Suit for recovery of dower

Execution of an agreement by the father of bridegroom as guarantor/surety before marriage for transfer of plot in lieu of dower

Death of bridegroom

Plea of non-maintainability of the suit was taken by the father of bridegroom on the grounds that after the death of bridegroom neither the legal heirs of the bridegroom were impleaded nor the respondent was liable to pay the dower

Validity

There was no need to implead legal heirs as party in the suit other than the respondent because he had not only stood as surety/guarantor of dower/'Nikah-Nama' but also surety/guarantor of agreement and it could not be said that the right of claiming dower of the appellant after the death of her husband did not survive whereas it is a natural phenomenon in our society that most of matters are decided by elder members of family with the consent of their children/youngers and family law is a special law and the provisions of the Qanun-e Shahadat, 1984 are not applied as stricto sensu to the family matters.

Execution of an agreement by the respondent/father of bridegroom as guarantor/surety for transfer of plot in lieu of dower before marriage

Death of bridegroom after marriage

Plea of payment of dower amount at the time of marriage had been taken by the respondent

Family Court decreed the suit on the basis of entries of Nikahnama instead of transfer of plot in lieu of dower

Validity

At the time of 'Nikah' Wakeel of appellant told the Nikahkhwan that whole payment of dower had been paid earlier, however, none of the witnesses produced by the respondent deposed that the dower amount was paid in their presence or at the time of execution of 'Nikahnama'

Before execution of 'Nikah' the intention of the respondent was that plot should be transferred in favour of the appellant in lieu of dower, rather appellant proved her case through reliable evidence to the extent that the dower in lieu of plot was given through agreement, which had not yet been transferred

Although the husband of the appellant had died yet respondent being surety/guarantor of dower as well as agreement was liable to transfer the land as claimed by her, thus, Trial Court misconstrued the matter and failed to appreciate the evidence in its true perspective while passing the impugned judgment and decree, which was a result of misreading and non-reading of evidence

Appeal preferred by the appellant was accepted holding her entitled to receive the plot in lieu of dower or in alternative the market value thereof and the appeal preferred by the respondent was dismissed in circumstances.

Held, that where the relationship of husband and wife is admitted and the execution of Nikah is not denied, then non-production of the marginal witnesses of the Nikah Nama before the Court is not fatal to the suit of the plaintiff / wife

In such circumstances, the execution of Nikah Nama stands proved and the plaintiff's entitlement to dower is established

Even, the copy of Nikah Nama having been produced did not require production of witnesses to prove it (Nikah Nama)

Mere verbal denial of the execution of Nikah Nama in the statement recorded before the Trial Court without supporting evidence carries no legal value

Nikah Nama is a public document, which is registered under Section 5 of the Muslim Family Laws Ordinance, 1961, and as such presumption of truth is attached to it carrying evidentiary value of Article 85 of the Qanun-e-Shahadat, 1984

In the present case, neither the Appellate Court nor the High Court had recorded any findings regarding issue framed by the Trial Court with respect to entitlement of plaintiff to recovery of maintenance allowance, thus, they failed to jurisdiction vested in them

Supreme Court set-aside the impugned order passed by the High Court, and remanded the case back to it (High Court) for decision afresh, after providing the parties an opportunity of hearing

Petition for leave to appeal was converted into an appeal and was allowed accordingly.

Suit was dismissed by Trial Court and Lower Appellate Court but High Court in exercise of Constitutional jurisdiction decreed the suit in favour of respondent

Validity

High Court had identified evidence that had not been read by two Courts below while dismissing suit of respondent

This might well have been enough reason for interference with concurrent findings of two Courts below but having done that, High Court could not have substituted its own findings for those of two Courts below by decreeing suit of respondent

High Court in exercise of its Constitutional jurisdiction could not arrogate to itself the powers of a Family Court and issue decrees

Supreme Court set aside judgment passed by High Court by which it had set aside concurrent judgments passed by Family Court and Lower Appellate Court

Supreme Court remanded the matter to Family Court for a decision afresh on the basis of material on record and observations made by High Court in its judgment

Appeal was allowed.

