Execution by Family court

 Execution by Family court

                  P L D 2022 Lahore 600

         Before Shahid Bilal Hassan, J

SAWERA IKRAM---Applicant

Versus

AMIR NAVEED---Respondent

Transfer Application No. 71691 of 2021 (and connected T.As.), decided on 15th December, 2021.

(a) Family Courts Act (XXXV of 1964)---

---Preamble---Object, purpose and scope---Purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in ultimate justice between the parties---Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law---Court can exercise its own powers to prevent course of justice being refracted from the path---Main object of Family Courts Act, 1964, is for protection and convenience of the weaker and vulnerable segments of society i.e. women and children.

Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840 rel.

(b) Family Courts Act (XXXV of 1964)---

----S.13 (4)---Civil Procedure Code (V of 1908), O.XXI---Execution of decree---Procedure--- Provision S. 13 (4) of Family Courts Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by Civil Court as directed by general or special order by District Judge---When a Civil Court is designated and entrusted with duties to execute decrees passed by a Court: Civil or Family, it enjoys powers vested under O. XXI, C.P.C.

(c) Family Courts Act (XXXV of 1964)---

----Ss. 5, 13(4) & 25-A---Civil Procedure Code (V of 1908), S.46---Execution of decree, transfer of---Principle---Applicant was wife of respondent who sought transfer of execution proceedings from the district where property was situated the place of her abode---Validity---Held, there was no need to transfer execution petition to any other Court out of one district to other district where judgment-debtor resided---Executing Court seized of the matter could adopt procedure provided under law by sending a precept through proper channel to the Court where judgment debtor resided or had movable/immovable property so as to attach the same and recover decretal amount as arrears of land revenue, following methodology as provided in S.46, C.P.C.---When all proceedings at trial stage were carried out at a place where women and children resided, forcing them to get transferred execution petition or decree to some other Court, out of District, would cause inconvenience and troubles to them, such was not the myth and essence of Family Courts Act, 1964, as highlighted in its 'Preamble'---High Court for future proceedings directed all District Judges and Family Courts in Punjab Province that while passing money decree in respect of maintenance allowance, alternate prices of dower or dowry articles be fixed and provisions of S.13(3) of Family Courts Act, 1964 should be adhered to---High Court further directed that District Judges to designate a Civil Judge as Executing Court in their Districts as well as Tehsils, where execution petitions for satisfaction of decrees passed by Family Court would be filed and executed/satisfied in accordance with law by adopting all measures in that regard---High Court also directed that in case judgment debtor resided in some other District and owned property, precept would be transmitted for attachment purposes and further proceedings were to be taken in accordance with law---Application was disposed of accordingly.

Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128; Haji Muhammad Nawaz v. Samina Kanwal 2017 SCMR 321 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 ref.

Moazzam Saleem for Petitioner.

Muhammad Mahmood Chaudhry as amicus curiae.

ORDER

SHAHID BILAL HASSAN, J.---This order will dispose of the captioned transfer application as well as following transfer applications seeking transfer of execution petitions:-

