P L D 2011 Lahore 225 (PLP)

SAGHEER AHMED QADRI, J.--Petitioner Mst. Humaira Noreen daughter of Muhammad Ghaffar (hereinafter called 'plaintiff) filed a suit before the learned Judge Family Court mentioning the facts that her date of birth was 1-1-1989 whereas respondent No.3 Ali Akbar son of Ali Bahadar (hereinafter called defendant) was born in the year 1938; that out of the first wedlock between Mst. Ruqiya Begum and the defendant he had got four sons and one daughter; that the defendant divorced his first wife in November, 2007; that subsequently defendant demanded the hand of the plaintiff through her maternal uncle but due to his old age and other factors her father showed some hesitation, however, the defendant assured that he would keep the plaintiff in a better manner; that he would never desert nor divorce her; that in case of Nikah with him, he would provide the plaintiff a house, an Alto Car, gold ornaments and in case of desertion would pay maintenance allowance of Rs.15,000 per month; he would also pay Rs.10,00,000 and half of the portion of his landed property in case of divorce; that on 20-2-2008 the defendant executed an Iqrarama wherein all the above mentioned conditions were recorded; that subsequently on 29-2-2008 the plaintiff's Nikah was performed with the defendant and the above mentioned undertaking by the defendant was read over to her at the time of performance of the Nikah; that the defendant provided gold ornaments, Alto Car as well as Rs. 250 as Haq Mehr to the plaintiff; the possession of the house was also delivered to her; that at the time of Nikah, Iqrarnama above mentioned, although was submitted to the Nikah Registrar but he did not enter its contents in the Nikahnama as according to him it was recorded in detail and there was no space available on Nikahnama for recording these details; that subsequently the plaintiff started residing with the defendant, however, on 25-6-2009 the plaintiff went to her parents' house along with the defendant; the defendant however on that evening left the plaintiff in her parents house, and subsequently informed that he had divorced her.

2. The plaintiff in view of the Iqrarnama/undertaking given by the defendant, claimed that she had become owner ' of the house, car and half of the landed property owned by the defendant. She through this suit sought the issuance of decree for a declaration to the effect that she was entitled to retain the custody of the car as well as for the recovery of possession of 13-Kanals and 14-1/2 Marlas of land, the detail of which is given in the prayer clause. She also sought decree for recovery of gold ornaments and Rs.10,00,000 as agreed between the parties vide Iqrarnama undertaking. She further sought the relief that till the final disposal of the suit the defendant be restrained from claiming his ownership in respect of the property as well as the articles mentioned in the plaint.

3. Written statement was filed by the defendant wherein he raised five preliminary objections about the maintainability of the suit on the ground of non-joinder of necessary parties, no locus standi to file the suit and deficient in court-fee. On factual side, the defendant although did not deny the Nikah with the plaintiff however, he agitated that he did not execute the Iqrarnama/undertaking prior to Nikah, however he stated that it was got forcibly executed by the' plaintiff subsequent to the divorce. It was further agitated that the plaintiff received all the Jahaiz articles and got Talaq from him; that with the assistance of her relatives she got forcible possession of the house as well as the car; that he had already paid whole of the dower to the plaintiff and divorced her. Prayed that the suit be dismissed.

4. The learned trial Court/Judge Family Court on the basis of objections raised by the defendant framed the following preliminary issue to ascertain the maintainability of the suit in the Court of Judge Family Court:-- Whether the instant suit is maintainable in Family Court ? OPP

5. After hearing the arguments from both sides, the learned trial Court vide impugned order dated 21-10-2009 decided the issue that as there was no mention about the Iqrarnama in any of the columns of the Nikahnama, therefore, the claim of the plaintiff could not be entertained by the Judge Family Court. It being a civil liability, therefore, in view of the valuation of the snit the plaintiff is liable to pay the court fee of Rs.15,000 on or before 28-10-2009 , otherwise the plaint shall be rejected under Order VII, Rule 11, C.P.C.

6. Feeling aggrieved the plaintiff preferred an appeal against the order dated 28-10-2009 which was heard and decided by the learned Addl. District Judge, who vide order dated 12-12-2009 while setting aside the impugned order remanded the matter to the learned trial Court to examine the parties under Order X, Rule 2, C.P.C. to narrow down the controversy and further proceed in accordance with law. Feeling dissatisfied the plaintiff has preferred this writ petition.

