Summary: (a) Family Courts Act (XXXV of 1964) –– Maintenance –– Dower (Haq Mehr) –– Custody of minors –– Suit filed by widow and her children for recovery of maintenance, dower (residential house), dowry articles, and amount entrusted to her –– Allegation by defendants (stepchildren) that second marriage and dower deed (Kabin Nama) were forged and that the plaintiff had been divorced due to immoral character –– Trial Court decreed the suit in favour of widow, holding that the house measuring 50x100 square feet was given to her in lieu of dower and custody of minors was granted to her on basis of Hizanat –– Appellate Court dismissed appeal and affirmed judgment of Trial Court –– High Court declined to interfere under Art.199 of the Constitution holding that family courts’ concurrent findings were well reasoned, based on proper appraisal of evidence, and free from jurisdictional errors. Held, that findings of both courts below did not suffer from arbitrariness, perversity, misreading/non-reading of evidence or error of law or fact warranting interference –– Petition dismissed. Relevant Provisions: Constitution of Pakistan, Art. 199. Cited Cases: • Arif Fareed v. Bibi Sara (2023 SCMR 413) • M. Hamad Hassan v. Mst. Isma Bukhari (2023 SCMR 1434) • Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa (2001 SCMR 338) • Shajar Islam v. Muhammad Siddique (PLD 2007 SC 45) • Mst. Tayyebaa Ambareen v. Shafaqat Ali Kiyani (2023 SCMR 246) Disposition: Petition dismissed. **(b) Constitutional jurisdiction –– Scope –– Art.199, Constitution of Pakistan –– Interference in concurrent findings of family court and appellate court –– Limitation –– Held, that constitutional jurisdiction cannot be exercised as a substitute for revision or appeal –– High Court may only interfere in exceptional cases where findings are perverse, arbitrary, based on no evidence, or are violative of law or jurisdiction –– In family litigation, unless the lower fora have misapplied law or ignored material evidence resulting in miscarriage of justice, High Court is not empowered to reappraise evidence. Cited Cases: • Mst. Tayyebaa Ambareen v. Shafaqat Ali Kiyani (2023 SCMR 246) • Shajar Islam v. Muhammad Siddique (PLD 2007 SC 45) • Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa (2001 SCMR 338) Disposition: Petition dismissed. **(c) Custody of minors –– Principle of Hizanat –– Welfare of minor daughters aged 7 and 6 years –– Held, that under the rule of Hizanat, mother was entitled to custody of minor daughters till their puberty –– Technicalities not to be imported into family litigation involving minors –– Child-sensitive approach must be adopted by courts to mitigate emotional harm caused by adversarial litigation. Cited Case: Arif Fareed v. Bibi Sara (2023 SCMR 413) Disposition: Custody granted to mother; petition dismissed.

Summary: Acquittal granted---(a) Offence of Zina (Enforcement of Hudood) Ordinance, 1979— ----S. 10(2)---Allegation of zina---Appellants convicted for committing zina based on the prosecution's claim that the female appellant was still married to her former husband at the time of her second marriage with the male appellant---Prosecution failed to establish beyond a reasonable doubt that the first marriage was still subsisting---Talaq Nama (divorce deed) produced by the accused was not disproved by the prosecution, nor did the previous husband come forward to challenge it---Held, prosecution failed to prove that appellants were guilty of zina, and conviction was unwarranted. (b) Penal Code (XLV of 1860)— ----Ss. 468 & 471---Forgery and fraudulent use of document---Prosecution alleged that the Talaq Nama was forged, leading to convictions under Ss. 468 & 471, P.P.C.---Only one witness (PW.3) disputed the document’s authenticity, but he himself admitted placing his thumb impression on the divorce deed---Prosecution did not examine the previous husband or provide forensic analysis of the thumb impression to prove forgery---Held, failure of prosecution to establish that the document was forged rendered the conviction unsustainable. (c) Muslim Family Laws Ordinance, 1961— ----S. 7(1)---Requirement to notify the Chairman of Union Council after pronouncement of talaq---Failure to comply with this procedural requirement does not invalidate the talaq itself---Talaq becomes effective if pronounced willfully and with the intention to dissolve the marriage bond---Appellants’ claim of valid divorce was supported by documentary evidence, while prosecution failed to provide any counter-evidence---Held, non-notification under S. 7(1) of the Ordinance does not affect the validity of talaq, and subsequent marriage cannot be declared void. (d) Validity of Second Marriage & Iddat Period— ----Prosecution argued that the second marriage was contracted before the expiry of the iddat period, rendering it void---Held, under Islamic law, marriage before completion of iddat is irregular (fasid) but not void (batil)---Even if an irregularity existed, it did not amount to zina under the Hudood Ordinance---Further, documentary evidence showed that the talaq was pronounced on 2.10.2001, while the subsequent marriage took place on 3.2.2002, after completion of iddat---Prosecution failed to disprove these facts. (e) Administration of Justice— ----Burden of proof---Prosecution bears the responsibility to establish guilt beyond a reasonable doubt, and the onus never shifts to the accused to prove innocence---Trial Court convicted the appellants based on the assumption that their defence was unproven, rather than requiring the prosecution to substantiate its case---Held, this was a fundamental misapplication of criminal jurisprudence, warranting reversal of conviction. (f) Disposition— ----Appeals allowed---Convictions and sentences under S. 10(2) of the Ordinance and Ss. 468 & 471, P.P.C. set aside---Appellants acquitted and ordered to be released forthwith unless required in another case.

