Improper Custody of Minor Baby of Tender Age

 PLJ 2020 Cr.C. (Note) 56

[Lahore High Court, Lahore]

Present: Syed Muhammad Kazim Raza Shamsi, J.

HUMA GULL--Petitioner

versus

I.G. POLICE etc.--Respondents

Crl. Misc. No. 24204-H of 2017, decided on 25.8.2017.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 491--Improper custody of Minor--Baby of tender age--Right of hazanat--Challenge to--Baby was in improper custody of he paternal grandmother for reason that right of Hazanat still exists in favour of petitioner as baby is of tender age of two years and needs care and affection of her mother--It is not stage to determine welfare of minor rather at that stage, temporary custody of minor is to be determined whether petitioner was having her right of Hazanat for having custody of minor--A question of permanent custody falls within domain of Guardian Judge where Court while determining permanent custody of minor would safeguard welfare of minor--Guardian Court may also regulate visitation right of parties in respect of minor--Petitioner was entitled for having custody of her minor daughter Respondents are directed to hand over custody of minor to her mother--Petition accepted.

                                                                                  [Para 3, 4] A & B

Ms. Asma Jehangir, Advocate for Petitioner.

Mr. Muhammad Ishaque, DPG for State.

Sh. Tanveer Ahmad, Advocate for Respondents.

Date of hearing: 25.8.2017.

Order

Through the petition in hand filed in terms of Section 491, Cr.P.C. the petitioner has prayed for handing over her minor daughter Huram Shahzadi from the illegal and improper custody of Respondents No. 3 and 4. She has claimed the custody of minor on the basis that the detenu is her real daughter; that the petitioner and husband are living apart and she has been divorced by Respondent No. 3; that the baby is of tender age and needs care and attention of the mother and lastly that she is having right of Hazanat for having the custody of the minor.

2. Consequent upon issuance of notice in the name of Respondents No. 3 and 4 they are represented through counsel and learned counsel for the respondents submitted that the minor baby is not in the illegal and improper custody rather the baby is in the custody of paternal grandmother who was declared guardian of the baby by learned Guardian Court, Multan vide judgment dated 4.7.2017; that the minor baby was left by the petitioner herself when she was of the age of two months; that the baby has not developed any affiliation and attachment with the petitioner; that the petitioner is residing alone at some unknown place with some strangers, therefore, the welfare of the minor does not lie in handing over the custody of the minor to the petitioner.

3. After having heard the learned counsel for the parties and perusing the record it is found that the petitioner by filing criminal miscellaneous petition which is fixed for today has provided her complete address where she is residing and it is further found that she is a working woman having sufficient sources to bring up her child. At present, the minor is in the custody of paternal grandmother whose custody cannot be termed as illegal in view of the declaration of her guardianship granted by the Court of competent jurisdiction but the baby is in improper custody of her paternal grandmother for the reason that right of Hazanat still exists in favour of the petitioner as the baby is of tender age of two years and needs care and affection of her mother. It is not the stage to determine the welfare of the minor rather at this stage, temporary custody of the minor is to be determined in the circumstances whether the petitioner is having her right of Hazanat for having the custody of minor. A question of permanent custody falls within the domain of learned Guardian Judge where the Court while determining the permanent custody of the minor would safeguard the welfare of the minor. The Guardian Court may also regulate the visitation right of the parties in respect of the minor.

4. In view of above facts and circumstances, the petitioner is entitled for having the custody of her minor daughter Huram Shahzadi as such, the petition in hand is accepted and respondents are directed to hand over the custody of minor to her mother, the petitioner.

(M.M.R.)         Petition accepted

After death of mother maternal grandmother has preferential right of hizanat

 PLJ 2021 Lahore 605

Present: Sardar Muhammad Sarfraz Dogar, J.

