You are on page 1of 10

IN THE COURT OF CIVIL JUDGE & FAMILY JUDGE SUKKUR

(Before Miss Salma Bano Phulpoto)

Family Suit No.241/2011

1. Mst. Nasreen D/O Abdul Rehman,


2. Haseen Aged (bout 13 years)
3. Sameena, (aged about 11 Years)
4. Sonia (aged about 9 Years)
5. Saira (aged about 7 Years)
6. Nosheen (aged about 5 Years)
Awan by caste, R/O Katcha Bander
Near Ghari Hata, Sukkur --------------------------Plaintiffs

Versus
Khan Muhammad S/O Muhammad Ramzan,
Awan by caste, Muslim, Adult, R/O Near
Hayat Masjid, Katcha Bander, Bander
Road Sukkur------------------------------------------------Defendant

Miss Gul Naz Afsnan Mirza advocate for plaintiff


Mr. Mujeeb-u-Rehman Soomro advocate for defendant

JUDGMENT
Dt: 31-10-2011

The plaintiffs named above have filed the present


suit for maintenance and recovery of amount of Rs. 50,000/-
against the defendant named above.

The brief facts of the present suit are that in the


year 1992, the plaintiff No.-1 performed marriage with the
defendant with the consent of partys parents. The dower was
fixed to be Rs.500/- which was not paid by the defendant to the
plaintiff. The Rukhsati of plaintiff No.1 took place to the house
of defendant. The plaintiff shifted the all the dowry articles to
the house of the defendant. At the time of marriage, the
defendant executed an agreement with the parents of plaintiff
No.1 that if he will give divorce the plaintiff, than he would pay
the amount of Rs.50,000/- to the plaintiff No.1 and in case3 of
driving out from the house, the defendant will pay Rs.500/- per
2

month. From the wedlock, the plaintiff delivered 5 issues


named above. The defendant was doing the job in Army
department and recently he became retired from his service
and takes different contract and earns handsome amount of
Rs.40, 000/- per month. From the beginning the defendant kept
the plaintiff No.1 happy for only some time and used to maltreat
her on the issue, why the plaintiff No.1 has delivered the
daughters in spite of sons. The mother of the defendant namely
Mst. Sakeena also used to maltreat her on petty matter and
misbehaved with her without any reason. In the year 2005, the
plaintiff No.1 became pregnant and again delivered one
daughter, therefore the defendant became angry and drover the
plaintiff in three clothes from his house in the month of
December 2005, therefore all the plaintiffs came at the house of
plaintiff No.1 father, since then they are residing there. The
defendant did not bother to visit the house of parents of plaintiff
No.1 for meeting or taking the plaintiff along with minors to his
house or looking after of his minor daughter nor he paid the
single penny for maintenance for the plaintiffs. The plaintiffs
repeatedly sent messages to the defendant for taking them
from the house of her parents or to provide the maintenance
and also for returning the dowry articles to the plaintiff but the
defendant categorically refused to take the plaintiffs and also
refused to pay the maintenance to them. The plaintiff No.1
approached the defendant and tried to settle the dispute and
finally on 16-11-2010, the defendant sent divorce deed to the
plaintiff No.1.
The plaintiffs have prayed for judgment and decree
as under:-
PRAYE R

a. To direct the defendant to pay Rs.50, 000/-


as per terms and condition of the
agreement about divorce.
3

b. To direct the defendant to pay the past


maintenance of plaintiff No.1 at the rate of
Rs.500-00 per month since the date of
driven out the plaintiff December 2005
which becomes Rs.18,000/- of three years
c. To direct the defendant to pay the
maintenance of Iddat period, since divorce
the plaintiff No.1 at the rate of Rs.2000-00
per month total became Rs.6000-00.
d. To direct the defendant to pay the past
maintenance of Plaintiffs No.2 to 6 at the
rate of Rs.1000-00 each per month per
child total amount of Rs.5000-00 per month
from the December 2005 which became
Rs.300,000/-
e. To direct the defendant to pay the future
maintenance of Plaintiffs No.2 to 6 at the
rate of Rs.5000/- per month till their
marriages according to Shariat-e-
Muhammadi and also increase the amount
10% per year
f. To award the costs of the suit
g. To grant any other relief, this court deems
fit and proper under the circumstances of
the case.
On receiving the suit, this court sent summons to
the defendant and the defendant in response to the summons,
appeared before this court and filed written statement wherein
he has denied all the allegations of the plaintiffs. The defendant
has also denied the execution of the agreement dated 28-9-
1994. The defendant has admitted that he is ready to pay
Rs.500-00 per month to the plaintiff No.2 to 6 in future. The
defendant also admitted that he is ready to maintain the
4

