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P L D 2008 Peshawar 111

 

Before Shahji Rahman Khan and Muhammad Alam Khan, JJ

 

SIFAT AIZDI—Petitioner

 

Versus

 

Dr. SAIMA BASHIR and 2 others—Respondents

 

Writ Petition No.94 of 2008, decided on 28th May, 2008.

Muhammad Akram v. Mst. Hajra Bibi and two others PLD 2007 Lah. 515; Asia. v. Abdur Rehman and another 1994 CLC 1388; Abdur Rashid and another. v. Mst. Shaheen Bibi and 2 others PLD 1980 Pesh. 37 and Muhammad Tariq v. Mst. Shaheen Bibi PLD 2006 Pesh. 189 ref.

 

Malik Muhammad Bashir for Petitioner.

 

 

ORDER

 

MUHAMMAD ALAM KHAN, J.—Sifat Aizdi daughter of Haji Ahmad Bakhsh has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against Dr. Saima Bashir and others challenging the judgment and decree of the Judge Family Court in Suit No.370/3 decided on 20-12-2006 and that of the learned Additional District Judge-II; Dera Ismail Khali in Appeal No.4/2007 vide which the learned Additional District Judge-II, Dera Ismail Khan concurred with the Judge Family Court and maintained the judgment and decree of the trial Court for possession of a house in favour of Dr. Saima Bashir, respondent No.1, to be without jurisdiction and coram non judice.

 

2. Briefly narrated the facts of the case are that the marriage of Dr. Saima Bashir respondent No.1 took place with Hafiz Muhammad Ali Waqar son of Haji Munir Ahmad and vide Kabin Nama, dated 14-7-2005 cash dower of Rs. 60,000 was fixed out of which Rs.50,000 was a prompt dower and in lieu of Rs.10,000, the father of Muhammad Ali Waqar had transferred half share of a. house towards western side vide registered Deed No.1799, Bahi No. 1, Volume No.805 registered on 8-7-2005. After the Rukhsati of Dr. Saima Bashir she lived in the house of her husband and was performing the marital obligations. However, after few days of the marriage the attitude of the husband became cruel and he used to subject her to physical as well as mental torture and finally she was turned out of the house and consequently the wife started living in a private hostel. In these circumstances she brought a suit in the Court of Civil Judge/Judge Family Court, Dera Ismail Khan claiming the possession of the house towards western side duly described by boundaries measuring ten Marlas which was bounded as North-thorough fare, South-house of Dr. Hasnain, East-house of Dr. Baqir and West a public road situated in Gillani Town near Wensam College; Tehsil and District Dera Ismail Khan. In the alternative she also prayed for the partition of the suit house in accordance with the site plan attached with the plaint. She also prayed for the recovery of Rs.50,000 as prompt dower outstanding against her husband and claimed maintenance at the rate of Rs.5000 per month from 22-4-2006 till the date of decree.

 

3. The defendants were summoned who submitted their written statement raising factual and legal pleas and the suit proceeded to trial. During pendency of the suit, Muhammad Ali Waqar, the husband, divorced respondent No.1 and paid her cash dower vide divorce deed dated 27-9-2006. So, to that extent the grievance of Dr. Saima Bashir was redressed and now the suit proceeded with respect to the possession of the house and recovery of maintenance allowance. It is also pertinent to mention that during the pendency of the suit, the respondent-wife submitted an application for deletion of her prayer in the alternative through which she had prayed for the partition of the, said house as, according to her, the specific portion of the said house described through boundaries with a separate gate on the western side had been given to her in the registered deed and consequently, this prayer was withdrawn by respondent No.1. The learned trial Court, after consulting the record, came to the conclusion that the factum of transfer of the house by way of registered deed has been admitted by the defendants. It was specifically admitted in the joint written statement filed by Muhammad Ali Waqar and others that the house, fully described in the registered deed, had been given in lieu of dower of Rs.10,000 by the father of Muhammad Ali Waqar to the wife. In view of this admission in the written statement, the respondent No.1, on 30-10-2006, submitted that as the defendants have admitted her right to the suit house, thus, she will relinquish her right to the maintenance and she will not claim the same. The suit was pending when in the meantime Muhammad Ali Waqar etc. defendants submitted an application dated 17-7-2006 to the learned Judge Family Court praying therein, that the Judge Family Court lacks jurisdiction to order to the partition of the suit house, thus, it was prayed that the plaint be returned to respondent No.1 for presenting the same before the civil Court of competent jurisdiction. The learned trial Court after hearing the arguments of learned counsel for the parties, rejected the application and found that as the defendants have admitted the claim of respondent No.1 with respect to the suit house and she has relinquished her right to the past maintenance, vide judgment and decree, dated 20-12-2006, granted a decree of possession of the house and maintenance only to the extent of Iddat period. Mst. Sifat Aizdi, one of the defendants, filed an appeal against this judgment and decree before the learned District Judge, Dera Ismail Khan which came up for hearing before Muhammad Naseem, Addition District Judge-II, Dera Ismail Khan and who, vide order dated 20-3-2008, while ‘ concurring with the learned Judge Family Court, dismissed the appeal of the petitioner Mst. Sifat Aizdi. It is pertinent to note that the contesting defendant in the family suit has neither challenged the findings of learned Judge Family Court in appeal nor through this constitutional petition, rather he has not been even arrayed as a party to the present writ petition.

