Marriage Cases

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Citation Name: PLJ 2008 Cr.C 1205
Appelant Side: UMER AFROZ KHAN alias AFROZ KHAN
V e r s u s
Opponent Side: STATE and another
Judge Name: Muhammad Alam Khan
Judgment Result:Bail confirmed.
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----s. 497--offence of zina (enforcement of hudood) ordinance, (vii of 1979)--ss. 5 & 16--bail, grant of--further inquiry--illegal sexual intercourse--no evidence regarding the commission of zina except her statement to contract marriage with petitioner--contention of fir--complainant's daughter had been engaged with his relative--accused eloped his daughter and subjecting her to illegal sexual intercourse--victim recorded her statement in court that she had married with her own sweet will--no duress or coercion had been exercised on her--held: neither any previous nikah was proved nor there was evidence on record that rukhsati had been made--according to her statement she had contracted marriage with accused with her own sweet will without duress or coercion--data available on record makes the case one of further inquiry and accused was ordered to be released on bail and co-accused pre-arrest bail was confirmed.

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Citation Name: PLJ 2008 Cr.C 581
Appelant Side: SHEHNAZ BIBI
V e r s u s
Opponent Side: STATE
Judge Name: Hasnat Ahmad Khan
Judgment Result:Bail accepted.
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----s. 498--pakistan penal code, 1860 (xlv of 1860), s. 365-b--pre-arrest bail--grant of--further inquiry--delay--fir lodged with an inordinate delay of two months--initially the name of the petitioner had been mentioned in the fir as an abductee--petitioner had already filed a suit for dissolution of marriage against complainant--held: fir was lodged with inordinate delay of two months--case was of further inquiry--bail accepted

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Citation Name: PLJ 2008 Lahore High Court 1029
Appelant Side: Mst. PARVEEN AMANUAL
V e r s u s
Opponent Side: ADDL. DISTRICT JUDGE-III RAHIMYAR KHAN & 2 others
Judge Name: Syed Shaheen Masud Rizvi
Judgment Result:Petition dismissed.
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----ss. 10 & 22--christian law--grounds of divorce and separation--bond of marriage between christian husband and wife is of permanent nature and as such the wife has to prove her case on the concrete facts after leading reliable and cogent evidence to the facts on which the claim of dissolution of marriage is based--only then the court can grant a decree for a judicial separation within the meaning of section 22 of the divorce act, 1869 or to dissolve the marriage under section 22 of the divroce act--therefore, mere assertion of the wife that she is not ready to live with the husband is not sufficient for dissolving the marriage--case remanded to family court, who shall proceed with the case from the stage on which the petitioner made better statement and after framing the issues and recording evidence shall decide the matter.
Citation Name: PLJ 2008 Lahore High Court 1029
Appelant Side: Mst. PARVEEN AMANUAL
V e r s u s
Opponent Side: ADDL. DISTRICT JUDGE-III RAHIMYAR KHAN & 2 others
Judge Name: Syed Shaheen Masud Rizvi
Judgment Result:Petition dismissed.
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----ss. 10 & 22--constitution of pakistan, 1973, art. 199--suit for dissolution of marriage under christian law--better statement of petitioner (wife)--suit was decreed--assailed--case was remanded to trial court--challenged through constitutional petition--question of--held: no provision in the nature of "khula" in the divorce act, 1869 and as such the mere statement of the petitioner that she was not willing to live as a wife with the husband is not sufficient for the purpose of dissolution of christian marriage--section 10 of the divorce act, 1869 which relates to the grounds when wife may ask for dissolution of marriage and further reference is also made to section 22 of the divorce act, which lays down the grounds when judicial separation is obtainable by wife.

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Citation Name: PLJ 2008 Lahore High Court 47
Appelant Side: KHALID MAHMOOD
V e r s u s
Opponent Side: ANEES BIBI and 2 others
Judge Name: Syed Hamid Ali Shah
Judgment Result:Petition dismissed.
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----s. 10(4)--constitutional of pakistan, 1973, art. 199--dissolution of marriage on the basis of khula--entitlement of court has power to fix any amount of compensation, being the consideration of khula--fault of husband--determination--question of dissolution of marriage is determined after proper trial then proves of family courts act, 1964, s. 10(4) is not applicable and court can dissolve the marriage according to the circumstances of each case--power of the family court to fix any consideration for dissolution of marriage, cannot be curtailed.

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Citation Name: PLJ 2008 Lahore High Court 249
Appelant Side: Mst. SAMINA NAWAZ
V e r s u s
Opponent Side: STATION HOUSE OFFICER OF POLICE STATION KUHNA KHANEWAL DISTRICT KHANEWAL and 5 others
Judge Name: Muhammad Jehangir Arshad
Judgment Result:C.M. disposed of.
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----arts. 10, 14 & 15--prayer for releasing of the petitioner from darul-aman--fundamental right--violation of--jactitation of marriage--validity of nikah--being sui juris muslim girl is entitled to be set at free--family suit is pending--inquiry--specimen signatures of petitioner--verified from handwriting expert--approach the court of competent jurisdiction--inquiry stands concluded--no useful purpose would be served by keeping her detained in darul-aman--petitioner cannot be compelled to resident with her second husband or with her mother against her wishes--held: if first nikah is found incorrect, she will be exposed to the consequences under the law and if family court ultimately finds her first nikah as forged or her second nikah as genuine, the trial court apart from throwing out her suit, would also be at liberty to direct her, or for that matter any of the two under the law--c.m. was disposed of.

