Summary: PLJ 2021 AJK 16 Present Sadaqat Hussain Raja J SHOUKAT HUSSAIN - - Petitioner versus SHO POLICE STATION KAHORI TEHSIL NASEERABAD DISTRICT MUZAFFARABAD and 13 others - - Respondents WP No 1088 - D of 2020 decided on 2812021 Azad Jammu and Kashmir Interim Constitution 1974 (VIII of 1974) - - - - - - Art 44 - - Suit for dissolution of marriage - - Dismissed - - Appeal - - Allowed - - Suit was decreed in consideration of dower amount - - Non payment of dower amount - - Application before SHO regarding non payment of dower amount - - Refused - - Application before justice of peace - - Dismissed - - Second marriage of respondent No 7 after khula - - Registration of FIR uS 10 - A 494 APC against Respondents No 6 7 - - Petition for quashment of FIR - - Nikahnama of Respondents No 6 7 was never challenge by Respondent No 3 - - Presumption of valid marriage - - Challenge to - - Court vide judgment set aside decree of restitution of conjugal rights and passed decree of dissolution of marriage on ground of Khula in consideration of dower however same has not been challenged before upper forum therefore same has attained finality - - Two notable person of locality namely Nisar so Abdul Majeed and Mohammad Akhlaq Abbasi so Abdul Raheem went to home of Respondent No 3complainant to discuss about Khula amount as well as dowry articles and after discussing about this matter both parties decided to restrain from receiving any sort of amount whereas one lac amount regarding dowry articles was outstanding against Respondent No 3 which fact was supported from affidavits executed by Shoukat Hussian so Ghulam Hussain Mohammad Akhlaq Abbasi so Abdur Rahim Abbasi and Nisar Ahmed so Abdul Majeed Abbasi - - Petitioner as well as complainant has affirmed Nikah - nama and after this Nikah proforma Respondents No 6 7 are living as husband and wife which is sufficient proof of valid marriage - - According to principle of Muhammadan Law presumption of valid marriage can be ascertained from fact of acknowledgment by a man or woman as husband and wife - - Courts are bound to protect Family life of State subjects - - Criminal proceedings cannot be initiated against proforma Respondents Nos 6 7 - - Offences as alleged in FIR are not made out and continuance of further proceedings against spouses may amount to unnecessary harassment hence continuation of proceeding in FIR in question is a futile exercise and same is liable to be quashed - - Petition was accepted [Pp] A B C D E 2000 YLR 2519 and PLJ 2017 SC (AJK) 84 ref Raja Muhammad Altaf Khan Advocate for Petitioner Syed Sharafat Hussain Naqvi Advocate for Respondent No 3 AAG for official respondentsJudgement Result:Petition accepted

Summary: Background: Respondent/plaintiff Mst. Riffat Kousar filed two suits: one for recovery of maintenance allowance and the other for dissolution of marriage before the Additional District Judge Dadyal, empowered as Judge Family Court Dudyal. She claimed that the petitioner/defendant, Mohammad Mumtaz, had married her on January 16, 2010, and they had a child on November 4, 2010. Eight days after the child's birth, Mumtaz left her at her parents’ house and neither met her nor paid any maintenance. Mumtaz is alleged to be a contractor earning around 40,000 to 45,000 per month. Mumtaz filed a suit for conjugal rights, claiming they lived a happy life until her mother instigated her to leave him. He sought a decree for restitution of conjugal rights. ----Issues: 1- Whether the dismissal of Mohammad Mumtaz's appeals by the High Court was justified. 2- Whether the petitioner should pay additional maintenance towards the decretal amount for the minor. ----Holding/Reasoning/Outcome: --High Court Decision: The High Court dismissed Mumtaz’s appeals against the judgment of the Family Court, which had decided in favor of Riffat Kousar, granting her maintenance allowance and dissolving the marriage. --Supreme Court Decision: The Supreme Court reviewed the petitions for leave to appeal against the consolidated judgment of the High Court. The Court considered the maintenance of the minor and the behavior of both parties during their matrimonial life. The Supreme Court granted leave to appeal subject to the petitioner depositing an additional Rs.20,000 out of the decretal amount towards the maintenance of the minor. The petitioner was directed to deposit the security amount of Rs.1000 for each petition within one month, failing which the leave granted order would be rescinded automatically.