MUHAMMAD AZHAR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE etc.--Respondents

W.P. No. 15258-HB of 2021, decided on 16.3.2021.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, 1898, S. 491--Constitutional petition--Death of detenue, mother--Prefuntional right of hizanat--Immediate snatching--Exercising of paternal jurisdiction--Challenge to--It is settled law that after demise of real mother, maternal grandmother has preferential right of hizanat under Mohammadan Law--It is admitted by counsel for petitioner that after demise of real mother, minor detenue is living with her maternal grandmother, meaning thereby, it is not a case of immediate snatching--It is not possible in these circumstances to detach or decamp said minor detenue from custody of her real maternal grandmother because it would amounts to disturb her normal life--High Court while exercising its parental jurisdiction feels no interference into custody of alleged detenue--He is ordered to be remained in custody of her real maternal grandmother--Petitioner being father of minor has remedy to get interim as well as permanent custody of his minor son by filing guardian petition in accordance with law--Petition disposed of.                                       [P. 606] A, B & C

Mr. Babar Bilal Awan, Advocate with Petitioner.

Mr. Saeed-ul-Hassan Jafri, AAG for Respondents.

Rana Sohail Irshad Solehria, Advocate for Respondent No. 4.

Date of hearing: 16.3.2021.

Order

In compliance of this Court's order dated 15.03.2021, minor detenue namely Muhammad Ahmad (Muhammad Arham) aged about 1.1/2 years has been produced before this Court by her maternal

grandmother. The alleged detenue seems to be very tender age. The real mother of the detenue has died and since then, she is living with her maternal grandmother. It is settled law that after the demise of real mother, maternal grandmother has the preferential right of hizanat under the Mohammadan Law.

2. It has been held by the Hon'ble Supreme Court of Pakistan in case titled Mst. Nadia Parveen vs. Mst. Almas Noreen and others” (PLD 2012 Supreme Court 758) that “Matter of custody of minor children can be brought before a High Court under Section 491, Cr.P.C. only if the children are of very tender ages they have quite recently been snatched away from lawful custody and there is a real urgency in the matter. In such a case the High Court may only regulate interim custody of the children leaving the matter of final custody to be determined by a Guardian Judge”. Furthermore, the Hon'ble Supreme Court of Pakistan held in case titled “Shaukat Masih vs. Mst. Farhat Parkash and others” (2015 SCMR 731) that “if there were some questions regarding proper exercise of jurisdiction by the High Court in the matter still the Supreme Court would not like the minor to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody”. It is admitted by learned counsel for the petitioner that after the demise of real mother, the minor detenue is living with her maternal grandmother, meaning thereby, it is not a case of immediate snatching.

3. At this juncture, prudently it is not possible in these circumstances to detach or decamp the said minor detenue from the custody of her real maternal grandmother because it would amounts to disturb her normal life. Therefore, this Court while exercising its parental jurisdiction feels no interference into the custody of the alleged detenue. He is ordered to be remained in the custody of her real maternal grandmother. However, the petitioner being the father of the minor has the remedy to get the interim as well as permanent custody of his minor son by filing guardian petition in accordance with law. Disposed of.

(Y.A.)  Petition disposed of

Lap of Mother is the best school for growing child

 PLJ 2006 Lahore 766

Present: Muhammad Muzammal Khan, J.

Mst. NAZIRAN BIBI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MIANWALI and 2 others--Respondents

W.P. No. 19402 of 2005, decided on 24.1.2006.

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

----S. 25--Constitution of Pakistan (1973), Art. 199--Custody of minor daughter--Mother and father of minor having been separated by divorce were living apart--Both claimants i.e. mother and father of minor had entered into their respective second marriages--Father of minor was admittedly serving in Army where he had to perform his full time duty and he was periodically transferred from one cantonment to another--In absence of father, grandmother of minor was to look after minor, however, she was ill, aged and could not look after minor--Step mother could not be relied upon to take care of minor--Petitioner/mother's second husband was closely related to minor besides being from same brother hood--Lap of mother is the best school for growing child and no one else can look after welfare of minor as compared to woman who had given birth to child--Minor is of four years age and from her birth is living with her mother and thus, must have developed deep association/ attachment with her--Snatching of minor's custody from her mother in such tender age and entrustment to step-mother could not be justified--Evidence on record revealed that welfare of minor was being best served while her living with her mother as compared to respondent who due to his service remains out of house and was not in a position to look after affairs or well being of minor--Appellate Court's judgment handing over custody of minor to her father was thus, not warranted and was declared to be void and non-existence in the eye of law--Trial Court's judgment handing over custody to petitioner mother being in accordance with law was thus, restored. [Pp. 768 & 769] A & B

PLJ 2000 SC 1094; PLJ 2003 Lahore 641; 2004 CLC 160; NLR 1994 Civil 4 and PLJ 2000 Peshawar 242 ref.