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Citation Name: PLJ 2008 Lahore High Court 317
Appelant Side: FIDA HUSSAIN
V e r s u s
Opponent Side: DISTRICT POLICE OFFICER, BHAKKAR and 7 others
Judge Name: Tariq Shamim
Judgment Result:Petition dismissed.
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----art. 199--criminal procedure code, (v of 1898) s. 561-a--two nikahnamas--request for cancellation of fir--challenge to--during investigation two nikahnamas were produced before police--nikahnamas were sent for verification--report revealed that nikahnama with son of the petitioner was found to be fictitious--validity--if there was any nikahnama pertaining to the marriage the same was false and fictitious and was therefore, liable to be cancelled--discharge report had been contested by complainant leading to logical inference that complainant had been afforded full opportunity to put forth his point of view as well--impugned order are based on logical reasons and cannot by any stretch of imagination be termed as arbitrary fanciful or contrary to evidence on the record.

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Citation Name: PLJ 2008 Lahore High Court 519
Appelant Side: Mst. RUQIA BATOOL and another
V e r s u s
Opponent Side: STATE and 2 others
Judge Name: Iqbal Hameed-ur-Rehman
Judgment Result:FIR quashed.
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----art. 199--pakistan penal code, (xlv of 1860), ss. 365-b, 419, 420, 468 & 471--quashing of fir--dispute of nikahs--abductee left the house of her parents and contracted marriage with her free will and volition--validity--abductee was summoned from the jail and had been presented before high court in person and she had made a statement in categorical terms that no one had abducted her and that she with her own free will and volition left the house of her parents and that case has been falsely registered against the petitioners--nikah mentioned in fir by complainant becomes doubtful when petitioner denies having entered into any other nikah rather she owns the nikah entered by accused, wherein the contents of nikahnama have been admitted by husband and wife, the same is held as valid as has been held in case of pld 1982 fsc 42--fir is based upon nothing but frustration and malice on the part of the complainant who has tried to convert and transform a matrimonial issue into a criminal case so as to bring the weight of criminal law to bear upon petitioner and her husband in order to break their nuptial ties--fir was quashed.

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Citation Name: PLJ 2008 Lahore High Court 375
Appelant Side: MUHAMMAD RIZWAN YOUSAF
V e r s u s
Opponent Side: ADDL. DISTRICT JUDGE, MULTAN and another
Judge Name: Iqbal Hameed-ur-Rahman
Judgment Result:Petition accepted.
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----ss. 10(4) & 14--constitution of pakistan, 1973, art. 199--suit for dissolution of marriage was decreed subject to return the property which was received through registered deed--challenged by respondent--condition qua return the proeprty declared to be perverse, fanciful and without legal effect--assailed--constitutional petition--question of--property was given as dower in consideration of haq-ul-mehr--validity--execution of registered deed was of the same date as that of nikah--trial court while deciding the appeal had failed to take into consideration the perspective and has wrongly come to conclusion that the land cannot be considered as haq-ul-mehr since it was not mentioned in nikahnama--petition accepted.

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Citation Name: PLJ 2007 Cr.C 74
Appelant Side: RASHID IQBAL
V e r s u s
Opponent Side: STATE
Judge Name: Muhammad Jehangir Arshad
Judgment Result:Bail granted
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----s. 498--offence of zina (enforement of hudood) ordinance (vii of 1979), s. 10(3)--pre-arrest bail, granted--prayer for--sui juris--admitting her marriage with petitioner--denying the allegation of abduction or zina-bil-jabr--ad-interim bail earlier granted was confirmed.

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Citation Name: PLJ 2007 Peshawar High Court 6
Appelant Side: CHAN ZEB
V e r s u s
Opponent Side: Mst. KHALIDA SHAHEEN and another
Judge Name: Salim Khan and Hamid Farooq Durrani
Judgment Result:Petition dismissed
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----ss. 9 & 12-a--constitution of pakistan, 1973, art. 199--amended to effect--maintainability--suit for restitution of conjugal rights and vice versa--facilitated the parties and get dispute decided at one and same forum--plea of restitution of conjugal rights shall be made in suit for dissolution and marriage and plea of dissolution of marriage shall be brought forward against suit for restitution of conjugal right and separate suit shall not be filed--validity--law has never been intended to create hurdle, problems and difficulties for the spouses or for courts dealing with their matter--held: only the cases of restitution of conjugal rights and dissolution of marriage were prescribed to be dealt with in same proceeding while the cases of dower, dowry maintenance, recovery of personal property of the wife and any other related matters covered by provisions of the west pakistan family courts act, may be dealt with independently--petition was dismissed.

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Citation Name: PLJ 2007 Peshawar High Court 82
Appelant Side: BAKHT ZADA
V e r s u s
Opponent Side: Mst. JOOMREZA and 2 others
Judge Name: Ijaz-ul-Hassan Khan and Fazlur Rehman
Judgment Result:Petition dismissed
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----art. 199--maintenance--husband duty--justification by non-payment of prompt dower--husband is not bound to maintain his wife who refuses herself to him or is disobedient unless the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty--dower fixed was not paid--wife was kicked out from the house by husband and the husband did not provide any maintenance to her--petitioner had contracted second marriage without prior permission of the respondent--no material of evidence seems to have been misappreciated or kept out of consideration.

