Dowry Case Laws
NLR 2000 SD 573.
Dowry are those articles which are always given to wife by her parents at the time of rukhsati, whereas dower is right of wife which is mostly paid or to be paid in lieu of marriage by thehusband. Dower once paid the liability of dower dissatisfied. The taking away of dower after marriage may be considered a loan/credit the return of which could only be sought through Civil Court.
2013 CLC 698
The Qariun-e-Shahadat, 1984 were not applicable in the proceedings
before the Family Court in view of S.17 of the West Pakistan Family Courts Act, 1964. Intent of the legislature was clearly to simplify the procedure and the law-makers were aware of the fact that in cases relating to dower.The lists were seldom prepared and receipts were very rarely kept intact as everyone made arrangements for marriage of one’s Daughter with the hope and prayer that she would lead a happily married life.
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PLD 2002 Peshawar 30.
Ss.5, Schedule Family Courts Act & 25-A CPC. Suit for return of marriage gifts. Transfer of such suit to NWFP from Civil/Family Court (Sindh). Schedule to West Pakistan Family Courts Act did not include marriage gifts to be the subject matter of dispute with reference to S.5 of the said Act. Suit at (Sindh) had to be a civil suit and in case it was so, the jurisdiction to transfer it under S.23(3) CPC would vest in Sindh High Court.
PLD 2002 Peshawar 30.
Ss.5, Schedule Family Courts Act & 25-A CPC. Suit for return of marriage gifts. Transfer of such suit to NWFP from Civil/Family Court (Sindh). Schedule to West Pakistan Family Courts Act did not include marriage gifts to be the subject matter of dispute with reference to S.5 of the said Act. Suit at (Sindh) had to be a civil suit and in case it was so, the jurisdiction to transfer it under S.23(3) CPC would vest in Sindh High Court.
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2004 MLD 696.
Aftab Mohy-ud-Din V/S Additional District Judge (Lahore)
S.19 Family Courts Act. Schedule II, Art/.17(vii). Courts Fees Act. Suit for recovery of dowry articles dismissed by the trial court. Court fee payable on the memorandum of appeal. Claim of plaintiff in a suit for recovery of dowry articles is not substitution of money, which is for the court to determine on the basis of evidence whether substitution of dowry articles will be justifiable in money or not. In all such cases where the valuation of suit is not determined for the purposes of court fee and for the jurisdictional purposes on the decree sheet the case will fall under the remedial and curative enactment of S.19 of West Pakistan Family Courts Act, 1964 and Art.17(vii), Schedule II of the Court Fees Act, 1870 and the stamp of Rs:15 will be affixed on the memo of appeal as is apparent from the intention of Legislature through West Pakistan Family Courts (Amendment) Ordinance, 2002 promulgated on 1-10-2002.
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NLR 2004 SD 576.
Muhammad Saleem Akhtar V/S Judge Family Court etc. (Bahawalpur)
Admissibility of list of dowry articles without its scribe cannot be questioned on ground of being violative of Qanoon-e-Shahadat Order, 1984, as U/S 17 of Family Courts Act, 1964, provisions of Qanoon-e-Shahadat Order, 1984, are not applicable to Family Court proceedings.
Violation of provisions of Dowry & Bridal Gifts (Restriction) Act, cannot be made basis for challenge to dowry decree passed by Family Court when this point was not taken in the pleadings nor any issue was framed for that proposition.
NLR 2003 SD 347.
Mst. Shahnaz Begum V/S Muhammad Shafi, etc. (Lahore)
S.2,3. Articles of dowry, bridal gifts, presents and all other movable property are the belongings of wife. Wife, if deprived by her husband of bridal gifts, would have right to recover all these articles even though the same were given in violation of S.3 of provisions of Dowry & Bridal Gifts (Restriction) Act,
NLR 2004 SD 712.
Ahmad Khan V/S Mst. Sarwar Khatoon etc. (Lahore)
S.14 Family Courts Act, 1993 (AJK). Appeal by wife against dismissal of her suit for recovery of dowry articles by Family Court by rejecting the list of dowry articles furnished by wife. Appellate court would not be justified to remand the case to Family court on basis of same record. High Court accepting writ petition of husband against remand order of Appellate Court, setting it aside and directing the Appellate Court to decide the appeal of wife on basis of evidence on record. CASE REMANDED TO APPELLATE COURT.
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NLR 2004 SD 833
Aftab Mohy-ud-Din V/S Additional Distt. Judge etc. (Lahore)
In suit for recovery of dowry articles, the court has to determine the value of articles of dowry at the time of presentation of plaint and their depreciate value during the long preceding years.
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NLR 2004 SD 1051.
Muhammad Akram V/S Mst. Shahida Parveen etc. (Lahore)
In a suit for restitution of specific dowry articles, ordinarily it is the option of the husband/defendant whether he would deliver the articles or pay the value thereof. Family court would be right in directing husband/defendant to make payment of the price of dowry articles when dowry articles had been mercilessly used, with the result that the same were either not available at all or those which were available were in a damaged condition.
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PLD 2004 Lahore 249.
Muhammad Akram V/S Mst. Shahida Parveen
Suit for recovery of dowry articles or in alternative price thereof. Defendant’s plea was that plaintiff was not given any dowry at the time of marriage. Suit was decreed as prayed for. Executing court through Local Commission found restitution of such articles impossible, thus, directed the recovery price thereof. Defendant’s plea was that such direction was without jurisdiction as decree did not find mention of money payable by him in the alternative. Validity. Words “as prayed for” were important, which had to be read in conjunction with prayer clause of the plaint, wherein while seeking decree for recovery of dowry articles, prayer in alternative for price thereof had been made. Local Commissioner’s report showed that most of such articles were either missing or destroyed or damaged, while some did not belong to the plaintiff. Defendant had produced some articles before the Local Commission offering delivery thereof but plaintiff had refused to accept same for not being articles under claim. Plea raised in written statement was that the defendant had no intention to part with any article of dowry belonging to plaintiff. Appointment of Local Commission was for satisfaction of defendant, though there was no need of the appointment after defendant having once denied to be in possession of any dowry articles. Executing court had, thus, rightly directed defendant to pay cost/value of dowry articles.
(2) Decree for recovery of dowry articles or in alternative price thereof. Defendant had denied to be in possession of dowry articles. No need of appointing Local Commission in such situation. Duty of Executing Court to straightaway execute decree for money. PETITION DISMISSED.
PLD 2004 Lahore 290.
Mst. Shahnaz Begum V/S Muhammad Shafi & Others
S.2(A) & 3 Dowry & Bridal Gifts (Restriction) Act 1976. Art.199 of Constitution. "Dowry" - Definition - Articles of dowry, bridal gifts, presents or all the other movable properties are the belongings of bridge and the husband if deprives her of the same, she has the right to recover all these articles even though the same were given in contradiction of provisions of S.3 of the Dowry & Bridal Gifts (Restriction) Act 1976. Bridge can always recover the articles of dowry and Wari given to her by the bridegroom or the bridegroom side at the time of marriage. Bridal gift given by the husband is the absolute property of the wife and it could not be snatched away from her. case Remanded.
PLD 2004 Lahore 668.
Faisal Afzal Sheikh V/S Additional District Judge Lahore.
S.5 & Schedule of West Pakistan Family Courts Act 1964. Suit for recovery of dowry articles. Decree for payment of money in lieu of dowry articles passed by Family Court was upheld by Appellate Court. Validity. Defendant had not challenged list of articles annexed with plaint. Value of articles as stated by witnesses of plaintiff had not been challenged by defendant in cross-examination - Defendant had not denied factum of car brought by plaintiff alongwith ornaments at the time of marriage. Plaintiff had alleged in plaint sale of car by defendant and misappropriation of its sale proceeds by him. Defendant had not produced evidence in rebuttal to show that plaintiff herself had sold car. In absence of such evidence, concurrent findings of fact of courts below could not be infered with in constitutional jurisdiction of High Court. Defendant had not prayed in constitutional petition for return of such articles. If defendant wanted to return such articles, there was nothing to prevent him. Courts below had taken note of every material evidence brought on record. PET.DISMISSED.
2006 SCMR 662.
Zafar Iqbal V/S Mst. Tahira Parveen & Others (SC.FB)
Suit for recovery of dowry articles of value thereof in alternative. Plea of wife was that motorcycle was purchased by her father through her brother which was given to her at the time of marriage and was sold by husband for Rs:50,000/-. Husband's plea was that his brother-in-law had offered motorcycle for sale to him, which he purchased being a dealer of motorcycle and subsequently sold to someone else. High Court in constitutional petition added price of motorcycle (Rs:50,000) to the amount of decree passed by Family Court. Validity. High Court had correctly added price of motorcycle in amount of decree after finding that motorcycle had been given to wife at the time of marriage as a dowry article, which had been sold by husband for Rs:50,000. No illegality or jurisdictional defect was found in impugned judgment. Controversy was merely factual in nature not involving any question of law. PETITION DISMISSED.