Wife/petitioner in order to establish her claim produced one of the marginal witness alongwith scribe of the Kabin Nama leaving out other marginal witness

Plea of non-fulfilment of requirement of Arts. 17 and 79 of the Qanun-e-Shahadat, 1984, (Order) had been taken by the respondents

Family as well as Appellate Court dismissed the suit and appeal of the petitioner concurrently on this score

Validity

Both the courts below ignored that in view of S. 17 of the Family Courts Act, 1964, the applicability of C.P.C. and Qanun-e-Shahadat, 1984, to the proceedings before the Family Courts had been excluded

Statement of the 'scribe' could be considered to be a statement of marginal witness in the circumstances when he appeared before the concerned court and deposed that the deed/agreement was scribed by him and thumb impressions and signatures were put by the parties

Person, who writes a document, is as good a witness as anybody else, if he has signed the document as a witness

Petitioner in order to prove the execution of dower deed produced the 'scribe' of the said dower deed as a witness, who while appearing in the court admitted the execution of the dower deed and categorically stated that it was signed by the executant and the marginal witnesses, which statement was supported by attesting witness of the dower deed, who also verified his thumb impression over the same, thus, the statement of the scribe could be termed to be a statement of marginal witness

Constitution petition was allowed, in circumstances.

Agreement qua dower between the parties, had been held valid and enforceable by the (Appellate/ District) Court, declaring plaintiff/lady entitled for dower amount of Rs.4,000,000/- as specified in said agreement

Petitioner (ex-husband/ defendant) assailed the decree against him

Held, that though a stringent condition cannot be imposed to keep the parties in marriage bond, however, in the present case, perusal of the (exhibited) agreement-in-question showed that the petitioner agreed to pay Rs.4,000,000/- as dower in case of divorce

Said stipulation in the agreement (in-question) was not stringent condition imposed to keep the parties in marriage bond rather it was enhancement of the dower amount by the husband, which is not only permissible but also executable

Under Para. 287 of the "Principles of Mahomedan Law" by DF Mulla, the dower may be fixed either before or at the time of marriage or after marriage and can also be increased after marriage

Dower once settled can always be increased by the husband or by an agreement between the parties

It is well-settled that under Hanfi Law a husband is entitled to fix any amount of dower either at the time of marriage or even subsequently and also provide for mode of its payment

Section 26 of the Contract Act, 1872, does not cover documents creating partial or indirect restraints on marriage, in the sense that it does not restrict marriage though it may adversely make one liable to do something or pay some amount, in lieu of marriage

Thus, an agreement to pay a woman a specified amount, in case of divorce or remarriage, is not in restraint of marriage and cannot be considered, as void, being violative of the provisions of S. 26 of the Contract Act, 1872

No illegality or infirmity was noticed in the impugned judgment and decree passed by the District Court for interference

Constitutional petition, filed by defendant (ex-husband), was dismissed, in circumstances.

Agreement, qua dower between the parties, had been held valid and enforceable by the (Appellate/District) Court ,declaring plaintiff/lady entitled for the dower amount as specified in said agreement

Petitioner (ex-husband/defendant) assailed the decree

Validity

No doubt under S. 17 of the Family Courts Act, 1964 (Act), the Qanun-e-Shahadat, 1984 (QSO) and the Civil Procedure Code, 1908, (C.P.C.) are not applicable in family matters, however, as the respondent (plaintiff/lady) was the beneficiary of agreement-in-question, initially the burden of proof was on her to prove the execution of the agreement

In said behalf, respondent (plaintiff/lady) appeared as her own witness and besides producing (exhibiting) the agreement ,she also repeated the contents of the agreement in her (duly exhibited) affidavit; during the cross-examination, not only she remained consistent but was not specifically cross-examined about whether the agreement was executed in her favour or not or whether it was a forged document or was stolen by her

Respondent (plaintiff/lady) also produced two marginal witnesses of the agreement who, while appearing as witnesses, supported the claim of respondent (plaintiff/ lady)

Petitioner/defendant, while appearing as a witness, admitted that he purchased a stamp-paper, but claimed that same had been stolen and used against him subsequently, however, during cross-examination he categorically admitted that the stamp-paper of agreement was issued by him and signatures on front side as well as backside thereof were also made by him

Further, on backside of the agreement it was specifically recorded that this was for an agreement between the petitioner and respondent (parties) and petitioner's signature and his CNIC number were also mentioned there

No doubt, the scribe and the vendor of exhibited agreement were not examined but their absence actually went against the petitioner, who had to prove that the stamp-paper was issued for renewal of the license of medical store and not for agreement between the parties

Moreover, the petitioner never sought cancellation of the stamp-paper or got FIR lodged or got rapat diarised if at all his stamp-paper was stolen, as claimed by him

Oral and documentary evidence proved beyond doubt that the agreement was lawfully executed between the parties

No illegality or infirmity was noticed in the impugned judgment and decree passed by the District Court for interference

Constitutional petition, filed by defendant (ex-husband), was dismissed, in circumstances.