1. T.A. No.68040 of 2021 titled Mst. Saba Nasir v. Muhammad Uzman, 2. T.A. No.68728 of 2021 titled Muafia v. Zahid Mehmood, etc., 3. T.A. No. 68832 of 2021 titled Sumera Ameen, etc. v. Faryad Ali, 4. T.A. No.69289 of 2021 titled Iram Farhan etc. v. Raja Farhan Mehmood, 5. T.A. No.68970 of 2021 titled Mst. Rehana Kausar v. Mudasir Hussain, 6. T.A. No.68740 of 2021 titled Iram Shehzadi v. Shabbih Haider, 7. T.A. No. 67912 of 2021 titled Syeda Umm-e-Laila, etc. v. Syed Qamar Abbas Shah, etc., 8. T.A.No.55220 of 2021 titled Sitara Iqbal, etc. v. M. Rashid, 9. T.A.No.70294 of 2021 titled Khalida Parveen v. Adnan Bilal Sial, 10. T.A.No.67734 of 2021 title Mst. Maryum Yousaf v. Qaiser Mehmood, 11. T.A.No.59167 of 2021 titled Mst. Fozia Amjad v. Amjad Farooq, 12. T.A.No.69553 of 2021 titled Mst. Nadaas Bibi, etc. v. Ghulam Rasool, 13. T.A.No.56094 of 2021 titled Nusrat Bibi v. Yasir Mehmood, 14. T.A.No.69898 of 2021 titled Mst. Tayyaba Nafees, etc. v. Tayyab Ali, 15. T.A.No.67606 of 2021 titled Pro. Dr. Umbreen Javed v. Noshad Mahmood, 16. T.A.No.65187 of 2021 titled Ayesha Bibi, etc. v. Ajmal Shahzad, etc., 17. T.A.No.61499 of 2021 titled Azra Parveen v. M. Shafique, 18. T.A.No.59746 of 2021 titled Naveera Irshad v. M. Abdullah, 19. T.A.No.59362 of 2021 titled Mst. Noor Jahan v. Saif Ullah, 20. T.A.No.57711 of 2021 titled Asma Liaqat, etc. v. Mubashir Raheel Riaz, 21. T.A.No.55971 of 2021 titled Asma Yaqoob v. Jamshed Ali, 22. T.A.No.57230 of 2021 titled Fouzia Yasmeen, etc. v. Khalid Mahmood, 23. T.A.No.68994 of 2021 titled Syeda Ayesha Shakeel v. Syed Kamran Khalid, 24. T.A.No.58421 of 2021 titled Mst. Anam Bibi, etc. v. Muhammad Waqas Adil, 25. T.A.No.65274 of 2021 titled Khalida Usman v. Muhammad Shahzad, 26. T.A.No.68227 of 2021 titled Mst. Rehmat Bibi, etc. v. Muhammad Arshad Zaman, 27. T.A.No.69863 of 2021 titled Tayyaba Manzoor v. Nasir Ali, 28. T.A.No.69908 of 2021 titled Mehvish Bibi v. Atta Ullah, 29. T.A.No.42451 of 2021 titled Mst. Shamim Akhtar v. Muhammad Suleman, 30. T.A.No.61325 of 2021 titled Tayaba Afzal v. Farrukh Yasin, 31. T.A.No.69429 of 2021 titled Mugheesa Munir v. Muhammad Rizwan, 32. T.A.No.65380 of 2021 titled Sumaira Arif v. Shahbaz Ali, 33. T.A.No.59839 of 2021 titled Shumyla Mansha v. Khurram Shahzad, 34. T.A.No.67789 of 2021 titled Mst. Samina Bibi v. Muhammad Bukhsh, 35. T.A.No.69567 of 2021 titled Nazish Nazir v. Muhammad Bilal, etc., 36. T.A.No.55531 of 2021 titled Pathani Bibi v. Muhammad Ikram, 37. T.A.No.67640 of 2021 titled Iqra v. Muhammad Nadeem, 38. T.A.No.54307 of 2021 titled Amna Yasin, etc. v. Muhammad Kalim, 39. T.A.No.60947 of 2021 titled Amna Nasir, etc. v. Muhammad Usman Baig, 40. T.A.No.69005 of 2021 titled Afshan Rani, etc. v. Khurram Shahzad, 41. T.A.No.69829 of 2021 titled Mst. Muqadas Bibi v. Asad Iqbal, 42. T.A.No.59170 of 2021 titled Mst. Shazia Parveen v. M. Younas, 43. T.A.No.70461 of 2021 titled Mst. Rukhsana Aslam, etc. v. Khalid Mehmood, 44. T.A.No.65771 of 2021 titled Mst. Ruqia Naz, etc. v. Shakeel Ahmad, 45. T.A.No.71406 of 2021 titled Sumera Bibi, etc. v. Muhammad Saleem, 46. T.A.No.70924 of 2021 titled Mst. Nirma Khalid v. Muhammad Amir Shahzad, 47. T.A.No.71438 of 2021 titled Naeema, etc. v. Javaid Iqbal, 48. T.A. No.71416 of 2021 titled Khalida Parveen etc. v. Muhammad Arshad, 49. T.A.No.66214 of 2021 titled Kaneez Fatima v. Iftikhar Ahmad and 50. T.A.No.64567 of 2021 titled Shafqat Parveen, etc. v. Amjad Hussain.