Summary: Background: The appellant lodged a First Information Report (FIR) against the respondents, under Section 10(2) of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979. The appellant claimed that Mst. Masahiba Khan, who he alleged to be his legally wedded wife, had contracted a second marriage with Shahbaz Ahmed Khan, thereby committing the offense of Zina. ----Issues: 1- Whether the marriage between the appellant, Abdullah, and Mst. Masahiba Khan was valid and legally recognized. 2- Whether the marriage between the respondents, Shahbaz Ahmed Khan and Mst. Masahiba Khan, was lawful or constituted an act of Zina under the law. 3- Whether the trial court's acquittal of the respondents was justified given the circumstances and evidence presented. ----Holding/Reasoning/Outcome: --Validity of Marriage Between Abdullah and Mst. Masahiba Khan: The court held that the marriage between Abdullah and Mst. Masahiba Khan was not legally recognized. The Family Court had already decreed in favor of Mst. Masahiba Khan in her suit for jactitation of marriage, declaring that no valid marriage existed between her and Abdullah. This decree was upheld by the District Judge and later by the Sindh High Court, thus nullifying any claims Abdullah had regarding the marriage. --Marriage Between Respondents: The court determined that the marriage between Shahbaz Ahmed Khan and Mst. Masahiba Khan was lawful. The acknowledgment of the marriage by both respondents during their statements before the trial court was considered sufficient evidence of a valid marriage under Muslim law. The court referenced the legal principle that acknowledgment by the man of the woman as his wife is sufficient proof of a valid marriage. The court found no error in the trial court’s decision to acquit the respondents. Given the conclusive findings of the Family Court and the acknowledgment of marriage by the respondents, the court ruled that the acquittal was appropriate. The appeal was dismissed in limine. ----Citations/Precedents: Muhammad Azam v. Muhammad Iqbal (PLD 1984 SC 95): The Supreme Court held that a decree passed by a Family Court is binding even upon the Supreme Court, emphasizing the finality and binding nature of such decrees. Abdul Waheed v. Asma Jehangir (PLD 2004 SC 219): The Supreme Court held that questions of marriage validity fall within the exclusive domain of Family Courts, reinforcing the binding nature of Family Court judgments on such matters. Para 268(c) of Muhammadan Law by Mullah: This principle was cited to support the notion that acknowledgment of marriage by the parties involved is sufficient proof of a valid marriage under Muslim law.

Summary: [Family matter ( Remarrying after Khulla )] I would, respectfully, add that bona fide be attached with her act of second marriage as same is,undeniably, after resort to her available course i.e approaching honourable Court for khula and obtaining thereof; technical remand order as well dismissal of her suit (challenged by her) shouldnot be allowed to undo a legal and rightful act i.e remarrying afterkhula because such act (remarriage) can be nothing but a seal on door of her first-marriage and that she is happy with decision of khula. Any technical defect, in such peculiar circumstances, needs to be ignored because law favours the rights over procedure.

Summary: [Pakistan Penal Code (Remarrying after Khulla)] I would, respectfully, add that bona fide be attached with her act of second marriage as same is,undeniably, after resort to her available course i.e approaching honourable Court for khula and obtaining thereof; technical remand order as well dismissal of her suit (challenged by her) shouldnot be allowed to undo a legal and rightful act i.e remarrying afterkhula because such act (remarriage) can be nothing but a seal on door of her first-marriage and that she is happy with decision of khula. Any technical defect, in such peculiar circumstances, needs to be ignored because law favours the rights over procedure.