Section 5 Azad Jammu and Kashmir Family Courts Act 1993

Section 5 :  Jurisdiction

 

2022  CLC  1253   SUPREME-COURT-AZAD-KASHMIR

ALIYA JABEEN VS MUHAMMAD ASHFAQ

Ss.2, 5 & Sched.—Cruelty/physical and mental torture—Khula—Suits for dissolution of marriage, recovery of dowry articles, maintenance and dower (house)—Appellant/plaintiff (wife) alleged that defendant/respondent (husband) started torturing her physically/mentally after a month of marriage; that respondent was a psychological patient; that respondent often did not remain in his senses and used to abuse the appellant; that as a result of physical assault, the appellant had lost her ear; that respondent had finally deserted her after giving her beating; that she could not live with appellant within the limits ordained by Allah Almighty; that respondent had never paid any maintenance to appellant since marriage; that dower was not paid; that dowry articles were in possession of respondent—Respondent filed counter suit for restitution of conjugal rights—Trial Court consolidated all the suits and decreed suit for dissolution of marriage on ground of Khula; decreed suit for recovery of dowry articles; and dismissed suit for maintenance and dower for want of proof—Appellant filed appeal in Shariat Appellate Bench of High Court (AJ&K) which was dismissed—Appellant contended that statement of appellant and the maid who was present at the time of physical assault was sufficient for granting decree of dissolution on ground of cruelty; and that appellant claimed dissolution of marriage on ground of cruelty; and that appellant claimed dissolution of marriage on ground of cruelty instead of khula and proved the fact of cruelty—Validity—Courts below reached the conclusion that appellant failed to prove the factum of cruelty—Appellant had categorically stated in plaint that she had developed hatred towards her husband and she would not live with him at any cost rather would prefer death—After such statement it could not be said that dissolution was not claimed on the basis of khula—Respondent had specifically refuted the claim of appellant and stated that she was not ousted from the house by him rather she went out voluntarily, and record revealed the same—Appeal was dismissed accordingly.

2022  YLR  2011   HIGH-COURT-AZAD-KASHMIR

TALHA NAFEES VS BUSHRA BOSTAN

5, Sched.—Dissolution of Muslim Marriages Act (VIII of 1939), Ss. 2(ii), (iv), (viii)a & (viii)f—Suits for Dissolution of marriage and recovery of dowry articles by respondent/wife and suit for restitution of conjugal rights was filed by appellant (the husband)—Trial Court decreed the respondent’s suits and dismissed the appellant’s for want of proof— Validity— Admittedly, appeal against the judgment in suit for maintenance allowance had been passed by High Court after deep scrutiny of record—Record further showed that during the period of their stay together, behaviour of appellant with respondent remained hostile while he did not pay single penny to her since her desertion and he on one pretexts or the other left her in a Madrassa for religious education to avoid the expenses of maintenance allowance and thereafter, he also contracted second marriage—Respondent proved the factum of desertion, non-performance of matrimonial obligations and non-payment of maintenance allowance through reliable/convincing evidence—Appellant’s witnesses admitted the respondent’s claim stating that at time of marriage, dowry articles in a loaded Truck having worth more than Rs.2,00,000/- were given by the parents of plaintiff respondent; and that respondent’s dowry articles were in use of second wife of the appellant—Amount of the articles as per list was Rs.209935/- and in case of appellant’s failing, after 30% reduction on account of principle of depreciation, she had to be entitled to receive the amount of Rs.135450/—Instead of referring to the principle of depreciation, Trial Court fixed the entitlement of the respondent after 30% deduction from total amount—High Court modified the impugned judgment/ decree to such extent only and dismissed the appeals on the rest of ground.

2022  CLC  1454   HIGH-COURT-AZAD-KASHMIR

SULEMAN SHAH VS JUDGE FAMILY COURT/ADDITIONAL DISTRICT AND SESSION JUDGE MUZAFFARBAD

Preamble & S.5—Object—Azad Jammu and Kashmir Family Courts Act, 1993, is a special law and the basic purpose for the establishment of the Family Courts is to provide speedy and expeditious trial of the family matters and accord justice at the doors steps of the spouses—High Court observed that prevalent practice to bring the interim orders passed by the Family Courts by way of writ petition is not appreciable, which practice should be avoided so that particular purpose for enacting special law will be served.

2020  YLR  1134   SUPREME-COURT-AZAD-KASHMIR

MUHAMMAD SHAWAL VS SONIA FAROOQ

5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 3-G—Suit for jactitation of marriage—Contention of plaintiff was that she was already married and defendant had prepared a fabricated Nikahnama—Suit was decreed concurrently—Validity—Nikah had to be performed in one meeting after proposal and acceptance in presence of witnesses—Muslim female of sound mind who had attained the age of puberty could validly contract marriage with a person of her own choice and she could not sever her marriage/Nikah so entered by her—Marriage would not be invalid in absence of the consent of Wali—Simple acknowledgement of husband and wife with regard to their Nikah was sufficient to prove the same—Court was bound to protect a valid marriage—Plaintiff had acknowledged her Nikah with her earlier husband and there was no alternate for the Court not to believe her statement—Appeal was dismissed in circumstances.

2020  YLR  261   HIGH-COURT-AZAD-KASHMIR

JAHANGIR VS WAHEEDA KOUSAR

5, Sched.—Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R. 13—Suit for recovery of maintenance allowance and dower—Ex-parte decree, setting aside of—Limitation—Maxim: Audi alteram partem—Applicability—Petition for setting aside of ex-parte decree was dismissed being time barred—Validity—Respondent-plaintiff moved application for submission of fresh address of appellant-defendant but same was wrongly dismissed as withdrawn—Family Court was aware with regard to fresh address of appellant-defendant and he could have been summoned on the said address—Ex-parte proceedings were wrongly initiated against the petitioner, in circumstances—Petitioner-defendant was not summoned properly—Family Court had failed to follow the statutory provisions of law while initiating ex-parte proceedings against appellant—Nobody was to be condemned unheard before passing an adverse order—Trial Court had wrongly concluded that application for setting aside of ex-parte decree was time barred—Right of hearing was a recognized principle of law and such right could not be snatched on the will of any party just to protect its ill-gotten gains—Impugned order passed by the Court below was set aside and application for setting aside of ex-parte decree was allowed—Matter was remanded to the Family Court for decision afresh on merits—Appeal was allowed, in circumstances.

2020  CLC  952   HIGH-COURT-AZAD-KASHMIR

NIAZ AHMED VS Mst. MUSHARAF SHAHEEN

VII, R. 10—Specific Relief Act (I of 1877), Ss. 42 & 54—Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5, Sched.—Suit for declaration and permanent injunction with regard to land given as dower—Maintainability—Plaint, return of—Plaintiff-wife filed a suit for declaration and permanent injunction regarding land given to her as dower—Trial Court returned the plaint for presentation before Family Court—Validity—Family Court had exclusive jurisdiction to entertain and adjudicate all the matters which fell within the Schedule of Azad Jammu and Kashmir Family Courts Act, 1993—If dispute was between the spouses then Family Court was the right forum but if it was between the spouses and third party with regard to property given in lieu of dower then Civil Court had jurisdiction to resolve the said controversy—Dispute, in the present case, was between the widow and the third party i.e. brothers and sisters of her deceased husband—Civil Court was the appropriate forum to decide the present matter—Impugned orders passed by the Courts below were set aside and suit was transferred to the Court of Senior Civil Judge for its decision on merits—Revision was allowed, in circumstances.

2020  CLCN  49   HIGH-COURT-AZAD-KASHMIR

MUHAMMAD ASIF QAYYUM VS FOZIA SHAHEEN

1. 5 & Sched.—Suit for dissolution of marriage—Scope—Appellant (husband) assailed the decree passed by Trial Court in respondent’s (wife) suit for dissolution of marriage—Validity—Respondent had sought a decree for dissolution of marriage on the basis of non-payment of maintenance allowance and cruelty and in alternate she had sought the decree on the basis of khula—Respondent had leveled serious allegations against the appellant and had also stated that she had developed stern disgust against him, hence, she was not ready to live with the husband at any cost—Trial Court, by dissolving the marriage on the basis of khula had committed no illegality or irregularity warranting interference by the High Court—Appeal was dismissed.

2020  PLD  1   HIGH-COURT-AZAD-KASHMIR

MOHAMMAD NAVEED ASIM VS SUMAIRA MAJEED

1. 5, Sched.—Dissolution of Muslim Marriages Act (VIII of 1939) S.2(viii)(a)—Suit for dissolution of marriage—Curelty—Effect—Husband contracted second marriage and snatched minor daughter from the wife—Wife sought decree for dissolution of marriage on the grounds of non-payment of maintenance allowance; non-performing of marital obligations and cruelty—Marriage was dissolved by the Family Court on the ground of non-payment of maintenance—Validity—Relations between the spouses had become hostile and husband had snatched daughter from the wife and contracted second marriage which forced wife to abandon his house—Husband had not made any effort or arrangement to take her wife back to his house nor he had provided her maintenance allowance thus mentally torturing her—Wife had succeeded to prove the allegation of cruelty, in circumstances—Cruelty by conduct and behaviour of a spouse justified the grant of divorce—Decree for dissolution of marriage due to non-payment of maintenance allowance was converted by the High Court into a decree for dissolution of marriage on the basis of cruelty—Impugned judgment and decree passed by the Family Court were modified accordingly—Appeal was allowed, in circumstances.

2020  PLD  1   HIGH-COURT-AZAD-KASHMIR

MOHAMMAD NAVEED ASIM VS SUMAIRA MAJEED

1. 5, Sched.—Suit for recovery of maintenance allowance—Family Court allowed maintenance allowance for the minor at the rate of Rs.4,000/- per month but refused the same to the wife—Validity—Husband was bound to pay maintenance allowance to the wife till she was faithful and lived with him—When wife had succeeded to prove that she was foced to abandon the house of her husband, she was entitled for maintenance—Husband was bound to pay maintenance to the wife till she lived in his house and for the period of Iddat after dissolution of marriage—Family Court had committed error while dismissing the suit of wife for recovery of maintenance allowance—Minor daughter was getting education; mother had proved that she could not afford expenses of school and other daily items from the fixed amount of maintenance—Court had power to increase or decrease the maintenance allowance according to the financial position of father and keeping in view the rate of inflation in the country and increase of demands of the minor with the passage of time—Family Court had fixed maintenance allowance without an annual increment—High Court enhanced maintenance allowance for the minor from Rs.4,000/- to Rs.6,000/- per month with 10% annual increment from the date of judgment and also granted maintenance to the wife at the rate of Rs.4,000/- per month till she lived with her husband and for the period of Iddat after divorce—Impugned judgment and decree passed by the Family Court were modified accordingly—Appeal was allowed, in circumstances.

2019  YLR  1560   SUPREME-COURT-AZAD-KASHMIR

MUHAMMAD AJMAL QURESHI VS NAZIA BIBI

1993. 5, Sched & S.14(5)—Azad Jammu and Kashmir Constitution of Shariat Appellate Bench of the High Court Act (XL of 2017), S. 8—Family dispute—Appeal before Supreme Court—Procedure—Purpose of establishment of Family Court was to achieve the expeditious settlement of family disputes—Appeal under S.14(5) of Azad Jammu and Kashmir Family Courts Act, 1993 could be filed before Supreme Court if leave on substantial question of law of public importance was granted—If provisions of S.14(5) of Azad Jammu and Kashmir Family Courts Act, 1993 were ignored then under S.8 of Azad Jammu and Kashmir Constitution of Shariat Appellate Bench of the High Court Act, 2017 every litigant aggrieved by any final decision of Shariat Appellate Bench of High Court could prefer an appeal before the Supreme Court—If direct appeal before Supreme Court against any final decision of Shariat Appellate Bench of High Court was allowed then the very purpose of Azad Jammu and Kashmir Family Courts Act, 1993 i.e. expeditious disposal of the matrimonial disputes would be defeated—Restriction for grant of leave on substantial question of law of public importance for filing an appeal before Supreme Court had been imposed in order to save women and children from agony of frivolous and fruitless litigation—Right of direct appeal under S.8 of Azad Jammu and Kashmir Constitution of Shariat Appellate Bench of the High Court Act, 2017 had been provided without any condition but special procedure for filing appeal against the judgments of Shariat Appellate Bench of the High Court arising out of family matters envisaged under S.14(5) of Azad Jammu and Kashmir Family Courts Act, 1993 had not been repealed expressly—Supreme Court directed the Government to amend S.8 of Azad Jammu and Kashmir Constitution of Shariat Appellate Bench of the High Court Act, 2017 in the manner that despite enactment of said provision the procedure of filing appeals in the family matters against judgments of Shariat Appellate Bench of the High Court should remain the same as had been provided by S.14(5) of Azad Jammu and Kashmir Family Courts Act, 1993.

2019  YLR  618   SUPREME-COURT-AZAD-KASHMIR

SALEEM AHMED  VS JUDGE FAMILY COURT, MUZAFFARABAD

1. 5, Sched—Civil Procedure Code (V of 1908), O. VII, R. 10—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44— Interim order—Writ petition— Maintainability— Suit for declaration and permanent injunction—Plaint returned for want of jurisdiction to be presented before Family Court—Fresh suit filed before Family Court—Proceedings conducted by Civil Court—Effect—Suit for declaration and permanent injunction was filed but plaint was returned for want of jurisdiction—Plaintiff thereafter filed fresh suit before Family Court with additional grounds—Application was moved to the effect that proceedings be started from the stage from where plaint was returned which was accepted by the Family Court—Writ petition against said order was dismissed on the ground that an interim order could not be challenged through writ petition—Validity—Proceedings before Civil Court were governed by the provisions of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 whereas Family Court was creation of a special law—Proceedings before Family Court were to be conducted under special procedure provided by law and rules excluding the application of C.P.C. and Qanun-e-Shahadat—When there were two different procedures and two different courts then the proceedings conducted before earlier forum could not be made part of the proceedings of later court—When plaint was returned to be presented before proper forum then proceedings should commence on presentation of plaint before such forum and any proceedings conducted by the earlier court which returned the plaint should be deemed to be coram non-judice—Returned plaint presented to court of proper jurisdiction should be considered as fresh proceedings for all intents and purposes—Plaintiff had not presented the returned plaint rather she filed fresh suit with different title and averments—Application for treating the proceedings conducted by Civil Court as part of proceedings before Family Court was not maintainable in circumstances—Family Court while accepting the said application had travelled beyond law—Impugned order passed by the Family Court was illegal—No remedy of appeal or revision against said order had been provided—Impugned order passed by the Family Court could be challenged in extraordinary jurisdiction of High Court, in circumstances—Remedy of writ was available only when no alternate remedy was provided in law—Order passed by the Family Court was declared illegal and same was set aside—Family Court was directed to treat the plaint as freshly filed suit and conduct proceedings according to the provisions of Azad Jammu and Kashmir Family Courts Act, 1993—Appeal was allowed, in circumstances.