Suit instituted by the wife/respondent against the successors of her husband/petitioners was decreed, but the appeal preferred by the petitioners was dismissed

Validity

Presumption of truth attached to the Nikahnama, being a pubic document, was rebuttable, as respondent failed to prove that her Nikahnama with predecessor-in-interest of the petitioners was a genuine document

First and fourth copies of Nikahnama were never produced and admittedly the copy of Nikahnama with the respondent, containing the date of registration after the death of husband of the respondent, was brought on record, which implied that the Nikahnama brought on record by the respondent was never registered in accordance with law, hence, the presumption of truth was not attached to the same, therefore, the petitioners were not obligated to dislodge the presumption of truth attached to the Nikahnama

Obligation of a husband to pay the dower is applicable in cases where the registered Nikahnama carrying presumption of truth is brought on record, however, it was not helpful to the respondent, on account of distinguishable facts

Constitutional petition was allowed, in circumstances.

Suit for recovery of dower can validly be filed against father-in-law.

Agency may be created expressly i.e. in writing or through implication; it can even be inferred from the circumstances of the case, from things spoken or written or on the basis of ordinarily course of dealings

By creating agency, the principal confers certain authorities to agent and agent owes certain liabilities in exchange towards principal

Agency remains intact unless rescinded or some act of agent renders him incapable of continuing his authority

Normally agent is not held responsible for enforcement of contract entered by him on behalf of the principal

However, under Islamic law a departure to the general rule in case pertaining to the marriage has been made, particularly, where father had acted as a wakeel of his son/bridegroom

In absence of tangibly expressed repudiation of such authority the agent/wakeel cannot get rid of the liabilities imposed upon him being wakeel/father of bridegroom.

Plaintiff claimed deferred dower by filing a suit against her father-in-law (defendant) as he had acted as a wakeel of her late husband

Validity

Defendant was a party to the Nikahnama and his name was clearly mentioned in column No. 9 as the 'wakeel of the bridegroom'

Nikahnama also bore his thumb impression

Undeniably, it was primarily duty and obligation of the husband to pay dower to his wife

However, there was no bar or prohibition on another person binding himself as a surety by putting his signature on the Nikahnama, ensuring the payment

Such a surety cannot wriggle out from this legal obligation when a suit for the recovery of dower is brought against him by the wife

Subordinate courts had rightly decreed the suit

Constitutional petition was dismissed.

Family Court under Section 5 of the Family Court Act, 1964 had exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the said Act and there was no barring provision that while claiming dower from the husband, only bridegroom/husband can be impleaded in the suit for recovery of dower and none else

If another person has stood surety or has guaranteed the payment of dower, he/she can lawfully be impleaded in the suit

Surety and guarantor to the dower are as much party and liable to pay dower as the bridegroom himself.

Trial Court decreed the suit whereas Appellate Court dismissed the suit to the extent of dower and decreed the same to the extent of maintenance allowance

Validity

Jirga proceedings were the bone of contention between the parties

Petitioner had alleged that no gold ornaments in lieu of dower were given to her while, on the contrary, respondent had claimed that all issues were settled in the jirga

One of the attesting witnesses of jirga proceedings had supported the petitioner by stating that no ornaments were given to the petitioner pursuant to the jirga proceedings rather only an amount of Rs. 1 lac had been paid to her

Respondent was required to prove the contents of affidavit signed during jira proceedings by producing at least two marginal witnesses of the document but no such efforts were made

Settlement through the intervention of members of the locality was not approved by any court of law, therefore, it could not be said that the petitioner was bound by its terms and conditions as a force of law nor she was compelled to do so

Constitutional petition was allowed, judgment and decree passed by Appellate Court was set aside and that of Trial Court was restored, in circumstances.

Plaintiff, after being divorced, filed suit for recovery of deferred dower and maintenance allowance for the period of iddat

Contention of defendant was that the plaintiff never allowed him to consummate the marriage, hence, she was not entitled to the amount of dower

Courts below concurrently decreed the suits

Validity

Command of the Holy Quran was that in case of consummation of marriage the wife became entitled for full amount of dower, whereas, in case of non-consummation of marriage the wife was entitled to receive half dower

Consummation of marriage occurred when the couple spent some time after the marriage in seclusion and/or privacy

Intercourse was not necessary for consummation of marriage from Islamic point of view

Perusal of evidence brought on record revealed that after marriage rukhsati had taken place and the plaintiff had resided in the house of defendant for 7/8 months

Not a single question was put to her in cross-examination regarding non-performance of marital obligations during the period of marriage

Defendant had admitted that the plaintiff had returned to her parent's house after 3/4 days

In the given circumstances, Khalwat-i-Sahiha was sufficiently proved from the record, hence, the plaintiff was entitled for recovery of full amount of dower

Appeal was dismissed.