2. Heard.

3. Preamble of the Family Courts Act, 1964 elaborates the purpose of promulgation of the enactment, which reads:-

'Whereas it is expedient to make provision, for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.'

Meaning thereby the Family Courts Act, 1964 is a special statute and has been enacted with a specific purpose to precede expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. Furthermore, the purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. The Court can exercise its own powers to prevent the course of justice being refracted from the path; reliance is placed on Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others (2010 SCMR 1840). The main object of this enactment is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children; it is due to this reason that "Nikah" is to be registered where the bride is living; if bridegroom fails to pay maintenance, application for securing maintenance is competent before Union Council where the bride resides and in case permission is required to be sought by the bridegroom for contracting second marriage, application has to be submitted to the Chairman Union Council where the wife resides; same like Talaq proceedings are to be carried out in the Union Council where the wife resides and if any offence relating to offences detailed in the Family Courts Act, 1964, its trial has to be conducted by Family Court within the precincts where the wife resides; moreover, if a father intends to get custody of the minor children, he has to initiate proceedings at a place where the children reside. All these go to divulge that the main purpose of the enactment is to accommodate the women and the children, weaker segments of the society, due to this reason under section 14(3) of the Act, 1964 provides that no appeal or revision shall lie against an interim order passed by a Family Court.

4. Having said above, now when after passing of a decree by a Family Court, the execution petition is filed, the Family Court executing the decree has to proceed with the same under Section 13 of the Act, 1964 and subsection (4) of the said Section is relevant which reads:-

'The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.'

Section 13(4) of the Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by the Civil Court as directed by general or special order by the District Judge; meaning thereby when a Civil Court is designated and entrusted with duties to execute the decrees passed by a Court: Civil or Family, it enjoys powers vested under Order XXI of the Code of Civil Procedure, 1908, though section 17 of the Family Courts Act, 1964 provides that the provisions of Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure, 1908 except sections 10 and 11 shall not apply to the proceedings before any Family Court. The bar contained in this section has been manifestly addressed by the Apex Court of the country in Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128), wherein it has invariably been held:-

'Thus the technical trappings of execution provided in the C.P.C. are excluded from application before the Family Court in execution of a decree for maintenance. Section 13(3) of the Act itself provides that "Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days the same shall, if the Court so directs to recover as arrears of land revenue, and on recovery shall be paid to the decree-holder." This provision in the Act empowers the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. In the West Pakistan Land Revenue Act various modes of recovery of arrears of land revenue are spelt out and one of the modes provided for recovery of arrears of land revenue is by selling the immovable property of the defaulter.' (Underline for emphasis)

Therefore, in order to avoid technical trapping, there remains no need to transfer the execution petition to any other Court out of one district to the other district where the judgment debtor resides. The learned Executing Court seized of the matter may adopt procedure provided under law by sending a precept through proper channel to the Court where the judgment debtor resides or has movable/immovable property so as to attach the same and recover the decretal amount as arrears of land revenue, following the methodology as provided in section 46 of the Code of Civil Procedure, 1908, which enumerates:-

'Precepts.---(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree.

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.'