Mr. Zafar Iqbal Malik, Advocate for Petitioner.

Rana Muzaffar Hussain, Advocate for Respondents.

Date of hearing : 24.1.2006.

Order

Instant Constitutional petition challenged the appellate judgment/order dated 7.10.2005 to be declared illegal, void and of no legal consequence whereby custody of the minor daughter of the petitioner was ordered to be handed over to father (Respondent No. 2) by reversing the orders of the learned Guardian Judge dated 13.5.2005.

2.  Succinctly, relevant facts are that Respondent No. 2 entered into a tie of marriage with the petitioner, which led to birth of a daughter Mst. Robina on 11.12.2001. Relations between spouses did not remained cordial and resulted in decree for dissolution of marriage on suit by the petitioner, vide judgment/decree dated 26.8.2002 maintenance allowance, was also awarded to the minor daughter of the petitioner at the rate of Rs. 1,000/- per month. Respondents Nos. 2 and 3 filed an application under Section 25 and Guardian and Wards Act, before the learned Judge Family Court, Mianwali averring that the petitioner has solemnized the second marriage with person within the prohibitory degrees of the minor who is also sick and that petitioner did not permit their meetings with the minor.

3.  The petitioner being respondent contested the custody application filed by Respondent Nos. 2 and 3 wherein she asserted that Respondent No. 2 cannot take better care of the minor on account of his heavy work in the Army, where he is employed and Respondent No. 3 being of an old age with ill health, is not in a position to look after the welfare of the minor. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Guardian Judge who was seized of the matter, after doing the needful dismissed the application of Respondents 2 and 3 vide his judgment and decree dated 13.5.2005.

4.  Respondent Nos. 2 and 3 aggrieved of the decision of the learned Guardian Judge, filed an appeal before the learned Additional District Judge where they succeeded as their appeal was accepted and by reversing the order of the learned Guardian Judge, custody of the minor was ordered to be handed over to them. Petitioner, thereafter, filed instant Constitutional petition wherein respondents in response to notice by this Court have appeared and were represented through their counsel.

5.  I have heard the learned counsel for the parties and have examined the record, appended herewith. Undeniably, both the petitioner and Respondent No. 2 have entered into their respective second marriages. It is also not disputed that Respondent No. 2 is serving in Army as a Soldier where he has to perform full time duties. Respondent No. 2 is also not permanently stationed at one place of his posting and constantly remains under transfer from one Cantonment to another. In absence of respondent No. 2 his mother will look after the affairs of the minor who besides being of elderly age, is not keeping good health. As against this, petitioner's second husband is real brother of her stepmother and in this manner is closely related to the minor besides being from the same brotherhood. Besides the lawful reasons which weighed with the learned Guardian Judge while refusing the custody of the minor to the Respondent Nos. 2 and 3, it is known to every body that lap of real mother is the best school for a growing child, and no one else can look after the welfare of the minor as compared to the woman who had given birth to the child. The minor at the present is said to be of four years age and is living since her birth with the petitioner and thus must have developed deep association attachment with her. Snatching of her custody from her mother in such a tender age and entrustment to a stepmother though in the supervision of paternal grant mother, could not be justified on the touch stone of any canon known for administration of justice.