Petitioner (husband) assailed judgments and decrees passed by courts below whereby respondent's (wife's) claim for recovery of dower amount was decreed

Contention of petitioner was that the marriage between the parties was still intact, therefore, the dower which was deferred in nature could not have been granted to the respondent

Validity

Prompt dower of the respondent was paid and deferred dower was also fixed regarding which no timeframe was given as to when it could be claimed by respondent

Deferred dower could only be paid to respondent either at the culmination of marriage or at the death of petitioner

Petitioner himself had admitted that he had divorced the respondent, as such, she was entitled to claim and recover the deferred dower

Constitutional petition was dismissed.

Under the Quranic Teachings the relations of Muslim family unit (spouse) was established through solemnization of nikah in order to determine the rights/obligations of a husband and wife and it was made mandatory for a husband to give dower to his wife

Quantum of the dower amount was left open for the parties to settle the same according to their independent opinion

In case the amount of dower was not mentioned in that eventuality a modus operandi was provided in Shariah to ascertain the same from the customs, status and allied social traits of the parties

Such settlement or determination of dower amount was named as proper dower (mehr-e-misl)

Litmus test for determination of proper dower was provided in Islamic jurisprudence whereby dower amount of other female members from the family of her father such as her other sisters, father's sisters, etcetera, would be considered as proper dower

Courts below had rightly declared the respondent entitled to receive proper dower i.e. similar as dower of her real sister

Constitutional petition was dismissed.

Contention of defendant (husband) was that the plaintiff had obtained divorce as a result of private arbitration and that she had withdrawn from all her claims

Contention of plaintiff was that the award was not made rule of court; that it was not khula and that the Jirga had not determined the dower

Validity

Plaintiff had proved through evidence that dower was fixed at Rs. 250,000/- whereas the defendant had proved that he had paid only Rs. 50,000/- to the plaintiff

Defendant had failed to prove through contents of the award that the plaintiff had waived her remaining part of the dower

Plaintiff was entitled to obtain Rs. 200,000/- as her dower

Revision petition was dismissed.

Dispute between the parties related to gold ornaments given to the wife/respondent in terms of Column No. 17 of the Nikahnama, which was an admitted fact between the parties

Claim of the wife/respondent was that after one month of giving gold ornaments to her, same was forcibly taken away by the husband/petitioner whereas his claim was that while leaving his house, respondent/ wife took gold ornaments with her

Validity

Respondent/wife though, had been confronted with her statement but she had denied the same

No further question was put to wife relating to her statement therefore, her assertion in examination-in-chief that articles were snatched away by the petitioner remained un-rebutted and would be presumed to be correct, as she was not specifically cross-examined

Petitioner could not prove through any cogent evidence that gold ornaments were still with the respondent/ wife

Constitutional petition was dismissed, in circumstances.

Plaintiff, along with other reliefs, filed a suit for recovery of dower amount as expenses for performing Ziarat of sites in Iraq, Iran and Syria and performance of Hajj

Judge Family Court turned down the claim on the ground that promise to take the spouse for Ziarat was not dower and that such claim was actionable before the court of plenary jurisdiction

Appeal was also dismissed

Validity

Dower need not be in the form of tangible goods but also could be in the form of services

Factum of taking of spouse for Ziarat and Hajj fell within the concept of 'dower' per se, however, it could be seen from nikahnama that a rider was added that if husband had ability for the same

Dower could not be a conditional promise or consideration; it had to be absolute, even though it might be deferred or Mu'wajjal

Conditional aspect of the promise had taken the clause out of the ambit of 'dower'

Courts below had rightly held that it was an actionable claim

Even if it was regarded as dower, even then, the plaintiff had not led any evidence as to the means of defendant, in support of her claim

No jurisdictional or legal defect was found in respect of findings rendered by the courts below

Constitutional petition was dismissed.

Husband is bound to pay dower incorporated in nikahnama as deferred dower even on wife's demand if no specific time is fixed.

Deferment of the payment of dower to a wife with her consent is not prohibited, but if in the column of deferred dower a stipulated period is not mentioned for the payment of dower, the wife is competent to demand dower from her husband, who is bound to pay dower to the wife, whenever it is demanded or in case of divorce, dower becomes payable instantly.

Perusal of nikahnama revealed that dower was fixed as Rs.2,70,000/- out of which 70,000/- was prompt dower (given in the shape of gold ornaments)

Plaintiff although claimed that the gold ornaments were snatched during matrimonial life, however, she failed to prove her claim, thus, the Trial Court had rightly decreed the suit to the extent of Rs.2,00,000/

Appeal of the plaintiff to such extent was dismissed.