2006 SCMR 1136.
Zulfiqar Ali V/S Musarrat Bibi & Others (SC.DB)
Dowry articles, return of. Agreement not signed by wife. Husband claimed to have returned dowry articles to the wife and relied upon agreement signed by two brothers of the wife. Appellate court did not accept the agreement and directed the husband to return the articles. Judgment of Appellate Court was maintained by High Court. Validity. Wife was not a party to the agreement and the brothers had denied their signatures on the agreement. Husband could not show any authority given by the wife to her brothers to enter into the agreement with the husband. Judgment of High Court affirming the conclusion reached by the Appellate Court was not open to any exception. LEAVE TO APPEAL REFUSED.
PLD 2006 Karachi 272.
Abdul Sattar V/S Mst. Kalsoom
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.
2007 MLD 379.
Mst. Sharman Bibi V/S Abdul Majid & 2 Others (Lahore)
S.5 & Schedule. S.14 W.Pak.Family Courts Act 1964. Suit for dissolution of marriage, recovery of maintenance allowance dowry articles. Family Court granted decree for dissolution of marriage in favour of petitioner, she was also declared entitled to recovery of Rs.500 per month as her maintenance allowance. Family Court further declared petitioner to recover Rs.200,000 from respondent as alternate of her used dowry articles along with admitted dowry articles. Judgment and decree passed by Family Court to the extent of Rs.200,000 as alternate of used dowry articles was held to be not maintainable by the appellate court and petitioner had been declared entitled to get back her dowry articles. Validity. Petitioner lived with respondent as her wife for more than five years and during that period she had been using her dowry articles; it would not be fair to order respondent to pay Rs:200,000 for use of dowry articles along with dowry articles. No evidence was available on record with regard to use of dowry articles and household articles which devalued with the passage of time. Well-reason order passed by Appellate Court below, did not call for any interference.
PLD 2007 Quetta 38.
W.Pak. Family Courts Act 1964 & Schedule. Article 120 of Limitation Act. Respondent within three years of death of her husband filed suit in Family Court for recovery of dory articles. Petitioner, father of deceased husband of respondent filed application seeking dismissal/rejection of suit filed by respondent being barred by time and for want of jurisdiction. Said application was dismissed and suit filed by respondent having been decreed by the Family Court, petitioner had filed constitutional petition against judgment of Family Court-----Validity------Where no period of limitation was prescribed in filing suit for recovery of dowry articles; provisions of Art. 120 of Limitation Act, providing six years period for filing suit in that respect, would be applicable, but when claim was for a specific moveable property or for compensation for wrongful taking, period of limitation was three years from the day, when demand for return of articles was refused; and possession over said articles became unlawful. Suit filed by respondent within three years, was not barred by time. Before amendment in West Pakistan Family Court Act, 1964 suits for recovery of dowry articles, no doubt were to be instituted in civil court, but after amendment in the Act vide Family Courts (Amendment) Act 1997, such cases either pending or instituted were made exclusively triable by Family Court. Suit, in circumstances, was rightly filed by respondent before Family Court, which was competent forum for recovery of dowry articles. Suit filed by respondent in circumstances fell within exclusive jurisdiction of Family Court. Family Court on proper interpretation of law, had rightly decided to proceed with the case and rejected application of petitioner. Petitioner having failed to make out a case for interference of High Court in exercise of its constitutional jurisdiction, constitutional petition was dismissed.
PLD 2007 Lahore 515.
S.5 Family Courts Act 1964 & Schedule. Column No.17 of the Nikha nama contained the stipulation that in case of sour relations between the spouses or divorce by the husband, a sum of Rs.100,000/- shall be paid to the wife. Suit of wife for dissolution of marriage was decreed, where after she brought the suit for recovery of Rs.100,000 which was dismissed by the Family Court holding that her suit was not maintainable before the Family Court and she was liable to file ordinary civil suit for the recovery of the said amount. Appellate Court, however, found that matter fell within the purview of Entry No.9 of the Schedule to S.5 West Pakistan Family Courts Act and suit was competent--- Validity---- Held, Entry No.9 of the Schedule to S.5 did not cover any amount which was not yet the property of the wife and she only had a claim to recover the amount from the husband on the basis of any special condition incorporated in the Nikhanama. Such claim could not be equated as a personal property belonging to wife. Amount in question was also not covered under the rule of “actionable claims” as envisaged by S.130 of Transfer of Property Act 1882. Family Court in circumstances, had no jurisdiction in the matter and the suit in that behalf before the said court was not competent.
2008 SCMR 1584.
Muhammad Habib V/S Mst. Safia Bibi & Others
S.5 & Schedule. Suit for recovery of dowry articles by divorced wife was decreed by Family Court and amount of decree was modified and enhanced by the Appellate Court. Contention of the husband was that no such list of dowry articles was prepared at the time of marriage, same was fabricated subsequently and in absence of valid receipts of purchase of said articles, suit could not have been decreed and that Appellate Court was not legally justified to modify the decree passed by Family Court and enhance the amount---Validity----List of articles revealed that those were ordinarily given to a bridge at the time of her marriage. No illegality or irregularity had been pointed out in the concurrent findings of fact recorded by the two courts below and upheld by the High Court assigning cogent and sound reasons calling for interference by Supreme Court. Impugned order did not suffer from any legal discrepancy nor any substantial question of public importance was involved in the petition against such order. LEAVE REFUSED.
PLJ 2008 SC (AJK) 73
Dowry were perished during earthquake --- Substitute --- Price of dowry awarded. Held: Appellant had admitted in his written statement that the dowry articles including the golden ornaments were given to respondent at the time of marriage ceremony. Some of the articles of dowry were perished during the earthquake and some of them were in his possession. Witnesses for the appellant had tried to prove the fact that during the earthquake the dowry articles were received whereas the witnesses of the respondent did not visit the house of the appellant. Appellant admitted that some of dowry articles were still in his possession. Held: On admission of the appellant, excluding the price of the golden ornaments and considering the damage during the earthquake, it would be in interest of justice to fix the price of dowry Rs.100,000 instead Rs.150,000. APPEAL DISPOSED OFF
PLD 2009 Lahore 359.
S.5 W.Pak.Family Courts Act Schedule Part I. Item No.8 & S.19. Suit for recovery of dowry or its price in alternative---Appeal against decree for recovery of Rs.2,00,000 passed in such suit. Non-payment of ad valorem court-fee on memo of appeal---Validity---- Provisions of Court Fees Act, 1870 would not apply to such decree as decretal amount was in alternative of dowry articles.
2009 MLD 691.
S.5 Sched. & S.14 W.Pak. Family Courts Act. Suit for recovery of dowry articles. Suit was concurrently dismissed by the Family Court and Appellate Court on the ground that she could not adduce even a single witness in support of her contention and in circumstances was not entitled for claim of dowry articles----Validity---Plaintiff had specifically stated the names of the articles and also the gold ornaments given to her at the time of marriage by her parents. She also had given the price of said articles. Respondent had not specifically cross-examined that part of the statement given by the plaintiff. Every reason in circumstances existed, to believe that the defendant had admitted the claim of the plaintiff. Defendant could not prove that dowry articles given to the plaintiff by her parents, were taken away by her. Sufficient evidence was available on the file to establish that dowry articles given to the plaintiff by her parents, were still lying in the house of defendant. Family court had wrongly non-suited the plaintiff on the ground that she could not produce any other witness in support of her contention. Courts below had totally ignored the fact on the record that defendant also failed to produce any other witness to rebut the contention of the plaintiff. Findings concurrently recorded by the courts below were totally unjustified, illegal, void ab initio and against the settled principles of law. Concurrent judgment and decree passed by the courts below were set aside and the plaintiff was held entitled to recover dowry articles,
2009 MLD 373.
Suit for recovery of dower had concurrently been dismissed by the Family Court and Appellate Court. Contention of respondent was that petitioner, who had not come to the court with clean hands, was not entitled for any relief and that petitioner had entered into a third marriage posing herself virgin in the Nikah Nama and being her third marriage she did not bring any dowry articles and she was trying to blackmail respondent----Validity----Petitioner did not disclose in her Nikah Nama that it was her third marriage, which was sufficient to disentitle her from claiming discretionary relief in the form of constitutional petition.
NLR 2004 SD 576.
Muhammad Saleem Akhtar V/S Judge Family Court etc. (Bahawalpur)
Admissibility of list of dowry articles without its scribe cannot be questioned on ground of being violative of Qanoon-e-Shahadat Order, 1984, as U/S 17 of Family Courts Act, 1964, provisions of Qanoon-e-Shahadat Order, 1984, are not applicable to Family Court proceedings.