It is not meant that the provisions of the Code of Civil Procedure, 1908 are going to be followed in stricto sensu rather the procedure provided therein is to be adhered to by the Family Court because the Family Court is governed by the general principle of equity, justice and fair-play. In addition to this, if the judgment debtor is employed in any department his salary can also be ordered to be attached by the concerned quarters through proper channel and he can be forced to satisfy the decree; thus, when the main purpose of the enactment is to protect the convenience of the weaker and vulnerable segments of the society i.e. women and children, the same cannot be achieved by transferring the decree to a place where they (women and children) do not reside because they will suffer the agony of travelling from a place to the other in order to pursue the proceedings in execution petition before the transferee Court and it would also endanger their lives at the hands of judgment-debtor because of obtaining a decree against him (judgment-debtor). When we go through the ratio of judgment Amjad Iqbal (supra) it comes on surface that the Executing Court of a decree passed by a Family Court may adopt every method in order to get the decree satisfied including attachment of property (movable or immovable), selling the property, attachment of the salary and ordering for arrest of the judgment debtor; all these methods are not provided under the Family Courts Act, 1964 but the same are taken from the Code of Civil Procedure, 1908 as these methods are not inconsistent with the provisions of the Act, 1964 for the purpose of satisfaction of the decree because proceedings of the Family Court, whether as a Trial Court or an executing Court are governed by the general principle of equity, justice and fair-play, as has been held in Haji Muhammad Nawaz v. Samina Kanwal (2017 SCMR 321). In addition to this, in a judgment reported as Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR 1365), the Apex Court has invariably held:-

'Family Court was a quasi-judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principle of fair hearing and trial.'

5. Pursuant to the above, when all the proceedings at trial stage are carried out at a place where the women and children reside, forcing them to get transferred the execution petition or decree to some other Court, out of District, would certainly, as stated above, cause inconvenience and troubles to them, which is not the myth and essence of the Family Courts Act, 1964 as has been highlighted in its "Preamble".

6. Concluding the above discussion and observations, the following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:-

1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, 'Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.'

2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard.

3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law.

7. In the light of the above, the instant petition and transfer applications, detailed supra, are hereby disposed of, accordingly.

MH/S-6/L Order accordingly.

Jurisdiction of Family Court

 

Territorial Jurisdiction of                    Family Court

        (Where wife ordinarily resides)

Section 6 of family court rules 1965, 

Ss. 16, 17, 18, 19, 20 of CPC,1908.

Within the local limits of which the wife ordinary resides… family court alone had exclusive jurisdiction to deal with all the matrimonial disputes, whataver their nature, irrespective of territorial jurisdiction, provided that the famiy court where the wife resides shall have the jurisdiction to entertain such suits/claims… 

Provisions of section16, 17, 18, 19 and 20 CPC stood excluded from the proceedings before the family court, thus the question of its territorial jurisdiction would never arise, provided that the family court where the wife resides shall have the exclusive jurisdiction over all such matter.

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2019  CLC  1436       KARACHI-HIGH-COURT-SINDH

   S. 7---Family Courts     Rules, 1965, R. 6---Suit for maintenance---Territorial jurisdiction---Petitioner     assailed judgment and decree passed by Trial Court on the ground of having     no territorial jurisdiction to entertain the suit---Contention of petitioner was that wife used to reside at place G and she never ordinarily     resided at place K and that as per R. 6 of Family Courts Rules, 1965, the wife could not file a suit for maintenance from the place of her ordinary     residence---Validity---Petitioner himself had approached the Family Court     at place G with a plaint but the said court directed him to approach the     Court having jurisdiction at place K---Petitioner having not challenged     said verdict before any forum, could not be allowed to reopen an already     settled matter, under S. 7 of Family Courts Act, 1964, a plaint for     dissolution of marriage could contain all claims including maintenance,     meaning thereby, that if a wife filed suit for dissolution of marriage from     the place of her ordinary residence, she could combine the prayer of Maintenance     along with other prayers---If     contention of petitioner was admitted that R. 6 of Family Courts Rules,     1965 did not allow the wife to file a suit for maintenance from the place     of ordinary residence, then it would be a contradictory view as to a     clear-cut provision provided under first proviso of S. 7, Family Courts     Act, 1964---Rule 6 was a beneficial rule framed with intention to provide     convenience to a wife, separated from her husband, as such, the relief     given to a wife under said Rule could not be stretched in favour of husband     by forcing her to file a suit for maintenance at his place of     residence---Suit for maintenance was competently filed---Constitutional     petition was dismissed.

Zzzzzzzzzz

Faimly suit can't be dismissed on point territorial jurisdiction...........