6.  Petitioner might have lost her right of "Hanazat" to retain custody of her minor daughter, on account of her second marriage but earlier to deprive her the supervision of her own blood, welfare of the minor has to be looked into which certainly lies in keeping her in custody of the petitioner. Reference in this behalf can conveniently be made to the judgments in the cases of Mst. Firdous Iqbal versus Shifaat Ali and others (PLJ 2000 SC 1094) Syed Tahsen Razi versus Dr. Farhana Shaheen and another (PLJ 2003 Lahore 641), Muhammad Aslam versus Additional District Judge and others (2004 CLC 160) and Muhammad Nafees Abbas Versus The Guardian Judge Lahore etc. (NLR 1994 Civil 4) and Mst. Shaheen Versus Jafar Khan and another (PLJ 2000 Peshawar 242).

7.  Scan of evidence revealed that welfare of the minor was being best served while her living with mother/petitioner, as compared to Respondent No. 2 who due to his service remains out of house and was not in a position to look after the affairs or well being of the minor.

8.  For all the reasons noted above, the impugned appellate judgment by Respondent No. 1 being contrary to law, evidence on the file and opposed to the welfare of Mst. Robina Bibi, is declared to be void and non-existence in the eye of law being not sustainable. Instant petition is accordingly accepted and the appellate judgment/decree dated 7.10.2005 passed by the learned Additional District Judge Mianwali is adjudged as nullity with the result that judgment/order dated 13.5.2005 by the learned Guardian Judge will stand revived. There will be no order as to costs.

 (Aziz Ahmad Tarar)            Appeal accepted.

 

Abrupt Withdrawal of Custody of Minor from Maternal Grandparents is not possible

 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

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

Wife is not required to return the Gifts received before and after marriage from Husband

 PLJ 2006 Karachi 328

Present: Sarmad Jalal Osmany, J.

ABDUL SATTAR--Applicant

versus

Mst. KALSOOM--Respondent

Civil Transfer Application No. 10 of 2005, decided on 6.3.2006.

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

----S. 2--West Pakistan Family Courts Act (XXXV of 1964), Ss. 5, 10(4), proviso (as added by Family Courts Amendment Ordinance (LV of 2002) & Sched.--Suit for dissolution of marriage on ground of Khula' or any other ground--Pre--trial conciliation efforts, failing of--Absence or presence-of dispute as to payment/remission of dower--Preliminary decree for dissolution of marriage, passing of--Scope--In absence of such dispute, decree for dissolution of marriage would be passed immediately upon failure of pre--trial proceedings between the parties--In presence of such dispute, only upon deposit of dower amount in Court by wife such preliminary decree could be passed, whereafter such dispute would be resolved upon taking of evidence--In presence of such dispute and upon failing of wife to deposit dower amount in the Court, no decree for dissolution of marriage could be passed, rather matter would be decided after recording evidence.               [Pp. 330, 331 & 332] A, B & G

Dower--

----Husband asserting payment, but wife denying receipt of dower--Burden of proof--Husband had to prove payment, as onus of proof would always lie upon the person alleging a fact.          [P. 331] C

Bayan-ul-Qur'an by Hazart Moulana Ashraf Ali Thanvi rel.

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

----Ss. 5, 10(4), proviso (as added by Family Courts (Amendment) Ordinance (LV of 2002), 17 & Sched.--Applicability--Principles--Suit for dissolution of marriage on ground of Khula' or any other ground--Preliminary decree for dissolution of marriage, passing of--Non--applicability of Qanun-e-Shahadat, and Civil Procedure Code, to proceedings before Family Court would not debar same from passing such preliminary decree--Section 17 of West Pakistan Family Courts Act 1964, provides that the Qanun-e-Shahadat, and Civil Procedure Code, shall not apply to proceedings before the Family Court--It does not debar such Court from passing a preliminary decree dissolving the marriage on the basis of Khula' or any other ground--Object of provision of Section 17 as to non-applicability of the Qanun-e-Shahadat and Civil Procedure Code, is to expedite the proceedings before Family Court, so that the same are not delayed for lack of procedural formalities as contained in such laws, which cannot be construed so as to defeat the purposes of the Family Courts Act, which is a beneficial piece of legislation designed to expedite family cases.                [P. 331] D