(2) Violation of provisions of Dowry & Bridal Gifts (Restriction) Act, cannot be made basis for challenge to dowry decree passed by Family Court when this point was not taken in the pleadings nor any issue was framed for that proposition.
NLR 2003 SD 347.
Mst. Shahnaz Begum V/S Muhammad Shafi, etc. (Lahore)
S.2,3. Articles of dowry, bridal gifts, presents and all other movable property are the belongings of wife. Wife, if deprived by her husband of bridal gifts, would have right to recover all these articles even though the same were given in violation of S.3
NLR 2004 SD 712. Ahmad Khan V/S Mst. Sarwar Khatoon etc. (Lahore)
S.14 Family Courts Act, 1993 (AJK). Appeal by wife against dismissal of her suit for recovery of dowry articles by Family Court by rejecting the list of dowry articles furnished by wife. Appellate court would not be justified to remand the case to Family court on basis of same record. High Court accepting writ petition of husband against remand order of Appellate Court, setting it aside and directing the Appellate Court to decide the appeal of wife on basis of evidence on record. CASE REMANDED TO APPELLATE COURT.
NLR 2004 SD 833.
In suit for recovery of dowry articles, the court has to determine the value of articles of dowry at the time of presentation of plaint and their depreciate value during the long preceding years.
NLR 2004 SD 1051
In a suit for restitution of specific dowry articles, ordinarily it is the option of the husband/defendant whether he would deliver the articles or pay the value thereof. Family court would be right in directing husband/defendant to make payment of the price of dowry articles when dowry articles had been mercilessly used, with the result that the same were either not available at all or those which were available were in a damaged condition
PLD 2004 Lahore 249.
Suit for recovery of dowry articles or in alternative price thereof. Defendant’s plea was that plaintiff was not given any dowry at the time of marriage. Suit was decreed as prayed for. Executing court through Local Commission found restitution of such articles impossible, thus, directed the recovery price thereof. Defendant’s plea was that such direction was without jurisdiction as decree did not find mention of money payable by him in the alternative. Validity. Words “as prayed for” were important, which had to be read in conjunction with prayer clause of the plaint, wherein while seeking decree for recovery of dowry articles, prayer in alternative for price thereof had been made. Local Commissioner’s report showed that most of such articles were either missing or destroyed or damaged, while some did not belong to the plaintiff. Defendant had produced some articles before the Local Commission offering delivery thereof but plaintiff had refused to accept same for not being articles under claim. Plea raised in written statement was that the defendant had no intention to part with any article of dowry belonging to plaintiff. Appointment of Local Commission was for satisfaction of defendant, though there was no need of the appointment after defendant having once denied to be in possession of any dowry articles. Executing court had, thus, rightly directed defendant to pay cost/value of dowry articles. (2) Decree for recovery of dowry articles or in alternative price thereof. Defendant had denied to be in possession of dowry articles. No need of appointing Local Commission in such situation. Duty of Executing Court to straightaway execute decree for money. PETITION DISMISSED.
PLD 2004 Lahore 290.
S.2(A) & 3 Dowry & Bridal Gifts (Restriction) Act 1976. Art.199 of Constitution. "Dowry" - Definition - Articles of dowry, bridal gifts, presents or all the other movable properties are the belongings of bridge and the husband if deprives her of the same, she has the right to recover all these articles even though the same were given in contradiction of provisions of S.3 of the Dowry & Bridal Gifts (Restriction) Act 1976. Bridge can always recover the articles of dowry and Wari given to her by the bridegroom or the bridegroom side at the time of marriage. Bridal gift given by the husband is the absolute property of the wife and it could not be snatched away from her. CASE REMANDED
PLD 2004 Lahore 668.
Faisal Afzal Sheikh V/S Additional District Judge Lahore.
S.5 & Schedule of West Pakistan Family Courts Act 1964. Suit for recovery of dowry articles. Decree for payment of money in lieu of dowry articles passed by Family Court was upheld by Appellate Court. Validity. Defendant had not challenged list of articles annexed with plaint. Value of articles as stated by witnesses of plaintiff had not been challenged by defendant in cross-examination - Defendant had not denied factum of car brought by plaintiff along with ornaments at the time of marriage. Plaintiff had alleged in plaint sale of car by defendant and misappropriation of its sale proceeds by him. Defendant had not produced evidence in rebuttal to show that plaintiff herself had sold car. In absence of such evidence, concurrent findings of fact of courts below could not be inferred with in constitutional jurisdiction of High Court. Defendant had not prayed in constitutional petition for return of such articles. If defendant wanted to return such articles, there was nothing to prevent him. Courts below had taken note of every material evidence brought on record. PET.DISMISSED.
2006 SCMR 662
Suit for recovery of dowry articles of value thereof in alternative. Plea of wife was that motorcycle was purchased by her father through her brother which was given to her at the time of marriage and was sold by husband for Rs:50,000/-. Husband's plea was that his brother-in-law had offered motorcycle for sale to him, which he purchased being a dealer of motorcycle and subsequently sold to someone else. High Court in constitutional petition added price of motorcycle (Rs:50,000) to the amount of decree passed by Family Court. Validity. High Court had correctly added price of motorcycle in amount of decree after finding that motorcycle had been given to wife at the time of marriage as a dowry article, which had been sold by husband for Rs:50,000. No illegality or jurisdictional defect was found in impugned judgment. Controversy was merely factual in nature not involving any question of law. PETITION DISMISSED.
2006 SCMR 1136.
Dowry articles, return of. Agreement not signed by wife. Husband claimed to have returned dowry articles to the wife and relied upon agreement signed by two brothers of the wife. Appellate court did not accept the agreement and directed the husband to return the articles. Judgment of Appellate Court was maintained by High Court. Validity. Wife was not a party to the agreement and the brothers had denied their signatures on the agreement. Husband could not show any authority given by the wife to her brothers to enter into the agreement with the husband. Judgment of High Court affirming the conclusion reached by the Appellate Court was not open to any exception. LEAVE TO APPEAL REFUSED.
PLD 2006 Karachi 272.
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.
2007 MLD 379
S.5 & Schedule. S.14 W.Pak.Family Courts Act 1964. Suit for dissolution of marriage, recovery of maintenance allowance dowry articles. Family Court granted decree for dissolution of marriage in favour of petitioner, she was also declared entitled to recovery of Rs.500 per month as her maintenance allowance. Family Court further declared petitioner to recover Rs.200,000 from respondent as alternate of her used dowry articles along with admitted dowry articles. Judgment and decree passed by Family Court to the extent of Rs.200,000 as alternate of used dowry articles was held to be not maintainable by the appellate court and petitioner had been declared entitled to get back her dowry articles. Validity. Petitioner lived with respondent as her wife for more than five years and during that period she had been using her dowry articles; it would not be fair to order respondent to pay Rs:200,000 for use of dowry articles along with dowry articles. No evidence was available on record with regard to use of dowry articles and household articles which devalued with the passage of time. Well-reason order passed by Appellate Court below, did not call for any interference.
PLD 2007 Quetta 38.
W.Pak. Family Courts Act 1964 & Schedule. Article 120 of LimitationAct. Respondent within three years of death of her husband filed suit in Family Court for recovery of dory articles. Petitioner, father of deceased husband of respondent filed application seeking dismissal/rejection of suit filed by respondent being barred by time and for want of jurisdiction. Said application was dismissed and suit filed by respondent having been decreed by the Family Court, petitioner had filed constitutional petition against judgment of Family Court-----Validity------Where no period of limitation was prescribed in filing suit for recovery of dowry articles; provisions of Art. 120 of Limitation Act, providing six years period for filing suit in that respect, would be applicable, but when claim was for a specific moveable property or for compensation for wrongful taking, period of limitation was three years from the day, when demand for return of articles was refused; and possession over said articles became unlawful. Suit filed by respondent within three years, was not barred by time. Before amendment in West Pakistan Family Court Act, 1964 suits for recovery of dowry articles, no doubt were to be instituted in civil court, but after amendment in the Act vide Family Courts (Amendment) Act 1997, such cases either pending or instituted were made exclusively triable by Family Court. Suit, in circumstances, was rightly filed by respondent before Family Court, which was competent forum for recovery of dowry articles. Suit filed by respondent in circumstances fell within exclusive jurisdiction of Family Court. Family Court on proper interpretation of law, had rightly decided to proceed with the case and rejected application of petitioner. Petitioner having failed to make out a case for interference of High Court in exercise of its constitutional jurisdiction, constitutional petition was dismissed.
PLD 2007 Lahore 515.
Muhammad Akram V/S Mst. Hajra Bibi & 2 Others.
