes family Courts to issue decree for restitution of conjugal rights, is repugnant to Injunctions of Islam--As mentioned above, he could cite no specific Verse or Hadith which puts embargo on Family Court and restrain it from passing an order for restitution of conjugal rights if wife is not ready for dissolution of marriage on basis of Khula--Shariat petition was dismissed.

                                                                                                                        [Pp. 36 & 37] A, B & E

Wife not entitle to maintenance--

----Wife is not entitled to maintenance, according to him, when she is not performing conjugal relations and is living separately and that too for some long indefinite period--This state of affairs would certainly amount to grave injustice and especially so if she has no independent appropriate source of income--On other hand, both husband and wife would suffer and experience mental agony in case they have some offspring from their wed-lock--One or other party would definitely suffer to obtain or maintain their custody--Moreover, Courts are required to settle disputes in one way or another.                                                                             [P. 36] C

`Khula’ or `Divorce’--

----If wife does not feel comfortable with her husband or vice versa, best course for either of them would be to go for dissolution of their marriage by way of “Khula” or “Divorce”--In case both are young, it might also lead to so many psychological, social and moral evils, also.                           [P. 36] D

Ch. Bashir Hussain Khalid, Advocate for Petitioner.

Date of hearing: 16.4.2015.

Judgment

Dr. Allama Fida Muhammad Khan, J.--The learned counsel for the petitioner has challenged Section 5 of the West Pakistan Family Court's Act, 1964 (hereinafter called the said Act) on the grounds that it is against the injunctions of Islam. The impugned section reads as under:--

“Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule”.

2.  We have heard the learned counsel for the petitioner. Placing reliance on several Verses of the Holy Quran pertaining to Divorce, and Verse No. 35 of Surah Al-Nisa, he contended that the impugned section empowers the Family Court to entertain, hear and adjudicate upon matters specified in the schedule. The schedule, inter-alia, includes “Restitution of conjugal rights” as well. The learned counsel vehemently contended that the Family Court cannot issue decree in matters of restitution of conjugal rights nor can force an un-willing wife to live with her husband against her wishes. The learned counsel dwelt at large on the need for efforts of reconciliation between the spouses who have developed differences and, as a result thereof, the wife has left the house of her husband and started living elsewhere, with her parents etc. During the course of arguments, the learned counsel conceded that in case she is living separately from the husband on account of strained relations, she may not be entitled to claim maintenance expenses from her husband.

3.  We have thoroughly considered the contentions of learned counsel and have duly appreciated these in the light of Verse No. 35 of Surah Al-Nisa, which reads as under:--

“And if you fear a breach between the two (husband and wife) then appoint an arbitrator from his people and an arbitrator from her people. If they both desire peace Allah will make them of one mind. Certainly Allah knows all, Aware about all things”.

A bare perusal of the above Verse makes it quite clear that re-conciliation efforts have been emphasized to effect compromise between the spouses, if their relations are strained. It has also been assured that if both the parties sincerely desire to patch up and ready to bury their hatchets, Almighty Allah will bless them with harmony and grant them a peaceful life. The Holy Quran has further emphasized that in any case, re-conciliation is far better.

4.  It is significant to note that the said Act has already provided for compromise or re-conciliation at pre-trial and post trial stages and that is definitely according to the Injunctions of
Islam. However, in case, the compromise or re-conciliation fails and does not appear to be possible, then the course to be adopted by the Family Courts to settle the matter has also been mentioned in the said Act.

5.  It will be appreciated that the Courts are constituted to resolve the conflicts and settle the disputes which crop up between various individuals including the spouses, from time to time. The Courts are bound by the Constitution as well as by the Injunction's of Islam to observe and administer justice between the litigants/individuals in all circumstances. In case of the spouses, the jurisdiction to resolve their differences has been granted to the Family Courts. On a Court question, as to how long the Court should wait for passing an order in favour of one or the other party, the learned counsel was of the opinion that the family Court can not pass order for restitution of conjugal rights. The learned counsel, however, could not cite any verse or Hadith to support his contention obviously, the stance taken by the learned counsel is neither logical nor judicious.

6.  The wife is not entitled to the maintenance, according to him, when she is not performing conjugal relations and is living separately and that too for some long indefinite period. This state of affairs would certainly amount to grave injustice and especially so if she has no independent appropriate source of income. On the other hand, both the husband and the wife would suffer and experience mental agony in case they have some offspring from their wed-lock. One or the other party would definitely suffer to obtain or maintain their custody. Moreover, the Courts are required to settle the disputes in one way or another. If the wife does not feel comfortable with her husband or vice versa, the best course for either of them would be to go for dissolution of their marriage by way of “Khula” or “Divorce”. In case both are young, it might also lead to so many psychological, social and moral evils, also.