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Citation Name: PLJ 2007 Karachi High Court 198
Appelant Side: ABDUL REHMAN
V e r s u s
Opponent Side: Mst. HAKIM and another
Judge Name: Zia Pervaiz
Judgment Result:Petition dismissed
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----ss. 5 & 10(4)--constitution of pakistan (1973), art. 199-- constitutional petition--dissolution of marriage--khula'--deposit of dower money--grievance--after framing of issues, family court should not have dissolved the marriage on the basis of khula'--right to remarry--validity--object of such dissolution of marriage was to provide specific remedy without any undue delay so as not to keep the wife in a state where she might be deprived of her right to remarry while she was of marriageable age, in addition to mental agony and tension which was the objective to meet the ends of justice in the light of enactment--even if the husband disputed receipt of dower the wife seeking relief by way of khula' might deposit the amount of alleged dower in court and the court under the circumstances was required to allow dissolution of marriage on the basis of khula' pending decision regarding controversy of the amount of dower to be adjudicated upon at later stage--even a frivolous claim for dower amount could become a tool to defeat the objective for which the remedy was provided and thus could defeat the purpose of statute--high court declined to interfere with the judgment and decree passed by family court--petition was dismissed.
Citation Name: PLJ 2007 SC-AJ&K 72
Appelant Side: MUHAMMAD SHAFIQUE
V e r s u s
Opponent Side: Mst. GUL TAJ
Judge Name: Muhammad Reaz Akhter Chaudhry C.J. & Khawaja Shahad Ahmad
Judgment Result:Appeal dismissed
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----entitlement of dowry amount--family court decreed the suit, shariat court of azad jammu and kashmir dismissed the appeal--validity--held: lower courts had rightly resolved that the amount of dower was not paid to wife and rightly dissolved the marriage in lieu of amount of dower which was to be paid by appellant to plaintiff--appeal dismissed.

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Citation Name: PLJ 2007 SC-AJ&K 153
Appelant Side: Syed SHUJHAT HUSSAIN KAZMI
V e r s u s
Opponent Side: Mst. NAZISH KAZMI
Judge Name: Muhammad Reaz Akhtar Chaudhry, C.J.
Judgment Result:Appeal dismissed
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----s. 12(2)--suits relating to marriage and family affairs--not prolong the proceeding--sole purpose of expeditious settlement and disposal of suits--family court shall finally decide a case within a period of 4 months from the date of presentation of plaint--conducting the proceedings under a particular law or enactment, purpose of act is to be given priority and it cannot be defeated by resorting to sheer technicalities.

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Citation Name: PLJ 2007 Cr.C 874
Appelant Side: WALLAN alias MARIYA
V e r s u s
Opponent Side: STATE
Judge Name: Muhammad Farrukh Mahmud
Judgment Result:Bail confirmed
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----ss. 497(1) & 498--offence of zina (enforcement of hudood) ordinance (vii of 1979), ss. 10(2) & 16--pakistan penal code, 1860 (xlv of 1860), ss. 467, 468 & 471--ad-interim pre-arrest bail, confirmation of--accused girl who was major, owned her marriage with alleged abductor, which had belied allegation of abduction levelled in f.i.r.--accused had placed on record certificate issued by nazim, arbitration council, which had revealed that accused earlier was married with one who sent notice to divorce and thereafter divorce was declared to be effective--case of accused fell within the proviso to subsection (1) of s.497, cr.p.c.--ad-interim pre-arrest bail already granted to accused, was confirmed on the same terms and conditions.

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Citation Name: PLJ 2007 Lahore High Court 814
Appelant Side: M. MUSA
V e r s u s
Opponent Side: STATE etc.
Judge Name: Iqbal Hameed-ur-Rahman
Judgment Result:FIR quashed.
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----art. 199--offence of zina (enforcement of hudood) ordinance, (vii of 1979), s.11--quashment of f.i.r.--star prosecution witness--nikah got registered--constitutional petition--validity of nikahnama--appreciation of evidence--star prosecution witness stated that she is a sui juris and major and of her own free will and consent, she had contracted marriage with petitioner and nikah has been solemnized according to sharia and also not registered--no offence has been committed by the petitioner--case against petitioner is concocted and fabricated--law does not permit a stranger to challenge the validity of nikahnama when its contents are admitted by husband and wife--f.i.r. was quashed.

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Citation Name: PLJ 2007 Lahore High Court 814
Appelant Side: M. MUSA
V e r s u s
Opponent Side: STATE etc.
Judge Name: Iqbal Hameed-ur-Rahman
Judgment Result:FIR quashed.
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----s. 2-a--puberty--nikah--valid--adult at the time of marriage--marriage by a woman on attaining puberty is valid--sui juris muslim female can enter into valid nikah.

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Citation Name: PLJ 2007 Lahore High Court 814
Appelant Side: M. MUSA
V e r s u s
Opponent Side: STATE etc.
Judge Name: Iqbal Hameed-ur-Rahman
Judgment Result:FIR quashed.
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----s. 251--attained--puberty--validity--contract of marriage--13/4 years old age--physical appearance--every muhammadan of sound mind, who has attained property may enter into a valid contract of marriage.

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Citation Name: PLJ 2007 Supreme Court 91
Appelant Side: Dr. NOSHEEN QAMAR
V e r s u s
Opponent Side: SHAH ZAMAN KHATTAK and another
Judge Name: Ch. Ijaz Ahmed & Syed Jamshed Ali
Judgment Result:Leave granted.
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----s. 10--constitution of pakistan, 1973, art. 185(3)--power of court in khula--held: family court can dissolve the marriage on the ground of khula at the pre-trial hearing but in that case the wife would not be entitled to dower--leave granted.

