JUDGMENT

RAJA SAEED AKRAM KHAN, J. --- This appeal, with leave of the Court, has been
filed against the judgment and decree passed by the Shariat Court on 26.6.2010, whereby appeal
filed by the respondent was accepted and judgment and decree passed by the Judge Family
Court, Sehnsa, on 21.12.2006 was set aside.
2. The brief facts of the case are that Mst. Iqra, appellant, herein, filed a suit for
recovery of hospital expenses amounting to Rs. 25,630/- incurred on the birth of a child and
maintenance allowance from 6.2.2005 in the Court of Judge Family Court/Civil Judge, Sehnsa on
12.6.2006. The Trial Court, after necessary proceedings, decreed the suit to the tune of Rs.
36,630/-. The respondent filed an appeal in the Shariat Court against the judgment and decree
passed by the Judge Family Court on 21.12.2006. A learned Single Judge in the Shariat Court
accepted the appeal, set aside the judgment and decree and dismissed the suit filed by the
appellant. Hence this appeal by leave of the Court.
3. Raja Liaqat Ali Khan, the learned counsel for the appellant, has contended
that the judgment of the Shariat Court is against law and facts of the case and the Court failed to
appreciate the case and the Court failed to appreciate the evidence available on the record in its
true perspective. The appellant succeeded to prove her claim of past maintenance with cogent
and unrebutted exercise which has not been taken into consideration by the Shariat Court while
accepting the appeal.
4. On the other hand, Mr. Muhammad Zubair Raja, the learned counsel for the
respondent, has controverted the arguments advanced by the learned counsel for the appellant
and argued that the judgment and decree passed by the Shariat Court is perfectly in accordance
with law. No illegality has been committed by the Shariat Court while accepting the appeal. The
appellant remained in the house of her father with her own choice, therefore, she was not entitled
to any past maintenance. He further urged that she filed a suit on the same cause of action which
was dismissed and she has not assailed that order before any Court, therefore, the decree has
attained finality. She was not entitled to file present suit on the same cause of action.
5. We have heard the arguments and perused the record. Admittedly the
marriage of the spouses was solemnized on 14.7.2004. After sometime their relations became
strained and the appellant was constrained to file a suit for dissolution of marriage which was
decreed and the marriage was dissolved. Alongwith the suit for dissolution of the marriage, the
appellant filed a suit for maintenance in which she had claimed maintenance allowance alongwith
expenditure of Rs. 25,630/- incurred during the birth of a child in Kotli Hospital. The suit was
contested by the respondent before the Trial Court while submitting the written statement. Out of
the pleading the Trial Court framed following issues:--