2019  PLD  21   SUPREME-COURT-AZAD-KASHMIR

FAISAL MUSHTAQ VS NAJMA AZIZ

1. 5, Sched.—Suit for dissolution of marriage by wife through attorney—Allegation of torture/crulety by husband—Non-appearance of plaintiff-wife before Court—Effect—Family Court dissolved the marriage on the basis of Khula’ but Shariat Appellate Bench of High Court dissolved the same on the ground of cruelty—Validity—Plaintiff-wife filed suit through attorney and she did not appear before the Trial Court for getting her statement recorded to prove the alleged facts-Authorized agent or attorney could plead case before Family Court on behalf of plaintiff or defendant but when severe allegation was levelled against husband or wife which could only be rebutted by their evidence then husband or wife should appear as a witness in support of the pleadings so that the allegation could be judged by the Court—Father of plaintiff-wife appeared in the case but on the basis of his statement the allegation levelled against the husband could not be said to have been proved—Family Court had assessed the evidence and drawn a reasonable conclusion–Impugned judgment passed by the Shairat Appellate Bench of High Court was set aside and that of Family Court was restored—Appeal was allowed, in circumstances.

2019  MLD  576   SUPREME-COURT-AZAD-KASHMIR

Syed IQBAL SHAH VS Syeda TAHIRA BIBI

1. 42—Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5—Suit for declaration regarding land given as dower—Maintainability—Plaintiff-wife filed suit for declaration with regard to the land given to her as dower and also challenged therein the gift deed relating to the said land executed in favour of a third party—Suit was decreed concurrently—Validity—Entries of Nikahnama had presumption of truth vis-à-vis oral evidence—Suit land given as dower had not been abandoned by the wife—In case of controversy regarding payment of dower in respect of any property between the spouse and third party the civil court was an appropriate forum for determination of the matter—No misreading or non-reading of evidence had been pointed out in the impugned judgments passed by the courts below—Appeal was dismissed, in circumstances.

2019  MLD  1999   HIGH-COURT-AZAD-KASHMIR

MAJID HUSSAIN VS FARAH NAZ

1. 5 & Sched.—Dissolution of Muslim Marriages Act (VIII of 1939), Ss. 2(ii), 2(iv) & 2(viii)—Suit for dissolution of marriage—Non-payment of maintenance allowance—Non-performance of marital obligations by husband—Cruelty—Non-production of medical evidence of violence—Effect—Wife claimed dissolution of marriage on the grounds of cruelty, non-payment of maintenance allowance and non-performance of marital obligations—Validity—Under the Dissolution of Muslim Marriages Act, 1939 if the husband neglected or failed to provide maintenance for a period of two years or he failed to perform, without reasonable cause, his marital obligations for a period of three years then wife was entitled for decree of dissolution of marriage—Period of non-payment of maintenance and non-performance of marital obligations had not completed in the present case, therefore, wife was not entitled for dissolution of marriage on said grounds—Wife had failed to prove the allegation of cruelty through cogent and convincing evidence as her witnesses did not support her claim nor she produced medical evidence regarding violence—Statements of husband’s witnesses revealed that he had made his best efforts to settle his wife but she was not ready to live with him—Wife had even got recorded her statement wherein she categorically deposed that she did not want to live with her husband—Trial court had rightly appreciated the evidence of the parties and had rightly passed the decree for dissolution of marriage on the ground of ‘khula’ in consideration of dower—Appeals were dismissed.

2019  MLD  1999   HIGH-COURT-AZAD-KASHMIR

MAJID HUSSAIN VS FARAH NAZ

1. 5 & Sched.—Recovery of deferred dower and gold ornaments—Nikahnama entries—Presumption of truth—Scope—Wife claimed recovery of dower amount along with twenty five tolas ornaments—Trial Court decreed the dower amount—Validity—Perusal of nikahnama revealed that dower of Rs. 2,00,000/- was fixed as deferred dower—Entries made in the nikahnama had presumption of truth—Wife had failed to prove regarding bringing ornaments at the time of marriage and snatching of the same, however, she deposed that the ornaments were stolen away—Wife was not entitled for recovery of stolen ornaments—Husband deposed that he had paid the dower but could not produce any evidence of payment of dower—Trial court had rightly passed the decree of dower in favour of the wife—Appeals were dismissed.

2019  MLD  1999   HIGH-COURT-AZAD-KASHMIR

MAJID HUSSAIN VS FARAH NAZ

1. 5 & Sched.—Recovery of maintenance allowance—Scope— Husband is bound to pay maintenance allowance to wife till she is faithful and lives with him—Where the wife voluntarily leaves the house of her husband, she is not entitled to maintenance allowance—Wife’s refusal to live with her husband without lawful excuse, desertion or otherwise willful failure to perform marital duties, would result in loss of her claim for maintenance.

2019  MLD  1999   HIGH-COURT-AZAD-KASHMIR

MAJID HUSSAIN VS FARAH NAZ

1. 5 & Sched.—Restitution of conjugal rights—Scope—When wife is not willing to live with her husband at any cost then to grant a decree for restitution of conjugal rights would amount to compel for force union, which is not permissible under law.

2019  MLD  1301   HIGH-COURT-AZAD-KASHMIR

Raja MUMTAZ AHMAD KHAN VS Mst. FOZIA ISMAIL

Ss. 5, Sched., 13(3)(5) & 14(1)—Suit for recovery of dower—Execution petition—Instalments of decretal amount were sought by judgment-debtor—Scope—Interlocutory  order  passed  by  Family  Court—Appeal—Competency—Judgment debtor filed objection petition with the request to fix instalments for payment of decretal amount—Family Court directed the judgment debtor to pay entire decretal amount in lump sum and dismissed the objection petition—Validity—Family Court in its judgment directed the judgment debtor for lump sum payment of decretal amount which observation was upheld by the Supreme Court—Observation of Family Court for payment of lump sum decretal amount had attained finality—Executing Court did not commit any illegality while refusing fixation of instalments—Impugned order was passed at the stage of execution proceedings which did not fall within the definition of a “decision” or decree rather it was an interlocutory order—Only a decision or a decree passed by a Family Court was appealable before Shariat Appellate Bench of High Court—Family Court had discretion to fix instalments if it deemed fit—Instalments could not be claimed as a matter of right—No appeal or revision had been provided under Azad Jammu and Kashmir Family Courts Act, 1993 against such direction for making payment of decretal amount—No appeal or revision had been provided against an interlocutory order passed by the Family Court—Appeal was dismissed, in circumstances.

2019  MLD  724   HIGH-COURT-AZAD-KASHMIR

AAMARA AZAM VS MOHAMMAD NAWAZ KHAN

1. 5—Suits for restitution of conjugal rights and jactitation of marriage by husband and wife respectively—Non-production of witnesses mentioned in Column No. 8 of nikahnama—Effect—Wife had denied solemnization of nikah and filed suit for jactitation of marriage—Trial Court decreed the suit for restitution of conjugal rights and dismissed the suit for jactitation of marriage—Validity—Wakil of bride shown in Column No. 6 of nikahnama was not present at the time of execution of Nikahnama as per statements of witnesses—Father of bride, shown as wakil in Nikahnama, got registered an FIR when he got knowledge of forged Nikah—Witnesses of Nikah mentioned in Column No. 8 had not been produced by husband and were not even cited as witnesses—Husband had stated that he did not know the said witnesses while Nikah Khawan did not mention their presence at the time of nikah—Husband’s witnesses negated the presence of witnesses of meeting at the time of Nikah—Names of witnesses of nikah, mentioned in Column No. 8, had been written without their presence and their signatures were forged—Time of nikah was shown as 2:00 p.m. whereas witnesses of wife stated that at 2:00 p.m. she was at her home—Prompt dower was shown as ornaments of Rs. 50,000 whereas none of the witnesses stated that it was paid in their presence—Nikah allegedly was solemnized on 12-1-2015, but it was kept secret till November, 2015—Nikah must be proclaimed and proclaimed openly so that it was known to people that spouses were validly married—Nikhanama remained unproved, therefore, it could not be read into evidence and neither a decree of restitution of conjugal rights could be granted on the basis of such Nikahnama—High Court accepted the appeal and passed the decree of jactitation of marriage and dismissed the suit for restitution of conjugal rights, in circumstances.

2019  CLC  2046   HIGH-COURT-AZAD-KASHMIR

TALAT FAROOQ VS ZESHAN SHEHZAD

S.5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4(4)(8)—Suit for dissolution of marriage and recovery of maintenance allowance—Mental torture to wife to abandon job—Cruelty—Scope—Family Court dissolved marriage on the basis ‘khula’—Validity—Defendant had forced plaintiff and mentally tortured her to abandon her job—Lawful profession was a fundamental right of every individual which had been guaranteed and safeguarded by the Constitution—Plaintiff-wife had constitutional right to choose her own employment or engage in any lawful profession/occupation—Behavior of defendant-husband was not proper towards plaintiff-wife—Ouster of plaintiff from his house was due to his attitude—Cruelty was not confined only to physical torture but it did include mental and hateful attitude of husband and other inmates of the house—Family Court had committed error while passing decree for dissolution of marriage on the basis of ‘khula’ which was not maintainable—Marriage was dissolved on the basis of cruelty, in circumstances—Plaintiff’s ouster was not wilful but same was due to mental torture and she was entitled to receive maintenance allowance from the date of institution of suit till decision of the same—Family Court while determining maintenance allowance had considered the financial status of husband as well as his other responsibilities—Defendant should pay maintenance allowance to the wife @ Rs.5000/- per month from the date of institution of suit till decision including the period of iddat—Appeal was disposed of, accordingly.

2018  YLRN  247   SHARIAT-COURT-AZAD-KASHMIR

LIAQUAT HUSSAIN SHAH VS Mst. FAKHIRA GILLANI

1. 5, Sched.—Dissolution of Muslim Marriages Act (VIII of 1939), S. 2 (viii)—Non-payment of dower by husband—Dissolution of marriage on the basis of cruelty—Defendant-husband did not pay dower amount to the plaintiff-wife—Family Court dissolved marriage on the basis of cruelty—Validity—Defendant-husband did not make effort to pay dower to the wife as agreed by him through ‘Nikahnama’ and ‘Iqrarnama’—Conduct and attitude of husband caused mental torture to the wife which was sufficient to dissolve marriage—Impugned judgment and decree passed by the Family Court were maintained—Appeal was dismissed in circumstances.

2018  YLRN  247   SHARIAT-COURT-AZAD-KASHMIR

LIAQUAT HUSSAIN SHAH VS Mst. FAKHIRA GILLANI

1. 5, Sched.—Suit for recovery of maintenance allowance—Family Court fixed maintenance allowance @ Rs. 5000/- per month for each plaintiff/ minor with 10% annual increment—Validity—Family Court while granting maintenance allowance to the minors did not fix the time limit for the same—Male child was entitled to receive maintenance till attaining the age of puberty and female child till her marriage—Impugned judgment and decree passed by  the  Family  Court  to  the  extent  of  time limit was modified—Appeals were dismissed in circumstances.

2018  PLD  31   SUPREME-COURT-AZAD-KASHMIR

SHAHZAD RAUF VS SHABANA YASMIN

1. 5—Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XIII, R. 3 —Suit for dissolution of marriage, recovery of dower, dowry articles and maintenance—Dispute as to snatching of gold ornaments given to the plaintiff (wife) in lieu of dower—Jurisdiction , question of—Cruelty—Scope—Technical mistake in filing petition to leave to appeal to Supreme Court—Effect—Appellant (Ex-husband) contended that Family Court should have granted dissolution of marriage on basis of Khulla instead of on the basis of cruelty—Respondent (Ex-wife) contended that appeal was liable to be dismissed as original counsel of the appellant had not obtained the required copies—Validity—Record revealed that counsel for the appellant obtained the copies on the day, when he was engaged, however, the power-of-attorney was signed by him the next day—In the affidavits required to be attached with the petition for leave to appeal, the name of the counsel engaged by appellant before (AJ&K) Shariat Court was entered inadvertently, which was a human error as the required affidavits were of the original counsel—Entering the name of other counsel who was actually counsel for the petitioner before the Shariat Court did not render the petition for leave to appeal/appeal incompetent—With the establishment of the Family Court , the jurisdiction of civil court was excluded—Supreme Court observed that the dower once fixed between the parties would remain as dower and would not change into civil liability in case the same was snatched by the husband from the wife—Dower , if paid to the wife and snatched by the husband , would automatically restore its liability to repay the same and the matter would be triable by the Family Court alone—If any dispute arose, in respect of property given in lieu of the dower, with any person other than the husband or the guarantor, then the case would be decided by the civil court—Respondent (ex-wife) had taken a categorical stand about the conduct of the husband making her life miserable , which had not been rebutted—Neither any evidence had been led by the appellant in rebuttal nor the statement of the respondent had been cross-examined, hence the decree of dissolution of marriage on the ground of cruelty had rightly been granted by the Family Court—Respondent (wife) left the house of her husband due to cruel treatment, therefore, it was obligatory for the husband to pay her maintenance—-No illegality or infirmity having been noticed in granting decree for dowry articles, appeal was dismissed. Benazir v. Khalil Ahmed and 2 others (Civil Appeal No.285/2014, decided on 26-3-2015 overruled.

2017  YLR  2481   SHARIAT-COURT-AZAD-KASHMIR

MOHAMMAD SAJJAD VS NEELUM SHAHEEN

1. 5, Sched.—Marriage was dissolved on the basis of khula in consideration of deferred dower—Validity—Once wife had claimed khula, she had to return what she received as dower or she could make any offer to give something to her husband as ‘badl-e-khula’—Family Court, in the present case, had fixed the consideration of khula the surrender of her right to recover the deferred dower—No illegality had been committed by the Family Court in circumstances—Even otherwise wife was entitled for deferred dower when husband divorced her—Wife was not divorced in the present case by the husband rather their marriage was dissolved by the Court on the ground of khula which was claimed by wife—Once wife demanded the deferred dower from her husband even before divorce, it would become payable and could be treated as prompt dower—Right of deferred dower of wife had been accepted as consideration for khula in the present case—No prejudice had been done to the wife in circumstances—Appeal was dismissed in circumstances.