S.5 Family Courts Act 1964 & Schedule. Column No.17 of the Nikhnama contained the stipulation that in case of sour relations between the spouses or divorce by the husband, a sum of Rs.100,000/- shall be paid to the wife. Suit of wife for dissolution of marriage was decreed, whereafter she brought the suit for recovery of Rs.100,000 which was dismissed by the Family Court holding that her suit was not maintainable before the Family Court and she was liable to file ordinary civil suit for the recovery of the said amount. Appellate Court, however, found that matter fell within the purview of Entry No.9 of the Schedule to S.5 West Pakistan Family Courts Act and suit was competent--- Validity---- Held, Entry No.9 of the Schedule to S.5 did not cover any amount which was not yet the property of the wife and she only had a claim to recover the amount from the husband on the basis of any special condition incorporated in the Nikhnama. Such claim could not be equated as a personal property belonging to wife. Amount in question was also not covered under the rule of “actionable claims” as envisaged by S.130 of Transfer of Property Act 1882. Family Court in circumstances, had no jurisdiction in the matter and the suit in that behalf before the said court was not competent-------- Principles.
2008 SCMR 1584.
Muhammad Habib V/S Mst. Safia Bibi & Others
S.5 & Schedule. Suit for recovery of dowry articles by divorced wife was decreed by Family Court and amount of decree was modified and enhanced by the Appellate Court. Contention of the husband was that no such list of dowry articles was prepared at the time of marriage, same was fabricated subsequently and in absence of valid receipts of purchase of said articles, suit could not have been decreed and that Appellate Court was not legally justified to modify the decree passed by Family Court and enhance the amount---Validity----List of articles revealed that those were ordinarily given to a bridge at the time of her marriage. No illegality or irregularity had been pointed out in the concurrent findings of fact recorded by the two courts below and upheld by the High Court assigning cogent and sound reasons calling for interference by Supreme Court. Impugned order did not suffer from any legal discrepancy nor any substantial question of public importance was involved in the petition against such order. LEAVE REFUSED.
PLJ 2008 SC (AJK) 73
Raja Tahir Bashir V/S Mst. Gulsheeda Bibi & Others
Dowry were perished during earthquake --- Substitute --- Price of dowry awarded. Held: Appellant had admitted in his written statement that the dowry articles including the golden ornaments were given to respondent at the time of marriage ceremony. Some of the articles of dowry were perished during the earthquake and some of them were in his possession. Witnesses for the appellant had tried to prove the fact that during the earthquake the dowry articles were received whereas the witnesses of the respondent did not visit the house of the appellant. Appellant admitted that some of dowry articles were still in his possession. Held: On admission of the appellant, excluding the price of the golden ornaments and considering the damage during the earthquake, it would be in interest of justice to fix the price of dowry Rs.100,000 instead Rs.150,000. APPEAL DISPOSED OFF
PLD 2009 Lahore 359.
S.5 W.Pak.Family Courts Act Schedule Part I. Item No.8 & S.19. Suit for recovery of dowry or its price in alternative---Appeal against decree for recovery of Rs.2,00,000 passed in such suit. Non-payment of ad valorem court-fee on memo of appeal---Validity---- Provisions of Court Fees Act, 1870 would not apply to such decree as decretal amount was in alternative of dowry articles.
2009 MLD 691.
Mst. Amiran V/S Additional District Judge Bhakkar (Lahore)
S.5 Sched. & S.14 W.Pak. Family Courts Act. Suit for recovery of dowry articles. Suit was concurrently dismissed by the Family Court and Appellate Court on the ground that she could not adduce even a single witness in support of her contention and in circumstances was not entitled for claim of dowry articles----Validity---Plaintiff had specifically stated the names of the articles and also the gold ornaments given to her at the time of marriage by her parents. She also had given the price of said articles. Respondent had not specifically cross-examined that part of the statement given by the plaintiff. Every reason in circumstances existed, to believe that the defendant had admitted the claim of the plaintiff. Defendant could not prove that dowry articles given to the plaintiff by her parents, were taken away by her. Sufficient evidence was available on the file to establish that dowry articles given to the plaintiff by her parents, were still lying in the house of defendant. Family court had wrongly non-suited the plaintiff on the ground that she could not produce any other witness in support of her contention. Courts below had totally ignored the fact on the record that defendant also failed to produce any other witness to rebut the contention of the plaintiff. Findings concurrently recorded by the courts below were totally unjustified, illegal, void ab initio and against the settled principles of law. Concurrent judgment and decree passed by the courts below were set aside and the plaintiff was held entitled to recover dowry articles.
2009 MLD 373.
Suit for recovery of dower had concurrently been dismissed by the Family Court and Appellate Court. Contention of respondent was that petitioner, who had not come to the court with clean hands, was not entitled for any relief and that petitioner had entered into a third marriage posing herself virgin in the Nikah Nama and being her third marriage she did not bring any dowry articles and she was trying to blackmail respondent----Validity----Petitioner did not disclose in her Nikah Nama that it was her third marriage, which was sufficient to disentitle her from claiming discretionary relief in the form of constitutional petition.
Dowry Articles
2017 YLR 1814 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. SADAF
Side Opponent : ADDITIONAL DISTRICT JUDGE
Ss. 9, 14 & Sched.---dowry articles, entitlement to---Financial status of father of wife---Scope---Wife assailed order of Appellate court by which decree of Family Court to the extent of recovery of dowry articles in favour of wife was set aside---Wife contended that findings recorded by Family Court were corroborated through witnesses regarding contents of items, time of delivery, receipts of purchase and financial status of father of wife---Validity---Record showed that factum of handing over and receiving of dowry articles was also admitted from the side of husband, in such circumstances, the findings of Family Court in presence of tangible and corroborative piece of evidence, could not be brushed aside---Record showed through evidence of witnesses, that father of wife was running a shop for the last thirty years, therefore, it could not be presumed that dowry articles were not given to her at the time of marriage and it was sufficient that father of wife was in a position to give dowry articles---Normally, dowry articles were handed over along with the list to the parents of the male spouse at the time of Rukhsati---No doubt the courts were supposed to decide cases in accordance with law but in family cases particularly, the normal traditions of the society could not be ignored---Wife had succeeded to prove her claim for recovery of dowry articles by adducing confidence inspiring evidence and Appellate Court without referring anything from the record, had set aside judgment of Family Court---Order of Appellate Court was set aside and Constitutional petition was allowed accordingly.
2017 YLR 1684 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SARFRAZ
Side Opponent : ADDITIONAL DISTRICT JUDGE
S. 5, Sched. & S. 14(2)(b)(c)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Recovery of maintenance allowance and dowry articles---Appeal---Scope---Family Court had decreed the suit for maintenance to the extent of Rs. 3,000/- per month for the Iddat period for wife and Rs. 4,500/- per month each for the minors till their legal entitlement, with 10% annual increase and wife was also held entitled to recover dowry articles for Rs. 51,300---Appellate Court dismissed the appeal filed by the defendant---Validity---No appeal was entertainable against decree of dowry articles upto Rs. 1,00,000/---Appeal having not been provided by the statute, constitutional petition was also not competent---No mis-reading or non-reading of evidence had been pointed out---Section 14 (2)(c) of Family Courts Act, 1964 mentioned the amount of maintenance allowance for a single person and not the accumulative one for all the children and wife---Amount of maintenance allowance granted to each of the plaintiffs was less than Rs. 5,000/- therefore, appeal was not maintainable---Minors were children of defendant (father) and it was his responsibility to maintain them---Amount of Rs. 4,500/- for each of the minor had been awarded which was hardly sufficient to meet with the requirements of minors---Concurrent findings of law and fact against the defendant were based upon due appraisal of evidence---Constitutional petition was dismissed in limine.
2017 YLR 1467 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD JAVED SARWAR
Side Opponent : SAMRA YASMEEN
S.7 & Sched.---Suit for recovery of dowry articles---List of dowry articles, proof of---Scope---Petitioner contended that he being settled abroad at the time of marriage had restrained parents of respondent to give her dowry articles, however, whatever dowry articles were given to respondent were lying packed at his house---Respondent contended that though petitioner was settled abroad at the time of marriage but marriage was solemnized according to local rituals and she was liable to recover dowry articles as claimed according to the list---Validity---Original list of dowry articles was not produced by plaintiff/respondent, exhibited list could not be considered as conclusive proof of dowry articles especially when respondent admitted that neither the prices of articles were mentioned in said list nor the same was signed by anybody from petitioner's side---Though provisions of Qanun-e-Shahadat, 1984 were not applicable to family matters but when a party failed to prove its case as set out in its pleadings, court had to be very careful and cautious while giving any verdict in favour of said party---Bona fide on the part of petitioner/defendant was manifested from the fact that not only while filing written statement, he took the stance that the articles given by the parents of respondent were lying in packed condition in his house but also specific suggestion was put to witness of respondent in that regard during course of evidence---Said fact also found support from plea of respondent that just after twenty days of the marriage, petitioner went abroad and never came back---Another witness of plaintiff/respondent, during the cross-examination, admitted that the petitioner had restrained the parents of respondent to give her dowry articles on the premise that he wanted to shift her abroad---When list of dowry articles produced by a plaintiff in a family suit remained un-established, matter could be decided while relying upon the list attached by defendant with his written statement or the articles stated by him in his evidence---Impugned judgments and decrees were modified to the extent that respondent would be entitled to recover the dowry articles lying with the petitioner in packed condition---Executing court would be at liberty to appoint local commission as it was not possible to determine alternate price of packed articles rather it was left up to executing court to ensure determination of the prices of packed articles through local commission and in case of non-return of dowry articles, respondent would be entitled to their price to be determined by executing court---Order accordingly.