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Citation Name: PLJ 2007 Cr.C 897
Appelant Side: NOOR MUHAMMAD and another
V e r s u s
Opponent Side: STATE
Judge Name: Muhammad Farrukh Mahmud
Judgment Result:Order accordingly.
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----s. 302(b)--criminal procedure code, 1898 (v of 1898), ss. 439, 103, 340(2) & 342--conviction and sentence awarded to appellants, assailed--appreication of evidence--benefit of doubt--delay of more than 24 hours in recording the statement of mst. "g" wife of deceased, (pw) without any reason, cast doubt on the veracity of the whole prosecution case--motive behind the occurrence was that when mst. "g" was about 2/3 years old, her father had agreed to give her hand to "m" verbally but when mst. "g" attained puberty, her father refused to give the hand of his daughter to "m" and got married his daughter with "a" (deceased), which caused annoyance to the accused--complainant was also made improvements during his statement before the trial court and was duly confronted by his earlier statement--complainant and mst. "g" had already been disbelieved qua the rest of the accused, whose roles were not distinguishable from that of the roles of convicted appellants--alleged recovery of pistols was effected--it was the duty of the investigating officer to send the empties to the laboratory as soon as possible preferably within a week, but the empties were kept for two months at the thana--empties were sent after a month of alleged recovery of pistol that the empties and the pistols were not sent together--no reliance could be placed on the evidence of recovery--pw, who was eye-witness was produced to support the evidence of recovery--medical evidence supported the prosecution case only to the extent that "a" (deceased) lost his life due to fire-arm injuries--doctor did not mention whether the injuries were entry wounds and what was their depth--no corresponding holes on the shirt worn by mst. "g"--doctor also did not mention the corresponding holes on the clothes of mst. "g"--received fire-arm injuries during occurrence was not free from doubt--documentary evidence believed the claim of the prosecution that only the promise of marriage was made and mst. "g" was never given in nikah of "m", so motive as set by prosecution had not been proved--statements of mst. "g" and complainant had been rightly disbelieved qua the acquitted co-accused--they could not be believed against the present appellants/accused as well in the absence of reliable corroboratory evidence, which was lacking against "m" accused/appellant--appeal accepted to the extent of co-accused and acquitted--accused was found guilty but he did not deserve the extreme penalty of death, while maintaining conviction u/s. 302(b), altered his sentence to imprisonment for life--sentence of death not confirmed--order accordingly.

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Citation Name: PLJ 2007 Sh.C-AJ&K 67
Appelant Side: Mst. KOSAR PARVEEN
V e r s u s
Opponent Side: STATE through Muhammad Raees
Judge Name: Syed Hussain Mazhar Kaleem
Judgment Result:Petition allowed.
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----s. 302--conviction and sentence--challenge to--appreciation of evidence--murder of lady through strangulation--deceased lady was married--later on husband contracted second marriage with appellant--statement of pw showed that he had not seen the convict committing the offence, however he heard the cries--post-mortem report was not supporting the story of giving ativon tablets to the victim--prosecution story being highly doubtful was not worth relying--conviction was set aside.

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Citation Name: PLJ 2007 Lahore High Court 958
Appelant Side: MUHAMMAD MOSA RAZA
V e r s u s
Opponent Side: STATE
Judge Name: Iqbal Hameed-ur-Rehman
Judgment Result:F.I.R. quashed.
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----art. 199--offence of zina (enforcement of hudood) ordinance, 1979, s. 11--mohammadan law, s. 251--quashment of fir--marriage with her free will and consent--sui juris--held: according to muhammadan law, s. 251, every muhammadan of sound mind, who has attained puberty may enter into a valid contract of marriage--law does not permit a stranger to challenge the validity of a nikahnama when its contents are admitted by the husband and wife--nikah of an adult girl is not invalid for want of permission of wali and further marriage is not invalid on account of the alleged absence of the consent of wali--fir was quashed.
Citation Name: PLJ 2007 Lahore High Court 984
Appelant Side: Dr. ALTAF AHMED
V e r s u s
Opponent Side: Mst. NEELOFAR NAZNEEN and another
Judge Name: Muhammad Muzammal Khan
Judgment Result:Petition accepted.
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----s. 10(4)--constitution of pakistan, 1973, art. 199--suit for dissolution of marriage on the basis of khula--ex-parte decree--provisions of--assailed--constitutional petition--held: family court after pronouncing divorce, noted that reconciliation proceedings have failed through presence of respondent was not marked in this order yet after granting her the prayed decree, there was no occasion to hold the reconciliation proceedings and that too, in her absence--ex-parte decision is unlawful being opposed to the provisions of s. 10(4) of the family court act, 1964--suit would be deemed to be pending and would be decided by undertaking fresh pre-trial reconciliation proceedings between the spouses in the real spirit of law applicable--petition accepted.

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Citation Name: PLJ 2007 Lahore High Court 1172
Appelant Side: ABDUL JABBAR
V e r s u s
Opponent Side: KALSOOM BIBI & another
Judge Name: Syed Asghar Haider
Judgment Result:Petition dismissed.
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----s. 10(4)--constitution of pakistan, 1973, art. 199--petitioner's suit for restitution of conjugal rights and respondents suit for dissolution of marriage were tried by separate courts--both were decreed--husband filed writ petition against the judgment and decree for dissolution of marriage--effect--held: no decision or judgment of any court or tribunal, shall be an impediment, in this context, therefore, the right granted for dissolution is absolute and contingent only, upon restoration of haq mehr to the husband and nothing else--in view of dissolution of marriage by the family court, the decree of restitution of conjugal rights is in-effective.

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Citation Name: PLJ 2007 Lahore High Court 1178
Appelant Side: ZAHEER AHMAD
V e r s u s
Opponent Side: Mst. NASIMAN BIBI alias NASIM BIBI and 3 others
Judge Name: Syed Hamid Ali Shah
Judgment Result:Petition dismissed.
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----art. 199--muslim family laws ordinance, (viii of 1961), s. 8--dissolution of marriage by way of khula--dowery articles formed part of consideration for khula was could not be considered at that stage--petitioner was required to raise all points of law and fact in the written statement--plea not raised before courts below could not be considered for the first time in writ petition--petition was dismissed.