Summary: This petition involved a familial dispute wherein the respondent, Asima Sadiq, initiated suits against Muhammad Imran, including one for the recovery of maintenance and another for dower. Muhammad Imran, the son of the petitioner, Muhammad Amin, also filed a suit seeking restitution of conjugal rights. The petitioner was a defendant in the dower recovery suit. The Family Court issued partial decrees, dismissing Muhammad Imran's suit for restitution of conjugal rights but partly allowing Asima Sadiq's claims. Both parties appealed the decision. While Muhammad Imran's appeal was dismissed, Asima Sadiq's appeal was partially accepted through a writ petition, leading to a remand to the Additional District Judge to provide specific findings on Issue No.4 regarding the petitioner's status in the suit. Post-remand, the Additional District Judge concluded that the petitioner was a necessary party. Subsequently, an execution petition ensued, contested by the petitioner, who argued that the decree was not executable against him. Despite objections, the executing court rejected them, prompting the petitioner to file the current petition under Article 199 of the Constitution of Pakistan. In support of his case, the petitioner cites legal precedents to underscore the principle that an executing court cannot exceed the bounds of the decree. Specifically referencing "Ch. AHMED NAWAZ versus PROVINCE OF PUNJAB through Land Acquisition Collector, Jhelum and others" (2015 SCMR 823) and "IRSHAD MASIH and others versus EMMANUEL MASIH and others" (2014 SCMR 1481), the petitioner argued that the decree is solely against Muhammad Imran, and the alternate price fixed for the dower property removes any impediment to its execution against him. Consequently, the court accepted the petition.

Summary: Sections of law; Article 199 of the Constitution(a)A decree for restitution of conjugal rights would not prevent a female from bringing a suit for dissolution of marriage, in changed circumstances.

Summary: Background: The respondent (wife) filed three suits against the appellant (husband) in the Family Court at Mirpur, AJK. The suits sought dissolution of marriage, recovery of dowry articles, and maintenance allowance. The couple had married on 08.08.2008, with one child born from the union. The respondent alleged that the appellant subjected her to abuse, neglect, and cruelty, and ousted her from his home in 2009. The respondent sought dissolution of the marriage due to non-maintenance and cruelty. In response, the appellant denied the allegations and filed a counter-suit for restitution of conjugal rights. The Family Court consolidated the cases and, after hearing the evidence, decreed dissolution of marriage on the ground of non-maintenance and partially allowed the maintenance allowance claim, but dismissed the dowry articles claim for lack of evidence. The appellant’s suit for restitution of conjugal rights was also dismissed. Dissatisfied with the Family Court’s decision, the appellant challenged it in the Shariat Appellate Bench of the High Court, which dismissed the appeals. The appellant then appealed to the Supreme Court of AJK. -----Issues: 1- Whether the dissolution of marriage could be granted based on non-maintenance when the statutory period of two years was not fulfilled. -----2- Whether the respondent proved cruelty by the appellant to justify dissolution on that ground. -----3- Whether the dismissal of the appellant’s suit for restitution of conjugal rights was legally justified. -----4- Whether the court could modify the decree for dissolution on the ground of khula instead of non-maintenance. -----Holding/Reasoning/Outcome: --Non-Maintenance Issue: The Supreme Court found that while the respondent claimed non-maintenance, the two-year statutory period of non-maintenance was not met at the time the dissolution suit was filed. Cruelty Allegation: The court noted that the allegations of cruelty were not sufficiently proven by the respondent to justify dissolution of the marriage on that ground. --Khula as a Justifiable Ground: The court recognized the respondent’s statement that she could no longer live with the appellant within the limits ordained by Allah. This was sufficient to dissolve the marriage on the ground of khula, which allows a wife to seek divorce based on irreconcilable differences. --Restitution of Conjugal Rights: The dismissal of the appellant’s suit for restitution of conjugal rights was upheld, as the court found that forcing the respondent to return to the marital relationship was not feasible. The Supreme Court modified the lower court’s decree, dissolving the marriage on the ground of khula instead of non-maintenance. The court ordered the respondent to return the dower and any other benefits received from the appellant. -----Citations/Precedents: Islamic Family Law Principles: Courts in AJK have the authority to dissolve a marriage based on khula if the wife expresses that she cannot live with her husband in harmony. Family Law Precedents in AJK: The courts emphasize the importance of non-coercion in marital disputes and favor dissolution if reconciliation is not possible.