plaintiffs No.2 to 6 in accordance to his status or any order


passed by this court or according to his monthly income.
From the pleadings of the parties, this court settled
the following issues.
ISSUES
1. Whether the suit of the plaintiffs is maintainable in
accordance with law.
2. Whether the defendant entered into an agreement with
the plaintiff No.1 and defendant is bound to pay Rs.50,
000/- to the plaintiff?
3. Whether the defendant maintained the plaintiffs properly?
4. Whether the plaintiffs are entitled for the maintenance as
claimed?
5. What should the decree be?
The plaintiff No.1 to prove the suit filed her affidavit
in evidence at Ex No.12. The plaintiff No-1, in support of
Plaintiffs claim witness of the plaintiff namely Abdul Rehman
appeared and filed affidavit at Ex No. 13 before this court.
Learned counsel for the defendant cross examined the plaintiff
and his witness Abdul Rehman and thereafter learned counsel
for the plaintiffs closed the side of the evidence of the plaintiffs
side vide statement at Ex No. 14.
The defendant to prove the suit filed his affidavit in
evidence at Ex No.15. In support of defendants claim, his
witness namely Muhammad Ramzan appeared and filed
affidavit at Ex No. 16 before this court. Learned counsel for the
plaintiffs cross-examined the defendant and his witness
Muhammad Ramzan and thereafter learned counsel for the
defendant closed the side of defendants evidence vide
statement at Ex No. 17.
I have heard learned counsel for the plaintiffs and
learned counsel for the defendant and have perused the entire
material evidence available on record, carefully and
consciously.
5

My findings on the above issues with reasons are


as under:-
Findings
Issue No.1 ----------------------------- In affirmative
Issue No.2 ------------------------------ As under
Issue No.3 ------------------------------ In negative
Issue No.4 ----------------------------- In affirmative
Issue No.5 ---------------------------- As under
REASONS
Issue No.1
The plaintiff No.1, in her suit as well as in her
evidence has disclosed that she resides at Katcha Bunder near
Ghari Ahata Sukkur and her marriage with the defendant took
place at Sukkur. Nikahnama shows that the marriage was
taken place at Sukkur, within the territorial jurisdiction of this
Court, the suit is properly stamped and within the ambit of
section 7 of the West Pakistan Family Court Ordinance 1964,
showing the cause of action. No adverse evidence has come
on record that the plaintiffs are not residing on the given
address consequently this court has jurisdiction to entertain the
suit, and can deal with the suit, in accordance with the law and
this issue is replied in affirmative.
Issue No.2
This issue relates to the execution of Iqrarnama
alleged to have been executed by the defendant.
The word Iqrarnama is an Urdu word which
means in English is Promissory note and section 2(b) of the
Contract Act 1872 defines it that if a person accepts any
proposal, it becomes promise and section 2(e) of the above Act
defines that every promise and every set of promises, forming
the consideration for each other is an agreement. Section 2(h)
of the above Act defines that an agreement enforceable by law
is a contract. A contract can not be enforced under family laws,
as such under family laws this court has no jurisdiction to
6

adjudicate an issue in respect of performance of contract or


recovery thereof. Consequently this issue is replied that this
court has no jurisdiction to adjudicate this issue under family
laws. The reliance is placed on case law reported in PLD 1999
Karachi page 181.
Issue No.3
This issue related to the maintenance of the
plaintiffs by the defendant and the burden of proof lies upon the
shoulders of the defendant.
The defendant in his evidence has deposed in Para
No. of the evidence that I have properly maintain the plaintiff
according to my sources, the plaintiff was happy with me during
which period she lives with me and I have never driven out from
my house,
The witnesses of the defendant Muhammad
Ramzan has deposed that defendant has properly maintain
the plaintiff according to his sources, the plaintiff was happy
with defendant during which period she lives with me and
defendant have never driven out from his house.
On the contrary, the plaintiffs have not filed the
present suit in respect of their maintenance for the period which
they resided in the house of the defendant and his parents but
the plaintiffs have brought the present for maintenance for the
period which they lived in the house of plaintiffs parents.
During the course of cross examination, the
defendant has admitted that he has not produce any witness or
proof which may show that he has provided the maintenance to
his wife and children and voluntarily stated before this court that
his daughter Mst. Haseena was receiving monthly maintenance
of Rs.2000/- and Rs.3000/- from him. The evidence of his
witness Muhammad Ramzan does not show that the defendant
the defendants daughter Mst. Haseena used to receive
monthly maintenance of Rs.2000/- and Rs.3000/- from the
defendant, hence the version of the defendant that he provided
7