Constitutional petition was dismissed.

Portion of statement which remains unchallenged in cross-examination is deemed to be admitted.

Fundamental purpose of cross-examination is to sort out the truth by disclosing or clarifying the matter, for such purpose no mathematical procedure is prescribed and it is not necessary that witness should only reply question according to the whims of counsel who is cross-examining, as it is a double-edged weapon and a witness while replying the question can explain the matter for clarifying the question of dispute.

Husband had alleged the nikahnama to be forged for the reasons that entries made in columns Nos. 15, 16, 17 & 21 were filled later on and that the alleged nikahnama was registered much earlier than the solemnization of nikah

Validity

Written statement filed by husband did not contain a single word about nikahnama having been forged rather it was admitted, however, its contents were attacked

Evidence showed that nikahnama was registered after solemnization of nikah

Husband himself had admitted nikahnama in his examination-in-chief, so it was required to be taken as a whole and not as per his whims and wishes

Husband could not be allowed to admit a portion of nikahnama as correct and the other as incorrect

Constitutional petition was dismissed.

Wife, through her attorney, had categorically stated that it was agreed between the parties that four marla plot would be given to her as dower

Husband, during cross-examination, had not specifically questioned about the plot nor had he put any suggestion to her, as such the unchallenged/uncrossed portion of the statement had to be considered as admission of the husband

Constitutional petition, being devoid of merit, was dismissed.

Wife produced nikahnama and kabin-nama which showed that the husband, at the time of nikah, had committed and agreed to transfer certain share of the suit house and give gold ornaments to the wife in lieu of dower amount

Plaintiff wife had established her case through examination of marginal witnesses of nikahnama as well as kabin-nama

Held, when the husband gave immovable property as dower and it was incorporated in the nikahnama, such property became property of the wife

Entries incorporated in the nikahnama were equated to a registered deed

Strong presumption of truth was attached to entries made in the nikahnama

Wife was entitled to the award of decree, in circumstances

Constitutional petition filed against the decree passed by the courts below was dismissed.

Family Court decreed the suit for possession of a house mentioned in column No. 17 of Nikahnama but Appellate Court dismissed the same

Validity

Entry in column No. 17 of Nikahnama would amount to a promise which was enforceable through Court of plenary jurisdiction

Suit filed before Family Court on the basis of such promise/commitment was not maintainable being out of ambit of Schedule of S. 5 of Family Courts Act, 1964

Impugned judgment passed by the Appellate Court was based on proper appreciation of evidence

No jurisdictional error had been pointed out in the impugned judgment passed by the Appellate Court

Constitutional petition was dismissed, in circumstances. [Paras. 8 & 9 of the judgment]

Family Court, on conclusion of trial, had only granted the decree of maintenance allowance to the minors, whereas the prayer regarding haq mehr in question was not acceded to

Wife had, at the relevant time, remedy of appeal available under the law but she failed to avail the same and as such judgment and decree passed by Family Court had attained finality

Subsequent suit claiming haq mehr in question was barred by principle of res judicata

Constitutional petition was allowed and plaint of wife was rejected, in circumstances.

Petitioner/ ex-wife contended that Appellate Court had wrongly set aside the decree passed by the Family Court as written agreement exhibited by the respondent/ex-husband was disbelieved by the Family Court

Respondent contended that petitioner had waived off the right incorporated in Nikahnama in light of agreement between the parties duly written on stamp paper

Validity

Record revealed that petitioner/plaintiff (ex-wife) had admitted the fact that she purchased the stamp paper, mentioning certain serial number and date, which contained her signature as well as thumb impression; she also admitted that she signed the stamp paper after the same was written

Record revealed that document exhibited by the respondent bore the serial number and date as referred to by the petitioner

Respondent produced not only attesting witnesses and the scribe of said exhibited document , but also one witness to prove the purchase of exhibited stamp paper

Witnesses proved the fact that the petitioner had waived her dower in favour of the respondent while she admitted the execution of the document exhibited by the respondent

Appellate Court had rightly appreciated the evidence on record

High Court upheld the impugned decree and judgment passed by the Appellate Court

Constitutional petition was dismissed accordingly.

Petitioner assailed orders of executing court and appellate court whereby both the courts below in proceedings for execution of decree refused to accept some other property as dower instead of the property which was decreed

Validity

Substituting the property would amount to the executing court amending the decree, which was not permissible in law

Constitutional petition was dismissed in limine.