   Dismissal of suit for lack of territorial jurisdiction-Words “ordinarily resides”, as used in R.6, West Pakistan Family Courts Rules, 1965-Connotation-Proviso to R.6, West Pakistan Family Courts Rules, 1965, enables estranged wife to file suit for dissolution of marriage within local limits of which she ordinarily resides-Petitioner’s husband and parents were resident of different place while she was residing at another place earning her own livelihood, thus, ordinarily residing at a place different from where her parents and husband resided-Words “ such place of her choice would answer to the concept “ordinarily resides “-Petitioner ordinarily residing at a place of her choice, after separation from her husband, was, thus, competent to bring suit for dissolution of marriage in the Court of that place--High Court ordinarily would not go into question of fact in exercise of its Constitutional jurisdiction but where findings of Courts below on the face of record appeared to be perverse or based on no evidence (as in petitioner’s case) High Court even in Constitutional jurisdiction could take different view-Both Courts below having unlawfully refused to exercise their jurisdiction on wrong assumption that they did not have such jurisdiction, their judgments were set aside and case was remanded to Trial Court 

for decision on merits within specified period.

1997 CLC7 42 

Ref.

PLD 1988 Kar. 602

PLD 1976 Kar. 978

 PLD 1979 SC 864

Zzzzzzzu

Suit for dissolution of marriage can be filled without residence certificate. 

R. 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Territorial jurisdiction of Family Court---Place of residence of wife---Suit filed by wife for dissolution of marriage was returned to wife on the ground that she had failed to produce any document showing her residence at the place where she filed the suit--Validity---Suit for dissolution of marriage or dower, under R.6 of West Pakistan Family Courts Rules, 1965, could be filed within local limit where wife ordinarily resided---High Court in exercise of constitutional jurisdiction set aside the orders passed by both the Courts below and case was remanded to Family Court to proceed in accordance with law---Petition was allowed in circumstances.

2010  CLC  403  Kar

Zzzzzzzzzzz

 2012  CLC  24     LAHORE-HIGH-COURT-LAHORE

Ss. 1(2), 5, Sched. & S.10(4)---West Pakistan Family Courts Rules, 1965, R.6---Civil procedure Code (V of 1908), S.83---Pakistan Citizenship Act (II of 1951), S.14(b)---Constitution of Pakistan, Arts.1(2) & 199---Constitutional petition---Suit for Dissolution of marriage on ground of Khula and recovery of maintenance---Husband's application seeking dismissal of suit by Family Court in Pakistan for lacking jurisdiction to try, same as parties were citizens of State of Azad Jammu and Kashmir---Dismissal of such application and passing of decree for Dissolution of marriage by Family Court for failure of pre-trial conciliation efforts---Validity---According to S.14(b) of Pakistan Citizenship Act, 1951, a permanent resident of State of Azad Jammu and Kashmir having migrated to Pakistan would be regarded as citizen of Pakistan---Subjects of the State holding Pakistani passports would be deemed to be citizens of Pakistan---

Section 83, C.P.C. provided that an alien, if not falling within definition of an "alien" enemy, could sue in Pakistan---Under S.1(2) of West Pakistan Family Courts Act, 1964, residence of one party would give jurisdiction to Family Court in Pakistan to entertain such suit even though marriage not solemnized in Pakistan---Suit for Dissolution of marriage according to R.6 of West Pakistan Family Courts Rules, 1965 could be filed in Family Court within whose local limits wife was ordinarily residing, while suit for recovery of maintenance could be filed in Family Court within whose local limits cause of action had arisen wholly or in part---Record showed that wife and her children residing since long in Pakistan were registered citizens of Pakistan holding national identity cards---Cause of action as stated by wife had arisen to her in Pakistan---Wife and her children could invoke and avail jurisdiction of Courts in Pakistan including Family Courts---High Court dismissed constitutional petition in circumstances

Child Marriage Act

 

PLD 2021 Lahore 21

Child Marriage Restraint Act, 1929

          Ss.8 & 2(b) of Act, 1929

Validity of Nikah/marriage where girl had obtained puberty. 

