NASRULLAH Versus DISTRICT JUDGE, MIANWALI

ORDER

On 4‑3‑2003 respondent No.3 filed a suit against the petitioner. She claimed Rs. 1,31,711 on account of value of her dowry articles and Rs.2,00,000 under the terms of Nikahnama dated 4‑8‑2002 as compensation for divorce pronounced upon her by the petitioner without any justification. The suit was resisted by the petitioner by stating that the Judge Family Court has no jurisdiction to entertain the suit for said compensation amount and further stated that respondent No. 3 was and he divorced her accordingly. Regarding dowry it was stated that no articles were given at the time of marriage. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit in the sum of Rs.1,00,000 on account of dowry but dismissed the other, claim holding that the condition is void as it restricts the right of the husband to pronounce divorce. This was done vide judgment and decree dated 10‑1‑2004. First appeals were filed by the petitioner as well as respondent No.3. These were heard by the learned District Judge, Mianwali. He dismissed the appeal of the petitioner but allowed the appeal of respondent No.3 and granted her the said decree for Rs.2,00,000 as well vide judgment and decree dated 13‑4‑2004.

2. Learned counsel for the petitioner cites judgment of this Court dated 6‑5‑2003 in Writ Petition No. 14305 of 2001 to urge that a Family Court had no jurisdiction to grant the relief i.e compensation for the divorcing without any justification. According to him the impugned judgment and decree of the learned District Judge inasmuch as it relates to the said relief is without lawful authority.

3. I have gone through the copies of the records. I find that a copy of the Nikahnama is not available. This document has been placed by the learned counsel from his brief. Now the relevant clause is 19 in Nikahama dated 4‑8‑2002. The question posed is as to whether any restriction has been imposed upon the right of the husband to divorce. The answer is recorded as follows:‑‑

4. Now the divorce was pronounced by the petitioner on 18‑1‑2003. Now Nasrullah petitioner appeared as DW‑1 and stated as follows:‑

He has further stated As follows:‑‑

When confronted that what was wrong with the character of the respondent lady and whether he has any evidence he answered as follows:‑‑

He denied the suggestion that he had made false accusation to get rid of the consequence of the said terms which he admitted was agreed to by the parties. Now respondent lady appeared as P.W.1. She has stated that the petitioner made vile accusation against her in the Talaqnama and this was because of the said condition. According to her Nazim of the Union Council conducted an inquiry and recommended registration of a case of Qazaf against the petitioner. She denied a general suggestion that doubts of the respondent were confirmed because of her relation with some other people.

5. Upon examination of the said record I do find that the petitioner made false accusations when he had no evidence to offer for the same. There are no particulars as to how he accused the respondent No.3 to be a bad character. This being so, I do find that the divorce was pronounced without any reason attributable to the respondent lady.

6. Now, coming to the said contention of the learned counsel. Now in the said judgment it was observed by his lordship that the condition in the nature of said clause 19 reproduced by me above is a special condition and Family Court had no jurisdiction to entertain and decree the suit on said account. Now it appears that before his lordship the position taken by the lady was that the said amount in fact was dower and it was argued that the husband has admitted in the witness‑box that it was dower. It was while considering the said contention that the said observation was made by his lordship. Now I find that Schedule to the Family Court Act, 1964 was amended on 1‑10‑2002 and following Item No.9 was added: "9. Personal property and belonging of a wife". Now the said condition by all means vests the respondent lady with a right to bring an action against the petitioner to claim the said amount upon proof' that she was divorced without any reason attributable to her. This being so, the respondent lady is vested with a right of action or what is termed as "actionable claim" in the Transfer of Property Act, 1882. Now the moment the said condition becomes operative the petitioner became, indebted to the respondent in the said amount. Even if such debt or beneficial interest so accruing is conditional or contingent, falls within the meaning of actionable claim which is a property and transferable as such. In my humble opinion claim of respondent wife to the said amount accruing to her upon an unjustified divorce by all means a property and clearly falls within Item. No.9 of the Schedule read with section 5 of Family Court Act, 1964.

7. In view of the said clear statutory provisions it cannot be said that the learned District Judge acted without lawful authority while decreeing the said claim of respondent No.3. The writ petition is dismissed in limine.

H.B.T./N‑41/L Petition dismissed.