 

4. Malik Muhammad Bashir, learned counsel appearing for the petitioner submitted that the Family Court had no jurisdiction as the matrimonial relations between respondent No.1 and her husband Hafiz Muhammad Ali Waqar had come to an end, after he pronounced divorce in favour of respondent No.1 and the outstanding cash dower of Rs.50,000 was paid to her. Thus, it was submitted that the petitioner has rightly raised the objection with respect to the jurisdiction of the Family Court. In this respect, reference was made to section 5 of the West Pakistan Family Court Act, 1964. It was argued that the Family Court has the plenary jurisdiction to entertain all matrimonial disputes enumerated in the schedule attached to the Act ibid which does not contain the suit for partition of the property given to the wife in lieu of dower by her husband. Reliance in this respect was placed on the case of Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515 and also on the unreported judgment of this Court in the case of Naghmana Nosheen. v. Allah Nawaz Khan and another (W.P. No.281/2006) decided on 27-11-2006) attached with the writ petition at page-36.

 

5. We have gone through the record of the case and have considered the arguments of learned counsel for the petitioner.

 

6. Perusal of the record reveals that admittedly the amount of cash dower as fixed at the time of marriage was Rs.60,000 out of which Rs.50,000 was payable on demand and in lieu of the remaining dower of Rs.10,000 the suit house was transferred in favour of respondent No.1 through a deed duly registered in the office of the Sub-Registrar and this deed had been admitted by all the defendants. The suit house mentioned in the deed was duly specified by boundaries and a site plan had been annexed with the plaint. The law is very much clear on the subject that in Nikah Nama not only cash amount as dower can be fixed but also the gold ornaments as well as the immovable property. There is clear-cut admission on the part of the husband regarding the fixation of dower and so much so that he has never challenged the same either before the Family Court or before the learned Appellate Court and even, the petitioner has not arrayed him as party to the instant litigation. It has been repeatedly held that once a property, whether movable or immovable, is given in dower by the husband to the wife, then under section 5 of the Act ibid the exclusive jurisdiction lies with the Family Court as held categorically in the dictums of the superior Courts in the cases of Asia v. Abdur Rehman and another (1994 CLC 1388 Lahore), Abdur Rashid and another v. Mst. Shaheen Bibi and 2 others (PLD 1980 Peshawar 37), Liaquat Ali. v. Additional District Judge Narowal and others 1997 SCMR 1122 and Ahmad Hussain and another v. Mst. Shagufta and 2 others (PLD 1996 Peshawar 64).

 

7. The contention of the learned counsel for the petitioner that the Family Court lacked the jurisdiction passed a decree for partition of the suit house is also without any substance as the respondent No.1 had sued for the possession of the house specifically mentioned by boundaries and duly specified in the site plan attached with the plaint. These boundaries have duly been incorporated in the registered deed in her favour and even the western side of the house has been shown. Moreso, when she submitted an application for withdrawal of her prayer regarding the relief of partition, so, the learned trial Court has rightly passed a decree in favour of respondent No.1.

 

8. The radical changes brought through amendment in the Family Court Act, by the Amending Ordinance of 2002 have widened the scope of schedule attached to the Family Act and even the suit for recovery of the personal belongings of a wife can be agitated and relief sought from the Family Court as held in the case of Muhammad Tariq v. Mst. Shaheen Bibi (PLD 2006 Peshawar 189).

 

9. The case-law relied upon by the learned counsel for the petitioner has got no nexus with the facts’ and circumstances of the present case.

 

10. In view of the facts and circumstances of the case narrated above, we find no force in the present writ petition which is dismissed in limine.

 

H.B.T./60/P Petition dismissed.

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