West Pakistan Family Courts Act (XXXV of 1964) Section. 5, Sched. & S.10—Dissolution of Muslim Marriages Act (VIII of 1939), S. 2—Dissolution of marriage on ground of Khula'—Scope—Consent of husband for such dissolution would not be necessary—Judge, in case of husband's dis-agreement to dissolve marriage, could determine question as to whether spouses, if they continued living together, could observe limits of God or not—Duty of Judge to make genuine attempt for reconciliation between spouses—Judge in case of failure of reconciliation efforts could pass forthwith decree for dissolution of marriage— Where Judge while passing such decree, observed that wife was not willing to live with husband without any fault of his, then Judge would have no option but to restore to husband dower (Haqe-Mehr) received by wife at time of marriage—Wife seeking divorce for having developed extreme hatred and disliking for her husband would have to restore the consideration of marriage (dower) to husband—Where in view of Judge husband by his arrogant, cruel and obnoxious nature or behavior compelled wife to seek "Khula", then she would be entitled to all due benefits along with dissolution of marriage
Guardianship by Father
Section 7 of Guardianship and ward act, Guardianship certificate—Father as guardian of person and property of minors –scope—No bar or restrictions was placed on father/natural guardians against obtaining a guardianship certificate from the court, however the circumstances and bona fides of father is obtaining such declaration /certificate needed to be examined keeping in view the peculiar facts of the case
2018 SCMR 427
Limitation of Recovery of Maintenance of wife and Children
Section 5and 9 family court act 1964 , Article 120 of Limitation Act 1908, Article 2-A and 199 of Constitution of Pakistan, Suit for recovery of Maintenance allowances of wife and daughter— Plaintiff/wife sought education, medical and expenditure of marriage of daughter and claimed maintenance for the last 30 years—- substance of marriage—scope— limitation, question of – Responsibility of husband toward wife and daughter— injunctions of Islam—scope—petitioner/husband contended that as wife had not been living hi is house so Appellant court had wrongly decreed past maintenance of wife for the last six years—validity—under Islamic law the husband was liable to maintain his wife and children from the very date when marriage was solemnized—- record proved that respondent/plaintiff was turned out of the house and subjected to cruel behavior by petitioner/defendant so many times but she joined the marital life on the intervention of Jirga and again due to his cruel behavior she was ousted form his house and she started living at her parents house for the last 30 years and was still there but the petitioner/husband had not divorced her and failed to maintain her and his daughter which was Zulm-eAzeem to the Muslim who lived under the protection of law—High Court observed that under Art. 2-A, of the constitution the Quran and Sunnah was the basic law of the land and section 9 of Muslim family Law Ordinance 1961 was a special law which did not presce3ive specific period of limitation for past maintenance— payment of maintenance ot the wife by her husband was governed by injunctions of Islam— petitioner/husband had not in the present case., paid any maintenance educational expenses marriage expenses for his daughter and maintenance allowance to his wife to meet daily needs life food and clothes etc. which was his duty to bear the provision of limitation prescribed under Art 120 of Limitation Act 1908 for recovery of past maintenance was not stricto sensu application—husband was responsible for the maintenance of wife from the day when the Nikah was solemnized and daughter when she was born—record showed that husband has admitted in the cross examination that he never paid any amount to his wife or his daughter—both courts below had erred by not considering the said admission by the husband wile decreeing the past maintenance for wife for past six years only— Husband was bound to pay the maintenance allowance for past 30 years to his wife and expenses claimed in the suit( marriage expenses of daughter etc)—- High court observed that great injustice had been caused to the wife and daughter of petitioner so despite the fact that respondent/wife had not challenge the judgment and decrees of courts below which might be due to economic constraints of neglected mother and daughter but High court in exercise of its constitutional jurisdiction under Art. 199 was vested with jurisdiction to proved relief to party with whom injustice had been done so that judgment and decrees of the both courts below to the extent were set aside modified and the suit of plaintiff/respondent was decreed as prayed for
2018 YLR 128
If the male and female is get married in the court with the permission of the court without the permission of wali/parents this is called court marriage. Generally those couple comes in the court for the marriage whose parents don’t want their daughter to get marriage with that guy with whom their daughter loves him and want to marry at any cost. Therefore in the absence of the consent of parents of the couples especially the parents of the girl when forbade their girl to marry the specific guy than it happened. Sometimes when the girl contracted the marriage without the permission and consent of the parents, they lodge the false FIR for abduction of the girl and committing the zina against the newly husband of their daughter and his family for creating harassment and sometime get divorce forcibly. However on the statement of the girl the FIR is quashed accordingly.
The constitution of Pakistan, the law of land, Islam and Muslim Family Law allow to every adult person to get marry on his/her own choice, accord and freewill. The Superior Courts called that girl sui juirs and accepted their marriage without the consent of parents. And the Courts have accepted the minimum age 16 of the girl for marriage and hold that 16 years girl and above is capable to contract her marriage as per her own wish, freewill and consent.
For the purpose of Court marriage the girl have to appear in the court and have to give statement in the court before the Magistrate /Oath Commissioner / Justice of Peace etc. that she is going to marry with her own choice, freewill and accord, she is major, adult, and without no use of intoxicant she is deposing and no one has abducted, kidnapped. Thereafter the marriage is solemnized as per religious procedure. If the couples are Muslims then Nikahkhawan/Qazi solemnize the marriage in the presence of witnesses, if the couples are Christian then the father/padri solemnize the marriage if the couple are Hindu or any other community then the marriage is solemnized as per their religious way. After this the couples are allowed to go their homes and thereafter the said marriage certificate /Nikahnama is registered in the concern authority and return to the couple.
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DNA Test in Family Matter
Section 7 family court act, Art. 128 of Qanoon Shahadat order 1984—— DNA Test—Scope—Suit for recovery of dowry articles— Dower amount and maintenance for herself and for mniors was filed by respondent wife and the same was pending trail before family court— Petitioner/husband during pendency of the suit disowned two miors daughters and sought permission to condict DNA Test—Application of petitioner /husband was dismissed by family court as wella s by lower appellate court—Validtiy— Birth certificates of two minors girls were brought on record which depicted that both mionrs girls were born when plaintiff was legally wedded wife of the defendant and he did not dispute the same— Plea that minors girls were not born out of the wedlock of parties was raised for the first time in weitten statement—Nothing was brought on record from the side of petitoner/husband to establish that he had disputed legitimacy of children soon after their birth—Petitoiner /husband remained silent till he filed written statement in the suit. DNA Test was always conducted with the consent of the person concerned and no such consent was available. Once consent was not given DNA Test could not be conducted—High Court declined to interfere in orders passed by two courts below. Constitutional Petition was dismissed in circumstances
2017 PLD Lahore 892