2017  YLR  2481   SHARIAT-COURT-AZAD-KASHMIR

MOHAMMAD SAJJAD VS NEELUM SHAHEEN

1. 5, Sched.—Suit for recovery of maintenance allowance—Cruelty—Effect—Family Court decreed suit for recovery of maintenance allowance—Validity—If wife was not willing to live with her husband, she was not entitled for maintenance allowance—Husband was bound to pay maintenance to wife till she was faithful and lived with him and if she voluntarily left the house of her husband then she was not entitled to maintenance—Wife was entitled for maintenance allowance only when she was forced to leave the house of her husband due to cruelty or violence but when she abandoned the house of husband with her free consent and willfully refused to perform marital obligations, she would not be entitled to any maintenance allowance—Wife had not established any act of cruelty of husband with cogent and reliable evidence—When wife was not willing to join husband, she was not entitled to maintenance allowance—Family Court was not competent to order for recovery of maintenance allowance—Impugned judgment was not sustainable which was set aside—Appeal was allowed in circumstances.

2017  YLR  2466   SHARIAT-COURT-AZAD-KASHMIR

KHIZAR BADSHAH VS Mst. TAYYABA FATIMA

1. 13—Azad Jammu and Kashmir Family Courts Act (XI of 1993), S. 5, Sched—Suit for recovery of maintenance allowance— Service of applicant/ defendant— Scope— Ex-parte decree, setting aside of—Limitation—Applicant moved application for setting aside of ex-parte decree which was dismissed being time-barred—Validity—Trial Court neither framed issues nor provided the parties an opportunity to lead evidence in support of their claim and rejected the application in summary manner—Applicant-husband was living abroad and rarely came back to Pakistan—Newspaper in which proclamation was published was not of wide circulation—Applicant was not properly served in circumstances— Provisions of Civil Procedure Code, 1908 were not applicable in proceedings before the Family Court but general principles of said Code could be applied—Rejection of application for setting aside of ex-parte decree was not justified without framing of issues and providing the parties an opportunity to lead evidence in support of their claim—Ex-parte judgment and decree were set aside in circumstances—Suit would be deemed to be pending before the Family Court—Trial Court was directed to decide the controversy after providing the parties an opportunity to lead evidence in accordance with law—Appeal was allowed in circumstances.

2017  MLD  1914   SHARIAT-COURT-AZAD-KASHMIR

SHAZIA NOREEN VS SAJID MEHMOOD

1. 5, Sched. & S.14—Suit for custody of minor—Rejection of application for temporary custody of minor—Interlocutory order—Appeal—Scope—Pending suit for custody of minor, plaintiff (mother) filed application for temporary custody of minor till decision of the case—Guardian Judge rejected said application—Validity—Decree or a decision passed by a Judge, Family Court, had been made appealable before the Shariat Court under S.14 of Azad Jammu and Kashmir Family Courts Act, 1993; whereas in the present case it was interlocutory order which was not appealable before Shariat Court—Shariat Court observed that interim order having no scope of appeal, further indulgence into the matter, would be a futile exercise—Appeal being not available against interim-order, same was dismissed, in circumstances.

2017  MLD  1677   SHARIAT-COURT-AZAD-KASHMIR

Syed SHOUKAT GILLANI VS Mst. ANSAR GILLANI

1. 5, Sched.—Dissolution of marriage on the basis of Khula—Scope—Concept of marriage in Islam was to commence a marital life within the limits ordained by Allah—Marriage required mutual trust and understanding between the spouses—If a partner had lost trust in her counterpart then spouses could not live within the limits fixed by Shariah—In the present case, house fixed as prompt dower was never transferred in the name of wife—Payment of gold ornaments was not proved from the evidence of husband—No chance for rehabilitation existed between the parties as spouses—Court below had no option but to dissolve the marriage on the basis of khula—Decree for dissolution of marriage on the basis of khula had rightly been passed by the Court below—Wife was entitled to dissolution of marriage on the basis of khula in lieu of house fixed as dower—Appeal was dismissed in circumstances.

2017  CLC  214   SHARIAT-COURT-AZAD-KASHMIR

ABDUL HAMEED KHAN VS SAKEENA BEGUM

Ss. 5, Sched., 14 & 15—Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982, Rr.40 & 41—Suit for recovery of dower amount and maintenance allowance—Appeal without affixing court-fee on memo. of appeal—Two suits, one for recovery of dower amount, and the other for maintenance allowance were decreed by the Trial/Family Court; defendants feeling dissatisfied from the judgment of the Family Court filed appeal, without affixing court-fee on the memo. of appeal—Objection was raised regarding maintainability of appeal without affixing court-fee—Validity—Under S.14 of Azad Jammu and Kashmir Family Courts Act, 1993 right of appeal was provided to an aggrieved person from a decision or decree passed by a Family Court—No specific procedure for filing appeal was provided in the Act—Constitution of Shariat Court and procedure for filing of appeals and other proceedings before the Shariat Court, was provided under Azad Jammu and Kashmir Shariat Court Act, 1993—For regulating procedure of the Act, Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 had been enforced; which dealt with form and contents of appeal and its presentation, and no court-fee was required on those appeals—Provisions of the Court Fees Act, 1870, were applicable to the proceedings before the Shariat Court to the extent of Rr.40 & 41 of the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982—Fixation of court-fee on the memo of appeal and other documents, had been impliedly excluded—Family Court, though was a civil court, but plaint before such court, was exempted from the court-fee under S.19 of the Azad Jammu and Kashmir Family Courts Act, 1993—No court-fee was required to be paid on the memo of appeal, in circumstances. Muhammad Imtiaz Khan v. Shakeela Zafeer and another 2016 MLD 618 overruled.

2017  YLRN  200   SHARIAT-COURT-AZAD-KASHMIR

SAQIB SALEEM VS GAZALA KOUSAR

1. 13—Azad Jammu and Kashmir Family Courts Act (XI of 1993), S. 5, Sched—Suit for recovery of maintenance allowance—Ex-parte decree, setting aside of—Limitation—Applicant moved application for setting aside of ex-parte decree which was dismissed being time barred—Validity—Ex parte decree was passed against the applicant-husband on 25-03-2015 and he filed application for setting aside the same on 10-02-2016 after a period of more than ten months—Limitation to file application for setting aside ex-parte decree was thirty days—Applicant had not filed application within prescribed period of limitation—Question of having no knowledge by the applicant with regard to institution of suit did not arise—Trial Court had rightly dismissed the application for setting aside of ex-parte decree being time barred—Family Court had legally exercised its discretion—Appeal was dismissed in circumstances.

2017  YLRN  149   SHARIAT-COURT-AZAD-KASHMIR

Mst. NAZMEEN AKHTER VS LAL KHAN

1. 5, Sched—Dissolution of marriage on the basis of khula’—Scope—Decree for dissolution of marriage was passed on the basis of khula against consideration of dower amount—Contention of plaintiff-wife was that ornaments had been snatched away by the defendant-husband—Validity—Plaintiff-wife had not filed any suit for recovery of ornaments—Plaintiff-wife had failed to prove her stance with regard to snatching away ornaments—Spouses could not be forced to a life devoid of harmony and happiness—If parties could not live together within the limits ordained by Almighty Allah then the proper course would be separation—Plaintiff-wife could not point out any fault of defendant-husband to populate her—No possibility for reunion of spouses existed in the present case—If husband was not at fault then there had to be restoration of whole property received by the wife—Family Court might take into consideration reciprocal benefits received by the husband and direct a partial or total restoration of benefits received by the wife—No illegality had been committed by the Family Court while dissolving the marriage on the ground of khula against consideration of dower/ornaments—Appeal was dismissed in circumstances.

2017  YLRN  149   SHARIAT-COURT-AZAD-KASHMIR

Mst. NAZMEEN AKHTER VS LAL KHAN

S.5, Sched.—Suit for recovery of maintenance allowance—Wife filed suit for recovery of maintenance allowance which was dismissed by the Trial Court—Validity—Plaintiff-wife could not prove her claim before the Family Court with regard to maintenance allowance as well as cruelty on the part of defendant-husband—Defendant-husband was working abroad when plaintiff-wife left the house—Family Court had rightly dismissed the suit for maintenance allowance—No illegality was pointed out in the impugned judgment passed by the Family Court—Appeal was dismissed in circumstances.

2017  CLCN  105   SHARIAT-COURT-AZAD-KASHMIR

SHER MUHAMMAD AZAD VS ASHKAR JAN

1. 5 & Sched.—Suit for dissolution of marriage, recovery of dower and maintenance—Oral divorce—Husband’s suit for restitution of conjugal rights—Entitlement of outstanding dower and maintenance—Scope—Appellant/husband contended that allegation of cruelty and maltreatment by wife were baseless and he was ready to continue the marriage—Wife/respondent contended that she was divorced orally by the appellant so she had right to receive remaining unpaid dower—Wife/respondent claimed maintenance allowance also—Validity—Record revealed that nikah of the spouses was solemnized in lieu of dower Rs. 2,50,000 out of which Rs. 50,000 was paid promptly and Rs. 2,00,000 was deferred by husband—Wife sought dissolution of marriage on the basis of cruelty and “oral divorce”; she produced only one witness in support of her claim who deposed that respondent told him that her husband had divorced her—Said witness did not say anything regarding maltreatment with the respondent—Respondent also got recorded her statement before the Court and stated that she went to her parents’ home out of her will and admitted that appellant tried to continue with the marriage but she refused because he had divorced her—Respondent also stated that she did not want to stay with appellant at any cost—Respondent deposed that behaviour of appellant was good during the period she remained his wife—Factum of oral divorce and maltreatment was not proved from the statement of respondent as well as her witness—Evidence produced by the husband proved that wife went to the home of her parents out of her free will and refused to stay with the husband despite his hectic efforts—If wife refused to live with her husband and left the house of husband, she was not entitled to maintenance as it was proved through evidence that she had left the house of appellant without any reason and refused to perform her matrimonial obligations despite efforts on the part of appellant—Respondent having refused to live with the appellant, therefore, she could not be compelled to live or surrender conjugal rights—Appellant (husband) having admitted that Rs. 2,00,000 was outstanding which was also proved from evidence produced by the parties—Admitted facts need not to be proved—Shariat Court (AJ&K) granted decree of dissolution of marriage in favour of respondent on the basis of Khula, resultantly she would not claim remaining amount of dower of Rs. 2,00,000—Suit for maintenance as well as suit for restitution of conjugal rights were dismissed—Appeals were disposed off accordingly.

2017  CLC  1184   SUPREME-COURT-AZAD-KASHMIR

MUHAMMAD SABIL KHAN VS SAIMA INSHAD

1. 5, Sched—Dissolution of marriage—Cruelty—Scope—Proof—Mode—Family Court dissolved the marriage on the basis of cruelty but Shariat Court modified the decree and dissolved the marriage on the ground of ‘khula’—Validity—When both the parties had produced evidence, Court should examine the whole evidence to draw conclusion for determination of factual issue—Standard of proof was different in civil matters unlike criminal cases and Court could record findings on the basis of preponderance of probability drawn from appreciation of whole evidence—Shariat Court had not dived deep while making appreciation of evidence—Preponderance of probability was in favour of plaintiff-wife—Cruelty by conduct of a spouse would also justify the grant of divorce—Shariat Court had not considered the whole evidence and material brought on record—Impugned judgment passed by the Shariat Court was result of misreading and non-reading of evidence—Only persons who were closely related and inmates or family friend could be relevant witnesses to prove cruelty—Statements of such persons could not be ignored merely being relative or interested persons unlike the other cases—Physical assault or injury was not required to be proved for proof of cruelty rather some time conduct and behaviour without physical assault could be treated as cruelty—Even mental torture suffered by the wife due to behaviour of her husband could be treated as cruelty—Impugned judgment passed by the Shariat Court was not sustainable which was recalled and judgment passed by the Trial Court was restored—Appeal was allowed in circumstances.

2017  CLC  788   SUPREME-COURT-AZAD-KASHMIR

KHURSHID BEGUM VS SABIR HUSSAIN

1. 13—Civil Procedure Code (V of 1908), S.141—Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5, Sched & S.17—Guardians and Wards Act (VIII of 1890), S.25—Custody of minor—Ex-parte order, setting aside of—Limitation—Applicant moved application for setting aside of ex parte decree which was dismissed being time barred—Validity—When case was transferred from one Court to another in presence of counsel of the parties, no fresh notice was required for summoning the parties—Application for setting aside of ex-parte decree was presented after a period of five months and seven days which was beyond the period of limitation—Azad Jammu and Kashmir Family Courts Act, 1993 did not provide procedure for disposing of applications for appointment of guardian and restoration of minor—When no procedure was provided, by necessary implication provisions of S.141, C.P.C. were applicable which were applicable in all the proceedings in a court of civil jurisdiction—Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 were not applicable to the proceedings before Family Court—Application for setting aside the ex parte order being beyond the period of limitation was rightly dismissed by the Family Court—Appeal was dismissed in circumstances.

2017  CLC  758   SUPREME-COURT-AZAD-KASHMIR

TANVEER ASLAM DAR VS Mst. RASHIDA

1. 5, Sched—Suit for recovery of dower—Scope—Nothing was on record to show the handing over of dower to the wife—Husband admitted that the ornaments given in lieu of dower had been taken from the wife by him—Trial Court had ignored the material aspect while appreciating the evidence on record—Husband had failed to prove that dower was paid or satisfied—Whole amount of dower was unsatisfied—Suit for recovery of dower was rightly decreed in circumstances—Appeal was allowed accordingly.

2017  CLC  758   SUPREME-COURT-AZAD-KASHMIR

TANVEER ASLAM DAR VS Mst. RASHIDA

1. 5, Sched—Suit for recovery of maintenance allowance—Contention of husband was that wife had voluntarily opted for desertion and she was not entitled for maintenance allowance—Suit of wife was decreed concurrently—Validity—Spouses had lack of confidence, mutual respect, harmony, sacrifice and sympathy between them—Absence of such ingredients had created atmosphere unsuitable for wife, desertion in such circumstances was natural—Wife could not be blamed that she had voluntarily opted for desertion and failed to discharge her matrimonial obligations amounting to disentitle for maintenance allowance—Concurrent findings recorded by the courts below were based on proper appreciation of evidence—Husband had forced the wife to opt for desertion and she was entitled for maintenance allowance—Appeal was dismissed in circumstances.