Bridal Gift--

----Marriage, dissolution of--Khula', ground of--Consideration for dissolution of marriage would be remission of dower amount by wife, if not received or its payment, if received--All bridal gifts given to wife before or after marriage would not be returned to husband.      [P. 332] E

2005 CLC 1844 ref.

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

----Ss. 5, 10(4), proviso (as added by Family Courts (Amendment Ordinance (LV of 2002)] & Sched.--Suit for dissolution of marriage also involving issues of return of dowry articles, custody of children, dower and maintenance--Failing of pre-trial conciliation efforts--Absence or presence of dispute as to payment/remission of dower--Preliminary decree for dissolution of marriage, passing of--Scope--If husband disputed all such claims of wife, then such contentious issues would be decided only after recording evidence--Where issue of dower was not contested, then such preliminary decree could be passed upon failing of conciliatory efforts, whereafter Court would decide other issues--Where issue of dower was contested, then upon deposit of dower amount in Court by wife, such preliminary decree could be passed, whereafter issue of dower alongwith other issues, if any, would be decided after recording evidence--In presence of such dispute and failing of wife to deposit dower in Court, no decree could be passed for dissolution of marriage, rather matter would be decided after recording evidence.             [P. 332] F

Mr. Faiz Muhammad Brohi, Advocate for Applicant.

Mr. Arbab Ali Chandio and Mr. Muhammad Yakoob Lakhair, Advocates for Respondent.

Mr. Abdul Qadir Shaikh, Advocate as Amicus Curiae.

Dates or hearing: 10 and 24.10.2005, 21.11.2005 and 8.12.2005.

Order

Vide this Transfer Application it has been prayed that Family Suit No. 77 of 2005 filed by the respondent against the applicant for dissolution of marriage on the basis of Khula' pending with the learned 1st Senior Civil Judge, Sukkur be transferred to any Family Court in District Naushahro Feroze on the grounds mentioned therein. Vide order dated 10-10-2005, the Transfer Application was dismissed. However, learned counsel were directed to address the Court on the issue regarding dissolution of marriage between the parties upon failure of pre-trial proceedings, in terms of the proviso to Section 10(4) of the Family Courts Act. 1964 as the respondent had stated before myself that although such pre-trial had failed between her and her husband (the applicant) yet the learned Family Court had not decreed her suit on the basis of Khula'. Mr. Abdul Qadir Shaikh was requested to assist the Court as Amicus Curiae. Comments were also called from the learned Family Court.

2. In this regard learned counsel for the respondent has submitted that per the diaries of the learned Family Court on 5-9-2005, pre-trial had failed between the parties and hence in terms of the proviso to Section 10(4) of West Pakistan Family Courts Act, 1964, the Suit filed by the respondent against the applicant being Family Suit No. 77 of 2005 before the learned 1st Senior Civil/Family Judge, Sukkur should have been decreed on this ground alone. Per learned counsel this was the only course left open to the learned Family Court as the issue regarding dower amount (Haq Mahr) was not contested and so also no other issues had been raised between the parties.

3. Mr. Abdul Qadir Shaikh learned Amicus Curiae has firstly stated that according to the learned religious scholars, the only consideration for grant of Khula' is remission of dower if not received by the wife and if so received an offer to return the same to the husband. If this be done then Khula' can be granted. However, under no circumstances is the wife obligated to return gifts etc.; given to her by the husband other than by way of dower. Per learned counsel even under the Bridal Gifts and Dowry Articles Act, 2004, all the benefits received by the wife from the husband prior to and after the marriage other than dower amount is not to be returned to the latter upon a divorce between the parties. In this regard learned counsel has referred to Bayan-ul-Quran by Hazart Moulana Ashraf Ali Thanvi and Ahsan-ul-Khitaba by Mufti Rasheed Ahmed Khan. Furthermore in Bahishti Zewer authored by Moulana Thanvi, it has been stated that where the husband is at fault, he should never even demand the return of dower amount from his wife upon divorce taking place between the parties. In this respect he has also cited Muhammad Zafar v. Judge Family Court 2005 CLC 1844. Insofar as the proviso to Section 10(4) of the Act is concerned, learned counsel has submitted that where the only issue before the learned Family Court is that of dower and the same is not disputed between the parties, then in terms of the said proviso a decree for dissolution of marriage is to follow immediately upon pre-trial proceedings having failed. However, where this issue is disputed, it has to be resolved before any decree for dissolution of marriage can be passed by the learned Family Court. Similarly per learned Amicus Curiae, even where the issue of dower is not disputed but other issues have been raised in the matter before the Family Court viz. custody of children, return of dowry articles and/or maintenance, again  these  would  have to be resolved before a decree could be passed since no preliminary decree can be passed in family suits as per Section 17 of the Act, the C.P.C. is not applicable.