2017 YLR 252 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAQIB PAL
Side Opponent : Mst. BEENISH KHUSHNUD
Ss. 5, Sched & 17---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dowry articles---Wife had claimed maintenance at the rate of Rs. 50,000/- per month but no cogent evidence was led to prove the financial sources of husband that he was in a position to pay maintenance at the said rate---Husband used to pay maintenance allowance to the wife at the rate of Rs.4/5 thousands per month---Family Court had fixed maintenance allowance at the rate of Rs. 5,000/- per month from the date of desertion till the expiry of iddat period of wife---Wife had reiterated her claim with regard to dowry articles as asserted in the plaint while appearing in the witness box---No plausible evidence was on record that wife had not brought any dowry articles---Both the parties were closely related to each other and father of wife was enjoying good financial status---Evidence of husband to dislodge the claim of dowry articles was self contradictory---Judgment, passed by the Appellate Court, was well reasoned---No hard and fast rule could be laid down as a criterion for proving dowry articles as it would vary from case to case---No adverse presumption could be drawn in the light of Art. 129(g) of Qanun-e-Shahadat, 1984---Wife had led cogent evidence to prove her claim of dowry articles---Family Court had passed decree after properly evaluating the evidence available on record---Judgment of Family Court was based on reasoning and the same was fully supported by evidence available on record---Appellate Court had upheld the judgment of Family Court with only a slight modification---Judgments of both the courts below were based on proper appraisal of evidence---No mis-reading or non-reading of evidence or jurisdictional defect had been pointed out in the impugned judgments and decrees passed by the courts below---Constitutional petition was dismissed, in circumstances.
2017 MLD 1713 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABID HUSSAIN
Side Opponent : JUDGE FAMILY COURT
S.5, Sched. & Ss.9(5)(a) & 9(6)----Constitution of Pakistan, Art.199---Constitutional petition---Ex parte judgment and decree---Negligence of counsel---Effect---Application for setting aside ex-parte judgment and decree---Maintainability---Condonation of delay---Suits for maintenance, dower and dowry articles were decreed ex parte against husband for his non-appearance---Husband filed application under S.9(6), Family Courts Act, 1964 for setting aside ex parte judgment and decree, which was dismissed both by Family court and appellate court---Contention raised by husband was that he could not appear due to negligence of his counsel who had neither informed him about date of hearing of suits nor passing of ex parte order---Validity---Husband had been seriously prejudiced due to negligence of his counsel, for which Disciplinary Committee of Bar Council had initiated proceedings against the counsel---Impugned order passed under S. 9(6) of Family Courts Act, 1964 was set aside and suits were remanded to Family Court for decision on merits---Constitutional petition was accepted in circumstance.
Citation Name : 2017 MLD 580 LAHORE-HIGH-COURT-LAHORE
Side Appellant : KHURRAM SHEHZAD
Side Opponent : ADDITIONAL DISTRICT JUDGE, GUJRANWALA
R. 6---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of maintenance allowance, dower and dowry articles---Territorial jurisdiction---Determination of---Expression 'ordinarily resides'---Scope---Expression 'ordinarily resides' did not necessarily mean that residence should be long in point of time---Residence for a few days was enough---Court had to examine the place where the wife had chosen to stay regardless of whether she was a permanent resident of the place, whether she had property over there or the length of time she had resided there---Both the courts below had rightly decided the issue of territorial jurisdiction in favour of wife---No illegality or mis-reading and non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below---Constitutional petition was dismissed in circumstances.
2017 CLC 1328 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABDUL GHAFOOR
Side Opponent : ALLAH MAAFI
S. 5, Sched.---Recovery of dowry articles---Wife could not be non-suited merely for the reasons that Rukhsati had not taken place---Dispute had arisen between the parties on the day of Barat---Generally, dowry articles were delivered to the house of bridegroom a few days prior to Rukhsati---Both the courts below had rightly arrived at a conclusion that dowry articles were delivered prior to the date of Rukhsati---Decree had been passed with regard to dowry articles which were of daily use and usually given to a daughter at the time of marriage by the parents even having unsound financial background---Alternate price of dowry articles assessed by the Family Court and affirmed by the Appellate Court was reasonable---Husband was trying to drag the wife in frivolous litigation and creating hurdles in the process of justice---Court was not to allow any party to abuse the process of court---Imposition of suitable cost might be one of the modes to curtail unnecessary and frivolous litigation---Husband had filed present constitutional petition to achieve ulterior motives which was required to be dismissed with exemplary costs---Constitutional petition was dismissed with cost of Rs.20,000/-to be deposited by the husband with the Family Court within 30 days and wife would be entitled to draw the same---If husband failed to deposit the cost then Family Court should recover the same as arrears of land---Constitutional petition of husband was dismissed in circumstances.
2017 CLC 1272 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD RAMZAN SHAHID
Side Opponent : ADDITIONAL DISTRICT JUDGE SAMUNDRI
Ss. 5, Sched., Ss.7 & 17---Civil Procedure Code (V of 1908), Ss.10 & 1l---Suit for recovery of personal belongings after disposal of suit for gold ornaments---Res judicata, principle of---Applicability---Wife filed suit for dissolution of marriage and recovery of dowry articles which was decreed and thereafter another suit for recovery of gold ornaments was instituted which was also decreed and thereafter another suit for personal belongings was instituted which was dismissed---Validity---Plaintiff-wife was aware with regard to gold ornaments at the time of filing of suit for recovery of dowry articles---Wife could file multiple claims before the Family Court however once she had filed a suit with regard to specific subject matter then she could not be allowed to file a subsequent suit for the same relief---Facility of composite suit for dissolution of marriage along with other ancillary claims including personal property and belongings had been created for the wife---Wife was not bound to claim all the said reliefs in one suit but when she failed to claim in entirety in the second suit then principle of constructive res judicata would apply against any subsequent suit on the same subject---Impugned judgments and decrees passed by both the Courts below were set aside---Constitutional petition was allowed in circumstances.
2017 CLCN 25 LAHORE-HIGH-COURT-LAHORE
Side Appellant : JAVED IQBAL
Side Opponent : ADDITIONAL DISTRICT JUDGE FAISALABAD
S. 5, Sched.----Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles---Custody of gold ornaments, presumption as to---No list of dowry articles or receipt was produced---Family Court decreed the suit for recovery of dowry articles to the extent of the list prepared by the local commission as per order of the Court---Appellate court modified the decree to the extent of all the dowry articles that wife had mentioned in her examination-in-chief on the ground that husband, having admitted some of the dowry articles, was to prove that dowry articles had been taken away by wife---Validity---Appellate court failed to appreciate the generally accepted principle that gold ornaments were always retained by woman in her personal possession and in absence of any evidence of its snatching away, the same were presumed to be with her---Wife did not state any snatching of the gold ornaments nor did she object to the report of local commission---Television and Sewing Machine were not mentioned in the report of local commission but their tables and covers were mentioned; the same should have been considered in the list of dowry articles since said items had proved their existence in the list of dowry articles---Appellate court was required to mention the dowry articles instead of granting the decree on the basis of examination-in-chief of wife, particularly when in her cross-examination she could not withstand the claim of full dowry articles---High Court accepting petition excluded gold ornaments from the impugned judgment and decree and added television and Sewing Machine in the list of dowry articles which would be returned by the husband to the wife within a specified period.
