2006 PLP 998 (MLD)

SYED MANZOOR HUSSAIN GILLANI, J.

The above captioned appeals are filed against the even dated orders dated 14-3-2004 passed by a learned Single Judge of the Shariat Court at Mirpur between the same parties but in two separate cases. One of the cases related to the recovery of the dower amount while the other related to the maintenance. Both were decided by the learned Judge Family Court, Mirpur on 30-10-2004. The learned Judge Family Court allowed a decree for dower for a sum of rupees five lac in favour of Safina Sultan against Muhammad Tanveer, while the application filed for maintenance by Nadia Sultan against. Muhammad Shabbir was dismissed for want of jurisdiction. The learned Judge of the Shariat Court set aside the decree passed for dower on the ground that the attorney who had filed the suit did not have the power to file suit for recovery of the dower amount. Appeal for maintenance was dismissed by upholding the order passed by the Judge Family Court.

2. We have heard the learned Advocates for the parties and have gone through the judgments of the Courts below besides pleadings of the parties in the trial Court.

3. Safina Sultan and Nadia Sultan are real sisters who are married to Muhammad Tanveer and Muhammad Shabbir respectively, who are also real brothers. Their relations became strained which ultimately led them to the dissolution of marriage and the present litigation.

4. The decree passed for recovery of the dower amount by the Judge Family Court was set aside by the learned Judge of the Shariat Court on the ground that attorney of Nadia and Safina before the trial Court, who was their father, was authorized to file the suit only in relation to the matters specified in the power of attorney executed in his favour on 17-6-1999 under which the attorney could institute legal actions only with respect to Item No. 12 of the marriage certificate, i.e. Nikahnama. Item No.12 of the Nikahnama relates to the dowry and other matters, not the dower which is Column No.4 of the marriage certificate/Nikahnama. Hence, the suit filed for recovery of dower amount by attorney was held without authority and the decree passed therein was set aside.

5. As far as the other suit filed for maintenance is concerned, the learned Judge of the Shariat Court concurred with the finding of the Judge Family Court that the suit is triable by the Court within the local limits of which cause of action has arisen or where the parties reside. The cause of action has arisen in England where the parties are residing, therefore, the Courts in Mirpur have no jurisdiction.

6. We have hardly any reason to differ with the finding recorded by the learned Judge of the Shariat Court that the power of attorney executed by Nadia Sultan and Safina Sultan in favour of their father Muhammad Sultan on 17-6-1999 authorises the attorney to act on their behalf in all legal matters or proceedings in connection with para. 12 of the marriage certificate. All the contents of power of attorney revolve around para. 12 of the marriage certificate i.e. Nikahnama. Para. 12 of the Nikahnama/marriage certificate relates to different eventualities and not dower which is specified in Column No.4.

7. Apart from that we have perused Column No.4 of the Nikahnama which does not reveal that the amount of dower was fixed as rupees five lac, however it reveals that rupees fifteen hundred have been paid and rupees five lac are deferred or are still payable. Irrespective of the fact whether rupees five lac and fifteen hundred were in fact fixed as dower or not, the fact of the matter is that the attorney is authorized to file claims in relation to Item No.12 of the Nikahanam only not for the recovery of the dower amount. This amount, of course, is a right of the wife which she can claim at any time and is not defeated by any omission or commission of the attorney who was not at all authorized to claim the amount under power of attorney. In case this amount is proved in any other competent legal proceeding, the present judgment would not debar the appellant from claiming the amount. However, we find no fault with the judgment recorded by the Shariat Court.

8. As far as the other appeal is concerned, the order passed therein is equally in accordance with law as, under rule 4 of the Family Court Procedure Rules, 1998 only that Family Court has jurisdiction to try the suit in whose jurisdiction cause of action wholly or partly has arisen or where the parties reside together. The only exception in the cases of dissolution of marriage and dower is that where the Court within the local limits of which the wife ordinarily resides, shall have the jurisdiction. In the case in hand it is admitted by the parties that they are living in England and cause of action has also arisen there. Hence, the Court of the area where the parties reside, has the jurisdiction in the matter not the Court at Mirpur, where claim for maintenance is preferred. Hence, we find no fault with this order as well.

9. In view of the above finding no fault with the impugned judgments, the appeals are hereby dismissed. However, without any order to the costs in view of the circumstances of the case. H.B.T./8/SC(AJ&K) Appeal dismissed.