7. Learned counsel for the petitioner-plaintiff argued that admittedly the plaintiff was married with defendant-respondent No.3 vide Nikahnama dated 29-2-2008. He argued that in view of the peculiar circumstances of this case especially the age difference between the plaintiff and defendant as some reservations were shown by the plaintiffs father, therefore, the defendant executed the, Iqrarnama dated 20-2-2008 wherein he undertook to provide the house, Alto Car, gold ornaments as well as further undertook to provide maintenance allowance and half of the landed property in case of divorce. Learned counsel further argued that all these claims which the plaintiff sought to be redressed through filing of suit before the learned Judge Family Court clearly fall under the Schedule Part-I provided under section 5 annexed with the Family Court Act, 1964; that jurisdiction in these circumstances under section 5 of the Family Courts Act, 1964 to dispose of these controversies lies with the Judge Family Court. Learned counsel argued that non-mentioning of all these conditions in the Nikahnama does not make any difference because it is a question of evidence to be led by both the sides to prove or disprove the claim; that the defendant in his written statement did not deny the execution of Iqrarnama dated 20-2-2008, however, he agitated that it was forcibly got executed by the plaintiff; that in these circumstances the suit clearly was triable by the Judge Family Court; that the learned Judge Family Court while disposing of issue No. 1 did not record any evidence and only on hearing the arguments decided issue No.1 while the, learned appellate Court did not advert to these aspects and only remanded the matter to proceed under Order X, Rule 2, C.P.C. to narrow down the controversy; that both the judgments passed by both the Courts below are illegal and non-exercise of jurisdiction vested on them. While relying on Syed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840; Mst. Zubaida Bibi and others v. Mst. Majidan and another (1994 SCMR 1978); Mst. Mumtaz Bibi alias, Taj Khatoon v. Saifullah and 3 others 2004 YLR 700; Mst. Jameela Begum v. Addl: District Judge and 3 others 2005 MLD 376(Lahore); Karachi Metropolitan Corporation , Karachi and another v. Raheel Ghayas and 3 others ( PLD 2002 Supreme Court 446); Mst. Mussarat Bibi v. Shah Muhammad and another 2005 MLD 706; Asia v. Abdul Rehman and another (1994 CLC 1388 (Lahore); Sifat Aizdi v: Dr. Saima Bashir PLD 2008 Peshawar 111; Mst. Ghulam Shaheena v. Judge Family Court (2010 CLC 87(Lahore); Mst Ghulam Sakeena v. Judge Family Court 2010 CLC 87 and Liaquat Ali v. Additional District Judge, Narowal, and others 1997 SCMR 1122 and prayed that this writ petition be allowed.

8. Learned counsel for the defendant on the other hand opposed these arguments on the grounds that if the nikahnama dated 29-2-2008 is seen in its Columns Nos.13 to 20 there was no mention about any Iqrarnama whatsoever nor any specific condition was recorded; that nikahnama is the basic document to create any right and liability between husband and wife; that the learned trial Court rightly keeping in view the circumstances decided Issue No.1 against the plaintiff and directed her to pay a court-fee of Rs.15,000 as it was a civil liability as the plaintiff was seeking declaration about ownership of property, recovery of different articles as well as landed property. Prayed that this writ petition be dismissed.

9. I have heard the learned counsel for the parties and perused the record.

10. The plaintiff filed the instant suit before the Judge Family Court, Gujar Khan while mentioning the facts which have already been narrated in the earlier part of this judgment. She claimed that due to age difference between herself and the defendant in order to secure her future her father showed some reservations and the defendant executed Iqrarnama dated 20-2-2008. If the written statement filed by the defendant is seen he has not denied the execution of this Document. He replied in Para No. 5 of the plaint as under:--

11. If Iqrarnama dated 20-2-2008 is seen allegedly the defendant undertook to provide a car, a house, gold ornaments, etc as prompt dower to the plaintiff. He further undertook to provide maintenance allowance @ Rs. 15,000 per month in case of desertion and in case of divorce half of the property as well as Rs.10 lac.

12. Jurisdiction of Family Courts has been determined under section 5 of the -West Pakistan Family Courts Act, 1964, which reads as under: -- "(5) Jurisdiction

[(1)] Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part-I of the Schedule."' (2) . (3) .. If the Part-I of the Schedule under section 5 ibid is seen it provides:-- (1) .. (2) Dower, (3) Maintenance, (4) . (5) .. (6) . (7) .. (8) Dowry (9) .

13. According to the Schedule as mentioned above, the matters relating to dower, maintenance allowance, dowry as well as the personal property and belongings of wife falls within the jurisdiction of Judge Family Courts constituted under Family Courts Act, 1964. If the assertions made by the plaintiff are evaluated she in her suit claimed the maintenance allowance, dower, property allegedly mentioned in Iqrarnama dated 20-2-2008. No doubt none of these conditions are mentioned in the nikahnama, but when the defendant himself admits the execution of Iqrarnama although under certain compulsions, even subsequent to the divorce, but it is a question of fact which is to be proved or disproved by the parties through the evidence.

14. In view of the circumstances both the courts below i.e. respondents Nos. 1 and 2 did not exercise the jurisdiction vested in them in accordance with law, rather it is a complete non-exercise of jurisdiction vested in both the Courts below. Hence while allowing this writ petition both the orders passed by the learned trial Court dated 21-10-2009 and that of the learned appellate Court dated 12-12-2009 are hereby set aside. The matter is remanded to the learned trial Court to frame necessary issues out of pleadings of the parties including the issue of jurisdiction and dispose of the same after recording of evidence from both sides in accordance with law. No order as to the costs. A.R.K./H-5/L Case remanded.