2010 PLP 2466 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Briefly stated the facts of this constitutional petition are that marriage between the petitioner and respondent No. 1 was solemnized on 4-12-1999. Respondent No.1 was petitioner's second wife and he was maintaining excellent relations with her but her parents used to pressurize the petitioner to divorce his first wife. The petitioner refused to accept their demand and in retaliation of that, respondent No.1 and her brother took away all the articles from the house of petitioner and filed a suit claiming maintenance allowance and Rs.1,00,000 as fine of alleged ouster from his house. The petitioner filed a suit for restitution of conjugal rights. Both the suits were consolidated. The learned trial Court on 27-1-2005 passed the decree of maintenance allowance @ Rs.600 per month from the date of institution of the suit till the subsistence of marriage in favour of respondent No.1, the suit for the return of dowry articles was dismissed, a decree for recovery of Rs.1,00,000 was passed in terms of column No.18 of the Nikah Nama. A decree for restitution of conjugal rights was also passed in favour of petitioner subject to payment of maintenance allowance.

2. The petitioner filed an appeal against the judgment and decree, dated 27-1-2005 which was dismissed vide judgment and decree dated 4-6-2005. The petitioner has impugned both the judgments and decree of the learned courts below through the present petition.

3. Learned counsel for the petitioner submits that the impugned judgments and decrees are self-contradictory. On one hand a decree for restitution of conjugal rights has been passed but on the other hand a decree for payment of maintenance of respondent No.1 has been passed. When it has been proved that respondent No.1 is not performing the conjugal rights, how she can claim the maintenance. Further submits that learned Family Court has no jurisdiction to pass a decree of alleged fine. Family Court can only by those categories of suit which are mentioned in the schedule of section 5 of Act No.XXXV the Family Courts Act. The suit for recovery of fine was not maintainable before the learned Family Court. It was the civil Court who has jurisdiction to decide such types of suits and as such the decree to the extent of payment of Rs.1,00,000 being fine in terms of Nikah Nama is without jurisdiction.

4. Learned counsel vehemently argued that terms in column Nos. 18 and 19 of Nikahnama were inserted subsequently and were not agreed at the time of Nikah. The petitioner being an illiterate person was not made known at the time of Nikah about these conditions. Alternatively he argued that payment of fine has not been proved through independent evidence as none of the witness of Nikahnama was produced before the court. The respondent was bound to produce the witnesses of Nikahnama for proving the contents of column Nos.18 and 19 of Nikah Nama, especially when the burden of proof of issue No.3 was on the respondent. Learned trial Court has failed to appreciate the fact that respondent No.1 herself has left the house of the petitioner and as such even if it is proved that the entries in column Nos.18 and 19 are true even then the decree cannot be passed. The decree for restitution of conjugal rights negates the assertions of respondent No.1. Lastly he adds that the D.W-2, one of the witnesses of Nikah Nama has categorically deposed that condition of payment of Rs.1,00,000 was not entered in the Nikahnama at the time of Nikah.

5. Learned counsel for the respondent supports the judgment and decree and contends that column Nos. 18 and 19 are the part of Nikahnama which is an admitted document between the parties and as such it is the Family Court alone who can take cognizance in all the terms and conditions of Nikahnama under the Family Courts Act and as such the learned Family Court has rightly passed the decree. He further submits that terms of column Nos.18 and 19 are the continuation of column No.17 and are not independent in nature. The condition of column No.18 is the part of maintenance allowance of respondent which is covered under item No.18 of the schedule of section

5. Lastly he adds that Item No.18 of schedule under section 5 of the Family Courts act covers the terms of column column Nos.18 and 19 of Nikah Nama.