Family Court dismissed the suit for recovery/possession of house in lieu of dower to be paid by husband in terms of Column No. 16 of Nikahnama

Plea of wife was that an agreement was executed by husband in her favour relating to transfer of house as dower

Husband claimed that the said dower was paid in cash

Trial Court dismissed the suit on the admission of wife that dower had been received by her

Validity

Trial Court had not mentioned in what perspective such admission was made and what was the mode of payment of dower to the wife in terms of her admission

Admission of wife had been considered in piecemeal before using the same for decision

Admission had to be rejected or accepted as a whole which had not been done by the courts below

Constitutional petition was partly allowed and the matter was remanded to the Trial Court for decision afresh.

Family Court directed the judgment debtor to pay entire decretal amount in lump sum and dismissed the objection petition

Validity

Family Court in its judgment directed the judgment debtor for lump sum payment of decretal amount which observation was upheld by the Supreme Court

Observation of Family Court for payment of lump sum decretal amount had attained finality

Executing Court did not commit any illegality while refusing fixation of instalments

Impugned order was passed at the stage of execution proceedings which did not fall within the definition of a "decision" or decree rather it was an interlocutory order

Only a decision or a decree passed by a Family Court was appealable before Shariat Appellate Bench of High Court

Family Court had discretion to fix instalments if it deemed fit

Instalments could not be claimed as a matter of right

No appeal or revision had been provided under Azad Jammu and Kashmir Family Courts Act, 1993 against such direction for making payment of decretal amount

No appeal or revision had been provided against an interlocutory order passed by the Family Court

Appeal was dismissed, in circumstances.

Section 10 of Azad Jammu and Kashmir Family Courts Act, 1993 provides that when the written statement is filed, the court shall fix a date for pre-trial hearing of the case and issue a notice to parties for attending the court on the date which shall be fixed by the court and on the date fixed, the court shall examine the plaint, the written statement and documents and if the court deems fit, it shall record statements of parties or their counsel

Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties and if the parties fail to compromise or reconciliate the matter, then the court shall frame the issues and fix the date for recording evidence

Where parties fail to reach to a compromise or reconciliation, it is mandatory for the court to frame issues and fix a date for evidence of parties

Section 11 of Azad Jammu and Kashmir Family Courts Act, 1993 provides that when the evidence of plaintiff is concluded then the Family Court shall provide an opportunity to the other party for rebutting the same

Trial Court in the instance case failed to follow the procedure laid down in S. 10 and also failed to appreciate and even discuss the evidence of the witnesses of defendant

Appeal was accepted and the case was remanded to the Trial Court for decision afresh.

Plaintiff along with suit filed an application under O.XXXIX, Rs.1 & 2, C.P.C. for grant of temporary injunction which was dismissed by the Family Court

Validity

Application filed by the petitioner for temporary injunction/interim order was in fact an application under S.21-A of the Family Courts Act, 1964

Family Court had jurisdiction to entertain and decide the said application

Said application had been dismissed and had resulted into a final decision declaring the plaintiff not entitled to interim relief during pendency of suit

Decision rendered by the Family Court was appealable provided same was not a decision of interlocutory nature

Every order passed during the pendency of a family suit could not be treated as an interlocutory order if said order had finally determined an issue

Appeal under S.14 of Family Courts Act, 1964 was not barred against every interlocutory order

Remedy of appeal unless specifically barred would be available against a decision relating to a right or a remedy provided under the law subject to condition that finality was attached to such an order or decision and nothing remained to be further decided between the parties on the said issue

Dismissal of application under S.21-A of Family Courts Act, 1964 would tantamount to declining the relief of preservation and protection of property that might be available to a party during pendency of suit which would amount to final determination of claim to that extent

Impugned order would amount to 'a decision given' in terms of S.14 of Family Courts Act, 1964 and an appeal against the same was available before the Appellant Court

Constitution petition being not maintainable due to availability of alternate remedy was dismissed.

Plaintiff-wife filed suit for recovery of dower according to the entries made in Column No. 16 of Nikahnama which was decreed concurrently

Validity

Specification of property/plot with constructed house was not mentioned in Column No. 13 of Nikahnama wherein only amount of Rs.2,00,000/- was mentioned in the shape of gold ornaments (prompt)

Condition of five marla plot with constructed house was accepted by the defendant-husband at the time of marriage and same was mentioned in Column No.16 as dower

Besides the fact of fixation of dower specifically it could more or less be treated as a valid undertaking for dower mentioned in the Purt Nikah

When husband had agreed to pay the dower then irrespective of the fact of mentioning the dower fixed in the specific column of Nikahnama would become redundant

Husband could not be allowed to resile from his undertaking and he was bound to provide the plot with constructed house to the wife in lieu of dower

Entry of Column No. 16 of Nikahnama was validly accepted by the husband

Decree with regard to the said entry was enforceable

Family Court had jurisdiction to entertain and decide the matters arising out of Nikahnama whether same were mentioned as dower or undertaking for the satisfaction of dower

Defendant was bound to specify a jurisdictional defect or error with regard to judgments of Courts below to invoke constitutional jurisdiction of High Court

No illegality or error in the impugned judgments passed by the Courts below had been pointed out

Constitutional petition was dismissed in circumstances.