2017 CLCN 16 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. AROOJ MALIK
Side Opponent : ADDITIONAL DISTRICT JUDGE
Ss. 5, Sched. & 17---Constitution of Pakistan, Art. 199---Constitutional petition---Suit by wife for recovery of maintenance allowance, dowry articles, dower, personal articles and another by the husband for restitution of conjugal rights---Nikah Nama was executed between the spouses---Husband had failed to prove through cogent evidence that he had paid dower amount to the wife---Father was bound to maintain his daughter according to his financial status---Appellate Court had fixed 15% per annum increase instead of 10% in the maintenance of minor daughter keeping in view the rising prices and inflation in vernacular currency---Validity---Husband had not paid dower to the wife and she was also entitled to get maintenance allowance till subsistence of marriage---Wife would be entitled for maintenance allowance subject to performance of matrimonial obligations on her part on payment of prompt dower---Maintenance allowance of Rs. 3000/- with increase of 15% per annum for the plaintiffs fixed by the Appellate Court was quite reasonable---Provisions of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 were not applicable in stricto sensu to the proceedings before the Family Court---Family Court had to regulate its own proceedings in accordance with the provisions of Family Courts Act, 1964---Evidence, adduced before the Family Court, could not be evaluated and appraised in the manner as same was appreciated in the cases presented under Civil Procedure Code, 1908---Mere fact that a party had not proved receipts of dowry articles in evidence had no legal consequences---Marriage, between the spouses was arranged one---Parents give dowry articles to their daughters according to the custom at the time of marriage as per their status and sometimes beyond their status---List of dowry articles had been annexed with the plaint right from the institution of suit without objection---Value of dowry articles could not be determined with any degree of precision as to what was actually given to bride at the time of her marriage---Appellate Court had reversed the findings of Family Court by cogent reasons which did not suffer from any illegality or irregularity or jurisdictional error---Findings and observations recorded by the courts below with regard to decree for recovery of personal articles and restitution of conjugal rights were in accordance with law and facts---Constitutional petition was dismissed, in circumstances.
2016 PLD 425 LAHORE-HIGH-COURT-LAHORE
Side Appellant : DAWLANCE UNITED REFRIGERATION INDUSTRIES PRIVATE LTD.
Side Opponent : MUHAMMAD ASIM CHAUDHRY
S. 5---Vesting of dowry etc. in the bride---Under S.5 of dowry and Bridal Gifts (Restriction) Act, 1976, bride is to be considered as absolute owner of items of dowry and other bridal gifts.
2016 PLD 425 LAHORE-HIGH-COURT-LAHORE
Side Appellant : DAWLANCE UNITED REFRIGERATION INDUSTRIES PRIVATE LTD.
Side Opponent : MUHAMMAD ASIM CHAUDHRY
Ss. 28(4) & 2(c)(1)----dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S.5---Settlement of claims---Limitation, determination of---Term 'consumer', meaning of---Product forming part of wife's dowry ---Husband debarred from filing claim---Respondent contended that Consumer court had wrongly granted claim, as same was beyond prescribed limitation---Validity---Under S.28(4) Punjab Consumer Protection Act, 2005, claim by consumer or Authority would be filed within thirty days of arising of cause of action---Consumer Court, however, had jurisdiction to allow claim to be filed after thirty days within such time as might be allowed if court was satisfied that there was sufficient cause for not filing claim within specified period---In the present case, neither the Consumer Court was asked to exercise such jurisdiction nor Consumer Court had permitted claimant to file delayed claim-Section 28(4) of Punjab Consumer Protection Act, 2005 provided that such extension would not be allowed beyond period of sixty days from date of expiry of warranty specified, and if no period was specified, then one year from date of purchase of product or providing of services would be considered as period of limitation for filing claim---Warranty card issued to complainant did not contain any date as to expiry of warranty-In absence of warranty period, maximum time. which could be granted to claimant by Consumer Court, even after giving an extension in filing complaint, must not exceed one year from date of purchase of product---Claimant had filed present claim after about one and half year from date of purchase---Claim was, therefore, barred by time---Wife of claimant, as matter of admitted fact, had originally purchased product (washing machine) for her dowry and she herself had used the same after her marriage---Husband of wife could not be treated as 'consumer' as defined under S.2(c)(1) of Punjab Consumer Protection Act, 2005---Under S.5 of dowry and Bridal Gifts (Restriction) Act, 1976, bride was to be considered as absolute owner of items of dowry and other bridal gifts---Impugned order suffered from illegalities, and same was, therefore, not sustainable---Consumer Court had misapplied the law---High Court, setting aside impugned order, dismissed the claim---Appeal was allowed in circumstances.
2016 MLD 1862 LAHORE-HIGH-COURT-LAHORE
Side Appellant : AAMIR IQBAL KHAN
Side Opponent : MARIA NARGIS
S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry articles---Gold ornaments being bridal gifts would become personal property of wife---Wife was entitled to recover gold ornaments from the husband---Finding of Appellate Court with regard to gold ornaments was based on cogent reasons---Judgment of Appellate Court being in accordance with law, justice and equity, constitutional petition was dismissed.
2016 MLD 1802 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Dr. SARAH YOUSAF
Side Opponent : MUHAMMAD UMAIR
Ss. 14 & 5, Sched.----Dissolution of marriage on the basis of Khula'---Appeal against decree of dissolution of marriage/right of dower---Scope---Family Court decreed the suit for dissolution of marriage on basis of Khula subject to return of the dower amount of Rupees 200000---Section 14(2)(b) of Family Courts Act, 1964 debarred the aggrieved party to file appeal only where value of the dower or dowry was not exceeding rupees thirty thousand; therefore, the remedy of appeal was available to the plaintiff under S. 14 (1) (b) of the Act---Plaintiff also had the remedy of appeal, as the Family Court had passed a conditional decree in her favour---Plaintiff, being aggrieved of the decree of the Family Court, could avail the remedy of appeal---Law put clog on the right of appeal of a husband and not of a wife---Constitutional petition being not maintainable was dismissed in circumstances
2016 MLD 1639 LAHORE-HIGH-COURT-LAHORE
Side Appellant : IHSAN AHMED KHAN
Side Opponent : ADDITIONAL DISTRICT JUDGE, BHAKAR
S.11---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of dowry articles---Res judicata, principle of---Applicability---Words "litigating under the same title" in S.11, C.P.C.---Scope---Suit for recovery of dowry articles was dismissed being premature during subsistence of marriage---Wife filed fresh suit for recovery of dowry articles after dissolution of marriage---Family Court rejected the plaint on the basis of res judicata but Appellate Court remanded the case for decision afresh holding that res judicata was not applicable---Validity---Whether dowry articles were still lying in the house of husband after divorce needed to be proved on the basis of evidence---Cause of action accrued from the date of desertion as it was the breakage of marriage which necessitated the litigation of matrimonial nature---Parties were the same and subject matter was also same but present litigation was not under the same title---Constitutional petition was dismissed in circumstances.
2016 MLD 693 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. RABIA GULZAR
Side Opponent : ADDITIONAL DISTRICT JUDGE
S. 5, Sched.---Limitation Act (IX of 1908), Art. 49---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry articles---Limitation---Divorce between the parties took place on 14-11-1983 and suit for recovery of dowry articles was filed after elapse of 26 years---Neither wife had asserted as to when for the first time she demanded the return of dowry articles nor she had stated about refusal of husband to return the same---Possession of the dowry articles became wrongful with the husband when divorce took place or when there was specific demand for return of the same which was refused by the husband---Wife had neither asserted any specific date for first denial of husband to return the dowry articles nor she could produce any evidence to substantiate her claim that dowry articles were still lying in the possession of husband---Delay in filing suit for recovery of dowry articles would give rise to a presumption of fact that same were taken back by the wife after dissolution of marriage---Suit for recovery of specific movable property could be filed within three years when the property was wrongfully taken or when the retainer's possession became unlawful---Present suit was barred by time---Constitutional petition was dismissed in circumstances.
2016 MLD 668 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAHZAD ANWAR
Side Opponent : ADDITIONAL DISTRICT JUDGE
S. 5, Sched & S.17---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dowry articles---Contention of husband was that wife had failed to produce any shop-keeper and receipts of purchase of the dowry articles during evidence in support of her assertion---Validity---Provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat, 1984 were not applicable in stricto sensu to the proceedings before the Family Court---Family Court had to regulate its own proceedings in accordance with the provisions of Family Courts Act, 1964---Evidence adduced before the Family Court could not be evaluated and appraised in the manner as same was appreciated in the cases presented under Civil Procedure Code, 1908---Mere fact that a party had not formally proved the document i.e. receipts of purchase of dowry articles and non-production of shop-keeper in evidence had no legal consequence---Parents give dowry articles to their daughters according to their status---Wife/bride could not keep the record of purchase receipts, prepare the list of dowry articles and obtain signatures from the bridegroom/husband side---Claims of dowry articles were ordinarily given to a bride at the time of her marriage---Both the courts below had given concurrent findings of facts qua the value of dowry articles---Appellate Court had rightly modified the decree to the extent of maintenance allowance after appraisal of facts and evidence and fixed Rs. 3000/- per month instead of Rs. 5000/- for the period of Iddat---No illegality, material irregularity, non-reading and mis-reading of evidence was pointed out in impugned judgment and decree passed by the Appellate Court---Constitutional petition was dismissed.