7.  The learned counsel could not satisfy the Court as to how the impugned section which authorizes the family Courts to issue decree for restitution of conjugal rights, is repugnant to Injunctions of Islam. As mentioned above, he could cite no specific Verse or Hadith which puts embargo on the Family Court and restrain it from passing an order for restitution of conjugal rights if the wife is not ready for dissolution of marriage on the basis of Khula.

8.  In view of the above, the instant Shariat Petition having been mis-conceived, is dismissed, accordingly.

(A.S.)  Petition dismissed

For more, you can consult omara.khan789@gmail.com or call +923123450006

A family case shall be decided within 180 days

According to section 12-A of the West Pakistan Family Courts Act 1964, the family judge shall decide a family case within 6 months. Generally, majority of the family cases are decided within this stipulated time. However, few cases are not dealt in the manner prescribed by law because of many reasons.

In case if litigation in a family suit takes more than 180 days time, the litigant should approach the High Court immediately without wasting any time. In routine matters, High Court easily give direction for disposal of family suits within a month or two in cases where the litigation runs more than 6 months.

If you case is pending for more than six months, do contact us at lawyergolra@gmail.com for proper assistance.


For more, you can consult omara.khan789@gmail.com or call +923123450006

Foreign National's Case in Family Court of Pakistan

According to the provisions of section 18 of the West Pakistan Family Courts Act, 1964 a pardanasheen lady can be represented through her attorney in the family courts in Pakistan. Definition of a Pardanasheen Lady is well interpreted by superior courts of Pakistan in some judgments in the following words that "every lady is deemed to be pardanasheen lady".

Hence it is true that the respect of women in Pakistani Legal System is too high. Further it is also well settled principle that the Family Court has to see the convenience of a woman while proceeding a family case. By virtue of the same generally women are accommodated well if they approach family courts in Pakistan.

As far as foreign nationals are concerned, they can appear through attorneys in the Family Courts in Pakistan. A practice is that in such like circumstances, there are objections raised by opponent parties regarding such appearances. Most of the times Power of Attorneys are objected and sometimes the question of jurisdiction is also raised to harass the person sitting abroad.

A better way in such like cases is that a foreign national facing any such like problem in the courts of Pakistan can visit Pakistan once and appear in the court to ratify the attorney as well as to address other objections in order to get the favorable results from court of law.


For more, you can consult omara.khan789@gmail.com or call +923123450006

List of Witnesses in Criminal Cases

The list of witnesses is provided by prosecution in criminal cases. Usually a list of witnesses along with challan is forwarded to the prosecution department by the SHO of the concerned police station which is further forwarded to the trial court by the prosecution department.

When list is not given, the names of witnesses are mentioned in the challan and the same are summoned in the court at the time of evidence. If a witness is not mentioned in the list provided by the prosecution or in the challan then he can be summoned to the court also on an application by either of the parties.

However, if a person is not a private witness and is not mentioned in the list then such person will be treated as court witness which will be cross examined by both the parties in the court.


For more, you can consult omara.khan789@gmail.com or call +923123450006

Legal Requirements for contracting Second Marriage

For contracting second marriage in the presence of first wife, a legal permission is required under the provisions of section 5 of the Muslim Family Laws Ordinance 1961.


By procedure the husband files case for permission of second marriage with genuine grounds. On that the first wife is summoned before the Chairman of concerned Arbitration/Union Council. On her appearance her statement is recorded.

After that the statement of husband is also recorded and if the Chairman Arbitration/Union Council things fit, he can grant the permission of second marriage.

For more you can consult lawyergolra@gmail.com

Regards,
Salman Yousaf Khan (Golra)
Family Lawyer
+92-333-5339880

Divorce during periods is divorce

Divorce during periods is divorce according to majority opinion .. According to minority opinion it is not divorce as a woman should be clean at the time of pronouncement of divorce according to their opinion.

Divorce is not a joke in islam. Even if divorce is given in joke, it is considered divorce. Even if some words are spokem in the meaning of divorce then it is equal to divorce. So we have to be very careful in relationships.

If single talak is pronounced during periods, it can b revoked through ruju after periods. If its pronounced twice during periods then it can also b revoked .. However if its pronounced three times then its talak e bayn and is not revokable according to minority opinion ..

A better option is to end relationship that has doubts in it rather than living in a relationship of zina .. For expert opinion on any related case you can consult lawyergolra@gmail.com

Regards,
Salman Yousaf Khan (Golra)
Family Lawyer
+92-333-5339880

Interim Order of a Family Judge is not appealable

PLJ 2015 Lahore 599[Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

DILDAR HUSSAIN alias Dilbar--Petitioner

versus

JUDGE FAMILY COURT, SUB-DIVISIONAL COURTS, TEHSIL CHICHAWATNI, DISTRICT SAHIWAL and another--Respondents

W.P.No. 14503 of 2013, decided on 17.3.2014.