Petitioner/ex-wife contended that as per agreement executed at the time of marriage she was entitled to recover deferred dower as well as the house incorporated in the Nikahnama

Husband contended that she was not entitled for the house as he had paid the remaining dower

Validity

Record revealed that an agreement was executed between the brother of the petitioner and the respondent and the petitioner was neither party nor signatory of the said agreement

Terms of the agreement showed that after the death of the respondent, the petitioner would be his legal heir and in case of death of the petitioner, her brother would be her legal heir and would become exclusive owner of the legacy of the petitioner

High Court observed that the legal heir could only be determined according to the Shariah and law of inheritance, thus, agreement in question had no legal value in the eye of law since the same was not executed between the petitioner and the respondent

Right of third party could not confer rights or impose obligations on another person except the party thereto

Petitioner neither produced her brother as witness who was alive, so best evidence was withheld by her

No details of the house were given in Nikahnama and wordings were vague and did not specify as to which property it referred to, therefore, the petitioner, who was not even a party to the said agreement, had failed to establish her case

Respondent proved through cogent evidence that at the time of divorce he gave Rs. 100,000/- to the petitioner regarding as unpaid dower and maintenance allowance for Iddat period which was not rebutted rather admitted by the petitioner

By receiving the whole amount mentioned in Nikahnama she had waived off her right of the property in lieu of dower

No illegality or infirmity having been noticed in the impugned judgment of Appellate Court, Constitutional petition was dismissed accordingly.

Appeal was allowed accordingly.

Once dower was paid and subsequently snatched by the husband, wife could not file suit under Azad Jammu and Kashmir Family Courts Act, 1993 for recovery of dower

Family Court had no jurisdiction to entertain such a suit

Suit to the extent of recovery of dower allegedly snatched by the husband was not maintainable

Suit was maintainable to the extent of deferred amount of dower

Decree of Family Court and Shariat Court were modified and plaintiff was declared entitled for deferred amount of dower

Appeal was partially allowed accordingly.

Family Court decreed the suit but Appellate Court remanded the case on the ground that no specific issue was framed with regard to dower deed

Validity

Plaintiff-wife had set up her claim of dower on the basis of 'Kabin Nama'

Proper issue had been framed on the subject matter

Even if no specific issue had been framed on a particular matter but evidence had been led in that behalf, Court was to go for resolution of the controversy on the evidence already adduced by the parties

Sufficient evidence was available to enable the Appellate Court to pronounce judgment

Where the wife ordinarily resided, Family Court of that territory had exclusive jurisdiction to deal with all the matrimonial disputes

Impugned judgment passed by the Appellate Court was set aside

Appellant Court had not decided the matter on merits

Case was remitted to the Appellate Court for decision in the light of available evidence on record

Constitutional petition was allowed in circumstances.

Plaintiff filed suit wherein she challenged the sale of suit land by her husband to the vendees, with the plea that her husband had orally agreed to transfer landed property in her favour as dower

Suit was dismissed concurrently

Validity

Plaintiff had not produced any Nikah Nama or Nikah Khawan in support of her stance with regard to oral fixation of dower between the spouses

Plaintiff should have produced Nikah Khawan and other witnesses of Nikah reciting ceremony in support of her stance but she had not examined the said witnesses

Best evidence had been withheld which had made the stance of plaintiff dubious

If plaintiff had any grievance, same could be against her husband

Plaintiff was residing with her husband peacefully which proved the present case as benami one at the instance of her husband

Plaintiff produced stamp vendor and deed writer of dower deed but they did not produce relevant register for verification to prove date as well as entry of contents of dower deed

Date of issuance of stamp paper, record with regard to name of purchaser, chronological record of treasury department of the district were necessary to be proved for its authenticity

Husband of plaintiff filed suit with regard to same property which was dismissed

Plaintiff had been put forward after remaining unsuccessful by her husband basing on engineered dower deed which had no entry in the concerned register

If husband of plaintiff was sincere in fixation of dower in favour of his wife, he should have done the same just after the death of his father

Defendants/vendees had supported the stance taken with regard to purchase of suit property

Defendants had been recorded as owner in possession of suit property

Plaintiff did not appear in the Trial Court as her own witness and her explanation that she was pardanasheen lady was not convincing

If plaintiff was parda observing lady then why she came to District Courts twice for execution of alleged dower deed and special power-of-attorney

Both the Courts below had properly appreciated the evidence available on record

No illegality or irregularity or mis-reading, miscarriage of justice had been pointed out in the impugned judgments passed by the Courts below

Constitutional petition was dismissed in circumstances.