4. I have heard both the learned counsel as well as learned Amicus Curiae. It would be seen that the West Pakistan Family Courts Act, 1964 was amended in 2002 with a view to expediting family suits and also allowing the wife, in a Suit for dissolution of marriage, to claim return of dowry articles/personal property, maintenance, custody of children, visitation rights etc. In this regard reference can be made to the newly added proviso to Section 7(2) of the Act. So also vide Section 12(a) a family Suit is to be disposed of within a period of six months from the date of institution. Finally per the proviso to Section 10(4) of the Act in a suit for dissolution of marriage, where the pre-trial fails between the parties, then a decree for dissolution is to be passed forthwith and at the same time the Family Court shall restore to the husband the Haq Mahr (dower amount) received by the wife. This amendment is in consonance with Islamic law as under the same, marriage is a civil contract and like other civil contracts can be terminated at the behest of either party, although in the eyes of Allah Almighty divorce is one of the most abhorrent of acts. Hence the wife can obtain dissolution of her marriage by remitting the dower amount if not received and paying it back to the husband if so received. Consequently, where there is no dispute between the parties on the issue of dower, then in terms of the proviso to Section 10(4) of the Act a decree for dissolution of marriage on the basis of Khula' or on any other ground is to be passed immediately upon the failure of pre-trial proceedings between the parties. However, where a dispute arises on this issue between the parties as to the payment/receipt/remission of dower then the same would have to be resolved by the Family Court. In this situation if the wife is willing to deposit the dower amount in Court, then too a preliminary decree for dissolution of the marriage should be passed by the Family Court whereafter the disputed issue regarding the dower amount could be resolved. Of course if the wife does not deposit the dower amount in Court; the matter would have to be decided upon taking evidence whereafter the decree should be passed accordingly. In this connection it would be seen that where the husband asserts payment but the same is denied by the wife, he would have to prove the same because the onus of proof is always upon the person who alleges a fact. Reference can also be made to Mulkhan Bibi v. Muhammad Wazir Khan PLD 1959 (W.P.) Lahore 710. As regards Section 17 of the Family Courts Act, 1964, which provides that the Qanun-e-Shahadat, 1984 and the Code of Civil Procedure, 1908 shall not apply to proceedings before the Family Court, in my opinion the same does not debar such Court from passing a preliminary decree dissolving the marriage on the basis of Khula' or any other ground. The provision of Section 17 as to non-applicability of the Qanun-e-Shahadat Order and Civil Procedure Code in my view, is to expedite the proceedings before the Family Court so that the same are not delayed for lack of procedural  formalities  as  contained  in  the aforementioned laws. The same cannot be construed so as to defeat the purposes of the Family Courts Act, 1964 which is a beneficial piece of legislation designed to expedite family cases. It may also be observed that per settled law the only consideration for dissolution of marriage on the ground of Khula' is the remission of dower amount by the wife if not received or payment to the husband if received. All bridal gifts etc.; given to the wife before or after the marriage are not to be returned to the husband.

5. Insofar as other issues agitated by the wife before the Family Court in a suit for dissolution of marriage viz. return of dowry articles, custody of children and maintenance etc.; where these are disputed by the husband obviously such contentious issues could only be resolved after evidence has been recorded and the decree would follow. However, where the issue of dower is not contested, in my opinion, a preliminary decree dissolving the marriage can be passed upon the failure of pre-trial proceedings whereafter the other issues as stated above could be decided by the learned Family Court. Again the same result would follow if the wife deposits the dower amount in Court where this is a contested issue whereafter the same could be decided.

