2015 PLP 808 (CLC)

SHEZADA MAZHAR, J.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a suit for recovery of golden ornaments weighing 6-Tolas, 11-Masha and 6-Ratti or its price, filed by petitioner which was decreed by the learned Judge Family Court, Shakargarh vide judgment and decree dated 4-4-2009. Feeling aggrieved from the said judgment and decree, respondent No.1 filed an appeal against the above said judgment and decree dated 4-4-2009. The appeal of respondent No.1 was allowed by the learned Additional District Judge, Shakargarh vide impugned judgment and decree dated 6-7-2009 and judgment and decree of learned Judge Family Court was set-aside and plaint was returned to the learned counsel for the appellant for presenting the same before the proper forum i.e. Civil Court. The said impugned judgment and decree dated 6-7-2009 has been called in question by the petitioner through the present writ petition.

2. Learned counsel for the petitioner submits that the judgment passed by the learned Additional District Judge, Shakargarh is illegal, unlawful and without jurisdiction; that the golden ornaments mentioned in the Nikahnama, were dower, which falls within the schedule of Family Law and only the Family Court has the jurisdiction to decide the matter which was accordingly decided by the Family Court; that in case of divorce on the basis of Khula, the wife has to return the dower, which is admittedly in custody of respondent No.1, so, the judgment and decree passed by the learned Judge Family Court, Shakargarh was quite in accordance with law and does not amount to be reversed by the learned first appellate court; that the learned first appellate court has ignored the facts of the case as well as evidence available on record, hence the impugned judgment and decree is absolutely illegal and liable to be set-aside. In support of his contention, learned counsel for the petitioner relied upon "Mst. Ishrat Bano v. Noor Hussain and 2 others" (2010 YLR 2452) and "Samina Akhtar v. Irfan Farooq and 2 others" (PLD 2011 Lahore 593).

3. None entered appearance on behalf of the respondents despite repeated calls, hence, the respondents are proceeded against ex parte.

4. I have heard the learned counsel for the petitioner and have also gone through the record.

5. Petitioner filed a suit for the recovery of gold ornaments detailed above, before the learned Judge Family Court. According to the plaint, the gold ornaments were given to the respondent No.1 at the time of marriage between the parties. These gold ornaments are duly mentioned in the column No.15 of the Nikhanama which deals with the dower. It is observed from the record that respondent No.1 had already obtained Khula from the petitioner and under the law, she was required to return the dower but she failed to return the same, therefore, petitioner filed the suit for the recovery of gold ornaments. The suit was decreed by the learned Judge Family Court but on appeal by the respondent No.1, the impugned judgment was passed on the assumption that learned Judge Family Court had no jurisdiction to adjudicate upon a suit filed by husband for the recovery of gold ornaments.

6. Family Court had the jurisdiction to adjudicate upon all the matters mentioned in Schedule to the Act and section 5 of the West Pakistan Family Courts Act 1964 (Act of 1964). Section 5 and the Schedule to the Act of 1964, is reproduced hereunder for ready reference:

"

5. Jurisdiction.

[(I)] Subject to 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) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committed by the other... "

7. The Schedule as referred in section 5 of the Act of 1964 contains the following:

"SCHEDULE (See Section 5) ["Part I"] (1) Dissolution of marriage [including Khula] (2) Dower. (3) Maintenance. (4) Restitution of Conjugal rights. (5) Custody of children [and the visitation rights of parents to meet them"] (6) Guardianship. (7) Jactitation of marriage. (8) Dowry. (9) Personal property and belonging of a wife. PART II Offences and aid and abetment thereof under sections 337A(i), 337F(i), 341, 342, 343, 344, 345, 346, 352 and 509 of the Pakistan Penal Code (Act XLV of 1860)".]"

