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    PLD 2007 Lahore 515

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    mankeracourts
    Case law in judgments

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    PLD 2007 Lahore 515

    Uploaded by

    mankeracourts
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    Case law in judgments

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    Case law in judgments

    Copyright:

    © All Rights Reserved
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    Download as docx, pdf, or txt
    10 views2 pages

    PLD 2007 Lahore 515

    Uploaded by

    mankeracourts
    Case law in judgments

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
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    1

    P L D 2007 Lahore 515

    Before Mian Saqib Nisar, J

    MUHAMMAD AKRAM---Petitioner

    Versus

    Mst. HAJRA BIBI and 2 others---Respondents

    Writ Petition No.10626 of 2006, decided on 11th April, 2007.

    (a) West Pakistan Family Courts Act (XXXV of 1964)---

    ----S. 5 & Sched.---Transfer of Property Act (IV of 1882), Ss.130 & 3--- C o n s t i t u t i o n o f P a k i s t a n ,
    1 9 7 3 , A r t . 1 9 9 - - - C o n s t i t u t i o n a l petition---Column No.17 of the Nikahnama contained the
    stipulation that in case of sour relations between the spouses or divorce by the husband, a sum of
    Rs.1,00,000 shall be paid to the wife---Suit of wife for dissolution of marriage was decreed,
    whereafter she brought the suit for recovery of Rs.1,00,000 which was dismissed by the Family
    Court holding that her suit was not maintainable before the Family Court and she was liable to file
    ordinary civil suit for the recovery of the said amount---Appellate Court, however, found that matter
    fell within the purview of Entry No.9 of the Schedule to S.5, 'West Pakistan Family Courts Act, 1964
    and suit was competent---Validity---Held, Entry No.9 of the Schedule to S.5, West Pakistan Family
    Courts Act, 1964 did not cover any amount which was not yet the `property of the wife' and she only
    had a claim to recover the amount from the husband on the basis of any special condition
    incorporated in the Nikahnama---Such claim could not be equated as a `personal property belonging
    to wife'---Amount in question was also not covered under the rule of `actionable claims' as envisaged
    by S.130, Transfer of Property Act, 1882---Family Court in circumstances, had no jurisdiction in the
    matter and the suit in that behalf before the said Court was not competent---Principles.

    (b) Transfer of Property Act (IV of 1882)---

    ----Ss. 130 & 3---Term `actionable claim' in general means, a claim for which an action will lie,
    furnishing a legal ground for an action and according to S.3, Transfer of Property Act, 1882, a claim
    towards a debt.

    Muhammad Khan Ranjha for Petitioner.

    Mehmood-ul-Hassan Bhatti for Respondents.

    Date of hearing: 11th April, 2007.

    JUDGMENT

    MIAN SAQIB NISAR, J.---The petitioner and respondent No.1 were married and it is mentioned
    in Column No.17 of the Nikahnama that in case of sour relation between the spouses or divorce by
    the petitioner, a sum of Rs.1,00,000 shall be paid to respondent No.1. Respondent No.1 filed a suit for
    the dissolution of marriage, which was decreed, whereafter she brought the present suit for the
    recovery of the amount of Rs.1,00,000, which has been dismissed by the learned Family Court vide
    judgment and decree dated 22-3-2006 holding that her suit was not maintainable before the Family
    Court; she was liable to file ordinary civil suit for the recovery of the said amount. Aggrieved of the
    above, respondent No.1 preferred an appeal, which has been accepted by the learned Additional
    District Judge, who is of the view that the suit of respondent No.1 is competent and the matter falls
    2

    within the purview of Entry No.9 of the schedule to section 5 of the Family Courts Act, 1964.
    It is also stated that as the divorce has taken place between the parties, but for whatever reasons, the
    petitioner became liable to pay the amount because of the condition in Column No.17 of the
    Nikahnama.

    2. Heard. As regards the question, whether the suit is competent before the Family Court, it is the case
    of respondent No.1, and also held by the learned Additional District Judge that the matter falls within
    the Entry No.9 of the Schedule to section 5, i.e. "personal property and belonging of the wife". I feel
    amazed to note as to how the amount of Rs.1,00,000 allegedly payable by the petitioner on account of
    the divorce or bad relations between the parties, is the 'personal property or belonging of respondent
    No.1, so as' to bring the case within the jurisdiction of the Family Court. Such personal property or
    belonging referred to in Entry No.9, in my considered view, is a residuary provision, which enables
    the wife to recover through the process of the Family Courts Act, 1964, whatever property she has
    acquired during the subsistence of the marriage, which is not the part of her dowry, through her own
    independent means or even through the means provided by the husband, such as her clothes,
    ornaments and items of personal use and nature, this may also include anything which has been gifted
    to the wife by the husband or any of his or her relatives or the friends; such property and belonging
    may be the one acquired by the wife out of the money given to her by the husband, her saving from
    household allowance, or pocket money, from the money provided by her parents and relatives. But
    definitely the aforesaid entry does not cover any amount which is not yet the property of the wife and
    she only has a claim to recover from the husband on the basis of any special condition incorporated in
    the Nikahnama. I am not convinced by the argument that the amount in question is covered under the
    rules of actionable claims as envisaged by section 130 of the Transfer of Property Act, 1882. The
    term "actionable claim" in general means, a claim for which an action will lie, furnishing a legal
    ground for an action and according to section 3 o f the Transfer of Property Act, a claim towards a
    debt. On account of both the means such claim cannot be equated as a "personal property and
    belonging of the wife." Resultantly, in my considered view, the family Court has no jurisdiction in the
    matter and the suit in this behalf before the said Court was not competent.

    3. As regards the question, whether the amount of Rs.1,00,000 can be recovered by respondent No.1,
    I do not want to dilate upon this aspect of the matter, because it may not cause prejudice to the case of
    either party, when the determination of the issue is sought from the proper forum.

    In the light of above, the judgment and decree of the learned Court of appeal is without jurisdiction,
    which cannot be sustained and is hereby set aside. The writ petition is accordingly allowed.

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