6. From the foregoing discussion the following broad principles can be laid down vis-a-vis the procedure to be followed by the Family Court in suits for dissolution of marriage on the basis of Khula' or on any other ground filed by a Muslim wife where pre-trial proceedings fail.

(a)           Where the only relief sought by the wife in her suit is dissolution of marriage on the basis of Khula' or on any other ground and pre-trial proceedings fail between the parties, then the Family Court is bound to decree the suit dissolving the marriage where there is no dispute between the parties as to the dower amount. However, where such a dispute arises, and the wife deposits the dower amount in Court, a preliminary decree for the dissolution of marriage should be passed whereafter this issue would be decided by the Family Court upon taking of evidence. Of course where the wife does not deposit the disputed amount of dower in Court then no preliminary decree can be passed and the matter would have to be decided after taking evidence. In this context it is important to note that dissolution of marriage by way of Khula' is only premised on remission of dower amount if not received and payment of the same to the husband if so received by the wife. She is not bound to return gifts received before or after the marriage to the husband.

(b)           Where besides dissolution of marriage, the wife in her suit seeks other reliefs viz. custody of children, maintenance and return  of  dowry  articles etc.; then again if the issue of dower is not disputed, a preliminary decree can be passed dissolving the marriage where the pre-trial proceedings fail. Again where this issue is contested and the wife deposits the dower amount in Court a preliminary decree should be passed dissolving the marriage. Thereafter this issue could be resolved through evidence alongwith other disputed issues if any i.e. custody of children, return of dowry articles and maintenance etc. However, if the wife does not deposit the dower amount in Court, then no preliminary decree can be passed for dissolution of marriage in which event this issue alongwith other contested issues would have to be decided by the Family Court after taking evidence.

(Fouzia Fazal)   Order accordingly

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.

 

Dower Amount can be enhanced by Husband during subsistence of Marriage

 PLJ 2006 Lahore 1260

Present: Muhammad Muzammal Khan, J.

ABDULLAH--Petitioner

versus

NAILA ASLAM and 3 others--Respondents

W.P. No. 1468 of 2006, decided on 22.6.2006.

Family Courts Act, 1964 (XXX of 1964)--

----Ss. 5 & 7--Muslim Family Law Ordinance, (VIII of 1961), S. 9--Constitution of Pakistan, 1973, Art. 199--Suit for granting of maintenance allowance and recovery of dower amount as per agreement--Suit decreed and appeal was dismissed--Assailed--Enhancement of dower amount--Husband did not refuse his liability to pay maintenance allowance awarded to wife and minor son--Wife could not prove enhancement of dower amount and agreement by her was forged--Wife claimed in plaint, not only produced agreement executed by husband enhancing the dower amount but also examined its marginal witnesses--Denial of execution by the petitioner appeared to be after thought and was put forth just to avoid liability to pay enhanced dower amount--No effort on his behalf was ever made for comparison of signature from handwriting expert by moving application before Courts below which negatively reflects on his stance in written statement--Held: Dower amount was fixed in nikahnama but same under Islamic Law could have been enhanced by husband at any time during subsistence of marriage--Lawful decision within jurisdiction could not be substituted on petition and dismissed.     [P. 1262] A & B

Rana Muhammad Saleem Akhtar, Advocate for Petitioner.

Date of hearing: 22.6.2006.

Order

Instant Constitutional petition prayed judgments/decrees dated 5.4.2005 and 23.1.2006 passed by the learned Judge Family Court and the learned Additional District Judge, Faisalabad (Respondents Nos. 3 and 4) to be declared illegal, void and of no legal consequence, whereby suit filed by Respondent No. 1 for grant of maintenance allowance and dower amount was decreed and the petitioner's appeal was dismissed, respectively.