2017  CLC  487   SUPREME-COURT-AZAD-KASHMIR

ABDUL KHALIQ VS SIDRA KHALIQ

1. 5, Sched & S.13—Suit for recovery of maintenance allowance—Grant of maintenance allowance enhancement/alteration in monthly allowance by minor—Powers of Family Court—Scope—Procedure—Ex parte decree—Execution petition, withdrawal of—Fresh suit on same cause of action—Maintainability—Enhancement of maintenance—Procedure—Plaintiffs filed suit for recovery of maintenance allowance which was decreed ex parte and execution petition was moved but same was withdrawn—Plaintiffs again instituted another suit for recovery of maintenance allowance which was ex parte decreed against which defendant moved an application for setting aside the said decree which was dismissed concurrently—Validity—Plaintiffs in presence of previous decree were estopped from filing subsequent suit on the basis of same cause of action—Decree passed in the previous suit had attained finality—Previous ex parte decree was issued in favour of minors and also their mother who was not party in the present round of litigation—Mother withdrew the execution petition on the ground that her grievance had been redressed out of the Court and execution proceedings were disposed of—Only mother was barred from claiming the maintenance as she had already withdrawn from the proceedings—Compromise to the extent of minors was not valid and withdrawal from the execution of decree was not effected under the law which could only be done with the permission of the Court—Court was bound to watch the interest of minors—Decree passed in the previous suit was effective and operative only to the extent of minors—Family Court had rightly declared that minors were entitled to maintenance allowance in the light of previous decree—Fresh suit on the same cause of action was not maintainable—Previous decree was enforceable and minors could approach the Family Court for payment of maintenance allowance accordingly—Family Court was directed by the Supreme Court to enforce the decree passed in the previous suit to the extent of minors without any further delay—No limit existed on the Family Court to fix or determine the rate of maintenance allowance—Family Court could grant appropriate maintenance allowance according to facts and demand of justice in each case—Maintenance was continuous process and the person entitled to be maintained had right to approach the Court for adequate maintenance allowance—Family Court was vested with exclusive jurisdiction to entertain and adjudicate upon the matters specified in the Schedule—If maintenance allowance granted by the Family Court was insufficient and inadequate then institution of fresh suit was not necessary rather Family Court might entertain application for alteration in the rate of maintenance allowance—Minors, in the present case, could apply to Family Court for enhancement/alteration in per month rate of maintenance allowance however said application would not bar the execution of decree already granted for maintenance allowance—Appeal was disposed of accordingly.

2017  CLC  234   SUPREME-COURT-AZAD-KASHMIR

MUHAMMAD SAJID VS Mst. SAJIDA RASHEED

1. 5, Sched.—Qanun-e-Shahadat (10 of 1984), Art.128—Suit for recovery of maintenance allowance—Legitimacy of a child—Presumption of truth—Scope—Contention of father was that minor daughter was not legitimate child and she was not entitled for maintenance allowance—Suit was decreed concurrently—Validity—Legal presumption was in favour of legitimacy of a child unless it was proved otherwise, provided the child was born during the continuance of a valid marriage notwithstanding that child was born within 180 days after first coitus between the couple—Such presumption could be inferred from the surrounding circumstances—Mere denial could not take away the status of legitimacy as ‘child follows the bed’—Evidence of a woman would be sufficient to prove the parentage of a child—Defendant had failed to pay maintenance charges to the wife and the child—No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below—Appeal was dismissed in circumstances.

2017  CLC  234   SUPREME-COURT-AZAD-KASHMIR

MUHAMMAD SAJID VS Mst. SAJIDA RASHEED

1. 5, Sched.—Suit for recovery of dower—Once dower was paid and subsequently snatched by the husband, wife could not file suit under Azad Jammu and Kashmir Family Courts Act, 1993 for recovery of dower—Family Court had no jurisdiction to entertain such a suit—Suit to the extent of recovery of dower allegedly snatched by the husband was not maintainable—Suit was maintainable to the extent of deferred amount of dower—Decree of Family Court and Shariat Court were modified and plaintiff was declared entitled for deferred amount of dower—Appeal was partially allowed accordingly.

2017  CLCN  101   SUPREME-COURT-AZAD-KASHMIR

MUKHTAR HUSAIN VS FARHAT BIBI

1. 5 & Sched.—Suit for dissolution of marriage, recovery of dower and dowry articles and maintenance—Settlement of family matters under agreement/Jirga long time ago—Limitation—Raising of matter at appropriate forum—Scope—Plaintiff contended that dower amount of only R. 10,000 was paid to her and she was entitled to get remaining amount of Rs. 40,000 as promise of transfer of land by the defendant in lieu of remaining amount was not fulfilled—Plaintiff submitted that the defendant was liable to give maintenance of minor daughter under her custody—Defendant contended that claim of recovery of dower was time-barred and submitted that custody of minor daughter to the plaintiff under agreement was given with the condition that no claim of maintenance would be sought—Validity—Family court had rightly found that plaintiff was divorced long time ago, therefore, the question of dissolution of marriage did not arise—Contention of the defendant that the suit for dower was time-barred, was devoid of any force—Record of Trial Court revealed that in the light of the pleadings of the parties, issues were framed but there was no issue on the question of limitation—Perusal of the judgment under appeal further revealed that the point of limitation had not been taken before the Shariat Court—Question which had not been raised before the Family Court or the Shariat Court could not be allowed to be raised for the first time before the Supreme Court—If the question was argued but had not been decided by the Shariat Court, then it was the duty of the party to file affidavit stating therein that the question was raised before the Shariat Court but escaped the notice of the Court, only in such an eventuality, the question could be taken up by the Supreme Court—No such course had been adopted by the appellant, therefore, Supreme Court declined to disturb the findings recorded by the Family Court as well was Shariat Court on the point—Shariat Court had enhanced the amount suo motu, without any appeal or appropriate proceedings, which was not permissible in law—Judgment of Shariat Court stood modified to the extent that minor daughter would be entitled only maintenance allowance as decreed by Family Court—Appeal was partly accepted accordingly.

2017  YLR  2144   HIGH-COURT-AZAD-KASHMIR

IMTIAZ AHMED ABBASI VS NOSHEEN AKHTAR

1. 5 & Schd.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44—Suit for jactitation of marriage—Allegation of fictitious Nikahnama—Application of the defendant for comparison of signatures of the plaintiff—Dismissal of application of the defendant—Challenging interim order in writ petition— Maintainability—Petitioner/defendant contended that comparison of signature of plaintiff on marriage certificate and the statement recorded before Family Court was necessary and application was wrongly dismissed by the Family Court—Respondent/plaintiff challenged writ petition as remedy of appeal was not available against interim order—Validity—Remedy of appeal had not been provided against an interim order of the Family Court; the wisdom of the Legislature was to avoid the procrastination of the family matters, and under law, such lacunae could also not be filled in by invoking the extraordinary jurisdiction of the High Court—Writ petition could not be invoked as an alternative of appeal or revision—When no appeal or revision was provided against interim order, same could not be challenged through writ petition—Court would not act in a manner by which, object of statute was defeated or rendered nugatory—High Court observed that petitioner could agitate his contention at the stage of final arguments and in case of an adverse order, re-agitate his point in appeal but in the circumstances he could not be permitted to procrastinate and linger on the proceedings of a family suit, without any justification for an indefinite period—No force having been found in the writ petition, same was dismissed accordingly.

2016  YLR  793   SHARIAT-COURT-AZAD-KASHMIR

NAVEED ILYAS VS AJID NAWAZ

1. 5, Sched. & S.14—Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R.3—Dissolution of Muslim Marriages Act (VIII of 1939), S.2—Suit for dissolution of marriage or revocation of Nikahnama—Plaintiffs, who were brother and father of defendant lady, had alleged in the suit that Nikahnama, was fraudulently executed between the defendants—Under S.2 of the Dissolution of Muslim Marriages Act, 1939 and R.3 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, the suit for dissolution of marriage, on any ground, could be filed by lady—Pro forma defendant who was real sister and daughter of plaintiffs, had never filed any suit for dissolution of her marriage on any ground whatsoever—When husband and wife admitted Nikah, then production of two witnesses, would not be essential—Counsel for plaintiffs, had admitted at the Bar that defendants, were living happily as husband and wife, and none of them had got any grouse against disputed Nikahnama—Findings recorded by the Trial Court that the plaintiffs had no locus standi to file suit for dissolution of marriage, were in accordance with law, which needed no interference in appeal before Shariat Court.

2016  YLR  440   SHARIAT-COURT-AZAD-KASHMIR

TAHIR HANIF VS SAIRA KOSAR

1. 5, Sched—Dower—Payment of—Classification of dower—Scope—Contention of husband was that dower was deferred and same was payable in case of dissolution of marriage on his death or on divorce—Suit was decreed by the Family Court—Validity—No misreading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Family Court—Amount of dower was to be paid within the period fixed in the Nikah Nama—Classification of dower as prompt or deferred had no sanction behind it except for convenience of the parties—Payment of dower was an obligation of husband and failure thereto would tantamount to injustice and inequity—Dower was demanded by the wife at the time of Rukhsati and same was agreed to be paid within one year—Family Court had rightly passed impugned judgment and decree in favour of wife—Appeal was dismissed in circumstances.

2016  CLC  1473   SHARIAT-COURT-AZAD-KASHMIR

MUHAMMAD ASHRAF VS FARZANA KOUSAR

1. 5, Sched—Azad Jammu and Kashmir Dowry and Bridal Gifts (Restrictions) Act, 1976, S.5—Suit for recovery of bridal gift—Husband filed suit for recovery of bridal gifts in the shape of gold ornaments which was dismissed having no cause of action—Validity—No one was under any obligation to make a present to anybody else—Husband might give various benefits to the wife due to love or respect or to satisfy certain norms or etiquette but he was not bound to confer any benefit on the wife or pass on any gifts to her—No provision of law existed that might entitle the husband to recover bridal gift from his wife on divorce—Property given as a bridal gift to the bride as a present should be in the ownership of bride and her interest should not be restricted or limited—Family Court had no jurisdiction to entertain such suits—No illegality or irregularity had been pointed out in the impugned judgment passed by the Family Court—Appeal was dismissed in circumstances.

2016  YLR  2851   SUPREME-COURT-AZAD-KASHMIR

SALEEM AKBAR KAYANI VS Dr. REHANA MANSHA KAYANI

Ss. 5, Sched & 14—Azad Jammu and Kashmir Family Courts (Procedure) Rules, 1998, R. 22—Suit for recovery of maintenance allowance—Ex-parte proceedings—Amendment in plaint without notice to the defendant—Effect—Appeal—Limitation—Condonation of delay—Defendant was proceeded against ex-parte and evidence was recorded—Application for amendment in the plaint was moved which was accepted—Contention of defendant was that Family Court was bound to issue notice to him while allowing amendment in the plaint—Appeal filed by the defendant was dismissed being time barred—Validity—Cause shown by the defendant for filing appeal beyond the period of limitation had sufficiently been explained—Defendant was entitled for condonation of delay—Appeal was filed in Shariat Court after condonation of delay—Right of hearing was a constitutionally guaranteed fundamental right of every citizen—No order or decree could be passed against a person without providing an opportunity of hearing to him—Family Court was bound to serve notice upon the defendant after allowing application for amendment in plaint—Defendant should have been provided opportunity to file written statement—Decree for maintenance claimed in the amended plaint could not be passed without issuance of notice to the defendant and seeking his written statement—Impugned judgment and decree passed by the Family Court were not sustainable which were set aside—Case was remanded to the Family Court for decision afresh after seeking written statement from the defendant and recording evidence in accordance with law—Family Court was directed to decide the matter within a period of two months from the receipt of record—Appeal was allowed in circumstances.

2016  YLR  2102   SUPREME-COURT-AZAD-KASHMIR

Raja MUHAMMAD ALTAF KHAN VS SOBIA TABASSUM

S.5, Sched—Contract Act (IX of 1872), Ss. 16, 10 & 11—Suit for jactitation of marriage—Undue influence—Effect—Defendant could not succeed in establishing that any valid marriage was contracted by the plaintiff or she was legally capable of contracting such marriage—Element of undue influence could not be ruled out in the present case—Alleged contract of marriage was result of undue influence—If alleged contract of marriage stood proved even then it was not “valid” and would be deemed to be result of undue influence as plaintiff had denied the same—Shariat Court had rightly decreed the suit of plaintiff while declaring the contract of Nikah as ineffective and inoperative—Appeal was dismissed in circumstances.

2016  YLR  371   SUPREME-COURT-AZAD-KASHMIR

AZHAR BASHIR VS SADIA SHAFIQUE

1. 5, Sched—Suit for dissolution of marriage, recovery of maintenance charges and dower—Cruelty—Scope—Cruel attitude was not confined only to the extent of physical violence but it would include mental torture, hateful attitude of husband or other inmates of the house and also included the circumstances in presence of which wife was forced to abandon the house of her husband—Wife had failed to prove cruelty in the present case—Family Court had correctly passed decree on the ground of ‘khula’—Husband was bound to pay maintenance charges to the wife till she was faithful to him and lived with him and if she had voluntarily left the house of her husband then she was not entitled to maintenance charges—Wife had voluntarily left the house of her husband and she was not entitled to maintenance charges—Dower once paid could not be demanded for second time—Appeal filed by the wife was partly accepted to the extent of maintenance charges—Decree of maintenance charges passed by the Shariat Court was set aside.

2016  MLD  618   SHARIAT-COURT-AZAD-KASHMIR

MUHAMMAD IMTIAZ KHAN VS SHAKEELA ZAFEER

Ss. 5, Sched. & 14—Suit for recovery of maintenance allowance—Execution petition—Interim order—Appeal—Maintainability—Family Court ordered to pay amount of decretal amount in installments—Contention of judgment-debtor was that nothing was outstanding against him—Validity—Court below had calculated the amount on the basis of its record—Nothing was on record to rebut the conclusion arrived at by the court below—Impugned order being interim order did not fall within the definition of a “decree” or a “judgment”—Appeal was not competent in circumstances—Appeal was dismissed.