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Citation Name: PLJ 2007 Lahore High Court 1178
Appelant Side: ZAHEER AHMAD
V e r s u s
Opponent Side: Mst. NASIMAN BIBI alias NASIM BIBI and 3 others
Judge Name: Syed Hamid Ali Shah
Judgment Result:Petition dismissed.
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----s. 7--muslim family laws ordinance, (viii of 1961), ss. 8 & 9--majmooa-e-qawaneen-e-islam, ss. 146 & 149--constitution of pakistan, 1973, art. 199--constitutional petition--dissolution of marriage on the basis of khula--legitmacy of a child born after 11 months and 5 days of desertion--denying of maintenance to such child--appreciation of evidence--held: allegation of husband of disowning the child born out of the wedlock, should not be given weight, without the strict proof in such regard to the contrary--paternity of a child born out of the lawful wedlock has a presumption of truth in its favour; simple denial could not take away the status of legitimacy--such child is presumed to be an issue of his parents without any acknowledgement or affirmation of the parentage on the part of father--further held: evidence of the mother and the child was sufficient to prove the legitimacy of a child, in the absence of any cogent evidence to the contrary--mother of the minor had been living in adultery--child had been disowned in the proceedings against the petitioner for recovery of maintenance to the minor--relationship had been denied to escape the liability to maintain the child--husband had not approached the court of competent jurisdiction for "liyan"--thus, the minor born out of the wedlock was a legitimate child and as such was entitled to be maintained by the petitioner.

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Citation Name: PLJ 2007 Cr.C 27
Appelant Side: ASAD MEHMOOD
V e r s u s
Opponent Side: STATE
Judge Name: Syed Sajjad Hussain Shah
Judgment Result:Petition allowed.
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----s. 497--offence of zina (enforcement of hadood) ordinance, (vii of 1979), s. 11--post-arrest bail--grant of--prayer for--alleged abductee has not even alleged in her statement under s. 164 cr.p.c. that petitioner compelled her to enter into a contract of marriage with him--there was no allegation of zina or attempt of zina against the petitioner--no corroboration of statement of the abductee--she was not recovered from the possession of the petitioner--there exists reasonable ground to make out a case of the petitioner one of further inquiry--to keep the petitioner behind the bars for an indefinite period would not serve any useful purpose--bail granted.

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Citation Name: PLJ 2007 Lahore High Court 114
Appelant Side: SHABBIR HUSSAIN ALIAS PAPU
V e r s u s
Opponent Side: STATION HOUSE OFFICER P.S. BUMBANWALA, DISTT. SIALKOT and 3 others
Judge Name: Muhammad Muzammal Khan
Judgment Result:Petition accepted.
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----art. 199--offence of zina (enforcement of hudood) ordinance, 1997, s. 11--registration of criminal case--misuse of process of law--legality--marriage between two major muslims--no cognizable offence--law regarding marriage is settled by this time to the effect that where two major muslims of sound mind solemnize marriages by entering into a contract for procreation and legalization of their children, according to the muslim family laws ordinance, 1961, no cognizable offence under the offence of zina (enforcement of hadood) ordinance 1979 is made out.

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Citation Name: PLJ 2007 Lahore High Court 198
Appelant Side: Mst. SHAISTA
V e r s u s
Opponent Side: SH. LIAQUAT ALI SATHI and 2 others
Judge Name: Mian Saqib Nisar
Judgment Result:Petition dismissed.
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----s. 10(4)--constitution of pakistan, 1973, art. 199--constitutional petition--dissolution of marriage on the basis of "khula"--return of dower--the wife who yet has not received the dower from the husband has right to recover it while seeking khula--question of--a wife can seek the dissolution of marriage only through the decree of the court and on the payment of such consideration fixed by the court, which she has to pay to the husband in the form of the return of the benefits attained by her under the marriage--in the situation, when she has not received the prompt dower, whereas the deferred dower has not become due, and there is nothing which could be restored to the husband as the consideration of khula, it is the relinquishment by her, of her right to receive the dower, which shall serve as the consideration for obtaining khula.

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Citation Name: PLJ 2007 Lahore High Court 198
Appelant Side: Mst. SHAISTA
V e r s u s
Opponent Side: SH. LIAQUAT ALI SATHI and 2 others
Judge Name: Mian Saqib Nisar
Judgment Result:Petition dismissed.
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----s. 10(4)--provisions of s. 10(4) are confiscatory in nature--contention of--held: provisions are not in the nature of confiscatory, rather are in accordance with the islamic principles which require the wife to return or the relinquishment of the benefits received by the wife from the husband under the marriage, while asking the dissolution on the basis of khula.

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Citation Name: PLJ 2007 Lahore High Court 581
Appelant Side: ALLAH DITTA
V e r s u s
Opponent Side: D.P.O., MULTAN and 4 others
Judge Name: Iqbal Hameed-ur-Rehman
Judgment Result:FIR quashed.
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----art. 199--offence of zina (enforcement of hadood) ordinance, (vii of 1979, s. 11--criminal law amendment (protection of women) act, 2006, s. 9--quashment of f.i.r.--offence of abduction was not made out--abductee stated that she had not been abducted by any person--rather she affirmed that she is sui juris and being pubert girl had contracted marriage with the petitioner--impugned f.i.r. was not warranted by law--registration of case by the police would defeat the purpose of introducing the amendment--since the impugned f.i.r. was registered after enforcement of the criminal law amendment (protection of women) act, 2006 the same is not warranted by law--petition allowed.