maintenance to the plaintiffs after the date when they started


living in the house of plaintiffs parents. The defendant has not
brought any evidence that the plaintiffs are not residing in the
house of their parents from the date of their claim.
In view of the above facts and circumstances and
evidence brought on record, it has been proved that the
defendant has failed to provide maintenance to the plaintiffs
from the date when they started living in the house of the
defendant, consequently this issue is replied in negative.
Issue No.4
Admittedly the plaintiff No.1 married with the
defendant and from the wedlock, the plaintiff No.1 delivered five
issues as such it is the duty of the defendant to provide
maintenance to the plaintiffs
Equity and natural justice demand that wife who is
neglected by her husband and who divorced her at his whims
and caprice and wife is left alone at the mercy of cruel
circumstances in male dominated society without any source of
income should be maintained by divorcing husband who has
acted without justification. Such maintenance is required by
husband to his divorced wife under Sura Al-Baqara (Ayat) 241
of the Holy Quran. More over the defendant is bound to
maintain his children consequently this issue is answered in
affirmative.
Issue No.5
In view of the reasons, discussed herein issue
numbers 1 to 4, I have come to the conclusion that the
defendant has failed to provide maintenance to the plaintiffs
consequently the suit of the plaintiffs in respect of their prayers
mentioned in prayer clause (b), (c), (d), and (e) is decreed as
prayed.
So far as the suit of the plaintiff No.1 in respect of
her prayer mentioned in prayer clause (a) is dismissed, in view
of the discussions mentioned herein above in issue No.1 that
8

this court has no jurisdiction to adjudicate the issue in respect


of performance of contract under family laws.
Announced in the open court
Given under my hand & Seal of this Court
This 31st day of October 2011

(Miss Salma Bano Phulpoto)


Civil Judge & Family Judge,
Sukkur

DECREE
IN THE COURT OF CIVIL JUDGE & FAMILY JUDGE SUKKUR
(Before Miss Salma Bano Phulpoto)

Family Suit No.241/2011


9

Mst. Nasreen and others ------------------------------Plaintiffs

Versus
Khan Muhammad Awan ------------------------------Defendant

SUIT FOR MAINTENANCE AND RECOVERY OF


AMOUNT OF RS.50,000/-

The plaintiffs have prayed for judgment and decree


as under:-
PRAYE R

a. To direct the defendant to pay Rs.50, 000/- as per


terms and condition of the agreement about
divorce.
b. To direct the defendant to pay the past maintenance
of plaintiff No.1 at the rate of Rs.500-00 per
month since the date of driven out the plaintiff
December 2005 which becomes Rs.18,000/- of
three years
c. To direct the defendant to pay the maintenance of
Iddat period, since divorce the plaintiff No.1 at the
rate of Rs.2000-00 per month total became
Rs.6000-00.
d. To direct the defendant to pay the past maintenance
of Plaintiffs No.2 to 6 at the rate of Rs.1000-00
each per month per child total amount of
Rs.5000-00 per month from the December 2005
which became Rs.300,000/-
e. To direct the defendant to pay the future
maintenance of Plaintiffs No.2 to 6 at the rate of
Rs.5000/- per month till their marriages according
to Shariat-e-Muhammadi and also increase the
amount 10% per year
f. To award the costs of the suit
g. To grant any other relief, this court deems fit and
proper under the circumstances of the case.

This suit came-up for final hearing on 31-10-2011


in presence of plaintiff No.1 Mst. Nasreen, her counsel Miss
Gul Afshan Naz advocate and in the presence of the defendant
Khan Muhammad and his counsel Mr. Mujeeb-ur-Rehman
advocate before Miss Salma Bano Phulpoto, Civil Judge and
Family Judge, Sukkur. It is ordered that the suit of the plaintiffs
10

in respect of their prayers mentioned in prayer clause (b), (c),


(d), and (e) is decreed as prayed.
So far as the suit of the plaintiff No.1 in respect of
her prayer mentioned in prayer clause (a) is dismissed, in view
of the discussions mentioned herein above in issue No.1 that
this court has no jurisdiction to adjudicate the issue in respect
of performance of contract under family laws.
Announced in open court,
Given under my hand & seal of this court,
This the 31st day of October 2011

(Miss Salma Bano Phulpoto)


Civil Judge & Family Judge,
Sukkur

(Haji Khan Naper)


Reader,
Civil Judge & Family Judge,
Sukkur

MEMO OF PLAINT
Sr Particulars Plaintiff Defendant
No.
1. Stamps on plaint.
2. Stamps on
process.
3. Stamps on Power.
4. Stamps on
applications
5. Advocate Fees.
6. Total
7. In words

READER & TAXING OFFICER


Civil Judge & Family Judge,
Sukkur