In support of above issues, the appellant produced Afsardad, Imdad Hussain Shah, Kafayat Ali
and Karamdad as her witnesses while she herself also appeared as a witness alongwith
documentary evidence, Ex.PA, copy of ‘Nikahnama’, Ex.PB, receipt of hospital expenditures and
Ex.PC, discharge slip. In rebuttal, the respondent produced Mahmood Khan and Safeer Ahmad
as his witnesses while he also appeared as his own witness. After taking into consideration the
evidence produced by the parties, the suit was decreed by the Trial Court on 21.12.2006. An
appeal was filed by the respondent before the Shariat Court against the aforesaid judgment and
decree of the Trial Court which was accepted vide impugned judgment and decreed dated
26.6.2010 which has been assailed before this Court. While setting aside the judgment and
decree of the Trial Court, the Shariat Court observed as undere:--
“I have given my due consideration to the arguments addressed at Bar and gone through the
record. It is admitted between the parties that the respondent filed a suit for recovery of
maintenance allowance and hospital expenses before Judge Family Court, Sehnsa on 20th
Septemebr, 2005, which was dismissed vide its decision dated 29th March, 2006, but the
respondent did not file any appeal challenging the aforesaid decision and decree, which has
attained finality. Therefore, the respondent is not entitled to bring afresh suit on the same grounds
mentioned in earlier suit. No doubt under Section 17 of the AJ&K Family Courts Act, 1993 the
provisions of CPC are not applicable to the proceedings before a Family Court but at the same
time the blank cheque cannot be given to a litigant to present suit one after another. It will be
pertinent to note that the AJ&K Family Courts Act, 1993 has been promulgated and Family Courts
were established for expeditious settlement land disposal of disputes relating to family affairs;
therefore, the provisions of Family Courts Act have to be strictly construed.”
While relying on the judgment titled Robina Fazil v. Yaseen Khan (2005 SCR 37), the Court
observed that in this manner, the suit of the respondent was not maintainable; therefore, the
appreciation and appraisal of the evidence of the parties will be an exercise in futility, but the
Court below failed to appreciate the legal position and has drawn wrong conclusion, which cannot
be upheld’.
6. After going through the judgment of the Shariat Court, we have come to the
conclusion that instead of re-appraisal of evidence, the Shariat Court has decided the appeal in a
mechanical manner which is based on non-reading and misreading of evidence. For our own
satisfaction, we have ourselves took pain examined the whole evidence minutely. Admittedly the
marriage was dissolved by way to a decree passed on the basis of ‘Khula’ on 10.11.2006. In the
suit for dissolution of marriage, the appellant succeeded to prove that she was forced to leave the
house of her husband after a very short span of time of marriage. At the time of leaving the house
of her husband, she was pregnant and admittedly she was hospitalized and gave birth of a dead
child. This fact is also not denied by the respondent. However, he has taken the stand that all the
expenditures were borne by him but he failed to substantiate his claim through any evidence. The
appellant substantiated her claim by producing oral as well as documentary evidence which has
not been specifically denied by the respondent. It is celebrated principle of law that wife can claim
past maintenance upto six years. The definition of word ‘maintenance’ in Islam is ‘Nafqa’. In the
language of law it signifies all those things which are necessary to the support of life, such as
food, clothes and lodging. The subsistence of the wife is incumbent upon her husband. When a
woman surrenders herself into the custody of her husband, it is incumbent upon him thenceforth
to support her with food, clothing and lodging, whether she be a Mussalman or an infidel,
because such is the precept in Holy Quran. Such an obligation arises from the moment the wife is
subject to the moral control of her husband and in certain cases for a time even after it is
dissolved. Similar view prevailed in a case titled Ghulam Habib v. Mst. Zubaida Khatoon (1992
CLC 1926), in which it has been held as under:--
“4. Be that as it may, in Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD
1972 SC 302), it was held that Article 120 of the Limitation Act applies in respect of claim for past
maintenance. The limitation provided in the Article is for a period of six years when the right to
sue accrues. In the instant case, the impugned decree for maintenance was passed by the
Chairman, Arbitration Council for a period of ten years and six months prior to the institution of
the application, which was not warranted by law.”
7. According to the Islamic Injunctions, it is the obligation of the husband to
maintain his wife till she disobeys him without any good cause and that being so a husband is
obliged to pay even the arrears of maintenance if not paid during the subsistence of the marriage
if the wife has not given any cause for their non-payment. The subsistence is incumbent upon her
husband. The maintenance, in all circumstances, is to be considered a debt upon the husband in
conformity with his tenet. It is really remarkable in Islam that as soon as two sui juris persons
enter into contract of marriage so many rights are created but as soon as the marriage is
dissolved, those rights will continue according to the Injunctions of Holy Quran. Wife can justly
claim maintenance from the date of accrual of cause of action and not necessarily from the date
of first seeking redress as has been laid down in case titled Muhammad Asad v. Mst. Humera
Naz and others (2000 CLC 1725) in which it has been observed as under:--
“It is really remarkable in Islam that as soon as two sui juris persons enter into contract of
marriage so many rights are created but as soon as the marriage is dissolved, those rights will
continue according to the Injunctions of Holy Quran. It is also held inSardar Muhammad v.
Naseema Bibi and others (PLD 1966 (W.P.) Lah. 703) that wife can justly claim maintenance
from the date of accrual of cause of action and not necessarily from the date of first seeking
redress.”
Similarly in a case reported as Ahmad Riaz v. Mst. Qaisera Minhas and others (1994
CLC 2403), it has been observed as under:--
“The basic principle was enunciated in Rashid Ahmad Khan v. Mst. Nasim Ara (PLD 1968 Lah.
93) wherein it was held that the husband should maintain the wife starting from the matrimonial
tie and this right can be enforced with regard to the period of matrimonial life.”
It is also laid down in the supra titled judgment that the marriage in Islam being in the nature of a
contract, dower is the consideration agreed between the parties which the husband has to pay to
the wife either promptly or subsequently, in accordance with the terms of the agreement. On the
contrary, maintenance is an obligation, which is one of the essential ingredients of marriage,
liable to suspension or forfeiture under certain circumstances. The obligation of husband to
maintain his wife has been derived from Verse No. 232 of Sura Albaqara.
8. In Islam a husband is bound to maintain his wife throughout the period she
remains in matrimonial bonds with him. Maintenance to the wife is not an ex gratia grant but
husband is obliged to maintain his wife as has been held in a case reported as Iqbal Hussain v.
Deputy Commissioner/Collector, Lahore and 3 others (PLD 1995 Lah. 381), wherein it has been
observed as under:--
“10. This consensus amongst Muslim Jurists was given effect to by the legislature by
enacting the Dissolution of Muslim Marriages Act, 1939. That Act placed an obligation on the
husband to maintain his wife who was entitled to seek a decree for dissolution of marriage in the
event of his failure to do so. After this enactment, the maintenance could no longer be said an ex
gratia grant. Consequently, no reliance can be placed on the principles stated in Hedaya, Fatawa-
i-Alamgiri and Fatawa-i-Kazi Khan mentioned above.”
9. According to D.F. Mulla maintenance includes food, entertainment and
lodging. According to the same author, the husband is bound to maintain his wife (unless she is
too young for matrimonial intercourse) so long as she is faithful to him and obeys his reasonable
orders.
10. Now the question arises that under the Azad Jammu & Kashmir Muslim
Family Laws, the appellant was also entitled to recover the expenses incurred on the birth of a
child. The husband being father of the child born to his wife is required under law not only to
provide food and shelter to his family but also take care of other genuine needs of family.
Therefore, it can safely be held that grant of delivery expenses is a part of maintenance. In this
respect reliance is place on a case titled Maqsood Ahmed Sohail v. Mst. Abida Hanif and 2
others (1992 MLD 219), wherein it has been held as under:--
“5. The writ petition was admitted to the extent whether the expenses of delivery of child
could have been granted by the Conciliation Court. Learned counsel for the petitioner contended
that ‘maintenance’ means maintenance simpliciter and did not include the said expenses. To the
contrary is the argument of the learned counsel for the respondent. Maintenance, as per
Chambers Concise 20th Century Dictionary, means ‘keeping in existence, to preserve, to support,
to make good’. For actual life of the respondent the delivery of the child was a must. So to keep
the support of expense of delivery was to be considered as included in ‘maintenance’. As per D.F.
Mulla in his commentary on Muhammadan Law ‘maintenance’ includes food, raiment and lodging
and other necessary expenses for mental and physical well-being’. The physical and mental well-
being of the respondent needed the delivery of the child as well. Hence the grant of Rs. 5,500/-
as delivery expenses as part of the maintenance was correctly granted by the Conciliation Court.”
11. Another question which was raised in this appeal is whether after dismissal of
first suit for the recovery of maintenance charges, new suit on the same cause of action is
maintainable. While adverting to this question of law of public importance, the Trial Court has also
taken care of this aspect of the case and has rightly held that under Section 17 of the Family
Courts Act, the Code of Civil Procedure is not applicable, therefore, filing of subsequent suit after
dismissal of first suit is not hit by the principle of res judicata. The Shariat Court has also rightly
relied upon the case titled Robina Fazil v. Yaseen Khan(2005 SCR 37) in which it has been held
as under:--
“….. No doubt the provisions of C.P.C. and the Evidence Act are not applicable in the
proceedings conducted under the provisions of Family Courts Act, 1993, however, the inherent
powers are available to the Courts which are invoked when any situation is not covered by
express provision of law and where the Courts feel that justice is to be done then in such peculiar
circumstances even though no procedure is prescribed for such occasion, the Courts in exercise
of inherent powers in such exceptional circumstances allow the parties such relief which in their
opinion would meet the ends of justice.”
In another case reported as Ghulam Muhammad v. Mst. Rashida Bibi and 2
others (PLD 1983 Lah. 442), it has been observed:--
“….. The plea of ‘Khula’ was, therefore, a recurring cause of action
and in no circumstances could it be hit by the principle of res judicata as adopted in Section 17 of
the Family Courts Act. I agree with the findings of the learned District Judge. Obviously the plea
of ‘Khula’ is a recurring cause of action and it cannot be hit by the principle of res judicata as
adopted in Section 17 of the Family Courts Act. A wife can again and again take up the plea of
‘Khula’ as she could develop hatred or dislike against her husband and every time under different
circumstances and if she is successful in establishing and satisfying the conscience of the Court
that she has firmly decided not to live with the husband, the marriage has to be dissolved on the
basis of ‘Khula’ and the question of res judicata cannot be a bar.”
Similarly in a case titled Aali v. Additional District Judge-I, Quetta and another (1986
CLC 27), it has been held as under:--
“7. We are inclined to hold that in order to constitute res judicata within the ambit of Section
11, C.P.C., the subject-matter in the two suits should directly and substantially be in issue. The
fact that one of the issues is common, or that some questions of fact are common or relevant,
would not warrant the application of Section 11, C.P.C. In the instant case neither the question of
exercising the option of puberty nor the question of ‘Khula’ was in issue either in the aforesaid suit
for