8. From the above, it is clear that all matters which fall under the Schedule can be adjudicated upon by the Family Court including the dower. Nowhere it is in the Act of 1964 that only claim of dower filed by the wife can be entertained by the Family Court. All issues which arises between the parties to a marriage and which dispute is related to any entry of the Schedule, can be adjudicated upon by the Family Court in view of section 5 read with the Schedule. In this regard reference is made to the judgment of Hon'ble Supreme Court i.e. "Major Muhammad Khalid Karim v. Mst. Saadia Yaqoob and others" (PLD 2012 SC 66) wherein it has been held that:

"

11. Be that as it may, from the ratio of all the law cited above, the legal position, which emerge is as under:

(a) Under section 5 of the Act, 1964, the Family Court has the exclusive jurisdiction to entertain, hear and adjudicate (emphasis supplied) all the matters which fall within the first schedule to the Act; this admittedly includes the custody and guardianship matter." This Court also in "Samina Akhtar v. Irfan Farooq and 2 others" (PLD 2011 Lahore 593) held that:

"

8. Under section 5 of the West Pakistan Family Courts Act, 1964, "the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule" wherein "Dower" is specified at Serial No.2. In other words, a Family Court has the exclusive jurisdiction to adjudicate upon any matter relating to or involving dower. In the context of Section 5 of the West Pakistan Family Courts Act, 1964, read with Serial No.2 of the Schedule, there is no reason to limit the scope of dower to a wife's suit for the recovery of dower. There is also no other provision in the Act to suggest that as regards dower no suit except a suit for its recovery can be filed. This means that the door is wide open for any other suit provided it relates to dower as can be said about respondent No.1 's suit whereby he sought a declaration that the dower mentioned in the Nikahnama, being false and fictitious, was not liable to be paid."

9. The Division Bench of this Court in "Muhammad Yousaf and another v. Nighat Fayyaz" (1985 CLC 2609 Lhr) held that:

"There was considerable force in the contention raised on behalf of the respondent-lady. Section 14 ibid is more than clear in overriding all other laws on the point. Admittedly, the Family Court was presided over by a Civil Judge and whatever the amount of dower, the decree shall be appealable only before the District Judge. The contention that section 18 of the West Pakistan Civil Courts Ordinance, 1962, applied to this case was based upon a sheer misconception. All other laws including the said Ordinance were overridden by section 14 of the Family Courts Act, 1964, and hence there was no occasion whatsoever to treat it a decree of an ordinary Civil Court. For material disputes including dower, the jurisdiction exclusively lay with Family Courts created under the special statute whose provisions will obviously prevail against all other laws. According to Section 14 referred to above, the amount of dower has no relevance as it could be allowed by a Presiding Officer who may otherwise be a Civil Judge IIIrd Class, but once he is notified as a Family Court his pecuniary limits on the civil side will be totally irrelevant and likewise the amount decreed will have no place in determining the forum of appeal. Conversely speaking, what would determine the forum of appeal would be the status of the Officer presiding over the Family Court, namely, either the District Judge or as the case may be a Civil Judge. In the case of the latter, however, the appeal will lie before the District Court without keeping in mind the quantum of dower amount. We do not have jurisdiction to entertain this appeal. It be returned."

10. In the case in hand although petitioner's suit is for the recovery of the gold ornaments but the said gold ornaments were given to the respondent No.1 as part of the dower amount and this fact is clearly mentioned in the Nikahnama. Further, where the respondent No.1's suit was decreed by the learned Judge Family Court, she was required to return the same under section 10(4) of the Act of 1964. Proviso to section 10 (4) of the Family Court Act, 1964, reads as under:

"["Provided that notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.] "

11. Wife is under legal duty to restore to the husband whatever she had received on account of Haq Mehr. It is mentioned in the plaint filed by the petitioner that respondent No.1 filed a suit for dissolution of marriage which was decreed in her favour. Therefore, under the law she was required to return the Haq Mehr which she had received at the time of Nikah. It is also alleged by the petitioner that she had not returned, therefore, the suit was rightly filed before the learned Judge Family Court for the return of dower and was rightly adjudicated upon by the learned Judge Family Court.

12. Learned Additional District Judge was wrong to hold that the husband cannot file suit for the return of gold ornaments before Family Court. Therefore the present writ petition is allowed and the impugned judgment and decree dated 6-7-2009 passed by the learned Additional District Judge, Shakargarh is hereby set aside.

13. The appeal filed by the petitioner shall deemed to be pending before the learned District Judge, Narowal who shall either himself or through any other Additional District Judge, Shakargarh, decide the appeal on merits after service of the respondent No.1 within a period of two months from the date of receipt of certified copy of this judgment. I would like to appreciate the efforts made by Mr. Mohsin Mumtaz, Research Officer, this Court for rendering valuable assistance in thrashing out relevant law. AG/B-28/L Petition allowed.