Medical Board constituted by the Court had in its report stated that petitioner was 14/15 years of age and had obtained puberty. 

   Girl who had attained puberty may contract marriage with a man of her choice and was not necessary for such girl to obtain consent of her Wali/Guardian, and in such a case, contention that such marriage/Nikah should not be recognized under Child Marriage Restraint Act, 1929 had no force.

Petition allowed.

Zzzzzzzzzzzzzzzzzzzzzz

PLD 2020 Lahore 811

Justice Anwaar ul Haq Pannu, Judge of Lahore High Court has delivered a very detailed judgment on child marriages, lacunas in the relevant law, and implementation of existing laws. His lordship has also pointed out the role of Nikah Khawans and in what circumstances their licenses can be canceled. Mr. Pannu has highlighted the side effects of child marriages as well.

PLD 2020 Lahore 811

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It is observed that during the judicial dispensation, it has oftenly been noticed that as a result of registration of criminal cases in respect of offences under Chapter XVI-A PPC while waging a plea of valid marriage having duly been registered under the Muslim Family Laws Ordinance, 1961 (hereinafter to be referred as ‘the MFLO’) by one of the parties to the lis, generally contested by the other side or even in absence of registration of criminal cases, the grievance of illegal and undue harassment to the breach of fundamental rights of the aggrieved persons claiming valid marriage, at the hands of police at the behest of the parents, guardians or other relatives of the bride, is found to be voiced and by filing such petitions either the relief of quashing of FIR or issuance of a writ in the nature of prohibition is usually prayed for. Even, in certain cases upon a cursory inquiry it divulges that despite clear legal provisions specifying the eligibility with regard to age limit of the parties to the marriage, the acclaimed marriage is found as having been contracted by violating the provisions of the Child Marriage Restraint Act, 1929 (hereinafter to be referred as “the Act 1929”).

PLD 2020 Lahore 811

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It has further been noticed that some of the Nikah Khawans/Nikah Registrars instead of requiring any proof of age from the parties to the marriage which should be in the shape of some authentic document either issued by the NADRA in the form of National Identity Card, B-Form or School leaving Certificate, medical certificate based on ossification test issued by the competent authority and the Birth Certificate validly issued by the Union Council etc, out of their petty temptations knowingly that one of the parties to the marriage is minor, proceed to rely upon a selfdeclaration of the concerned party in respect of his/their age at the time of registration of their marriage.

PLD 2020 Lahore 811

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Under the Muslim Law the competence of a girl to enter into a contract of marriage is dependent on the attainment of puberty. Puberty is presumed at the age of fifteen years. According to ‘Fatawa Alamgiri’, Page-93 of Vol-V, the lowest age of puberty according to its natural signs, is 12 years in males and 9 years in females and if signs do not appear, both sexes are held to be adult on the completion of their age of 15 years. The principle which after copying out from Fatawa Alamgiri and Hedaya can be deduced is that a girl even having not attained puberty but possessing discretion and sufficient understanding can enter into a contract of marriage however for its operation it will be dependent on the consent of the guardian, if there is one, but in the absence of any guardian it will take effect on her attaining of majority and ratifying the contract. According to Paragraph-274 of Mahomedan Law, “when a marriage is contracted for a minor by any guardian other than the father or father’s father, the minor has the option to repudiate the marriage on attaining the puberty. This is technically called the “option of puberty” (Khyar-ulbulugh). The right of repudiation of the marriage is lost, in the case of a female, if after attaining puberty and after having been informed of the marriage and of her right to repudiate it, she does not repudiate without reasonable delay. The Dissolution of Muslim Marriages Act, 1939, however, gives her the right to repudiate the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated. But in the case of a male the right continues until he has ratified the marriage either expressly or impliedly as by payment of dower or by cohabitation.”

PLD 2020 Lahore 811

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At a number of occasions that despite a clear legal requirement of filling in each column of the Nikahnama individually, with specific answer of the parties to the marriage, the Nikah Registrar proceeds to place a single long vertical line against all or some of the columns which amounts to an offence liable to be punished under the law. Such criminal lapse/acts of the Nikah Registrar or the parties, as the case may be, despite being a source of breach of rights of the parties to the marriage are randomly ignored. The unscrupulous elements while taking advantage of such omissions or lapses try to exploit the situation and create serious future complications for the others.