Summary: Execution of decree for restitution of conjugal rights,Held: Order XXI Rule 32 CPC empowers the execution Court to attach property of the judgment debtor for the enforcement of the decree regarding restitution of conjugal rights, but is is discretionary with the Court and not mandatory and being so, it ought to be exercised judiciously and carefully. The petitioner had serious threats from her husband, therefore, she could not be forced to reside with her husband and her refusal could not be construed a willful refusal of the decree so as to attach her property.

Summary: The suit involved a claim for the recovery of maintenance allowance filed by the respondents, who alleged that a marriage contract was entered, resulting in two minors now in the custody of Respondent No. 1. The judgment noted that the respondents were proceeded against ex-parte due to their non-appearance. The court provided a summary of the facts, including the strained relationship between the parties, the expulsion of the respondents from the petitioner's house, and the subsequent filing of a suit for maintenance allowance. The Family Court partially decreed the suit, granting maintenance allowance for the minors and the Respondent No. 1. The petitioner appealed, and the Appellate Court partially allowed the appeal, decreeing the suit for restitution of conjugal rights but declining the rest of the petitioner's claims. The judgment observed that the courts below failed to discuss the documentary evidence, particularly the petitioner's salary slip, which indicated a net pay of Rs. 18,252/-. The court emphasized the importance of considering documentary evidence in determining the financial status of the petitioner for fixing maintenance. It noted that both lower courts did not properly assess the evidence and, as a result, modified the judgments. The court allowed the constitutional petition, modifying the judgments and decrees. The quantum of maintenance for Respondents No. 2 and 3 was reduced from Rs. 5,000/- to Rs. 3,000/- per month each with a 10% annual increase from the institution of the suit. It also mentioned that the petitioner, having paid the entire amount in court, should have the amount already received by the respondents adjusted by the executing court. The court also highlighted that Respondent No. 1 was not entitled to maintenance until she fulfilled matrimonial obligations due to the decree of restitution of conjugal rights.

Summary: Background:The appellant, Ibrar Hameed, challenged the judgment of the Shariat Appellate Bench of the High Court, which upheld the Family Court's decision in favor of the respondent, Mst. Shazia Hassan. Shazia Hassan filed three suits against Hameed for recovery of dower, maintenance allowance, and dowry articles following their marriage, which ended with her alleged desertion. Hameed contested these claims and filed a suit for restitution of conjugal rights, claiming his wife had left without justification.----Issues:Whether the Family Court properly assessed the evidence in awarding dower, maintenance allowance, and dowry articles to the respondent.Whether the respondent was entitled to maintenance allowance despite allegedly leaving the appellant's home without justification.Whether the Shariat Appellate Bench correctly upheld the Family Court's decision without a detailed discussion of the evidence.----Holding/Reasoning/OutcomeThe Supreme Court of Azad Jammu and Kashmir dismissed the appeal, affirming the decisions of the Family Court and the Shariat Appellate Bench of the High Court.The Family Court's decision was based on substantial evidence indicating that the appellant failed to pay the deferred dower and maintenance allowance as agreed. Witnesses corroborated the respondent's claims of mistreatment and unjustified desertion. The court also noted that the appellant did not seriously attempt to reconcile with his wife.The Shariat Appellate Bench, though not detailed in its judgment, applied judicial mind and reviewed the evidence sufficiently. The Supreme Court found no misreading or non-reading of evidence by the lower courts. The Supreme Court upheld the award of Rs. 400,000 as dower, Rs. 3,000 per month as maintenance allowance from the date of desertion, and the recovery of dowry articles or their monetary equivalent.