6. Heard. Record perused.

7. The learned Family Court, from the pleadings of parties, framed issue No.3 on this controversy. Nikahnama is Exh.P-1/1 and in column No. 18 and 19 it is mentioned as under:

8. The petitioner admits the Nikah Nama but disputes the condition of column Nos.18 and

19. It is admitted fact that respondent No.1 is the second wife of the petitioner and the age of petitioner has been shown as 30 years and the age of respondent was shown as 20 years. So the conditions mentioned in column Nos. 18 and 19 are usual in these type of marriages. The petitioner was contracting second marriage that too with a girl who is 10 years younger than him. So it is understandable that parents of the respondent have imposed these two conditions before accepting the offer of petitioner of Nikah. The question whether Family Court established under Family Courts Act 1964 has the jurisdiction to decide the case of recovery of amount as fine. As is referred above, the column No.18 clearly provides that amount of Rs.1,00,000 is payable as fine in case the husband ousts the wife from his house without any reason. This agreement shows that amount is a fine payable on happening of an agreed event provided the ouster is without any reason. Hence, it is sort of pre-agreed damages. According to law the payment of damages required evidence and payment of fine is not the subject of Family Court.

9. The argument of learned counsel for respondent that in schedule under section 5 the amount of "HARJANA" is personal property and belonging of a wife. Item No.18 of the schedule 5 of the Act, 1964 no doubt find mention "Personal property and belonging of a wife". The amount mentioned in column No.18 of the Nikah Nama is not a personal belonging of wife. The personal belonging with reference to the Family Courts Act, 1964 include the right to possession, use and enjoy determinable things like dowry, ornaments, gifts and dower. But the personal property referred in column No.18 of the Nikahnama is not a property in possession of the respondent, the right to recover only mature on happening of the incident that husband throw the wife from his house. In the present case a decree for the right mentioned in column No.18 of Nikahnama is a civil right and could be brought to action through civil Court, the Court of plenary jurisdiction, where both the parties will be at liberty to produce evidence and to prove their case. The personal property in my mind is that which is not the part of dower or dowry but the-wife acquired during the subsistence of marriage, even though from the funds provided by the husband. This may include any article or thing which has been gifted to the wife by the husband or any of his relative or the friend, but the amount mentioned in column No.18 is not a personal property or belongings of the wife but she has a right to recover on happening of pre-agreed incident. This is a special condition incorporated in the Nikah Nama keeping in view the circumstances of the parties, as discussed above. Further the petitioner is issueless from his first wife and the parents of respondent may have thought that in case the respondent also fails to give birth of child the petitioner may not go for 3rd marriage. The learned courts below have not considered this legal aspect of the case that entry at No.18 of the schedule under section 5 of the Family Courts Act, 1964 provides only the personal belonging and property of the wife and entry in column No.18 is not the personal property or belonging as defined in entry No.18 of schedule under section 5 of Family Courts Act 1964. Argument of learned counsel that Family Court is a civil court for all purposes and intent, has no force as the Family Court is a court established under section 3 of the Family Courts Act 1964 but its jurisdiction is defined in section 5 of the Family Courts Act, 1964, and there is an exception in I section 5(3) which empowers, the High Court to amend the schedule with the approval of Government. The jurisdiction which the Family court has to perform is judicial and in performing its judicial work it is a civil Court but with limited jurisdiction. The argument of the learned counsel that all civil rights of the parties can be adjudicated upon by the Family Court, is not correct. The agreement in column No.18 of Nikahnama is basically a future agreement between the wife and husband. The performance of which can be asked or claimed by the aggrieved party through a civil suit. In my humble opinion the jurisdiction of Family Court is not extended in future agreements between the parties to the Nikah. The decree passed by the learned courts below to the extent of amount mentioned in column No.18 of Nikahnama is not sustainable in the eye of law and is hereby declared without lawful authority. The writ petition is allowed and suit to the extent of recovery of Rs.1,00,000 is dismissed and appeal for the remaining relief is dismissed. There is no order as to costs. H.B.T./M-282/L????????????????????????????????????????????????????????????????????????????????? Petition allowed.