Mother is not dis-entitled for child custody after remarriage

Guardian and ward Act VIII of 1890

Section 25 custody of minor—welfare of minor— Re-marriage of mother—visitation – conduct of father— Non-payment of maintenance allowance—Effect—Petitioner/mother assailed the order of Appellate court whereby permanent custody of minor was given to the father/respondent—Appellate court had granted the permanent custody of minor to the father on the sole ground that the mother had remarried and was not living with her second husband— Validity— Hel: such ground could have been applied had the subject minor been a girl— No other justifiable reason was assigned by the Appellant court for granting permanent custody of a male minor of tender age to his father—- Observation of family court regarding the conduct of father being negligent and male fide was apparent in view of his continuous absence at the time of visitation ordered by the family court, impounding and blocking of his CNIC by family court and issuance of his non-bailable warrants by the judicial Magistrate— father had not complied with the decree of maintenance passed by Family Court in favor of the subject minor— Grant of Permanent custody of minor to respondent /father was not in the interest and welfare of the minor— Respondent was, however granted right of visitation subject to certain conditions— Constitutional petitioner was allowed in circumstance.

2019 CLC 1787

Jurisdiction of Union Council for Issuing Divorce certificate

Jurisdiction of Union Council for Issuing Divorce certificate

Section 7 ;;;; Rules under the Muslim family law Ordinance 1961, R.3(b)…. Notification/SRO. No. 1086(K)/61, dated 09-11-1961—Divorce certificate, issuance of …. Territorial Jurisdiction of chairman, Reconciliation committee; scope…. Wife no residing in Pakistan at the time of pronouncement of talaq… under R.3(b) of the Rules under the Muslim Family Law Ordinance 1961 (the rules) the basic factor which determined the jurisdiction of the union council and /or the chairman of entertaining and proceeding on  notice of divorce (talaq) under sub section (1) of section 7 of the Muslim family Laws Ordinance 1961 (the ordinance) was the place where the wife was residing at the time of pronouncement of divorce (talaq)….. Union council and or the chairman which would have jurisdiction in the matter would be  the union council and or the chairman within whose territorial jurisdiction the wife was residing at the time of pronouncement of divorce… At the time the husband in the present case, was alleged to have pronounced divorce upon the wife both of the were permanently residing in the foreign country USA however the husband was stationed in another foreign country Germany due to his job… in such circumstances the chairman Reconciliation committee based in Pakistan did not have jurisdiction in the matter and erred in issuing the impugned divorce certificate….. since the husband and the wife were national of Pakistan and a foreign country USA and were permanently residing in said foreign country at the relevant time, therefore the husband should have approached the authorized officer of the concern Pakistan mission in the foreign country under section 7 of the Ordinance— divorce certificate issued by the chairman Reconciliation committee (based in Pakistan) was held to be  of no legal effect and was accordingly set aside— constitutional petition was allowed in circumstance.

PLD 2019 Lahore 285

RECOVERY OF AMOUNT ON ACCOUNT OF DIVORCE

RECOVERY OF AMOUNT ON ACCOUNT OF DIVORCE

Section 5 family court Act 1964, suit for recovery of amount on account of divorce… pronouncement of divorce by husband.. conditions… scope… entry in Nikahanma… effect… petitioner/ex-husband contended that both the courts below had wrongly granted dower to respondent/ex-wife as no condition could be attached to the right of husband to divorce his wife… respondent/ex-wife contended that she was entitled for recovery of Rs.100,000/= as incorporated in column No. 19 of Nikahnama— validity— Islam provided right to the husband to divorce his wife free from any encumbrance and such right could not be abridged with conditions as the relationship between husband and wife could continue only with their free consent and tie of marriage was beyond any restrictions… in the present case marriage was dissolved by a divorce deed by the husband without interventions of the court… claim of the wife solely rested upon the entry in Nikahanama which in no way could override the Injunctions of Islam.. Both the courts below had erred in law while holding wife entitled to claim Rs.100,000/= on account of divorce…. High court set aside impugned judgment passed by two courts below— constitutional Petition was allowed accordingly

2018 CLC 1844 LAHORE