PLJ 2013 Lahore 329
Bench Multan ] Multan
Present: Rauf Ahmad Sheikh, J.
DISTRICT JUDGE, VEHARI and 2 others--Respondents
W.P. No. 4772 of 2008, decided on 19.12.2012.
Oath Act, 1873--
----S. 10--Statement on Holy Quran--Nikah-Nama--Administered by Court--Conditions in NikahNama were same which were settled by the parties at time of Nikah then suit be decreed--Oath was accordingly administered by Court in terms of S. 10 of Oath Act, 1873. [P. 332] A
Oath Act, 1873--
----S. 11--Nikah Nama--Thumb-impression alongwith signatures of counsel in margin of order sheet in token of acknowledgment--Statement would amount to an admission on part of petitioner and was conclusive evidence against him--Findings of trial Court could not be assailed in that regard. [P. 333] B
----S. 5--Exclusive jurisdiction of Family Court--Dispute of dower--Maintenance as claimed falls within exclusive jurisdiction of Family Court--If husband would turn wife out of house or pronounce divorce without any lawful exercise he would pay a sum of specified amount--Such amount was neither part of dower nor amounts to personal property, so claim in that regard does not fall within jurisdiction of Family Court--Offer and acceptance of special oath would not confer powers on Family Court to adjudicate upon matter, which was purely of civil nature and falls within jurisdiction of Civil Court--Courts below had failed to perform their duties in accordance with law--Petition was partly accepted. [P. 333] C & D
Syed Athar Hassan Bukhari, Advocate learned counsel for Petitioner.
Ch. Pervaiz Akhtar Gujjar and Malik Ghulam Muhammad Langrial, Advocate learned counsel for Respondent No. 3.
Date of hearing: 4.12.2012.
The petitioner has assailed the vires of judgment and decree dated 16.10.2006 passed by the learned Judge Family Court Vehari, whereby a suit for maintenance recovery of gold ornaments weighing 05-tolas as dower, a sum of Rs.5,00,000/- under Condition No. 19 of the "Nikah Nama" and maintenance @ Rs.12,000/- per month w.e.f 07.05.2005 till expiry of period of "Iddat" was decree against him and in favour of Respondent No. 3 and also the judgment & decree dated 07.07.2007 passed by the learned District Judge, Vehari, whereby an appeal filed by him, was dismissed.
2. The facts in brief as emerge on perusal of the record are that the Respondent No. 3 filed a suit for recovery of gold ornaments weighing 05-tolas, a sum of Rs.5,00,000/- as per entry in column No. 19 of the "Nikah Nama" and maintenance @ Rs. 12,000/- per month w.e.f 07.05.2005 till the expiry of period of Iddat.
3. It was contended that marriage between her and the petitioner was solemnized on 07.5.2005 and he agreed to give her gold ornaments weighing 05-tolas and also transferred a house measuring 05-marlas, which has become her property and she is in possession of the same as owner. It is contended that under Condition No. 19, he had undertaken to pay a sum of Rs.5,00,000/- in case he turned her out of the house or pronounced divorce without any justification. It was alleged the petitioner is a person of bad character, who used to treat her with habitual cruelty and finally divorced her on 05.01.2006. She contended that she was entitled to a sum of Rs.5,00,000/- for turning her out of the house and pronouncement of divorce by the petitioner without any cogent reason, gold ornaments weighing 5-tolas and maintenance @ Rs.12,000/- per month w.e.f 07.5.2005 till the expiry of period of Iddat.
4. The defendant/petitioner contested the suit. It was contended that Columns Nos. 16, 19 and 20 were not filled in at the time of the "Nikah" and subsequently the entries were made without his consent. The other allegations were also controverted.
5. The learned trial Court framed the following issues:
(1) Whether the plaintiff is entitled to get Gold ornaments as mentioned under Column No. 16 Rs.5,00,000/- as mentioned under Column No. 19 of Nikah Nama and also Rs.12,000/- as maintenance of plaintiff on Iddat period?OPP
(2) Whether the plaintiff has no cause of action and locus standi to file the suit?OPD
(3) Whether the plaintiff has not come to the Court with clean hands?OPD
6. On 04.10.2006, the Respondent No. 3/piaintiff made an offer that if the defendant/petitioner would take Oath on Holy Quran that the terms mentioned in Nikah Nama Ex.P1 were not settled between the parties, her suit might be dismissed. On this, the defendant/petitioner made an offer that if father's father of the petitioner would make a statement on Holy Quran to the effect that the conditions mentioned in Ex. P1 were settled at the time of Nikah then the suit be decreed otherwise, the same be dismissed. On this, the father's father of Respondent No. 3 namely KhudaBukhsh appeared before the Court and stated on Oath on Holy Quran that conditions of "NikahNama" Ex.P1 are correct and the same are as were settled by the parties. This statement was recorded before the Court in presence of the petitioner and his counsel so the learned trial Court proceeded on to pass the decree. The defendant/petitioner assailed the decree before the learned District Judge through an appeal, which was dismissed.
