P L D 2007 Lahore 515 (PLP)

MIAN SAQIB NISAR, J.

The petitioner and respondent No.1 were married and it is mentioned in Column No.17 of the Nikahnama that in case of sour relation between the spouses or divorce by the petitioner, a sum of Rs.1,00,000 shall be paid to respondent No.1. Respondent No.1 filed a suit for the dissolution of marriage, which was decreed, whereafter she brought the present suit for the recovery of the amount of Rs.1,00,000, which has been dismissed by the learned Family Court vide judgment and decree dated 22-3-2006 holding that her suit was not maintainable before the Family Court; she was liable to file ordinary civil suit for the recovery of the said amount. Aggrieved of the above, respondent No.1 preferred an appeal, which has been accepted by the learned Additional District Judge, who is of the view that the suit of respondent No.1 is competent and the matter falls within the purview of Entry No.9 of the schedule to section 5 of the Family Courts Act, 1964. It is also stated that as the divorce has taken place between the parties, but for whatever reasons, the petitioner became liable to pay the amount because of the condition in Column No.17 of the Nikahnama.

2. Heard. As regards the question, whether the suit is competent before the Family Court, it is the case of respondent No.1, and also held by the learned Additional District Judge that the matter falls within the Entry No.9 of the Schedule to section 5, i.e. "personal property and belonging of the wife". I feel amazed to note as to how the amount of Rs.1,00,000 allegedly payable by the petitioner on account of the divorce or bad relations between the parties, is the 'personal property or belonging of respondent No.1, so as' to bring the case within the jurisdiction of the Family Court. Such personal property or belonging referred to in Entry No.9, in my considered view, is a residuary provision, which enables the wife to recover through the process of the Family Courts Act, 1964, whatever property she has acquired during the subsistence of the marriage, which is not the part of her dowry, through her own independent means or even through the means provided by the husband, such as her clothes, ornaments and items of personal use and nature, this may also include anything which has been gifted to the wife by the husband or any of his or her relatives or the friends; such property and belonging may be the one acquired by the wife out of the money given to her by the husband, her saving from household allowance, or pocket money, from the money provided by her parents and relatives. But definitely the aforesaid entry does not cover any amount which is not yet the property of the wife and she only has a claim to recover from the husband on the basis of any special condition incorporated in the Nikahnama. I am not convinced by the argument that the amount in question is covered under the rules of actionable claims as envisaged by section 130 of the Transfer of Property Act, 1882. The term "actionable claim" in general means, a claim for which an action will lie, furnishing a legal ground for an action and according to section 3 o f the Transfer of Property Act, a claim towards a debt. On account of both the means such claim cannot be equated as a "personal property and belonging of the wife." Resultantly, in my considered view, the family Court has no jurisdiction in the matter and the suit in this behalf before the said Court was not competent.

3. As regards the question, whether the amount of Rs.1,00,000 can be recovered by respondent No.1, I do not want to dilate upon this aspect of the matter, because it may not cause prejudice to the case of either party, when the determination of the issue is sought from the proper forum. In the light of above, the judgment and decree of the learned Court of appeal is without jurisdiction, which cannot be sustained and is hereby set aside. The writ petition is accordingly allowed. M.B.A./M-223/L Petition allowed.