NAEEM AHMAD vs Mst. NUZHAT ALMAS AND 2 OTHERS

ORDER

1. ' The facts of the case are that respondent No. 1 Mst. Nuzhat Alms was married to the petitioner against dower amount of Rs, 20,000 which was never paid. She filed a suit before the Judge, Family Court, for the recovery of the amount of dower. The suit was contested on the ground of lack of jurisdiction on the part of the Judge, Family Court and on the ground that actually dower amount was fixed as Rs, 2,000 and not Rs, 20,000.

2. As many as for issues were framed on the basis of the pleadings of the parties, whether the suit was competent in its present form, whether the Family Court lacked jurisdiction, whether the plaintiff had no cause of action to bring the suit and whether the actual amount of dower was agreed to Rs, 2,000 and amount of Rs, 20,000 was got entered in the Nikahnama fictitiously. All the issues onus of which was on the petitioner were found against him. Respondent No. 1 did not produce any evidence on Issue No, 3 on account of the admission of the execution of Nikahnama and the entry made therein to be correct and further on the basis of the admission made by the petitioner in his written statement that the amount of dower had not been paid.

2. ' It is contended with reference to section 5 of the West Pakistan Family Courts Act, 1964 that since the aforesaid Act has been made applicable subject to the provisions of the Muslim Family Laws Ordinance, 1961, therefore, the same being exclusively applicable to the Muslims, Act, 1964 is not applicable to the cases of non-muslims and as such the Judge, Family Court appointed under this Act had no jurisdiction to deal with the matter. The parties are stated to be Qadianis who have been declared to be non-Muslims by a Constitutional amendment in 1974. It is further contended that even otherwise the actual amount of dower having been fixed at Rs, 2,000 and there being no rebuttal the impugned order is liable to be set aside.

3. ' I am afraid none of the contentions raised above has any substance. It has been held in Mrs. Daphne Juseph v. Malik Eric Roshan Khan (1), and Casper v. Jannifer and another (2), that the provisions as contained in the West Pakistan Family Courts Act, 1964 are applicable to Muslims as well as non-Muslims equally. If the intention had been to limit the application of the Act or the jurisdiction of the Family Courts only to Muslims then the Act would have expressly said so as in the case of Muslim Family Laws Ordinance, 1961. It was observed that section 5 of the Family Courts Act had not only made the Family Courts subject to the provisions of the Muslim Family Laws Ordinance, 1961 but also to the provisions of the Conciliation Courts Ordinance, 1961. The reason for making the provisions of the said Act subject to the provisions of the two Ordinances apparently was that the said two Ordinances were protected under the 1962 Constitution and therefore it was considered that the provisions of the said Act should be made conditional to the operation of the aforesaid two Ordinances. Respectfully following the view which appears to be correct as taken in the aforesaid two judgments it is held that West Pakistan Family Courts Act, 1964 is not only applicable to Muslims but also to non-muslims and the family Court concerned had jurisdiction to decide the matter. {{FOOT NOTE}}

(1) PLD 1971 Kar. 887 (2) 1976 P Cr. L J 307 {{FOOT NOTE}} ' The learned counsel however, contends that in the presence of Divorce Act, 1869 West Pakistan Family Courts Act, 1964 would not be applicable to the petitioner as his case will be governed by the former Act. I am afraid this contention has no force. The former Act is applicable to all persons who profess Christianity as their religion which religion is admittedly not professed by the petitioner and respondent No. 1.

4. ' The second contention raised above has also no substance. The contents of the document having been admitted to be correct containing the amount of Rs, 20,000 having been fixed as dower it was not open to the petitioner to lead evidence contrary to that. Further the evidence produced by him on this point has not been believed by the Courts below. It has been held that amount of dower was actually fixed as Rs, 20,000. It amounts to a finding of fact which cannot be interfered with in the present proceedings. Apart from the point of jurisdiction when the execution of the document in question (Nikahnama) has been admitted to be correct and it has been found that the amount of dower was Rs, 20,000 and not Rs, 2,000 on the basis of the due appraisal of the evidence the impugned order does not call for any interference.

5. ' As a result of the above discussion there being no merit in the petition the same is hereby dismissed in limine.