Summary: Background:The appellant, Shahzad Rauf, filed a civil appeal against the judgment of the Shariat Appellate Bench of the High Court dated 05.04.2018. The respondent, Mst. Shabana Yaseen, had filed four suits in the Senior Civil Judge/Judge Family Court, Rawalakot on 22.11.2012 for:Dissolution of marriageRecovery of maintenance allowance at Rs. 15,000 per monthRecovery of dower amounting to Rs. 600,000Recovery of dowry articles or an alternative amount of Rs. 89,135Shahzad Rauf also filed a counter-suit for the restitution of conjugal rights. The Family Court decreed in favor of the respondent, dissolving the marriage, and granted the requested financial amounts. The appellant filed an appeal against the decree, but the High Court dismissed it, leading to this appeal.----Issues:Whether the order passed by the Family Court fixing monthly installments for the payment of decretal amounts is a final order or an interlocutory order.Whether the Family Court's fixation of installments is beyond the appellant?s capacity to pay and requires re-evaluation.----Holding/Reasoning/Outcome:Interlocutory vs. Final Order: The Supreme Court concluded that the Family Court's decision on the execution applications was final and not an interlocutory order. It was determined that the Family Court?s order conclusively resolved the matter of the payment schedule, making it a final decision appealable under section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993.Installments and Financial Capacity: The Court emphasized the need for the Family Court to reassess the financial capacity of the appellant. The current fixed installment of Rs. 50,000 per month was found to be potentially excessive given the appellant's alleged monthly income of Rs. 10,000. The Supreme Court directed the Family Court to gather more evidence on the appellant's financial situation and determine reasonable installments for the payment of the decretal amounts.The Supreme Court remanded the case to the Family Court for reassessment of the installment amounts, while temporarily setting a reduced installment of Rs. 10,000 per month for the decretal amount, in addition to the Rs. 3,000 per month maintenance allowance.----Citations/Precedents:Noreen Akhtar vs. Liaquat Hussain [2004 SCR 143]Muhammad Ramzan vs. Rukhshana Kausar and another [2006 SCR 104]Ali Haider and others vs. Syed Muhammad Ashgar Shah [2014 SCR 1004]Muhammad Zaheer-ud-Din Babar vs. Mst. Shazia Kosuar [2015 SCR 621]Muhammad Zaffar Khan vs. Mst. Shehnaz Bibi & others [1996 CLC 94]Muhammad Zaman vs. Uzma Bibi & others [2012 CLC 24]Hafiz Abdul Waheed vs. Mrs. Asma Jehangir & another [PLD 2004 SC 219]

Summary: Family Courts Act (XXXV of 1964)------S. 14---Suit for restitution of conjugal rights---Petitioner/husband contended that Majlis-eShoora (Appellate Court) had no jurisdiction to entertain appeal preferred by him against the decree passed by Family Court---Validity---Family Courts Act, 1964 was a special law which vested powers with the Qazis and Civil Judges to adjudicate upon the family matters, but appeal as provided under S.14 of Family Courts Act, 1964 would only lie before the DistrictCourt---Majlis-e-Shoora (Appellate Court) was barred to entertain the appeal under special law---High Court observed that impugned order passed by the Majlis-e-Shoora was withoutlawful authority and void ab initio and set aside the impugned order and directed Majlis-eShoora (Appellate Court) to return the appeal to the petitioner/appellant who would be at liberty to file said appeal before the Court of competent jurisdiction---Constitutional petition was allowed accordingly.