2016  MLD  209   SUPREME-COURT-AZAD-KASHMIR

SIKANDER HABIB VS SHAISTA JABEEN

1. 5, Sched—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42—Restitution of conjugal rights—Appeal to Supreme Court on the basis of power of attorney—Scope—Family Court passed decree for restitution of conjugal rights but Shariat Court dismissed the suit—Husband filed appeal before the Supreme Court through attorney—Contention of wife was that attorney could not file appeal in matrimonial matters—Validity—Husband had specifically authorized the attorney to file appeals, persue the matters in the revenue, civil/sessions court or criminal courts and appeals in the superior courts—Executant had not authorized the attorney to file suit or appeals with regard to matrimonial matters—Strict compliance should be made to the recitals of power of attorney—Had the intention of the husband be to authorize the attorney for matrimonial matter, he should have specifically mentioned the same—Attorney was not authorized by the husband to act on his behalf in the matrimonial matters—Executant had authorized the attorney only with regard to filing of suits or appeals in respect of revenue, civil and criminal matters—Appeal having been filed incompetently was dismissed by the Supreme Court.

2016  CLC  332   SUPREME-COURT-AZAD-KASHMIR

MUHAMMAD ZAHEER-UD-DIN BABAR VS Mst. SHAZIA KOUSAR

1. 5, Sched—Suit for dissolution of marriage, recovery of maintenance charges and dower—Cruelty—Scope—Cruel attitude was not confined only to the extent of physical violence but it would include mental torture, hateful attitude of husband or other inmates of the house and also included the circumstances in presence of which wife was forced to abandon the house of her husband—Cruelty had been proved by the wife in the present case—Husband had failed to point out any misreading or non-reading of evidence on the record—No illegality was pointed out in the judgment passed by the Shariat Court—Appeals were dismissed in circumstances.

2016  YLR  1836   HIGH-COURT-AZAD-KASHMIR

SADAQ MEHMOOD VS JUDGE OF FAMILY COURT NO.1

1. 5, Sched, Ss. 8, 9 & 14—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44—Writ petition—Maintainability—Suit for dissolution of marriage—Ex-parte proceedings, setting aside of—Appearance and filing of written statement by the defendant—Limitation—Interim order— Appeal— Discretion, exercise of—Scope—Husband filed application for setting aside ex-parte proceeding but same was dismissed—Validity—Defendant could appear and file written statement within fifteen days of service—Proclamation was made on 21-09-2013 and defendant was authorized to appear and file written statement till 06-10-2013—Any action against the defendant before the expiry of time limit was not warranted under the law—Ex-parte proceedings were not permissible in the present case before 06-10-2013—Application filed by the defendant on 22-10-2013 for setting aside ex-parte proceedings was within time—Impugned order passed by the Family Court was without any legal force—Said order was interim one against which neither appeal nor revision would lie—Discretion exercised by the Family Court dismissing the application for setting aside ex-parte proceedings was not in accordance with law and same could be looked into by exercising constitutional power—Discretionary orders were not immune from judicial review—Writ petition against such interim order was competent in circumstances—Ex-parte order passed by the Family Court was set aside—Defendant was directed to file written statement before the Family Court within fifteen days—Family Court was directed to decide the case on merits after hearing the parties within the stipulated period first deciding the territorial jurisdiction—Writ petition was allowed in circumstances.

2015  CLC  171   SHARIAT-COURT-AZAD-KASHMIR

WASEEM AHMAD RATHORE VS Mst. FOZIA RAHEEM

1. 5, Sched.—Dissolution of marriage—Khula—Restoration of property/dower received by the wife—Scope—Family Court dissolved marriage in consideration for khula by fixing an amount which was not incorporated in the Nikah Nama—Contention of husband was that the amount fixed by the Family Court as consideration for khula was not mentioned in the Nikah Nama—Validity—Wife could not prove that she was entitled to obtain decree for dissolution of marriage on the grounds of cruelty, non-performance of marital obligations and non-payment of maintenance allowance as her husband was out of country—Person who had asserted a point must prove the same—Wife was bound to prove her claim that ornaments were snatched away from her, by her husband or his sister or brother which she could not prove—Decree for dissolution of marriage could be passed without consideration of khula—When khula was due to some fault on the part of husband then it was not lawful for him to take back anything from his wife—Wife herself deserted in the house of her parents and she filed a suit for dissolution of marriage—Wife did not live with her husband continuously—Wife had been granted a decree on ground of khula due to hatred against her husband—No fault was pointed out on the part of husband and Family Court was bound to restore the property/dower received by the wife—Husband was entitled to receive entire dower amount from wife instead of amount fixed by the Family Court in case of dissolution of marriage on khula when snatching of ornaments had not been proved—Wife had not arrayed party to the sister and brother of husband against whom allegation of snatching away ornaments was levelled—When wife had demanded khula as of right then marriage had to be dissolved on restoration of what she had received in consideration of marriage when parties would not observe the limits ordained by Almighty Allah—Family Court had rightly dissolved the marriage on the basis of khula but failed to fix amount as consideration for khula as marriage was to be dissolved on the condition of repayment of dower amount received by wife—Dower in the form of gold ornaments was paid to the wife and specific amount of ornaments had been incorporated in the Nikah Nama—Marriage of the spouses should have been dissolved in consideration for khula i.e. amount incorporated in Nikah Nama instead of amount fixed by the Family Court—Wife would be entitled to obtain a decree for dissolution of marriage on the condition of repayment of entire dower amount incorporated in the Nikah Nama as consideration for khula—Appeal was accepted accordingly.

2015  YLR  2533   SHARIAT-COURT-AZAD-KASHMIR

Mst. MAZLOOM BIBI VS MUHAMMAD AJAZ AWAN

1. 5, Sched. —Suit for recovery of dower—Material contradictions were on record in the deposition of husband— Dower was never paid in the shape of land or cash to the wife—Family Court had failed to determine the conduct of husband with regard to changing of views on different stages—Husband was responsible to pay full dower to the wife as he had consummated marriage—Husband had played fraud with wife for dower and other ornaments—Impugned judgment and decree were not sustainable—Suit of wife had been wrongly dismissed by the Family Court—Judgment and decree passed by the Family Court were set asidi and. decree for recovery of dower was passed in favour of wife—Appeal was, accepted in circumstances.

2015  YLR  1547   SHARIAT-COURT-AZAD-KASHMIR

ASIF JAHANGIR VS Mst. ZAHEEN KAUSAR

Ss. 5, Sched. & 14—Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ii), (iv), (viii)—Suit for dissolution of marriage and for restitution of conjugal rights—Wife filed suit for dissolution of marriage before Family Court on the grounds of cruelty, non-payment of maintenance allowance, non-performance of marital obligations and in the alternative on the ground of Khula—Husband filed suit for restitution of conjugal rights and moved contempt applications on the ground that wife had contracted second marriage during pendency of appeal—Family Court passed decree for dissolution of marriage on ground of Khula, without return of dower amount as consideration for Khula, and suit by husband for restitution of conjugal rights was dismissed—Wife had averred in her plaint as well as in her statement that ornaments were snatched away from her by the husband, and he did not rebut the version of wife in cross-examination, which amounted that he had admitted said fact—Witnesses had also supported the version of wife—Family Court, in circumstances had rightly appreciated evidence of parties in its true perspective—Decree for dissolution of marriage could be passed without consideration for Khula; and it was not lawful for husband to take back anything from his wife, particularly when Khula was due to some fault on the part of husband—In the present case, fault of husband was that he had snatched away ornaments, and turned her out from his house, which fact was fully established by the evidence—Family Court had not committed any illegality while passing decree for dissolution of marriage on the ground of Khula without consideration—Record had revealed that service upon wife was effected after contracting second marriage by her—Appeal as well as contempt application were dismissed, in circumstances.

2015  YLR  1433   SUPREME-COURT-AZAD-KASHMIR

MUHAMMAD NAZIM VS MUNEER AKHTAR

1. 5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44—Writ petition—Maintenance allowance to wife—Scope—Capacity of husband to pay maintenance as fixed—Non-framing of issue—Effect—Contention of husband was that wife had voluntarily left his house and she was not entitled for maintenance allowance—Suit was decreed concurrently—Validity—Wife was entitled for maintenance if she had obeyed the husband and was ready to live in his house but if she had left the house of husband voluntarily then wife was not entitled for maintenance—Duty of husband to maintain his wife was conditional upon performance of marital obligations—Wife was bound to guard the reputation, property of her husband in his absence and also her own virtue—Maintenance allowance should be according to the financial position of husband—Family Court was bound to resolve the question of capacity of husband to pay maintenance—No issue, in the present case, was framed with regard to capacity of husband whether he had a source to pay the maintenance fixed by the Family Court—Non-framing of issues was not vital for a case if parties were vigilant on the point, if however the parties had led the evidence on the said issue then question could be resolved without framing the issue—Both the parties had led the evidence but Family Court had failed to resolve the question with regard to capacity of husband to pay maintenance—Family Court was bound to record findings with regard to capacity of husband whether he was in a position to pay maintenance charges claimed by the wife or not—Supreme Court had powers to decide any issue if there was evidence of the parties on record—Remand of case would further prolong the litigation and there would be undue burden on the parties—Both the courts below had not considered that husband had meager source to maintain his wife—No mis-reading or non-reading of evidence was pointed out—Attitude of husband towards the wife was cruel and he had ousted her from house after beating—Wife and minor children were entitled to maintenance—Husband or father could not be burdened for payment of maintenance beyond his capacity—Husband in the present case, was a Rickshaw driver and due to rising costs of living maintaining a wife and two minors in a meager amount of Rs. 5,000 per month was difficult but wife herself had demanded Rs.5000—Family Court had correctly concluded that wife/children were entitled for maintenance of Rs. 5,000 per month and defendant was in a capacity to pay the said amount—Appeal was dismissed in circumstances.

2015  YLR  511   SUPREME-COURT-AZAD-KASHMIR

ALI HAIDER VS Syed MUHAMMAD ASGHAR SHAH

1. 5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42—Appeal to Supreme Court—Maintenance allowance, enhancement of—Fresh suit—Scope—Second suit for enhancement of maintenance allowance fixed in the previous suit was filed and Family Court enhanced the maintenance allowance from Rs.5,000 to Rs.11,000 per month but Shariat Court dismissed the suit being not maintainable—Contention of husband was that he had already deposited the maintenance allowance up to year 2015—Validity—Once a decree by the Family Court in a suit for recovery of maintenance allowance was granted second suit could not be filed and if any dispute with regard to rate of allowance had arisen then it was not necessary to file a fresh suit rather same could be agitated through a miscellaneous application—Filing of fresh suit for enhancement of maintenance allowance was not necessary and suit filed by the plaintiffs should be treated as an application—Family Court had powers to entertain the matrimonial matters and other issues connected therewith—Father was bound to maintain his children till they had attained the age of majority in case of son and the daughter till she was married—Law did not debar minor children to claim the maintenance allowance even after attaining the age of majority—If children after becoming major had their independent sources then father was not bound to maintain them—Decree in the present case was passed in the year 2005 and father was directed to make payment of Rs.5,000 per month as maintenance allowance—Considerable time had elapsed i.e. more than 8 years and during said period cost of living had much been increased—Ground taken by the father that his financial position did not permit him to enhance the maintenance allowance was not convincing—Maintenance allowance could be awarded while keeping in mind the financial position of father—Father was running business and his earning was handsome—Father was in a position to enhance the maintenance allowance—Maintenance allowance was enhanced by the Supreme Court from Rs.5,000 to Rs.10,000 per month keeping in view financial and economic position of father—Impugned judgment passed by the Shariat Court was set aside and that of Family Court was modified—Appeal was accepted in circumstances.

2015  YLR  170   SUPREME-COURT-AZAD-KASHMIR

Mst. AMREEN VS MUHAMMAD KABIR

1. 5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42—Suit for recovery of past maintenance allowance—Wife never refused to populate with her husband and she wanted to live in his house as wife—Husband and his parents refused to populate her and she was entitled for maintenance—Findings recorded by the Shariat Court were the result of mis-reading and non-reading of evidence available on record which could not sustain—Wife was entitled to past maintenance as granted by the Family Court—Appeal filed by the wife was accepted whereas that of husband was dismissed in circumstances.

2015  YLR  170   SUPREME-COURT-AZAD-KASHMIR

Mst. AMREEN VS MUHAMMAD KABIR

1. 5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44(2)—Suit for recovery of maintenance allowance—Past Main-tenance—Entitlement—No mis-reading or non-reading of evidence was pointed out with regard to fact of cruelty and ousting the wife from the house by the husband—Findings of Family Court and Shariat Court that wife had failed to prove that she was treated with cruelty and ousted from the house were based on evidence—Family Court was bound to award past maintenance to the minor when she was living with her mother since birth but no reason had been given for not awarding the same—Minor was entitled to maintenance allowance from the date of her birth—Husband was working abroad and he was maintaining his second wife who was a resourceful person—Court had power to grant maintenance keeping in view the financial position of father and his economic resources—Maintenance allowance awarded to the minor was meagre keeping in view the rising cost of living and same was enhanced from Rs.2,000 per month to Rs. 4,000 per month as prayed for since from the date of birth of minor—Appeal was accepted partly to the extent of minor and was dismissed to the extent of wife.

2015  YLR  170   SUPREME-COURT-AZAD-KASHMIR

Mst. AMREEN VS MUHAMMAD KABIR

1. 5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44(2)—Suit for recovery of maintenance allowance—Contention of wife was that husband had cruelly treated her and ousted her from his house—Suit was decreed by the Family Court but was dismissed to the extent of wife and maintained with regard to minor by the Shariat Court—Validity—Factually wife was not ousted by her husband from the house and he tried to reconcile but she imposed conditions which would amount to refusal on her part—No misreading or non-reading of evidence was pointed out—Appeal was dismissed in circumstances.

2015  YLR  170   SUPREME-COURT-AZAD-KASHMIR

Mst. AMREEN VS MUHAMMAD KABIR

1. 5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42—Suits for recovery of maintenance allowance and restitution of conjugal rights—Wife filed suit for recovery of maintenance whereas husband filed suit for restitution of conjugal rights—Both the suits were decreed concurrently— Validity— Both the impugned decrees were contradictory—Proper procedure was that Family Court should consolidate both the suits and decided the same through consolidated judgment so that contradictory decrees might not have been passed—Cruelty and ousting of wife from the house by the husband after beating her had been proved from the evidence—Husband filed suit for restitution of conjugal rights only to defeat the suit for recovery of maintenance charges filed by the wife—Decree for restitution of conjugal rights had never been executed by the husband—Husband never tried to bring his wife back to his house—No illegality was pointed out in the judgment passed by the Shariat Court—Appeal was dismissed in circumstances.