Constitution of Pakistan, 1973--

----Art. 199--Family Courts Act, (XXXV of 1964), S. 17--Civil Procedure Code, (V of 1908), O. VI, R. 17--Constitutional petition--Suit for jactitation of marriage--Restrained from calling as her wife--Application seeking to incorporate number of amendments in written statement was dismissed--Challenge to--Maintainability--Interim order cannot be challenged either in appeal or by filing writ petition--Misconceived and untenable--Conflicting claim made by parties to suits--Validity--It is well-settled that details of documents on which case of a party rests need not be spelled out in pleadings--Pleadings of parties call for no further elucidation--Provisions of Order VI Rule 17, CPC providing for amendment(s) to pleadings are not in terms applicable to family suits--Petition was dismissed.

                                                                                                                        [P. 601] A & B

Mr. Aftab Hussain Malik, Advocate for Petitioner.

Mr. M. Saddique Bhatti, Advocate for Respondent No. 2.

Date of hearing: 17.3.2014

Order

Through this petition, the petitioner has assailed the order dated 05.10.2013 passed by learned Judge Family Court, Chichawatni, District, Sahiwal.

2.  The facts, in brief, are that Mst. Nadia Anwar, Respondent No. 2 instituted a suit for jactitation of marriage, contending therein that she was abducted by Imran and others, who confined her to a house and she was made to sign various papers. The case FIR No. 371/2011 was registered against the accused at P.S. Sadar Chichawatni, District, Sahiwal. She prayed that Dildar, the petitioner herein, be restrained from calling her as her wife. In short, she prayed for a decree for jactitation of marriage.

3.  The petitioner herein entered appearance, filed written statement, controverting all the assertions made by Mst. Nadia Anwar, Respondent No. 2 herein. It was insisted by him that she had entered into the contract of marriage with him with her free consent and of her own accord. In a word, he traversed all the allegations made by the plaintiff against him.

4.  While the trial of the suit was under way, the petitioner herein moved an application seeking to incorporate a number of amendments in various Paragraphs of the written statement filed by him. The plaintiff filed the reply thereto and after listening to the arguments advanced by the learned counsel for the parties, his application for bringing amendments to the written statement was dismissed by learned Judge Family Court seized with the suit vide order dated 05.10.2013.

5.  As stated above, the petitioner has filed this petition to challenge the validity and correctness of the order dated 05.10.2013 passed by learned Judge Family Court, Chichawatni.

6.  Learned counsel for the petitioner contends that the application moved by the petitioner/defendant for making amendments to the written statement was wrongly dismissed. He stresses that unless the petitioner was allowed to make the amendments proposed by him, his case would suffer grievously. According to him, the impugned order was passed without lawful authority and is liable to be corrected and interfered with by this Court in the exercise of its writ jurisdiction. In support of his submissions, he places reliance on the judgments reported as “Shaban Ali v. Mst. Zainab and 6 others” (2012 CLC 1403) and “Nasim Begum v. Farah Absar and 7 others”(2012 CLC 1776).

7.  Conversely, learned counsel for Respondent No. 2 has questioned the maintainability of this writ petition. He puts forward the arguments that the main suit is still pending adjudication before the learned Judge Family Court, Chichawatni, and that an interim order cannot be challenged either in appeal or by filing a writ petition. Even otherwise, he argues, the impugned order passed by the learned Judge Family Court is unexceptionable.

8.  I have heard the learned counsel for the petitioner, learned counsel for Respondent No. 2 and also gone through the record with their assistance.

9.  I am of the view that this writ petition is misconceived and untenable. The case of the parties to the suit boiled down to this: that Mst. Nadia Anwar is denying the existence of her marriage with Dildar Hussain, the petitioner, while he is insistent that she contracted marriage with him. Therefore, the conflicting claims made by the parties to the suit have already been crystallized into their pleadings, and they are not required to make any elaboration of the facts in the pleadings. No matter what their claim, they have yet to prove their respective pleas by adducting evidence. It is well-settled that the details of the documents on which the case of a party rests need not be spelled out in the pleadings. Whether it is a civil suit or a family case for that matter, only material facts are to be alleged in the pleadings. As held above, the pleadings of the parties call for no further elucidation. Furthermore, the provisions of Order VI Rule 17, CPC providing for amendment(s) to the pleadings are not in terms applicable to the family suits. Therefore, the judgments relied upon by the learned counsel for the petitioner, which emanated from civil suits, are of no help to him. As for the legislature, it made its intention manifest by enacting Section 17 of the W.P. Family Courts Act, 1964, which clearly excludes the application of Civil Procedure Code, 1908 except for Sections 10 and 11, CPC thereof.

10.  For what has been stated above, this petition is devoid of merits and is hereby dismissed.

(R.A.)  Petition dismissed