restitution of conjugal rights or in the suit which was filed by the respondent No. 2 for jactitation
and which was withdrawn because of the decree passed for restitution of conjugal rights in favour
of the petitioner.”
12. Here we would like to observe that although the C.P.C. is not applicable in
the family matters, however, in absence of any specific provision, the general principles of C.P.C.
are attracted and if there is a continuous wrong and new cause of action is accrued, thus, on the
basis of new cause of action, a new suit can be filed at any time.
13. In view of what has been discussed above, we do not feel any hesitation to
hold that the Shariat Court has failed to determine the real controversy involved in the case and
instead of deciding the case on merits after re-appraisal of evidence on the record, decided the
same by holding that the suit of the respondent (appellant herein) was not maintainable,
therefore, the appreciation and appraisal of the evidence of the parties will be an exercise in
futility. The judgment and decree passed by the Trial Court are well-reasoned and based on
cogent reasons. The Trial Court has rightly appreciated the evidence in its true perspective. We
are unable to find out any misreading or non-reading of evidence in the judgment passed by the
Judge Family Court.
Resultantly, the judgment and decree passed by the Shariat Court on 26.6.2007 are
not maintainable which are set aside while accepting this appeal and the judgment and decree
passed by the Judge Family Court, Sehnsa, on 21.12.2006 are restored with no order as to costs.