2.  Succinctly, relevant facts are that petitioner entered into a tie of marriage with Mst. Naila Aslam (Respondent No. 1) on 11.3.2001 through a registered Nikahnama according to Muslim rites. This marriage led to birth of a male child Muhammad Hassan (Respondent No. 2) but relations between the spouses did not remain cordial and after separation, ended into a divorce on 29.6.2002. Respondent No. 1 on her own behalf and on behalf of Respondent No. 2 filed a suit for recovery of her outstanding dower amount of Rs. 100,000/- alongwith maintenance allowance for both of them at the rate of Rs. 5000/- per month. She pleaded in her plaint that divorce dated 29.6.2002 was revoked on 2.8.2002 with the condition of enhancement of dower amount from Rs. 500/- to Rs. 100,000/- besides payment of maintenance allowance at the rate of Rs. 5000/- per month and these conditions were reduced to writing in form of an agreement dated 15.8.2002. She further averred that petitioner left for Saudi Arabai and did not pay the dower amount or maintenance allowance, as per agreement inter parties.

3.  Petitioner being defendant in the suit, contested the same by filing his written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Judge Family Court, seized of the matter, after doing the needful, decreed the suit of Respondents Nos. 1 and 2 and awarded maintenance allowance to Respondent No. 1 at the rate of Rs. 2000/- per month till her Iddat period whereas to Respondent No. 2 at the rate of Rs. 1500/- per month till his majority. Respondent No. 1 was also awarded decree for her outstanding dower amount of Rs. 100,000/-, through the judgment/decree dated 5.4.2005.

4.  Petitioner aggrieved of decision of the trial Court filed an appeal before the learned Additional District Judge, Faisalabad, but remained unsuccessful as the same was dismissed on 23.1.2006. He has now filed instant petition with the prayer noted above.

5.  I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Petitioner did not refuse his liability to pay maintenance allowance awarded to either of Respondents Nos. 1 and 2 but his main stress was against the decree awarded to Respondent No. 1 for dower amount of Rs. 100,000/-. It was contended that Respondent No. 1 could not prove enhancement of dower amount and the agreement relied by her was forged/fictitious. Respondent No. 1 in support of her claim in the plaint, not only produced an agreement executed by the petitioner enhancing the dower amount as Ex.P.1 but also examined its marginal witnesses. Both the Respondents Nos. 3 and 4 have compared signatures of the petitioners on Ex.P.1 with his admitted signatures on Exh.D.1 and have returned specific findings that both the signatures tally to each other. Petitioner himself is living in Saudi Arabia and in his absence, his special attorney appeared in the witness box a DW.1, who alongwith other witness DW.3, deliberately avoided to admit signatures of the petitioner on Exh.D.1 though this document was sent by him through Embassy of Pakistan at Riyadh, Saudi Arabia. Denial of execution of Exh.P.1 by the petitioner, appears to be afterthought and was put forth just to avoid liability to pay enhanced dower amount, as no effort on his behalf was ever made for comparison of signatures from some handwriting expert by moving any application before the trial or appellate Court or even by making such request during the course of hearing of instant petition, which negatively reflects on his stance in the written statement. No doubt, initially the dower amount was fixed as Rs. 500/- in the Nikahnama but the same under Islamic Law could have been enhanced by the husband at any time during the subsistence of marriage. File is absolutely thirsty of the proof that petitioner ever since his compromise with Respondent No. 1 reverted back to his married life or discharged his obligations under the agreement, voluntarily executed by him. Respondent No. 1 since her desertion is leading an isolated life and has devoted herself for bringing up of Respondent No. 2, which should have been shared by the petitioner. Keeping in view sacrifices of Respondent No. 1 and her contribution towards the brought up of offshoot of the parties, I refrain to exercise my Constitutional jurisdiction in aid of the petitioner. Scan of record and impugned judgments revealed that lis was correctly concluded without committing any error of law.

6.  For the reasons noted above, no case for interference in Constitutional  jurisdiction  was  made out. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed in limine.

(Waseem Iqbal Butt)           Petition dismissed