2015  MLD  955   SUPREME-COURT-AZAD-KASHMIR

MEHARBAN HUSSAIN VS ZAHIDA KAUSAR

1. 5, Sched—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42—Appeal to Supreme Court—Dissolution of marriage—Khula—Scope—Both the Family Court and Shariat Court had concurrently decreed the suit for dissolution of marriage on the basis of khula—Contention of husband was that suit for dissolution of marriage was filed on the ground that he was impotent and not on the basis of khula—Validity—No law could compel wife to live with husband when she had stated that at every cost she wanted separation and was not willing to live with her husband—Spouses should be separated if it was impossible for them to live together within the limits ordained by Almighty Allah—Although main ground for seeking the decree for dissolution of marriage was that husband was impotent, however, at the same time from the statement of wife it could be conceived that she did not seem to live with the husband as a wife, in such circumstances, it would be immaterial to discuss that whether husband was potent or impotent—Marriage could be dissolved on the basis that court was satisfied that spouses could not live as husband and wife within the limits ordained by Allah and it was not necessary that same could only be dissolved on the basis of khula—Both the courts below had attended the controversy in a legal manner and passed the impugned judgments while assigning the solid reasons—No illegality or irregularity had been pointed out in the impugned judgments—Appeal was dismissed in circumstances.

2015  MLD  443   SUPREME-COURT-AZAD-KASHMIR

Syed NAZIR AHMED SHAH GILLANI VS Syeda NAZIA GILLANI

1. 5, Sched—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42—Appeal to Supreme Court—Recovery of dower—Both the Family Court and Shariat Court had concurrently decreed the suit for recovery of dower—Validity—Defendant had signed on the Nikah Nama as surety of dower amount—Out of Rs. 2,00,000 only Rs.31,000 had been paid to the wife at the time of Nikah whereas Rs.1,69,000 were still payable and defendant could not escape from the liability according to commitment made by him at the time of Nikah—Both the courts below had appreciated the record in a legal manner and had rightly come to the conclusion that wife had succeeded to prove that dower amount was fixed as Rs. 2,00,000 which was partly paid to her at the time of Nikah and remaining Rs. 1,69,000 were still payable—Shariat Court had rightly examined the statements of the witnesses produced by the defendant—No misreading or non-reading of evidence had been pointed out—Appeal was dismissed in circumstances.

2015  CLC  1326   HIGH-COURT-AZAD-KASHMIR

RASHID SHAMIM VS JUDGE FAMILY COURT/CIVIL JUDGE COURT NO.II, MUZAFFAGARH

1. 5, Sched.—Family Court, jurisdiction of—Family Court possess exclusive jurisdiction to entertain matter pertaining to dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children and guardianship—Parties were entitled to file suit pertaining to one or more than one matters jointly in one suit.

2015  CLC  1326   HIGH-COURT-AZAD-KASHMIR

RASHID SHAMIM VS JUDGE FAMILY COURT/CIVIL JUDGE COURT NO.II, MUZAFFAGARH

1. 5, Schedule—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44—Writ petition—Amendment of pleadings—Powers of Family Court—Scope—Plaintiff instituted suit for dower and recovery of maintenance allowance before Family Court—Plaintiff lady was pregnant at the time of institution of suit—After birth of child application was moved for arraying the minor in line of plaintiffs by amending plaint which was accepted—Petitioner assailed order allowing the amendment on grounds that no procedure had been provided for amendment—Principle—No provisions for amendment of pleadings were provided but there existed no prohibition or absolute bar on powers of Family Court to allow any party to amend pleadings—Family Court can allow any procedure not expressly barred under law for final disposal of case—When parentage was not being disputed there was no bar for impleadment of minor in suit for maintenance as party—Application for amendment after birth of child was also held to be continuation of stance taken in suit for recovery of maintenance and writ petition was dismissed in circumstances.

2015  CLC  1326   HIGH-COURT-AZAD-KASHMIR

RASHID SHAMIM VS JUDGE FAMILY COURT/CIVIL JUDGE COURT NO.II, MUZAFFAGARH

1. 5, Sched.—Maintenance for child—Obligation of father—Husband being father of child born to wife was required under law not only to provide food and shelter but also take care of genuine needs of the family.

2014  YLR  2564   SHARIAT-COURT-AZAD-KASHMIR

Syed MUHAMMAD ALI through Real Mother Mst. Mehvish Batool VS Syed RAZA HUSSAIN

1. 5, Sched. & S.17—Res Judicata, principle of—Applicability in cases before Family Courts—Scope—Azad Jammu and Kashmir Family Courts Act, 1993, no doubt was a special law, but general principles of res judicata could be made applicable by courts where Civil Procedure Code was not applicable; because disputes once decided, must attain finality at some stage—Even if S.11, C.P.C. was not applicable, but the principles of res judicata had to be applied with care and certain limitations—Contention that on the basis of previous cause of action in Family Court, fresh institution of suit was not barred, was repelled, because the principle of res judicata saved the courts from being vexed repeatedly by a litigant for the same relief.

2014  YLR  2564   SHARIAT-COURT-AZAD-KASHMIR

Syed MUHAMMAD ALI through Real Mother Mst. Mehvish Batool VS Syed RAZA HUSSAIN

1. 5, Sched. & S.14—Suit for recovery of maintenance allowance by minor son—Second suit Maintainability—Plaintiff (minor) filed a suit for recovery of past maintenance allowance at the rate of Rs.5,000 per month from October 2008 to April 2012, total Rs.2,10,000 and future allowance at the rate of Rs.15,000 per month—Family Court decreed suit accordingly; and said decision and decree, were not challenged by defendant in appeal before Appellate Court—Subsequently, the plaintiff filed fresh suit before Family Court for recovery of past maintenance allowance at the rate of Rs.10,000 per month from October, 2008 to January 2013, total Rs.5,20,000 and future maintenance allowance at the rate of Rs.15,000 per month—Fresh suit was dismissed by the Family Court—Validity—Only claim of the plaintiff in fresh suit was past maintenance allowance from Rs.5000 to Rs.10,000 per month, and future maintenance allowance at the rate of Rs.15,000—Plaintiff took divergent stands by claiming past maintenance allowance in both suits, which had negated his earlier suit, wherein he mentioned all expenses, including his admission in school, but later on in fresh suit he changed his stance, and claimed enhanced past maintenance—Plaintiff, in circumstances, should have filed an appeal against the earlier decision and decree passed by Family Court, or an application for increasing future maintenance allowance, should have been filed before Family Court on the ground of inflation and change in circumstances—Plaintiff having failed to do so, Family Court had not committed any illegality while dismissing the fresh suit filed by the plaintiff.

2014  YLR  34   SHARIAT-COURT-AZAD-KASHMIR

TASLEEM KAUSAR VS Kh. MUHAMMAD ASHRAF

1. 5, Sched. & S. 14—Suit for recovery of dower—Family Court had dismissed suit for recovery of dower—Validity—Plaintiff in suit for recovery of dower had claimed that the dower was fixed in the shape of gold ornaments amounting to Rs.50,000 as prompt dower—Plaintiff had alleged that said ornaments were snatched away by the defendant, when she was forced to leave the house of defendant/her husband—Three witnesses produced by the plaintiff, had fully supported version taken by the plaintiff—One of the witnesses produced by the defendant, also had stated that gold ornaments were snatched away by the defendant—Said statement of defendant’s witnesses had clearly shown that the ornaments were snatched away by the defendant—Trial Court, in circumstances, had failed to consider said important aspect of the case and arrived at wrong conclusion—Witness of the defendant was not declared as hostile by the defendant which was an admission on the part of the defendant, in circumstances—Defendant had not denied the allegation of snatching of gold ornaments and stated that he was not bound to return the gold ornaments—Fact that gold ornaments were snatched away by the defendant, therefore, was proved—Dower was the right of wife and husband was bound to pay the same to her—Impugned judgment and decree passed by the Family Court, were set aside to the extent of recovery of dower amount.

2014  CLC  397   SHARIAT-COURT-AZAD-KASHMIR

Mst. GULSHAN PARVEEN VS AMAR SAFEER KHAN

Ss. 5, Sched. & 14—Suit for restitution of conjugal rights and suit for jactitation of marriage—Trial Court decreed suit for restitution of conjugal rights in favour of husband, while dismissed cross-suit for jactitation of marriage filed by the wife against her husband—Statements of three witnesses produced by husband in proof of his claim, had revealed that wife had contracted marriage with the plaintiff-husband with her own free-will and consent—Defendant/wife admitted Nikah Nama with the plaintiff-husband; and she also admitted her signatures on the contents of the Nikah-Nama and admitted that she prepared the deed by her own writing, and also signed affidavit—Wife was a student of M.Phil and not an illiterate lady, who did not know anything—Plaintiff-husband, in circumstances had proved his case through cogent and convincing evidence, and the Trial Court had rightly decreed suit for restitution of conjugal rights in favour of plaintiff/husband—Witnesses produced by the wife in proof of her case for jactitation of marriage, had not denied the Nikah-Nama with her husband—Wife having failed to prove her case through cogent and convincing evidence, Trial Court had rightly dismissed her suit for jactitation of marriage in right direction—No misreading or non-reading of evidence had been committed by the Trial Court while recording impugned judgment and decree, same were allowed to stand.

2013  MLD  1148   SUPREME-COURT-AZAD-KASHMIR

ABDUL HAFEEZ VS SHAMAILA BIBI

Ss. 5, Sched. & 14—Suit for recovery of dower amount—Marriage between the spouses was solemnized in lieu of dower amounting to Rs.2,50,000—Nikahnama had shown that an amount of dower in shape of ornaments worth Rs.1,13,000 was paid to the wife (plaintiff) while the remaining amount of Rs.1,37,000 was kept deferred and according to the contract of marriage defendant (husband) had to transfer a house comprising two rooms in the name of the plaintiff in lieu of deferred dower amount—Plaintiff in her plaint had alleged that the defendant had not transferred the house in lieu of the remaining dower amount—Witnesses produced by the plaintiff had supported the claim of the plaintiff—Defendant, having failed to rebut the claim of the plaintiff, plaintiff was entitled to recover the deferred amount of dower amounting to Rs.1,37,000.

2013  MLD  1148   SUPREME-COURT-AZAD-KASHMIR

ABDUL HAFEEZ VS SHAMAILA BIBI

Ss. 5, Sched. & 14—Suit for recovery of dowry—Plaintiff (wife) along with plaint had produced a list of articles given at the time of marriage to her—Nikahnama also showed that at the time of marriage, a list was produced for the dowry items and an amount of Rs.70,300 was mentioned therein—Plaintiff had proved that the dowry items were still lying with the defendant which fact was proved by plaintiff herself in her own statement as well as the statements of the witnesses—Trial Court as well as Shariat/Appellate Court while passing the decree for recovery of dowry items had appreciated and concluded the matter in its true perspective—Defendant having failed to substantiate his case to interfere with the findings recorded by Shariat Court, same was upheld in its tune and spirit.

2013  MLD  1148   SUPREME-COURT-AZAD-KASHMIR

ABDUL HAFEEZ VS SHAMAILA BIBI

Ss. 5, Sched. & 14—Suit for recovery of gold ornaments—Plaintiff (wife) had alleged that when she left the house of defendant (husband), the gold ornaments were snatched by the father of the defendant—Plaintiff having failed to prove that allegation through cogent and reliable evidence, Shariat/Appellate Court was justified to hold that ornaments amounting to Rs.1,13,000 were in the custody of the plaintiff and she could not claim the recovery of the same from the defendant—Shariat Court while granting the decree accordingly, had not acted against law.

2013  MLD  1148   SUPREME-COURT-AZAD-KASHMIR

ABDUL HAFEEZ VS SHAMAILA BIBI

Ss. 5, Sched. & 14—Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)—Suit for dissolution of marriage on ground of cruelty—Cruelty, nature and proof of—Scope—Plea of defendant (husband) was that factor of cruelty as alleged by the plaintiff (wife) was not proved by her, as neither she herself nor any of her witnesses had stated that there was any sign of injury caused by defendant (husband) on the person of the plaintiff (wife)—Validity—Such a plea itself was indicative of the cruel mentality on the part of the husband —For proof of cruelty, infliction of injury was not the requirement of law, in matrimonial matters—False allegations against wife that she was a woman of bad character was cruelty, which resulted into mental torture and the loss of mutual confidence—Plaintiff in support of the alleged cruelty had produced the witnesses who deposed that the defendant husband had been treating the plaintiff in an ill manner—Courts below, in circumstances, had rightly held that fact of cruelty had been proved.

2013  MLD  305   SUPREME-COURT-AZAD-KASHMIR

MUHAMMAD AJAIB VS TASLEEM WAKEEL

1. 5, Sched. & S. 13—Suit for dissolution of marriage on ground of Khula—Determination of amount of Khula—Jurisdiction—Scope—Trial Court dissolved the marriage on the basis of Khula with the condition that the decree would become final on payment of Rs.39559 as amount of Khula within one month, and in case of failure the suit would be deemed dismissed—Shariat Court through impugned judgment, while accepting appeal partially modified the decree to the effect that question regarding the return of the amount of Khula, was a civil liability which could be enforced by the husband through a separate suit—Validity—After framing specific issue on the question of Khula, parties were provided opportunity for producing proof, and the Family Court after appreciation of evidence, had determined the amount of Khula and question of determination of amount of Khula, had attained finality—Statutory provisions of S.13 of the Azad Jammu and Kashmir Family Courts Act, 1993, remained out of consideration by both the courts below, interpretation of which demanded that whole scheme of the Act along with Preamble had to be considered and appreciated—Intention of the Legislature was clearly ascertainable that the purpose of enforcement of the Family Courts Act was expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith—Once a question of fact had been determined by the Family Court after due appreciation of evidence, dragging the parties on the same question of fact in civil suit, would amount to defeat the very purpose of the special law—Impugned judgment of the Shariat Court was modified by the Supreme Court to the extent that for recovery of the amount of Khula, determined by the Family Court, separate civil  suit  was  not  required  and  such  order was executable under the provisions of S.13 of Azad Jammu and Kashmir Family Courts Act, 1993 in circumstances—Order accordingly.