SCMR.2017.321)
FAMILY COURT ACT.1964...
SECTION..3..PROCEEDINGS OF THE FAMILY COURT, WHETHER AS A TRIAL COURT OR AN
EXECUTING COURT WERE GOVERNED BY THE GENERAL PRINCIPLE OF ECQUITY , JUSTICE AND
FAIR PLAY.

(2017.SCMR.339)

IN ABSENCE OF CROSS--EXAMINATION ON THE QUESTION OF DOWRY ARTICLES, THE STATEMENT

OF SAID WITNESS WAS TO BE PRESUMED TO BE TRUE WHICH CORROBORATED THE EVIDENCE OF
WIFE...
PLJ 2017 LAH 115
Even marriage of the mother with a stranger who is not within the prohibitory degree of daughter can not be a sole
ground depriving mother from custody of minor.
2017 C L C 516 (Sindh)
Divorce...wife will inherit
section 7... Divorce... Husband died before complition of 90 days of divorce, divorce having not become effective ,
wife committed to be his widow and entitled to inherit his property.
ref, 1994 SCMR 1720, PLD 1963 SC 51
2017 C L C 516 (Sindh)
Divorce...wife will inherit
section 7... Divorce... Husband died before completion of 90 days of divorce, divorce having not become effective ,
wife continued to be his widow and entitled to inherit his property.
ref, 1994 SCMR 1720
PLD 1963 SC 51

‫ ماں کی اجنبی شخص سے دوسری شادی کے باوجود بچی کو ماں سے نہیں چھینا جا سکتا ہے‬PLJ 2017 LAH 115
Even marriage of the mother with a stranger who is not within the prohibitory degree of daughter can not be a sole
ground depriving mother from custody of minor.