Suit was decreed by the Family Court but same was dismissed by the Appellate Court holding that Family Court had no jurisdiction to decide the controversy involved in the present case

Validity

Family Court had jurisdiction to entertain and decide the matter arising out of Nikahnama

Family Court rightly assumed the jurisdiction and decided the lis strictly in accordance with law

Appellate Court had committed jurisdictional defect while accepting the appeal

Wife had proved her case through reliable and credible evidence and she was entitled for the decree prayed in the plaint

Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored

Constitutional petition was accepted in circumstances.

Landed property mentioned in the Nikah Nama was given to the wife by the husband as dower which was incorporated in relevant column of the same

Once husband had given immovable property as dower and it was incorporated in the Nikah Nama, then same would become property of wife

If during his lifetime husband was of the view that entries of Nikah Nama/Nikah Register were tampered with then he could have approached the Deputy Commissioner

Once entries were incorporated in the Nikah Nama then same were to be equated to be a registered deed

Strong presumption of truth was attached to such entries made in the Nikah Nama

Defendants had failed to rebut the presumption attached to the contents of Nikah Nama through any cogent evidence

Wife was entitled to the award of decree as passed by the courts below

No cutting, tampering or overwriting on the Nikah Nama was pointed out by the defendants

Claim of wife with regard to dower of land measuring 16 kanals was genuine

Wife had proved her claim through cogent, reliable and trustworthy oral and documentary evidence

Nothing was on record that the findings recorded by the courts below were not in conformity with the evidence brought on record

Family Court had got the exclusive jurisdiction to entertain and adjudicate upon the dispute wherein movable or immovable property had been claimed as dower

Appeal, review or revision were creation of statute and same could neither be presumed nor inferred if they were not specifically provided in the relevant statute

Defendants had preferred revision against the judgment of Appellate Court which was not competent in family cases

Revision was dismissed in limine.

Three years limitation period had been provided for a suit for recovery of dower.

Three years limitation period had been provided for a suit for gold ornaments.

Judgment and decree passed by the Family Court were set asidi and. decree for recovery of dower was passed in favour of wife

Appeal was, accepted in circumstances.

65 Miscal gold which was deferred dower was payable on a date or time agreed between the parties and in case no date or time was mentioned for payment of the same then same was payable on the eventuality of dissolution of marriage by death or divorce

Marriage tie between the parties was in existence and same had not been dissolved and no date or time had been mentioned in the Nikah Nama for payment of deferred dower

Wife could not claim said dower at present stage however she would be at liberty to file suit for recovery of deferred dower i.e. 65 Miscal gold after eventuality of dissolution of marriage either by death or divorce

Constitutional petition was accepted in circumstances.

Contention of the wife was that both the courts below have misread the . contents of Nikahnama according to which an amount of Rupees Two Lac, Ten tolas gold and house was fixed as dower

Respondent/husband took the plea that the entries mentioned in Nikahnama were forged, fabricated and manipulated with the connivance of Nikah Registrar

Validity

Nikahnama was a public document which was registered under the provisions of Muslim Family Laws Ordinance, 1961 and as such presumption of truth was attached to the same-According to law, four copies of the Nikahnama were prepared, out of which one was kept by Nikah Registrar, second was sent to the concerned Municipal Corporation or Union Council, third copy was supplied to the bride and the fourth one was given to the bridegroom

Very object behind providing copies to all concerned was that each party could verify the entries in Nikahnama according to the terms of marriage settled between them-If the respondent/husband was of the view that Nikah Registrar had interpolated in the entries of Nikah Register, he could approach the Deputy Commissioner who was the controlling authority and could get the same corrected but he did not bother to avail his remedy against the alleged interpolation in Nikahnama

Both the courts below had wrongly dismissed the suit of the petitioner/wife and she was entitled to recover the same dower amount, gold and a house from the respondent husband as settled between them at the time of Nikah-Constitutional petition was allowed.

Transaction of dower would become complete on the day of marriage and the endorsement of dower against column in Nikahnama was a verification of settlement and arrangement already reached between parties-If wife make a demand through filing a suit for recovery of dower, the person contending the entries in Nikahnama were not correct was bound to rebut said entries through a strong evidence otherwise the court was bound to give a solemn affirmation to the entries in Nikahnama.