2013  MLD  190   SUPREME-COURT-AZAD-KASHMIR

WAJID HUSSAIN VS SENIOR CIVIL JUDGE

1. 5, Sched., and Ss.11 & 17—Suit for dissolution of marriage—Recording of evidence of plaintiff—Counsel for defendant failing to appear—Effect—Witnesses of the plaintiff were present in the court on date fixed for recording evidence of said witnesses—Defendant appeared and sought time for producing his counsel in the court and time was fixed in that respect—Court kept on waiting the counsel for the defendant, even after expiry of fixed time but he did not appear—Witnesses of the plaintiff remained present in the court, but due to absence of counsel for defendant the evidence could not be recorded, and the court had no option except to pass an order for payment of expenses to the witnesses of the plaintiff by the defendant—Legality—Defendant challenged said order by way of a writ petition in the High Court, which petition was dismissed by the High Court—Contention of defendant was that judgment of High Court was not maintainable as provisions of C.P.C. being not applicable in the proceedings before the Family Court, court could not pass any order for payment of expenses to the witnesses—Under provisions of S.17 of Azad Jammu and Kashmir Family Courts Act, 1993, provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 did not apply to the proceedings in Family Court unless expressly provided by or under the said Act and Family Court had its own procedure for the trial of the cases specified in the Schedule of said Act—Family Court was empowered to examine witnesses produced by the parties in such order as it deemed fit—Though it was not expressly provided as to in what order the witnesses were to be produced, but power was vested in the court that it would determine the mode/order as it deemed fit—Provisions of C.P.C., though were not applicable in the proceedings before the Family Court, but there always existed an implied and inherent power in every court to pass a suitable order to meet the ends of justice and the requirement of principles of natural justice—Azad Jammu and Kashmir Family Courts Act, 1993, did not expressly provide that if the evidence of the witness was not recorded due to fault of defendant, expenses would be paid by defendant to the witnesses, but it was not prohibited to pass such order—Unless it was expressly prohibited that the Family Court would have no power to pass any order for payment of expenses to the witnesses, no bar would exist for ordering the same—Family Court could pass such order as it would feel necessary for doing complete justice in the light of provisions of Azad Jammu and Kashmir Family Courts Act, 1993—Defendant having failed to point out violation of provisions of Azad Jammu and Kashmir Family Courts Act, 1993 or Rules, writ was rightly dismissed by the High Court, in circumstances.

2013  MLD  16   SUPREME-COURT-AZAD-KASHMIR

RABIA AKHTER VS MUHAMMAD AYUB

1. 5, Sched. & S. 7—Civil Procedure Code (V of 1908), O. VI, R.14—Suit for jactitation of marriage—Non-signing and verification of plaint—Effect—Non-signing of plaint and verification by the plaintiff himself, would not affect the filing of the suit.

2013  MLD  16   SUPREME-COURT-AZAD-KASHMIR

RABIA AKHTER VS MUHAMMAD AYUB

1. 5, Sched. & S.7—Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, Rr.3, 4 & 5—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42—Suit for jactitation of marriage filed by husband—Maintainability—Term “Jactitation of marriage”—Connotation—Both, the Trial Court and Shariat Court, had concurrently decreed suit for jactitation of marriage by the plaintiff husband—Counsel for the defendants had contended that suit for jactitation of marriage could only be filed by a woman and husband could not file such suit—Validity—Family Court under R.5 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, had exclusive jurisdiction to entertain, hear and adjudicate upon the matters enumerated in the Schedule; and jactitation of marriage fell at serial No.7 in the Schedule—Family Court had exclusive jurisdiction for deciding the question of jactitation of marriage—Term “jactitation of marriage” was of wide implication and would seem to cover an assertion by either of the spouses or a third party, denying the marriage between the alleged husband and wife, and would include an action either by one of the spouses against the other, or by the spouses against third party—Suit could be filed by a person other than the spouses involved in the jactitation of marriage—Suit be filed by the spouses against third party with a view to prevent them from denying their marriage—Person could claim that a woman was not his wife or a wife could claim that she was not wife of defendant and he/she would refrain from claiming as such, in a suit by a plaintiff that a woman was his lawfully wedded wife and another person, the plaintiff could request for issuance of a prohibitory decree—Suit for declaration that the defendant was not the husband or wife of plaintiff and the defendant alleged to be wife or husband by the plaintiff was suit for jactitation of marriage—Suit for jactitation was the only case on which matrimonial suit could as of right, be proceeded without prima facie proof of a marriage de facto—Family Court had exclusive jurisdiction to try a suit for jactitation of marriage—Appeal was dismissed, in circumstances.

2013  MLD  755   HIGH-COURT-AZAD-KASHMIR

WAJID ABBASI VS TAHIRA JAMIL

1. 5, Sched.—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44—Writ petition—Suit for dissolution of marriage—Application for impleading in the line of defendants—Plaintiff (wife) filed a suit for dissolution of marriage against real brother (husband) of the petitioner, who sought to be impleaded in the line of the defendants—Plea of the petitioner was that wife/plaintiff had levelled serious allegations against him in her plaint, without impleading him as a defendant—Application filed by the petitioner for impleading him as defendant in the suit was dismissed—Plaintiff/wife filed suit for dissolution of marriage against real brother (her husband) of the petitioner, inter alia, on the ground of cruelty, maltreatment, non-payment of maintenance to her by her husband; and lurking house-trespass at midnight with intent to commit unnatural act on her by the petitioner—Validity—On the basis of said allegations, no relief could be granted under the law by the Family Court to the petitioner (brother of husband) as he was neither necessary nor proper party in the suit filed by the plaintiff against defendant—Findings given by the court below, therefore, were strictly in accordance with law—Contention that as the impugned order was passed by Additional District Judge, though matter was pending before Judge Family Court, by declaring it as coram non judice, be quashed, was repelled, because Additional District Judge also had exclusive jurisdiction of Family Court and suit was tried by the Judge Family Court—Impugned order could not be deemed as corum non judice, in circumstances.

2012  YLR  1559   SHARIAT-COURT-AZAD-KASHMIR

MUHAMMAD YASEEN VS Mst. KALI BIBI

1. 5, Sched. & S.14—Suit for dissolution of marriage—Plaintiff (wife) had amply proved the factum of cruelty, non-payment of maintenance allowance and non-performance of marital obligations by the defendant (husband)—Record showed that defendant was living abroad for the last many years; he had contracted a second marriage there, and had a daughter from that wedlock—Defendant had not paid any maintenance allowance to the plaintiff from the day of separation and did not perform his marital obligations for more than a period of three years—Defendant had failed to produce sufficient and reliable evidence in rebuttal of the allegations made by plaintiff—No misreading and non-reading of evidence was noticed in the case; and judgment of the court below to the extent of dissolution of marriage had been recorded in a legal manner, which was maintained by Shariat Court in circumstances.

2012  YLR  1559   SHARIAT-COURT-AZAD-KASHMIR

MUHAMMAD YASEEN VS Mst. KALI BIBI

1. 5, Sched. & S.14—Suit for recovery of maintenance allowance—Record had proved that defendant was residing abroad and he had contracted a second marriage there—Defendant was working as a mason there and was looking after his second wife and daughter, and had failed to maintain the plaintiff during the period of separation—Decree of maintenance, in circumstances, was rightly passed against him, but rate of maintenance allowance was not fixed in a proper manner—Keeping in view the inflation in the edibles the maintenance allowance was increased from Rs.2500 to Rs.4000 per month—Order accordingly.

2012  YLR  2383   SUPREME-COURT-AZAD-KASHMIR

AISHA BIBI VS MUHAMMAD IDREES

Preamble, S.5, Sched., Ss.9, 10, 11 & 12—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42—Suits for dissolution of marriage and realization of maintenance allowance—Failure of defendant to attach list of witnesses along with written statements—Closing of evidence–High Court, under writ jurisdiction, set aside judgment of the Family Court—Validity—Special procedure had been laid down in Ss.9, 10, 11, 12 of the Mad Jammu and Kashmir Family Courts Act, 1993, to achieve the object of enactment i.e., early disposal of the family matters—Preamble of the Act though was not an integral part of the statute, but it could be helpful to ascertain the intention of the legislation which showed that the object of enactment was expeditious disposal of disputes relating to family affairs—Scheme of law was to decide the family matters expeditiously; and in case the relevant provisions were not complied with, that would amount to defeat the object of the legislation—High Court had issued the writ while quashing the order of the Judge, Family Court on the basis of inference drawn on the presumptions—Judgment of the High Court had jailed to interpret the provisions of S.9 of Azad Jammu and Kashmir Family Courts Act, 1993 in . its true perspective—Order passed by the High Court was set aside and order of Family Court, was restored, in, circumstances.

2012  YLR  2231   SUPREME-COURT-AZAD-KASHMIR

FIRDOS BAKHAT VS JAVED KHAN

1. 5, Sched. & S.14(1)—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42—Suit for dissolution of marriage—Application for production of list of witnesses—Plaintiff who filed suit for dissolution of marriage against defendant also appended a list of witnesses—Plaintiff who could not produce witnesses mentioned in the list, filed another list of witnesses, which was finally allowed and the Trial Court recorded statements of said witnesses and only the statement of plaintiff was yet to be recorded in the suit—Said order of Family Court allowing the second list was challenged by the defendant in the Shariat Court through an appeal—Shariat Court accepted the appeal and set aside the order of Family Court—Contention of counsel for the plaintiff was that impugned order of Family Court being interlocutory order and not a final judgment, appeal filed by the defendant before Shariat Court, was liable to be dismissed, because no appeal lay against an interlocutory order—Contention of counsel for defendant was that order passed by the Family Court was final order and appeal before Supreme Court was competent—Validity—Application filed by the plaintiff for allowing her to produce some other witnesses was accepted by the Family Court; and that order was an  interlocutory  order  and  could  not  be  a  final judgment—Appeal against said order was not maintainable before the Shariat Court—Under provisions of S.14(1) of Azad Jammu and Kashmir Family Courts Act, 1993, only decision or decree of Family Court was appealable before the Shariat Court—Findings of Shariat Court that application filed by the plaintiff before the Family Court was a review application; and that Family Court had no jurisdiction to entertain such application, was contrary to record—Application filed by the plaintiff for summoning witnesses, was not a review application, but was an application for production of witnesses—After acceptance of said application, statements of witnesses summoned, had already been recorded by the Trial Court—After said development, whole subsequent practice had become futile and academic; even on merit—Judgment of Shariat Court, was set aside by Supreme Court in circumstances.

2012  YLR  1248   SHARIAT-COURT-AZAD-KASHMIR

MUHAMMAD SHAKEEL VS SHAHEEN AKHTAR

S.5, Sched. & S.14—Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R.13—Suit for dissolution of marriage—Ex parte judgment and decree–Limitation for setting aside such judgment and decree—Ex parte judgment and decree were challenged by the defendant/husband after period of nine months—According to R.13 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, period of limitation for setting aside of the passing of decree had been provided upto thirty days of the passing of decree—Application filed for setting aside the judgment and decree was time-barred, because the period of limitation would run from the date of decree and not from the date of knowledge—Defendant even after issuing registered letter and also after publishing a proclamation in the newspaper, did not opt to defend the suit for dissolution of marriage by the plaintiff against him—Defendant after obtaining knowledge of the institution of the suit against him, having not approached the court below, findings of the court below were neither based on misreading and non-reading of the evidence, nor leading to miscarriage of justice—No legal error having been found in the impugned decision, same had to be maintained.

2012  YLR  1488   SUPREME-COURT-AZAD-KASHMIR

Mst. IQRA VS ABUZAR

S.5, Sched., Ss.14 & 17—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42—Suit for dissolution of marriage, maintenance allowance along with expenditure for birth of a child—Trial Court decreed the suit, but Shariat Court, on appeal, set aside the judgment and decree of the Trial Court and dismissed the suit and the plaintiff had filed appeal to Supreme Court—Validity—Wife could claim past maintenance up to six years—When a woman surrendered herself into the custody of her husband, it was incumbent upon him to support her with food, clothing and lodging, as such was the precept in Holy Quran—According to the Islamic Injunctions, it was the obligation of the husband to maintain his wife till she disobeyed him without any good cause—Maintenance was an obligation, which was one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances—Obligation of husband to maintain his wife had been derived from Verse No.232 of Sura Al-baqara in the Holy Quran—Maintenance to the wife was not an exgratia grant, but husband was obliged to maintain his wife—Husband being father of the child born to his wife, was required under the law, not only to provide food and shelter to family, but also take care of other genuine needs of the family—Grant of delivery expenses to wife, was part of maintenance—Shariat Court had failed to determine the real controversy involved in the case; and instead of deciding the case on merits, after reappraisal of evidence on the record, decided the same by holding that suit filed by the plaintiff was not main-tainable—Judgment and decree passed by the Trial Court, were well reasoned and were based on cogent reasons—Trial Court had rightly appreciated the evidence in its true perspective—No misreading or non-reading of evidence, was found in the judgment passed by the Trial Court—Judgment and decree passed by Shariat Court, being not maintainable, were set aside, and  judgment  and  decree  passed  by  the  Trial  Court,  were  restored  by  the Supreme Court, in circumstances.

2012  YLR  1488   SUPREME-COURT-AZAD-KASHMIR

Mst. IQRA VS ABUZAR

S.5, Sched. & S.17—Civil Procedure Code (V of 1908), S.11—Suit for recovery of maintenance charges—Filing new suit on same cause of action after dismissal of earlier suit—Res judicata, principle of—Applicability—Scope—Question was raised as to whether after dismissal of fresh suit for the recovery of maintenance charges, new suit on the same cause of action was maintainable—Validity—Trial Court had taken care of that aspect of the case and had rightly found that under S.17 of Azad Jammu and Kashmir Family Courts Act, 1993, Code of Civil Procedure being not applicable in the matter, filing of subsequent suit after dismissal of first suit, was not hit by the principle of  res judicata—Civil Procedure Code, 1908 though was not applicable in the Family matters, but in the absence of any specific provision, the general principle of C.P.C., were attracted; and if there was a continuous wrong and new cause of action accrued, on the basis of new cause of action, new suit could be filed at any time.

2012  MLD  1034   SHARIAT-COURT-AZAD-KASHMIR

MUHAMMAD ALTAF VS Mst. RASHADA BIBI

1. 5, Sched. & S.14—Suits for recovery of dower and maintenance allowance—Plaintiff filed two separate suits, one for recovery of dower amounting Rs.1,25,000 and other for recovery of maintenance allowance at the rate of Rs.4000 per month for herself and her minor son—Family Court passed a decree of dower in tune of Rs.47025 along with four gold bangles, and decree of maintenance allowance at the rate of Rs.2000 per month in her favour till period of Iddat and in favour of her minor son at the rate of Rs.2000 per month—Validity—Defendant had admitted the right of recovery of maintenance allowance to the extent of minor son, and also agreed to pay dower to the plaintiff amounting to Rs.47,025 as decreed to the extent of the recovery of remaining dower Rs.53,000 paid in shape of ornaments and that four gold bangles were still to be given to the plaintiff by him—Evidence on record had revealed that plaintiff was entitled to the recovery of her dower in cash Rs.47,025 along with four gold bangles given in lieu of prompt dower—Family Court was justified to order the defendant to give four bangles to the plaintiff—Record having proved that the defendant did not pay to the plaintiff her dower including the prompt dower, the plaintiff was justified to live apart and claim maintenance from the defendant.