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Citation Name: PLJ 2007 Lahore High Court 584
Appelant Side: MUHAMMAD ZAFAR YAB
V e r s u s
Opponent Side: ADDITIONAL DITRICT JUDGE
Judge Name: Iqbal Hameed-ur-Rehman
Judgment Result:Petition accepted.
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----s. 28--dissolution of marriage--benefit of compromise/statement--principle of estoppel would be fully attracted in the instant case--petitioner would had the full opportunity of contesting the suit for dissolution of marriage and thereafter seeking its further remedies in accordance with law--respondent made the statement and achieved the benefit of the statement and after filing of the suit for recovery of dowery article, in contrary to her undertaking in a court of law, cannot be justified--principle of estoppel will apply but courts below have failed to look into such aspect of the case by not taking into consideration that respondent through her acceptance of the petitioner's statement and her statement had also used the process of law in getting benefit--it was a simple undertaking before a court of law to avoid the rigorous of trial--it was a compromise effected between the parties on the basis of which respondent was granted the decree for dissolution of marriage by the family court.
Citation Name: PLJ 2007 Lahore High Court 671
Appelant Side: SHAUKAT HAYAT
V e r s u s
Opponent Side: JUDGE FAMILY COURT, FATEH JANG DISTT. ATTOCK and another
Judge Name: Maulvi Anwar-ul-Haq
Judgment Result:Petition dismissed.
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----ss. 9(1)(b) & 10(4)--suit for restituion of conjugal rights was filed by petitioner--respondent filed written statement and by way of sets off claimed a decree for dissolution of marriage--marriage was dissolved--where no earlier suit for restitution of conjugal rights is pending there is no such condition in section 9(1)(b) of the family courts act which enables a wife to claim dissolution of marriage by way of set off in a suit for restitution of conjugal rights filed by husband--proviso to s. 9(1) of family courts that s. 10(4) (proviso) would apply where a decree for dissolution of marriage is to be passed--petition dismissed.

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Citation Name: PLJ 2007 Lahore High Court 698
Appelant Side: Mst. HAFIZAN BIBI and another
V e r s u s
Opponent Side: SHO, P.S. MANGTANWALA, DISTT. NANKANA SAHIB
Judge Name: Kh. Muhammad Sharif
Judgment Result:Petition allowed.
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----s. 561-a--quashing of fir--marriage of sui juris girl with a man of her choice--registartion of case of abduction against her husband at the instance of her parents--determination--court has to see whether the alleged abductee and her alleged husband are sui juris or not--held: whenever a sui juris girl contracts marriage with a man of her choice without the wishes of her parents, false criminal cases are registered against the couple after having prepared false nikah namas of a date prior to the date of original nikah--continuation of the criminal proceedings initiated pursuant to the registration of impugned fir would be an abuse of the process of the court--f.i.r. was quashed.

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Citation Name: PLJ 2007 Cr.C 1123
Appelant Side: MUHAMMAD TAUFIQUE and another
V e r s u s
Opponent Side: STATE
Judge Name: Hasnat Ahmad Khan
Judgment Result:Bail accepted.
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----s. 497(2)--pakistan penal code (xlv of 1860), ss. 452, 148, 149 & 310(a)--bail, grant of--marriage in "badle-e-sulah--house tresspass--fir was registered with delay of three months--fir, which was a very lengthy document, neither the date of convening of fake punchayat had been mentioned nor the date and time of alleged occurrence had been mentioned--names of the witnesses of the alleged occurrence were not in the fir--during investigation, offence u/s. 452 had been deleted and out of 17 accused, to had been found innocent--offence u/s. 452 ppc had already been deleted, showed that the occurrence did not take place--question of applicability of s. 310(a) ppc--where the parents or guardians of a female gives her in marriage or otherwise in `badl-e-sulah', can be punished under this section--whether s. 310(a) ppc would be applicable in such like cases, would be requiring further inquiry--genuineness of the disputed nikah nama had been challenged by the complainant herself before judge family court by way of filing suit for jectitation of the marriage and on the dint of the same nikah nama, petitioner had sought, restitution of conjugal rights--both suits were pending adjudication before the judge family court--case of further inquiry had been made out--petitioner was behind the bars--bail accepted.

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Citation Name: PLJ 2007 FSC 25
Appelant Side: AHMAD KHAN and others
V e r s u s
Opponent Side: STATE
Judge Name: Haziqul Khairi
Judgment Result:Appeal accepted.
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----ss. 11, 10(2) & 16--conviction and sentence recorded against accused--challenge to--victim was abducted with intention to commit zina--delay of 3 months--benefit of doubt--there was delay of three months in lodging fir that too after recovery of abductee--alleged confession was recorded after 8/9 months of her recovery and magistrate himself did not remember if she had made her confession under compulsion or not--finding of investigation officer is to the effect that abductee at her own sweet will had gone with appellant--pw admitted that he did not know if she had illicit relations with any of accused persons--medical report also disclosed that there were no marks of violence seen on her body nor any blood or semen stain was found anywhere--prosecution has to establish, firstly of taking or enticing away any woman and secondly intention that she might have illicit intercourse with any person--conviction cannot be passed against an accused person u/s. 16 of ordinance--trial court had acquitted appellants u/ss. 10(2) & 11 of ordinance, former in respect of zina and latter relating to kidnapping, abducting or inducing a woman to marriage--prosecution has failed to establish that appellants had enticed her away--she was seen going with them alongwith her minor child at a public place when she was arrested at pointation of complainant--if intention of accused was to abduct her, they would not have taken her alongwith her child--circumstances of case tantamount to failure of prosecution to prove its case against accused--petition was allowed.

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Citation Name: PLJ 2007 FSC 70
Appelant Side: MUHAMMAD and another
V e r s u s
Opponent Side: STATE and another
Judge Name: Haziqul Khairi, C.J., Dr. Fida Muhammad Khan & Salahuddin Mirza
Judgment Result:Order accordingly
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----ss. 3 & 7--pakistan penal code, (xlv of 1860), s. 109--offence of zina (enforcement of hudood) ordinance, 1979 ss. 10, 11, 15 & 16--criminal procedure code (v of 1898), s. 202--private complaint--conviction and sentence--marriage during minority--rukhsati did not take place--second marriage in the age of 36 years--challenge to--offence of zina--enmity between parties--contentions of--appellants had obtained a fatwa from moulvi--no fatwa of any religious scholar, mufti, a juris consultants is binding on a court of law or any party and is of no legal effect, not enforceable under law, as he does not stand on the padestal of a judge--respondent for her rukhsati after she attained puberty but during 30 long years they bothered not to serve her or her father with any notice nor did appellant approach a family court for enforcement of his conjugal rights--held: accused have miserably failed to establish the childhood marriage, hence the allegation of zina fails and appellants are liable to be sentenced--appeal dismissed.