PLD 2020 Lahore 811

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It may be relevant to observe that in view of section 21 of the Pakistan Penal Code, 1898, Nikah Registrar is deemed to be a ‘Public Servant’ for criminal prosecution. The status of Nikah Registrar is that of a licensee. He does not fall within the definition of an employee as provided under Section 2(h) of the PEEDA (Punjab employees, efficiency and discipline) Act 2006, therefore, in case of any contravention with any of the provisions of law or violation of any of conditions of the licence, subject to notice, his licence can be revoked/ cancelled by the Union Council.

PLD 2020 Lahore 811

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A deterrence of punishment for violation of the provisions of Child Marriage Restraint Act, 1929 has been created. It is quite vivid that the act does not hold the minor responsible for violation of the provision of the Act 1929. It also does not invalidate the marriage itself. It only,, holds certain categories of persons liable for the violations of the provisions of the Act 1929. Under Section 2(a) of Act 1929, child has been defined ‘a person, if male, under 18 years of age and if female, under 16 years of age.

PLD 2020 Lahore 811

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The trial of the offence under the provisions of the Child Marriage Restraint Act, 1929 is to be held by a Family Court exercising the powers of a Judicial Magistrate of the first class in accordance with the Provisions of Family Courts Act, 1964 (XXXV of 1964).

PLD 2020 Lahore 811

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The registration of the marriage shall be in accordance with the provisions of the Ordinance and the Rules. For registration of Nikah/marriage, the Union Council has been authorized to issue a license to one or more persons who are fit and proper to solemnize the Nikah, on his/their application who are called as Nikah Registrars. The Nikah Registrar is under obligation to fill in accurately every column of the Nikahnama individually with specific answers of the bride and the bridegroom. Any violation/contravention with the provisions of the Ordinance is punishable with simple imprisonment and fine. The record of the marriage in respect of marriage registration is to be maintained by the Union Council. The copy of Nikahnama shall be supplied to the parties.

PLD 2020 Lahore 811

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It is a matter of great concern that despite ninety years of the promulgation of the Act, 1929, its objectives could not have been achieved satisfactorily due to certain lapses or loopholes in the mechanism for its enforcement. The children are still being lured by unscrupulous elements through deceitful means to abuse their innocent souls. It is also relevant to point out that although under The Majority Act, 1875 (Act XX of 1875) (hereinafter known as ‘Majority Act’) a person is said to attain majority at the age of eighteen years. However, in case of appointment of his guardian by the Court, the age of majority of such a Ward is twenty-one years. The application of the above provisions has however been excluded insofar as the operation of personal law in respect of marriage, divorce and dower is concerned. Every other person, subject to as aforesaid, domiciled in Pakistan shall be deemed to have attained his majority on completion of his age of eighteen years, and not before. A Muslim though under 18 years on attaining puberty, can bring a suit relating to marriage, dower and divorce without next friend.

PLD 2020 Lahore 811

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Directions issued to Nikah Registrars

(1) All the Nikah Registrars or other persons, who solemnize marriages are under legal obligation to scrutinize the credentials at the time of Nikah as to whether the marriage is solemnized with the free will of the parties and no child is exposed to marriage. Mere submission of oral entries for the purpose of age should not be accepted unless any proof of age from the parties to the marriage preferably which should be in the shape of some authentic document either issued by the NADRA in the form of National Identity Card, B-Form or School Leaving Certificate, Medical Certificate based on ossification test issued by the competent authority and the Birth Certificate validly issued by the Union Council, etc. is produced.

(2) Furthermore, after perusing the record in compliance with SOP (ii) mentioned in para 17, in case the Authority fails to take the requisite action, it will be deemed that he himself has willfully failed to perform his function/duty amounting to negligence rendering himself liable for initiation of disciplinary proceedings against him under the relevant law.

PLD 2020 Lahore 811