2016 MLD 242 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAMIM AKHTAR
Side Opponent : DISTRICT JUDGE
Ss. 5, Sched. & 7(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of bridal gifts---Wife filed a suit for recovery of bridal gifts which was decreed partially by the Family Court but same was dismissed by the Appellate Court---Validity---Wife had instituted a suit for recovery of maintenance allowance, expenses of delivery of minor and dowry articles against husband prior to filing of present suit---Wife had not mentioned details of bridal gifts allegedly in possession of husband in the said suit---Bridal gifts would fall within the ambit of "personal property" and belongings of wife which would confer exclusive jurisdiction upon the Family Court to hear the claim of such matters---Plaint for dissolution of marriage might contain all claims with regard to dowry , maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children---No bridal gift was in the possession of husband, as if any such gift was in his possession, wife would have claimed recovery of the same at the time of filing of earlier suit---Wife had intentionally relinquished her claim for recovery of bridal gifts, if any, at the time of filing of earlier suit---Appellate Court had rightly formulated the opinion that claim of wife with regard to recovery of bridal gifts appeared to be an afterthought---No legal infirmity, jurisdictional error or perversity was found in the impugned judgment and decree passed by the Appellate Court---Constitutional petition was dismissed in limine.
2016 CLC 180 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. NAVEEDA KAUSAR
Side Opponent : MAUZZAM KHAN
S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.7---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance, dowry articles, delivery expenses and cash amount---Talaq, pronouncement of---Determination---Oral Talaq, proof of---Principles as to when oral Talaq becomes effective---Notice of Talaq to Chairman, Union Council, absence of---Effect---Talaq pronounced in anger---Recovery of amount mentioned in column 16 of Nikahnama and claimable in case of divorce---Jurisdiction of Family Court---Decree for restitution of conjugal rights---Enforceability---Non-framing of issue regarding Talaq---Effect---Plaintiff's wife and minor filed suit for recovery of maintenance, dowry articles and delivery expenses along with recovery of amount resulting from divorce---Trial Court partially accepted the suit and dismissed the same to the extent of amount claimed as result of divorce---Appellate court enhanced quantum of maintenance of minor and dismissed appeal regarding remaining prayer---Husband took plea that marriage between parties was still intact as he divorced plaintiff in anger---Validity---Wife produced affidavit in evidence in support of her contention that defendant had orally divorced her---Defendant had sought Fatwa which had established that he had divorced plaintiff for three times in irritated and annoyed mood---When fact of oral divorce had been admitted by defendant, then it was valid divorce---Oral Talaq, given thrice, had become irrevocable and effective the moment same had been pronounced---High Court observed that oral Talaq would become effective and binding in spite of absence of notice under requirement of S.7 of Muslim Family Laws Ordinance, 1961---Oral Talaq was as good as Talaq in writing---Husband was bound to send notice to Chairman of concerned Union Council---No issue regarding alleged oral divorce had been framed by Trial Court---Both parties had asserted said issue in their pleadings and also produced evidence regarding same---Non-framing of issue regarding factum of divorce was, therefore, not fatal---Finding of courts below regarding divorce were contrary to record---Court could grant relief flowing from pleadings and evidence of parties---Present suit had also been treated as suit for dissolution of marriage---Plaintiff's claim on basis of column No.16 of Nikahnama regarding recovery of amount in case of divorce could not be granted to her by Family Court, for which she could file appropriate remedy before court of competent jurisdiction---Decree of restitution of conjugal rights had become redundant and ineffective as defendant had divorced plaintiff---Said decree was good answer to suit for maintenance filed by wife---Impugned judgment and decrees were in accordance with evidence on record regarding remaining issues---Constitutional petition was partially accepted in circumstances.
2016 CLCN 26 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Dr. AAQIB HABIB MALIK
Side Opponent : JUDGE FAMILY COURT
S. 5, Sched---Constitution of Pakistan, Art. 199---Constitutional jurisdiction, exercise of---Scope---Suit for recovery of maintenance allowance, dower and dowry articles---Application for summoning of witnesses/scribe of receipts of dowry articles---Wife produced purchase receipts of dowry articles during her evidence---Husband/petitioner moved an application for summoning of witnesses/scribe of receipts produced in evidence---Family Court observed that objections, relevancy, admissibility and evidentiary value of the receipts of dowry articles would be decided at appropriate stage and defendant had not mentioned name, address and sufficient particulars of any witness to whom he wanted to summon through process of court; however, defendant-husband would be at liberty to produce any evidence/witness during his own evidence subject to all just and legal exceptions---Validity---Right of defendant-husband to produce evidence had not been closed by the Trial Court---Defendant-husband would be at liberty to produce any witness at his turn while recording evidence---Interim order passed by the Family Court should not be brought to superior courts to obtain fragmentary decisions which would harm the advancement of fair play and justice, curtailing remedies available under the law---Husband had not been prejudiced by the impugned order---Constitutional jurisdiction was not to be exercised in routine but only to foster the ends of justice---Constitutional petition being not maintainable was dismissed in limine
Citation Name : 2015 PLD 57 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Malik TAHIR AYUB
Side Opponent : ADDITIONAL DISTRICT JUDGE, RAWALPINDI
Ss. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Power-of-attorney given by the petitioner for pursuing the suit for dissolution of marriage---Attorney of the petitioner filed written statement and appeared as witness in the suit for recovery of dowry articles---Attorney could have not filed written statement or appeared as witness on behalf of the petitioner (principal) in the other suit of the petitioner---Person to whom the authority to act on behalf of executant was given had to perform only those functions in respect of which he was specifically empowered---Special power-of-attorney had to be construed very carefully and it extended to the affairs enumerated therein---Special power-of-attorney executed for case of divorce was to be extent of suit for dissolution of marriage and could have not been Used for other suits or proceedings which did not form part of the suit for dissolution of marriage---Attorney of the petitioner was neither empowered to file written statement in the suit for recovery of dower nor to appear on behalf of the petitioner---Statement of attorney could not be deemed to be the statement of the petitioner (principal) and would be treated as testimony of a witness produced by the concerned party.
Citation Name : 2015 PLD 57 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Malik TAHIR AYUB
Side Opponent : ADDITIONAL DISTRICT JUDGE, RAWALPINDI
Ss. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry articles and dower amount---Dower was paid at the time of Nikah but was subsequently taken back by the husband (petitioner) on wedding night---Suit for recovery of dower amount filed by respondent wife was decreed in her favour---Petitioner challenged jurisdiction of Family Court to entertain the suit for recovery of dower amount in circumstances---Once the dower was paid, the matter came out of the ambit of family dispute therefore Family Court could not assume the jurisdiction---If the dower was not paid or was snatched on the wedding night or after the marriage, the dispute would fall within the exclusive jurisdiction of the Family Court---Family Court had rightly assumed the jurisdiction in circumstances---Constitutional petition was dismissed.
Citation Name : 2015 PLD 504 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. SAMREEN BIBI
Side Opponent : JUDGE FAMILY COURT
S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Wear and tear of dowry articles, determination of---Mode---No general formula was available under which wear and tear of dowry articles could be exactly determined---Wear and tear of dowry articles would depend upon nature and quality of dowry articles, its use by the lady, relationship level between the spouses during the marriage, retaliatory attitude after separation, period during which dowry articles remained under use of the lady and period after which the claim of dowry articles was made etc.---Wear and tear for electronic items were different than furniture---Life span of kitchen utensils was greater than decoration pieces of dining room---Seasonal clothes of daily use had less value than those used on special occasions---Tentative assessment should not be presumptive but had to be based on subjective analysis of dowry articles on physical verification based on visuals which could be procured through different modes like on-line video calling, video footages, photographs, clippings, factual report by a local commission or employing modern information technology---Present market value of dowry articles could be ascertained through traders/shop keepers dealing with second hand articles---Local commission could be appointed at the time of filing suit for recovery of dowry articles to conduct a physical verification of dowry articles which might help the court to arrive at just conclusion---Family Court could employ any other mode for assessment but the same could not be based on its sole discretion unsupported by facts on grounds---None of the said modes was adopted by the Family Court---Impugned judgments and decrees passed by both the courts below were set aside--Family Court was directed to assess the tentative value of dowry articles by adopting any of the modes---Constitutional petition was accepted in circumstances.
Citation Name : 2015 YLR 1427 LAHORE-HIGH-COURT-LAHORE
Side Appellant : UMAR HAYAT
Side Opponent : Mst. RABIA BASRI
S. 5, Sched.---Civil Procedure Code (V of 1908), O. VIII, R. 1---Constitution of Pakistan, Art.199---Constitutional petition--Recovery of dowry articles, suit for---Husband in his written statement admitting claim of wife qua dowry articles---Effect-- -Family Court decreed suit for recovery of dowry articles filed by the wife on basis of a list submitted by her--Plea of husband that a separate list of dowry articles was handed over to him by the wife; that said list was the only list on which decree could be passed, and that in such circumstances Family Court was not justified to pass the decree on the basis of list submitted by the wife in court---Validity---Husband in his written statement had admitted the claim of wife by stating that--Admittedly, alleged list of dowry articles claimed by the husband was not exhibited on record and as such there was no option available with the Family Court to deny the list of dowry articles submitted by the wife---Family Court rightly passed the decree which was affirmed by the Appellate Court-- Constitutional petition was dismissed in circumstances.