7. The learned counsel for the petitioner has contended that the condition embodied in Column No. 19 is against the basic principle of law, which requires the spouses to remain respectably, peacefully & amicably by observing the limits of God and any such stringent condition is against the basic notion of matrimonial ties under the Islamic Law. In support of the contentions raised reliance is placed on 2008 SCMR 186. It is Further contended that this condition revolves around the promise that he would not divorce the Respondent No. 3 without lawful excuse and would not turn her out of the house so it is a question of fact as to whether he had divorced her or such pronouncement was result of demand made by her, which primarily is a dispute of civil nature and should have been decided by the civil Court so even the statement made in this regard will not confer jurisdiction on the Family Court; that the rate of maintenance was very excessive and that Condition No. 16 regarding ornaments also did not create any right in favour of the Respondent No. 3 so she should have proved this contention also before the family Court. In this respect reliance is placed on 2009 MLD 671 (
) and PLD 2007 Lahore 515. Lahore
8. On the other hand, learned counsel for the Respondent No. 3 has argued that the petitioner had agreed for decision of all disputed matters on the basis of special oath, which was accordingly administered and he & his counsel respectively put thumb impression and signatures in the margin of the order sheet and this fact is sufficient to prove that oath was accordingly taken so he cannot assail the judgment and decree on any ground whatsoever. In support of the contentions raised reliance is placed on PLJ 2005
9. There was a clear offer by the petitioner that if the father's father of the Respondent No. 3 would make a statement on Holy Quran that the conditions in "Nikah Nama" Ex.P1 are the same, which were settled by the parties at the time of Nikah then the suit be decreed. This offer was accepted by the Respondent No. 3. The Oath was accordingly administered by the Court in terms of Section 10 of the Oaths Act, 1873. The petitioner put his thumb impression along with the signatures of his counsel in the margin of the order sheet in token of acknowledgement. Under Section 11 of the Oaths Act, 1873, this statement would amount to an admission on part of the petitioner and is conclusive evidence against him. He cannot assail the findings of the learned trial Court in this regard. The "Nikah Nama" clearly shows that gold ornaments weighing 05-tolas and a house on land measuring 05-marlas were given in lieu of dower and would become property of the Respondent No. 3. This also shows that the possession of the house was delivered to her. She had become the owner of the property and the ornaments. Even otherwise, these were given in lieu of dower and the dispute in this regard would fall within the exclusive jurisdiction of the Family Court, in view of Section 5 of the Family Courts Act, 1964 read with Item No. 2 of the schedule of the Act ibid. Similarly, the maintenance as claimed falls within the exclusive jurisdiction of the Family Court. However, the Condition No. 19, inter alia, provides that if the husband would turn the wife out of the house or pronounces divorce without any lawful excuse, he would pay a sum of Rs.5,00,000/- to her. This amount is neither part of the dower nor amounts to personal property of the Respondent No. 3 so the claim in this regard does not fall within the jurisdiction of the Family Court. Even otherwise, the offer and acceptance of Special Oath would not confer the powers on the Family Court to adjudicate upon the matter, which is purely of civil nature and falls within the jurisdiction of civil Court. According to "Nikah Nama", the Respondent No. 3 is entitled to recover this amount only in case it is established that the petitioner had turned her out of the house and had divorced her without any justification. Even if for the sake of arguments, it is accepted that the petitioner had pronounced the divorce without any justification and was liable to pay a sum of Rs.5,00,000/- this was neither personal belonging of the Respondent No. 3 nor dower and as such did not fall within the jurisdiction of the Family Court established under the Family Courts Act, 1964. Even the offer of statement on special oath and acceptance of the same would not confer the jurisdiction on the Family Court to decide this controversy. This part of the judgment and decree of the learned trial Court as upheld by the learned District Judge are not sustainable for want of jurisdiction. Both the Courts below have failed to perform their duties in accordance with law in this respect. The remaining findings and judgments & decrees of both the Courts are not open to any interference as held above. In the light of foregoing findings, the writ petition is partly accepted and judgments & decrees of the learned trial Court and the learned District Judge are modified and set aside to the extent of recovery of sum of Rs.5,00,000/- under condition No. 19 of the "Nikah Nama". The remaining judgments and decrees will remain intact.
(R.A.) Petition accepted
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