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Citation Name: PLJ 2006 Karachi High Court 114
Appelant Side: AURANGZEB
V e r s u s
Opponent Side: Mst. GULNAZ and another
Judge Name: Ali Sain Dino Metlo
Judgment Result:Petition dismissed.
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----art. 199--west pakistan family courts act (xxxv of 1964), ss. 5, 14 & shedl.--constitutional petition--maintainability--alternate remedy, availability of--grant of decree for dissolution of marriage on ground of khula'--determination and restoration of mutual benefits--decree for marriage on the ground of khula' though was not appealable in view of s. 14, west pakistan family courts act, a decision with regard to determination and restoration of mutual benefits was always appealable--alternative remedy of appeal being available, constitutional petition was not maintainable.

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Citation Name: PLJ 2006 Karachi High Court 114
Appelant Side: AURANGZEB
V e r s u s
Opponent Side: Mst. GULNAZ and another
Judge Name: Ali Sain Dino Metlo
Judgment Result:Petition dismissed.
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----ss. 5 & 14--dissolution of marriage on the ground of khula'--principles--restitution of dower is not an indispensable condition for grant of khula' and non--restoration of dower and other benefits will not have any effect upon the validity of the decree--once the family court comes to conclusion that a wife was entitled for khula it must pass such decree in her favour--decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability--if the contention that khula' cannot be granted without restitution of dower and other benefits, is accepted, then a destitute wife, who is found otherwise entitled to khula', will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice--wife, in the present case, admittedly lived with the husband for over one and half year, such living can be treated as sufficient reciprocal benefit received by the husband for a dower of specified amount--wife who belonged to a lower class, seemed to be not in a position to pay the amount particularly after undergoing the litigation for 2"--family court, taking into consideration the overall facts of the case, had rightly considered proper to dissolve the marriage by way of khula' without ordering restoration of dower, it was within the discretion of the family court, and therefore, the decree could not be termed as 'without lawful authority' so as to warrant interference of the high court under its constitutional jurisdiction.

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Citation Name: PLJ 2006 Karachi High Court 273
Appelant Side: AURANGZEB
V e r s u s
Opponent Side: Mst. GULNAZ and another
Judge Name: Ali Sain Dino Metlo
Judgment Result:Petition dismissed
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----art. 199--dissolution of marriage on the ground of khula'--restitution of dower is not an indispensable condition for grant of khula' and non-restoration of dower and other benefits will not have any effect upon the validity of the decree--once the family court comes to conclusion that a wife was entitled for khula it must pass such decree in her favour--decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability--if the contention that khula' cannot be granted without restitution of dower and other benefits, is accepted, then a destitute wife, who is found otherwise entitled to khula', will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice--wife, in the present case, admittedly lived with the husband for over one and half year, such living can be treated as sufficient reciprocal benefit received by the husband for a dower of rs. 42,000--wife who belonged to a lower class, seemed to be not in a position to pay the amount particularly after undergoing the litigation for two and half years, family court, taking into consideration the overall facts of the case, had rightly considered proper to dissolve the marriage by way of khula' without ordering restoration of dower, it was within the discretion of the family court, and therefore, the decree could not be termed as without lawful authority' so as to warrant interference of the high court under constitutional jurisdiction.

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Citation Name: PLJ 2006 Karachi High Court 273
Appelant Side: AURANGZEB
V e r s u s
Opponent Side: Mst. GULNAZ and another
Judge Name: Ali Sain Dino Metlo
Judgment Result:Petition dismissed
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----ss. 5, 14 & shedl.--constitution of pakistan (1973), art. 199--constitutional petition--khula--maintainability--alternate remedy, availability of--suit for dissolution of marriage was decreed on ground of khula'--determination and restoration of mutual benefits--decree for marriage on the ground of khula' though was not appealable in view of s. 14, west pakistan family courts act, 1964, a decision with regard to determination and restoration of mutual benefits was appealable--alternative remedy of appeal being available, constitutional petition was not maintainable.

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Citation Name: PLJ 2006 Karachi High Court 328
Appelant Side: ABDUL SATTAR
V e r s u s
Opponent Side: Mst. KALSOOM
Judge Name: Sarmad Jalal Osmany
Judgment Result:Order accordingly
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----s. 2--west pakistan family courts act (xxxv of 1964), ss. 5, 10(4), proviso (as added by family courts amendment ordinance (lv of 2002) & sched.--suit for dissolution of marriage on ground of khula' or any other ground--pre--trial conciliation efforts, failing of--absence or presence-of dispute as to payment/remission of dower--preliminary decree for dissolution of marriage, passing of--scope--in absence of such dispute, decree for dissolution of marriage would be passed immediately upon failure of pre--trial proceedings between the parties--in presence of such dispute, only upon deposit of dower amount in court by wife such preliminary decree could be passed, whereafter such dispute would be resolved upon taking of evidence--in presence of such dispute and upon failing of wife to deposit dower amount in the court, no decree for dissolution of marriage could be passed, rather matter would be decided after recording evidence
Citation Name: PLJ 2006 Karachi High Court 328
Appelant Side: ABDUL SATTAR
V e r s u s
Opponent Side: Mst. KALSOOM
Judge Name: Sarmad Jalal Osmany
Judgment Result:Order accordingly
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----ss. 5, 10(4), proviso (as added by family courts (amendment ordinance (lv of 2002)] & sched.--suit for dissolution of marriage also involving issues of return of dowry articles, custody of children, dower and maintenance--failing of pre-trial conciliation efforts--absence or presence of dispute as to payment/remission of dower--preliminary decree for dissolution of marriage, passing of--scope--if husband disputed all such claims of wife, then such contentious issues would be decided only after recording evidence--where issue of dower was not contested, then such preliminary decree could be passed upon failing of conciliatory efforts, whereafter court would decide other issues--where issue of dower was contested, then upon deposit of dower amount in court by wife, such preliminary decree could be passed, whereafter issue of dower alongwith other issues, if any, would be decided after recording evidence--in presence of such dispute and failing of wife to deposit dower in court, no decree could be passed for dissolution of marriage, rather matter would be decided after recording evidence.

