Gift after Court Marriage Procedure in Pakistan:
Withdrawal of claim for gold ornaments given to plaintiff as marriage gift after court marriage procedure in Pakistan by defendant finding mention in Column No. 17 of Nikahnama for realizing same not to be recoverable as part of dowry during a case of divorce procedure in Pakistan. Filing separate fresh suits for recovery of gold ornament and divorce procedure in Pakistan was not barred by law. Defendant’s plea that new suit for ornaments was not maintainable as being barred by section 11 of CPC as a claim made therein had been withdrawn earlier unconditionally.
Suit for ornaments:
Suit for ornaments decreed by the Family Court was dismissed by Appellate Court due to lack of evidence. Res Judicata would not apply to an earlier suit for having been withdrawn but not decided even during the divorce procedure in Pakistan. Such ornaments for being bridal gifts had become the plaintiff’s personal property, thus, was recoverable by her through Such a suit.
High Court set aside impugned judgment/decree and restored that passed by Family Court in the circumstances. The wife’s suit for recovery of dower based on entries in Nikahnama was upheld. Husband’s suit for declaring such entries not binding upon him for having been made without his consent was not accepted. Consolidation of both suits by family Court on husband’s application was upheld along with divorce procedure in Pakistan. The decision of both suits by family Court by consolidated judgment dismissing wife’s suit while decreeing husband’s suit was supported by the superior court.
Wife’s appeal was bearing Court-fee Rs.15 dismissed by Appellate Court on her failure to make up the deficiency in Court-fee while treating same to be a civil appeal seeking dismissal of husband’s suit for declaration. A family suit and a civil suit for being regulated by different laws could not be consolidated without presuming a civil suit to be a family suit. Scope of “dower” mentioned in Serial No. 2 of Schedule of West Pakistan Family Courts Act, 1964 was not limited to wife’s suit for recovery of dower. Still, it would include husband’s suit for declaration about the issue of dower.
Husband’s suit relating to or involving dower was a family suit exclusively triable by Family Court. Both such suits could not be legally consolidated without regarding the husband’s suit as a family suit. Both such suits had been consolidated by Judge Family Court and by a Civil Judge. After its consolidation with husband’s suit, Wife’s suit had not lost its character of a family suit and became a civil suit or merged into a civil suit. The wife’s appeal had to be regarded as a family appeal not requiring payment of Court-fee applicable to a civil appeal.
Appellate Court had directed the wife to pay the deficiency in Court-fee without determining and specifying the deficient amount. The wife was not required to file two separate appeals against the consolidated judgment or pay Court-fee on her appeal. High Court set aside impugned judgment and remanded the case to Appellate Court to decide wife’s appeal on merits under the law.
Refusal of father-in-law:
Refusal of father-in-law to execute registered dower. Document as per terms of such agreement being the property of wife given to her by father-in-law through an agreement executed by him a day before her marriage also finding mention in Column 16 of her Nikahnama. Refusal of father-in-law to execute a registered document as per terms of such agreement was invalid. Suit by wife against her husband and father-in-law for specific performance of such agreement was upheld. Father-in-law alleged such agreement and Column to be forged and fabricated.
Wife tendered in evidence Nikahnama, which she got after court marriage procedure in Pakistan and such agreement by examining marginal witnesses. The record showed that marriage was an arranged one, and in pursuance thereof, father-in-law had executed such agreement with his free will. Such agreement was a comprehensive reflecting understanding reached between two families. According to the agreement, the husband had no property at all. Thus, his father, for having the plaintiff’s hand for his son, transferred a portion of his house to her, having a value of Rs.50,000. According to the agreement, in case of failure of father-in-law to transfer Such property through the registered document, plaintiff had a right to enforce same through a Court of law.