2012  MLD  553   SHARIAT-COURT-AZAD-KASHMIR

FEHMIDA HAIDER VS TASADDAQ ABBASS SHAH

1. 5 & Sched.—Azad Jammu and Kashmir Shariat Courts Ordinance, 1982, Ss.6 & 11—Suit for recovery of dower allegedly snatched away by husband—Jurisdiction of Family Court—Suit for recovery of dower, whether it had been paid or after payment it had been returned or snatched away by the defendant/husband, the Family Court had got exclusive jurisdiction for disposal of such type of disputes; which related to marriage and family affairs and for matters connected therewith—Family Court, in circumstances, was quite competent to hear and dispose of the case for recovery of dower snatched away by the husband.

2012  CLC  1386   SHARIAT-COURT-AZAD-KASHMIR

LIAQUAT HUSSAIN VS ZIL-E-HUMA

1. 5, Sched. & S.14—Dissolution of marriage on ground of Khula’—Considerations—Plaintiff wife (married when she was minor) filed suit for dissolution of marriage against defendant (husband) on the ground of option of puberty, cruelty and in the alternative on the ground of ‘Khula’—Family Court passed a decree for dissolution of marriage on ground of ‘Khula’ without any consideration—Validity—If a wife would fail to prove all the grounds taken by her in the plaint for the dissolution of marriage, even then a decree on the basis of ‘Khula’ could be passed in her favour, keeping in view the peculiar facts and circumstances of the case—Record, in the present case, had proved that the plaintiff could not prove the factum of cruelty, but had averred in the plaint that she could not live with the defendant at any cost—Plaintiff had also levelled certain allegations against the character of the defendant—Keeping in view the difference of age between spouses, the court below had rightly found that the plaintiff had developed a fixed aversion against the defendant; and that it was impossible for them to live a happy life within the limits ordained by Allah and rightly passed a decree for dissolution of marriage on ground of ‘Khula’—When a tie of marriage was annulled on the ground of ‘Khula’, the wife had to pay the husband full or part of the consideration, she had received from her husband at the time of the contract of marriage as determined by the court—Plaintiff in the present case had admitted that dower amounting Rs.1,82,781 was fixed at the time of marriage which was paid to her in shape of ornaments; she however, averred that said amount was snatched away by the defendant which was in his possession—Defendant had refuted the claim of plaintiff and contended that said ornaments were still in her possession—Burden of proof of said fact was upon the plaintiff, but she failed to produce the cogent, sufficient and reliable evidence to discharge the burden of proof—Evidence of the plaintiff was vague and fictitious which could not be relied upon—Held, that the ornaments were still in possession of plaintiff which had to be returned to the defendant—Impugned decision and decree was set aside to the extent that the defendant was entitled to receive Rs.1,82,781 the dower amount as consideration for ‘Khula’—Order accordingly—[2004 CLC 1186 overruled].

2012  CLC  1131   SUPREME-COURT-AZAD-KASHMIR

NAVEED FARID VS RAHEELA RAZZAQ

Ss. 5, Sched. & 14—Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R.13—Limitation Act (IX of 1908), S.5—Suit for recovery of dower amount and maintenance allowance—Ex parte decree—Application for setting aside ex parte decree—Condonation of delay—Scope—Limitation—Defendant (husband) having failed to appear before the Trial Court, ex parte proceedings were ordered against him and after recording evidence, ex parte decree was passed in favour of the plaintiff (wife)—Application for condonation of delay in filing application, which under R.13 of Azad Jammu and Kashmir Family Courts Procedure Rules,  1998,  was  30  days,  was  filed  after  3-1/2 months, which was time-barred—Azad Jammu and Kashmir Family Courts Act, 1993, was a special law, which had provided limitation under the Rules and there was no concept of condonation of delay under R.13 of the said Rules—In presence of clear provisions in the special law, the provisions of S.5 of the Limitation Act, 1908, were not applicable to the proceedings before the Family Court—Application for condonation of delay being time-barred, was rightly dismissed, in circumstances.

2009  CLC  230   SHARIAT-COURT-AZAD-KASHMIR

MUHAMMAD ZAMAN VS AMEER HAMZA

1. 5, Sched & S.14—Custody of minor—Application for—Welfare of minor—Appeal against judgment of the Family Court—Application filed by the father of minor for custody of minor having been allowed by the Family Court, mother of minor challenged same in appeal—Validity—Mother was entitled to retain the custody of her minor male child till the age of seven years and of female child till attaining her puberty—Such right would continue, even if she was divorced, however, if she would contract the second marriage, then, she would lose her right of custody—If husband also would contract the second marriage and live with second wife, then it was incumbent upon the Trial Court to see the convenience and welfare of the minor and keeping in view the question of his welfare, would decide about the custody of the minor—Both husband and wife, in the present case had contracted second marriage; it was, in circumstances obligatory on the part of the Trial/Family Court to look into the matter with reference to Sharia Law along with the question of welfare of the minor—Question was not of a second marriage of mother or otherwise, the main focus for the court was the welfare of the minor—If both claimants of the minor had contracted a second marriage, then the matter of the custody of the minor had to be looked into carefully, keeping in view the welfare of the minor—Father of the minor child was a police employee, who, by virtue of his profession was compelled to remain away from his house—Minor/Female child, if given in the custody of the father, she would ultimately remain at the mercy of her stepmother, who could not be a substitute of real mother having natural love and affection for her female child—Female child would also be happier and familiar with the company and association of her mother—Impugned judgment was set aside and it was ordered that the custody of the minor would remain with the mother.

2009  CLC  221   SHARIAT-COURT-AZAD-KASHMIR

GULSHAN BEGUM VS MUHAMMAD WAHEED KHAN

1. 5, Soiled & S.14—Suit for recovery of dower amount—Suit filed by the plaintiff was dismissed by the Family Court for lack of jurisdiction—Family Court initially decreed suit ex parte, which was later on set aside and same was dismissed on the question of jurisdiction, which question was neither raised in the written statement by the defendant nor contended by any of the parties—Trial Court appeared to have ignored the fact that even if it had no jurisdiction to entertain the same, plaint was required to be returned to the plaintiff—Family Court had exclusive jurisdiction to entertain the matter mentioned in Schedule to S.5 of Azad Jammu and Kashmir Family Court Act, 1993, where apart from other matters, the suit pertaining to dower was also included in the Schedule for the reason that matrimonial disputes of all kinds listed in the Schedule were to be exclusively triable by the Family Court—Impugned judgment and decree were set aside and case was remanded to the Family Court with the direction to proceed further with the case in accordance with law.

2008  CLC  1641   Supreme Court (AJ&K)

TANVEER HUSSAIN VS NANI SULTANA

1. 5 & Sched.—Suit for dissolution of marriage on ground of Khula—Plaintiff had claimed dissolution’ of marriage, alternatively on the ground of Khula—Plaintiff had deposed that she hated the defendant and alleged that her mother had been murdered by him—F.I.R. was lodged by the plaintiff and after the trial of the case, defendant had been convicted by the Trial Court—Plaintiff had stated that she could not maintain the limits ordained by the Almighty God and she requested that her marriage be dissolved on the basis of Khula—Validity—Basic object and purpose of the marriage was the creation of perfect and happy life and such a life could only be created, if there would be a mutual love and affection, but in the present case the relations between both the parties were so strained that there was no chance of reconciliation and it could safely be said that the parties were unable to maintain the limits ordained by the Almighty God, especially so when the mother of plaintiff had been murdered by the defendant and the plaintiff had been twice attacked by the defendant—Atmosphere of love could not be created, in such circumstances—Entire circumstances of the case had revealed that rift between the parties was much serious and there was no chance of reconciliation at all—Both courts below had rightly dissolved the marriage on the basis of Khula.

2008  CLC  952   SHARIAT-COURT-AZAD-KASHMIR

Raja TAHIR BASHIR VS Mst. GULSHEEDA BIBI

1. 5, Sched.—Dissolution of marriage on ground of Khula—Appeal to Shariat Court—Plaintiff filed suit for dissolution of marriage against defendant husband on ground of Khula, alleging that her husband was a cruel person who had made her life miserable by cruelty and ill-treatment; therefore she had developed hatred against him and that she could not live with him within the limits ordained by the Almighty Allah—Plaintiff further contended that she would not even want to see his face and she would prefer to die rather to live with him—All witnesses had supported the allegation of improper behaviour of defendant husband against plaintiff and separation of the spouses—Plaintiff had categorically stated before the court below that she had developed severe hatred against defendant and she could not live with him within the limits ordained by Almighty God—Before invoking power to annul marriage on ground of Khula, court must satisfy its conscience whether the spouses could live a life of love, affection, trust and harmony and if not, then it was better to break the hateful union—Wife, in the present case, was so adamant that she had expressed her hatred by deposing that she would prefer death instead of living with defendant—Islam did not force a woman to live sinful life; that was why right of Khula had been bestowed upon her by the Dictates of Holy Qur’an–Wife was not obliged to prove the fault of the husband, rather if it appeared from the record that relations of the spouses were strained beyond repair on account of fault of either party, whereupon wife had developed severe hatred against her husband, it was always advisable to dissolve the marriage—Marriage was rightly dissolved by the Family Court on ground of Khula, in circumstances—Husband had admitted that land, given by him to plaintiff wife in lieu of dower, was in his possession—Golden ornaments given to her at the time of marriage were sufficient consideration for grant of Khula as ordered by the Family Court.

2008  CLC  952   SHARIAT-COURT-AZAD-KASHMIR

Raja TAHIR BASHIR VS Mst. GULSHEEDA BIBI

1. 5, Sched.—Suit for maintenance—Entitlement of wife to maintenance—If wife wilfully refused to live with her husband then she was not entitled to receive maintenance from him, but when there were sufficient grounds for refusal to live with husband, wife could claim maintenance without going back .to her husband—Defendant/husband, .having not paid the dower to plaintiff/wife, she was justified to live separately and entitled to claim maintenance—Family Court was justified to record order of maintenance allowance in favour of plaintiff and her minor girl.

2008  CLC  576   SHARIAT-COURT-AZAD-KASHMIR

MUHAMMAD JAMIL VS SAFINA BIBI

Ss. 17 & 25—Azad Jammu and Kashmir Family Courts Act, 1993, Ss.5, Sched. & 147–Appointment of guardian and custody of minor—Application of mother of minor daughter aged 3 years for her appointment as guardian of minor girl and handing over the custody of minor—Family Court, vide impugned order, appointed mother as guardian of minor girl and also directed father of minor to hand over the minor to the mother—Validity—Court while appointing and declaring guardian of the minor had to take into consideration the welfare of minor and in that respect court would have regard to the age, sex and nearness of the kin of the minor—Mere fact that minor girl had previously been living with her father and she was also attending a school, would not deprive mother for seeking the custody or her appointment as guardian of the minor girl—Mother of minor, in view of the age, sex and personal law of minor, was most befitting and proper person to look. after and bring up the minor—Love and affection which a mother could provide to her minor daughter, could not be provided by a father, even though he might be a very rich person—Father of minor, who had meagre source of income, had not levelled any allegation of corruption or bad character against mother of minor, which could be made basis for refusal to appoint her as guardian of the minor girl—Impugned decision of the Family Court did not suffer from any legal defect, nor otherwise was infirm—Such findings of the Family Court were not open to interference in appeal.

2008  CLC  564   SHARIAT-COURT-AZAD-KASHMIR

Syed ABDUL QAYYUM SHAH VS Mst. TANVEER ANDLEEB

1. 5 & Sched.—Suit for dissolution of marriage on ground of ‘Khula’—‘Surah-Al-Baqrah’ verse No.229 of the Holy Quran was the base and origin of legality of ‘Khula’—Limits prescribed by Almighty Allah in said verse, would mean the direction to lead a happy life—Before dissolving the marriage on ground of ‘Khula’, the court must satisfy its conscience that every apprehension existed that spouses would not lead a happy life within the limits ordained by Almighty Allah and that wife wanted separation from her husband and she had to pay the consideration—If all such conditions were fulfilled, then no option was left for the court, except to annul the marriage and grant ‘Khula’ in favour of the wife.

2008  CLC  564   SHARIAT-COURT-AZAD-KASHMIR

Syed ABDUL QAYYUM SHAH VS Mst. TANVEER ANDLEEB

1. 5, Sched. & S.14—Suit for dissolution of marriage by wife against her husband on ground of cruelty, mental torture, non-payment of maintenance allowance and on ground of ‘Khula’, was decreed by the Family Court, whereas suit for restitution of conjugal right filed by husband against wife was dismissed—Validity—Contention of wife was that she was ousted from the house of her husband in March, 2004 and thereafter defendant did not provide her maintenance allowance—Suit having been filed on 3rd February 2005, the ground for decree of dissolution of marriage for non-providing of maintenance allowance for a period of two years was not available to her—Wife had also failed to prove, the factum of cruelty by convincing evidence; however, evidence on record had proved that spouses could not live together within the prescribed limits ordained by Almighty Allah and their relations were strained beyond repair—Wife had developed aversion and hatred against her husband and in no circumstances she was willing to live with him, in such state of affairs, it was better to annul the hateful union rather to compel wife to go back to her husband to lead an unhappy life—Husband had failed to prove as to whether he had given any jewelry, gift or other things to, his plaintiff wife—Family Court fixed the consideration of ‘Khula’, the dower received by plaintiff wife at the time of marriage ceremony—Impugned decision, did not suffer from any glaring defect or legal, infirmity and the dower money was an appropriate consideration for grant of ‘Khula’—Appeal was dismissed, in circumstances.

2008  CLC  322   SHARIAT-COURT-AZAD-KASHMIR

Mst. ZUBAIDA KHANUM VS JAHANZEB KHAN

2007  CLC  972   SHARIAT-COURT-AZAD-KASHMIR

Mst. YASMIN AKHTAR VS ABDUL MATEEN ZAHID

—S.5 & Sched.—Azad Jammu and Kashmir Shariat Courts Ordinance, 1982, Ss.6 & 11—Civil Procedure Code (V of 1908), O.XX, R.5—Suit for dissolution of marriage, recovery of dower and dowry and restitution of conjugal rights—Appeal to Shariat Court–