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Citation Name: PLJ 2006 Karachi High Court 328
Appelant Side: ABDUL SATTAR
V e r s u s
Opponent Side: Mst. KALSOOM
Judge Name: Sarmad Jalal Osmany
Judgment Result:Order accordingly
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----ss. 5, 10(4), proviso (as added by family courts (amendment) ordinance (lv of 2002), 17 & sched.--applicability--principles--suit for dissolution of marriage on ground of khula' or any other ground--preliminary decree for dissolution of marriage, passing of--non--applicability of qanun-e-shahadat, and civil procedure code, to proceedings before family court would not debar same from passing such preliminary decree--section 17 of west pakistan family courts act 1964, provides that the qanun-e-shahadat, and civil procedure code, shall not apply to proceedings before the family court--it does not debar such court from passing a preliminary decree dissolving the marriage on the basis of khula' or any other ground--object of provision of section 17 as to non-applicability of the qanun-e-shahadat and civil procedure code, is to expedite the proceedings before family court, so that the same are not delayed for lack of procedural formalities as contained in such laws, which cannot be construed so as to defeat the purposes of the family courts act, which is a beneficial piece of legislation designed to expedite family cases.

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Citation Name: PLJ 2006 Lahore High Court 233
Appelant Side: Mst. HUSINA BIBI
V e r s u s
Opponent Side: STATION HOUSE OFFICER, P.S. SHAHR SULTAN, DISTRICT MUZAFFARGARH and 5 others
Judge Name: Muhammad Jehangir Arshad
Judgment Result:Order accordingly
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----arts. 35 & 199--criminal procedure code, (v of 1898), s. 491--violation of fundamental right--offence of zina (enforcement of hudood) ordinance, 1979, s. 16--fundamental rights--held: petitioner, a sui juris muslim girl could not be kept in dar-ul-aman for an indefinite period in violation of fundamental rights guaranteed by constitution--high court allowed petitioner to accompany her husband, however the investigation of case was to proceed on merits--further held: findings of the judge family court regarding the jactitation of her previous marriage would decide the fate of the criminal case.

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Citation Name: PLJ 2006 Peshawar High Court 201
Appelant Side: Mst. GUL FAREEN
V e r s u s
Opponent Side: AHMAD NAWAZ and another
Judge Name: Salim Khan and Hamid Farooq Durrani
Judgment Result:Petition dismissed
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----s. 14(2)--constitution of pakistan, 1973--art. 199--jurisdiction to hear appeal regarding maintenance allowance upto rs. 1000/- appellate court did not have power to hear appeal in decree for maintenance allowance upto rs. 1000/- in favour of the petitioner--fact of--a decree of rs. 1000/- dower amount rs. 5000/- as delivery expenses and rs. 1000/- per month as maintenance allowance for whole period of desertion and future maintenance till marriage was granted in favour of the wife--amount so decreed exceeded of rs. 1000/- when jointly considered for plaintiff against defendant--petition dismissed.

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Citation Name: PLJ 2006 Quetta High Court 9
Appelant Side: MUJTABA
V e r s u s
Opponent Side: RAZIA and 2 others
Judge Name: Raja Fayyaz Ahmed, C.J., and Akhtar Zaman Malghani, J.
Judgment Result:Order accordingly
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----ss. 5 & 9--sched.--constitution of pakistan (1973), art. 199--suit for dissolution of marriage, recovery of dower amount, maintenance allowance and for the custody of the minors against the petitioner--ex parte decree was passed against the petitioner--defendant, at the time of passing of ex parte decree, was in judicial lock up--even in civil proceedings, if an order, be it a final or interlocutory, adverse to interest of any party concerning his rights in personam or in rem had been passed and if such person be in jail, he had to be informed accordingly, through the superintendent of jail--no such information, was conveyed to defendant (petitioner) in respect of decree, therefore, it could not be assumed, in absence of other material, that he had active knowledge of the ex-parte decree passed against him nor even application submitted before appellate court seeking condonation of delay in appeal beyond prescribed period of limitation was contested by the plaintiff by filing counter affidavit--such aspect of the case germane to question of limitation was not attended to by the appellate court nor validity or legality of impugned decree based upon proceedings ordered to be taken ex parte, were taken into consideration by appellate court, which consequently rendered its judgment and decree as not sustainable--order passed by the family court whereby the defendant was ordered to be proceeded ex parte was a nullity in eye of law, void and without jurisdiction--subsequent proceedings taken in case and ex parte decree passed in consequence thereof also were without any legal effect and that being so, made the question of limitation pertaining to the filing of appeal as worthless and to no credence--high court, set aside the said orders declaring same to be of no legal effect--suit instituted by plaintiff as ordered to be expeditiously decided as provided by law after hearing the parties--defendant, subject to the final decision by the family court, was directed to deposit with the family court interim maintenance at the rate of rs. 1200 per month w.e.f. the specified date for the three minors/daughters of the spouses presently in the custody of their mother (plaintiff).

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