Citation Name : 2015 YLR 684 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. SHAZIA
Side Opponent : SOHAIL NAZIR KHAN
Ss. 12-A & 25-A---Plaintiff (wife) filed suit for maintenance, recovery of dower as well as recovery of dowry articles against the defendant (husband) in the court at place 'G', while defendant as a counterblast had instituted a suit for restitution of conjugal rights against the plaintiff in the court at place `L'---Plaintiff (wife) pleaded danger to her life, inconvenience and risk of passing contradictory judgments by the Courts---Validity---Held, it was not easy for a lady to travel alone to another District to pursue a case and would have to bear the travel expenses; it was always desirable that family suits were tried, heard and decided by one and the same court so as to avoid conflicting judgments---Suit of the defendant pending in the court at place 'L' was directed to be withdrawn and transferred to the Family Court at place 'G', where the suits of the plaintiff were pending---Suit for maintenance instituted by the plaintiff has not been decided within six months, as was required under S. 12-A of the West Pakistan Family Courts Act, 1964, therefore, Judge Family Court was directed to make sure that the proceedings in both the suits were carried out expeditiously, bringing them to a close within a month---Order accordingly.
Citation Name : 2015 PLD 231 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUNAS PARVEEN
Side Opponent : ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, SHORKOT
Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 494---Constitution of Pakistan, Art. 199---Constitutional petition---Marrying again during life time of husband---Divorce through telephone or SMS---Scope---Ex-husband of petitioner had allegedly divorced her orally through telephone and SMS---Petitioner contracted second marriage---Respondent/uncle of ex-husband moved application before Justice of Peace alleging that petitioner had married another man during subsistence of her marriage---Justice of Peace issued directions to Station House officer to register case against petitioner---Validity---Ex-husband of petitioner was neither impleaded as a party nor came forward before the court for his impleadment---dowry articles of petitioner were returned to her on the order of the Family Court, which showed acceptance of separation---Procedure for pronouncing divorce had been prescribed by the legislature in its best wisdom in order to ensure the sanctity of institution of marriage recognizing divorce as a last option---Question was as to what would become of society if divorces were allowed to take effect merely on basis of SMS---Pre-requisite for pronouncing a divorce was peace of mind, and the purpose and objective of such act should be made known to the witnesses present at the spot by the husband---Wording of the SMS sent by the ex-husband, in the present case, did not categorically mention the said pre-requisites---Constitutional petition was disposed of with the observation that factum of divorce would be properly addressed and adjudicated upon by the Family Court in the suit for restoration of conjugal rights filed by ex-husband.
Citation Name : 2015 MLD 1767 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAFQAT ALI
Side Opponent : ADDITIONAL DISTRICT JUDGE, D.G. KHAN
S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suits for recovery of maintenance allowance, dowry articles and dower---Maintenance allowance fixed by the courts below was reasonable under the circumstances---Husband was bound to prove the factum of Talaq as asserted by him---Both the courts below had rightly found that wife was entitled for maintenance allowance for previous one year from institution of suit till Iddat period---Wife and her mother had corroborated the list of dowry articles as mentioned in the plaint---Both the courts below had rightly decided the matter of dowry articles---Amount of dower was fixed as Rs. 2,500 and 5-marla of plot in the Nikah Nama---Husband had made evasive reply to the assertions made by the wife in the plaint with regard to dower and had failed to bring on record any documentary evidence nor proved the payment of Rs.2,500 or 5-marla of plot for which no documentary evidence with regard to transfer of said plot was brought on the court file---Courts below had rightly fixed Rs. 200,000 as value of the plot and wife was entitled for the same---No illegality or irregularity was pointed out in the impugned orders passed by the courts below---Constitutional petition was dismissed in circumstances.
Citation Name : 2015 MLD 1683 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ROBIN DAVID JOHN
Side Opponent : Mst. HUMA SAMUEL
S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry articles---Plaintiff-wife and her witnesses were consistent on the point that she was given dowry articles as claimed by her in the plaint---Nothing could be brought out from the said witnesses despite lengthy cross-examination which could support the version of defendant-husband or even weaken the stance of plaintiff-wife---Parents of plaintiff-wife were having reasonable financial status enough to give dowry articles to their daughter---Mere non-production of purchase receipts or non-signing of list of dowry articles by the plaintiff-wife was not sufficient to disentitle her from recovery of her dowry articles---Appellate Court had rightly enhanced the alternate price of dowry articles keeping in view the financial status of parents, wear and tear coupled with the fact that plaintiff-lady was able to give details of dowry articles given to her at the time of marriage---Findings recorded by the Appellate Court were in accordance with law---No illegality, irregularity or non-reading of evidence was pointed out in the impugned judgment and decree passed by the Appellate Court---Constitutional petition was dismissed in circumstances.
Citation Name : 2015 MLD 1683 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ROBIN DAVID JOHN
Side Opponent : Mst. HUMA SAMUEL
Ss. 14(2)(b) & 5, Sched.---Appeal---Scope---Decree for dowry articles---No appeal would lie against a decree passed for dower or dowry articles not exceeding Rs. 30,000 however an appeal would lie against the decree for less than Rs. 30,000 and even against dismissal of such suit---Embargo of S. 14(2)(b) of West Pakistan Family Courts Act, 1964 had been placed on the defendant only and not on the plaintiff.
Citation Name : 2015 MLD 89 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Malik HASHIM AMIR KHAN
Side Opponent : Mst. SAADIA TABASSUM
S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of gold ornaments by wife---Contention of plaintiff was that gold ornaments weighing 21 tolas were given to her at the time of her marriage which had been kept by the defendant (husband)---Defendant contended that earlier a suit filed for the recovery of the gold ornaments was withdrawn and another suit for recovery of articles of dowry and bridal gifts was decreed and present suit was not maintainable---Suit was dismissed by the Trial Court but the same was decreed by the Appellate Court---Validity---First suit filed for recovery of the gold ornaments weighing 21 tolas was withdrawn by the counsel for plaintiff-respondent with a statement that there was no need to pursue the suit---Neither any compromise was entered into nor that was so mentioned in the statement by the counsel for the plaintiff-respondent---Wakalatnama in favour of counsel included the power to make the statement on behalf of the party executing the same---Again in the suit for recovery of articles of dowry , the gifts worth Rs.3,95,000 were also claimed and that suit was also decided on merit---Had there been any other ornament or personal belonging of plaintiff-respondent in possession of the defendant-petitioner, the same should have been claimed in the said suit---Appellate Court ignored the dismissal of first suit in view of the statement of the counsel for plaintiff-respondent and decision of the second suit on merits and erred in reversing the well reasoned judgment of the Trial Court and failed to perform his duties in accordance with law---Impugned judgment and decree of the Appellate Court were not sustainable in the eyes of law---Constitutional petition was accepted and impugned judgment and decree passed by the Appellate Court were set aside and that of the Trial Court were restored.
Citation Name : 2015 MLD 11 LAHORE-HIGH-COURT-LAHORE
Side Appellant : KHALID BASHIR
Side Opponent : Mst. SHAMAS-UN-NISA
S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of dowry articles---Trial Court decreed the claim in favour of wife---Appellate Court allowed the appeal and prayer of recovery of dowry articles was declined---Non-exhibition of list of dowry articles---Effect---Petitioner/husband in his written statement had not categorically denied factum of delivery of dowry articles and simply stated that no articles were shifted to his house---Stance of the petitioner was not acceptable as from the evidence of the parties it was established that after marriage the wife resided in his house---dowry articles given to her by her parents in natural course would have been shifted to petitioner's house---Ground urged regarding non-exhibition of list of dowry articles could not be made basis for non-suiting the wife for recovery of dowry articles particularly when the factum of delivery of dowry articles was not categorically denied by the husband---Family Court, after due appreciation of the evidence available on the record found on the issue of dowry articles, which had illegally been disturbed by the lower Appellate Court---Findings of the lower Appellate Court was set aside by High Court.
Citation Name : 2015 CLC 632 LAHORE-HIGH-COURT-LAHORE
Side Appellant : AMIR SHAHZAD
Side Opponent : ADDITIONAL DISTRICT JUDGE, MULTAN
S. 5, Sched. & S.17---Qanun-e-Shahadat (10 of 1984), Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles---Family Court could follow any procedure to regulate its proceedings unless a clear prohibition was found in the law---Mere fact that party had not formally proved Dowry Articles.