2014 SCMR 322

The executing court, while exercising jurisdiction u/s 47 CPC, can question the executability of a decree, if it is
satisfied that the decree is a nullity in the eyes of law or it has been passed by a court having no jurisdiction or the non-
execution of the decree would not infringe the legal rights of the decree-holder or the decree has been passed in
violation of any provision of law, only then executing court can refuse to execute the decree.
Reliance is placed on:
PLD 1951 Lahore 32
PLD 1961 SC 192
PLD 1965 SC 505
PLD 2001 SC 131
PLD 2009 SC 760
PLD 2013 SC 131

EFFECT OF ENTRIES IN NIKAHNAMA

Column No. 13 of Nikahnama. Dower amount was mentioned as Rs. 80000/- whereas in Col. No. 14 of amount Rs.
500/- was mentioned, in Col. No. 15 it was mentioned that in case of Talaq without any cause to the plaintiff or
contracting 2nd marriage, the defendant shall pay an amount of Rs. 80000/- Defendant in circumstances, was liable to
pay R. 80000/- to the plaintiff on account of dower amount(2010 SCMR 930)
50 tolas of gold ornaments, agricultural land and 1 /2 share in a residential house were in addition to dower amount Rs.
20,00,000/- as the same were incorporated in Nikahnama through Iqrarnama. High Court modified the judgment &
decree passed by the both the court below and includes properties and gold ornaments in the decree as envisaged in
Nikahnama with Iqrarnama(2008 MLD 1973)
Jewellery given to wife as gift by husband was mentioned in Cl. 17 of Nikahnama. High Court directed husband to
hand over jewelry or its price to his wife within specified time.(2008MLD1692)
Nikahnama prevailed that if wife obtain Khula she would have to pay an amount of Rs. 250,000/- to the husband and if
husband divorce wife, he would payan amount of Rs. 250,000/- to her, suit filed by wife for dissolution of marriage,
condition declared against the basic principle of law.(2008 SCMR 186)
Commitment of the husband in Nikahnama that he shall pay that much amount to the wife in such like situation, need
no determination u/s 17-A West Pakistan Family Courts Act 1964(PLD 2008 Lah. 398)
Entries in Nikahnama are sufficient proof of transfer of property and it requires no registration or any other document
for completion U/S 5 of MFLO 1961(2005 MLD 376)
Any condition imposed in nikahnama for the award of damages on account of alleged unjustified divorce was against
the basic principle of law and such claim was not actionable before the court.(2012 CLC 837), (PLD 2011 SC 260),
(2008 SCMR 186)
Entry of amount made in the column No.19, of Nikahnama to the effect that husband, in case of talaq without any cause
or contracting second marriage, shall pay to the wife an amount of Rs.80,000/-. Wife can file a suit in the civil court for
the recovery of said amount.(2010 MLD 930)
Claim of lady accruing to her upon an unjustified divorce , by all means was a property and fell within item No.9 of
schedule read with S. 5 of WPFCA 1964.(PLD 2004 Lah 588)
Whenever any woman makes demand through filing suit for recovery of dower, person who contends that entries in
nikahnama were not correct, he was bound to rebut those entries through strong evidence otherwise courts were bound
to give solemn affirmation to entries in nikahnama.(PLJ 2000 Lah 872)
Nikahnama being a public document was admissible in evidence per se as evidence of the transfer of property in lieu of
dower.(PLD 2000 Lah 236)

When husband and wife admitted nikah then production of two witnesses would not be essential.

2016- YLR – 793

List of dowery articles not exhibited. Suit decreed.

2015 MLD 11