2024 M L D 51
[Balochistan (Turbat Bench)]
Before Muhammad Ejaz Swati and Muhammad Aamir Nawaz Rana, JJ
HAMEEDA---Petitioner
Versus
KHAN MUHAMMAD and 2 others ---Respondents
C.P. No. (t) 157 of 2022, decided on 16th November, 2022.
(a) Family Courts Act (XXXV of 1964) ---
----S. 5(1), Sched.---Limitation Act (IX of 1908), Art. 104--- Suit filed by a widow for
recovery of dower against her father -in-law---Limitation ---Claim of the plaintiff regarding
the dower (in shape of gold and cash) from her deceased husband, was concurrently
dismissed ---Validity ---Petitioner /plaintiff filed the suit after four years of the death of her
husband which was dismissed by both the Courts below on the ground of limitation---Article 104 of the Limitation Act, 1908, stipulated three years time to such claim in case marriage was dissolved by death or by divorce ---Since the claim of dower had been filed after said
stipulated period of three years, therefore, her suit was rightly rejected by the Family Court --
-No illegality or infirmity was noticed in the impugned judgments and decrees passed by
both the Courts below ---Constitutional petition was dismissed in limine, in circumstances.
(b) Family Courts Act (XXXV of 1964) ---
----S. 5(1), Sched.---Suit filed by a widow against her father -in-law for recovery of share
from property allegedly left by her deceased husband---Maintainability ---Claim of the
plaintiff regarding her share from the property of her deceased husband, was concurrently dismissed ---Validity ---Pleadings revealed that though the petitioner/ plaintiff was demanding
her share in the property left by her husband but not a single document in said regard had been filed which could prove that her husband owned any property---Claim of the petitioner/ plaintiff, with regard to her share in property allegedly left by her husband, was not within the domain/jurisdiction of the Family Court in view of S. 5(1) of the Family Courts Act, 1964--- According to Part -I of Sched. to the Family Courts Act, 1964, claim of the
petitioner/plaintiff was not one of matters which could be adjudicated upon by the Family Court ---Thus, matter -in-hand did not come within jurisdiction of the Family Court ---Suit
filed by the petitioner/ widow to claim her share from the property of her deceased husband was not maintainable ---No illegality or infirmity was noticed in the impugned judgments and
decrees passed by both the Courts below ---Constitutional petition was dismissed in limine, in
circumstances.
Mehrab Khan Gichiki and Miss Rizwana for Petitioner.
Date of hearing: 5th October, 2022.
ORDER
MUHAMMAD AAMIR NAWAZ RANA, J. ---The petitioner (Hameeda) had filed a
suit for recovery of dower i.e. 40 Misqal gold and Rs. 200,000/ - (Rupees Two Lakh) cash. As
per assertions, she married on 21.11.2011 with Sagheer Ahmed son of Khan Muhammad.
Subsequently, her husband Sagheer Ahmed got cancer and died. The petitioner asserts that in his lifetime her husband had constructed rooms adjacent to the house of respondent No. 1 but after the death of Sagheer Ahmed, the respondent No. 1 who happens to be the father in law of petitioner threw petitioner out of the said house and sent her to her parent's house.
The petitioner further claims that her husband had purchased plots at Karachi and had
other holdings which included Motorcycle, Shotgun and Pistol etc. The petitioner had prayed
in her suit that dower amount be decreed in her favour and further petitioner be allowed to
live in the rooms constructed by her husband and share in the property of her husband be also decreed in her favour. The respondent No. 1 who is father in law of petitioner contested the suit and maintained that the petitioner herself left the house which in fact belonged to respondent No. 1. Further respondent No. 1 denied the detail of property provided by the petitioner rather claimed that the plots mentioned are in fact an exclusive property of respondent No. 1 and furthermore, that in fact Sagheer Ahmed did not own any property, therefore, the petitioner is not entitled for the decree she claimed for.
2. That out of the pleadings of the parties, the trial Court framed issues including legal
issues with regard to limitation and jurisdiction of Family Courts and thereafter without further dilating upon the remaining issues on the basis of legal issues dismissed the suit
which order was maintained by the Appellate Court.
Learned counsel for petitioner contended that the trial Court could not have
summarily dismissed the suit so filed by the petitioner as the evidence was required to be produced and considered, therefore, the matter deserve to be remanded to the trial Court, so petitioner can produce evidence in order to substantiate her plea.
We have heard the contentions of learned counsel for petitioner and perused the
record.
3. The petitioner is claiming her dower in shape of 40 Misqal gold and Rs. 200,000/ -
(Rupees Two Lakh) in cash. The husband of petitioner died in the year, 2017, the suit was filed after four (04) years of the death of her husband which was dismissed by the fora below on the ground of limitation and further the perusal of the pleadings reveal that the petitioner is demanding her share in the property left by her husband but not a single document in this regard has been filed which could prove that her late husband owned any property.
Since, the suit was filed by the petitioner approximately after four (04) years of death
of her husband which was time barred in view of Article 104 of the Limitation Act, 1908 which stipulates three (03) years time to file such claim, in case marriage is dissolved by
death or by divorce.
4. The claim of the petitioner, with regard to her share in the property allegedly left by
her husband is not within the domain of the Family Courts. In this context section 5(1) of the
Family Courts Act, 1964 is relevant. For the facility of the reference same is reproduced:
"5. Jurisdiction.---1[(1)] Subject to the provisions of the Muslim Family Laws
Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, The Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in 2[Part I of the Schedule.] "
Schedule
1[Part I]
1. Dissolution of marriage 2[,including Khula].
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody of children 3[,and the visitation rights of parents to meet them,].
6. Guardianship.
4[6A. Matters pertaining to Return of Child under the Hague Convention on Civil Aspects
of International Child Abduction, 1980.]
1[7. Jactitation of marriage.]
2[8. Dowry.]
3[9. Personal property and belongings of a wife.
"10. Matter pertaining to return of Child under the Hague Convention on Civil Aspects of International Child Abduction 1980".
Part one of the schedule stipulates matters which can be adjudicated upon by the
Family Courts; since petitioner is claiming her share in the inheritance allegedly left by her husband, which claim does not come within jurisdiction of the Family Courts. According to aforementioned schedule, her suit was not maintainable to that extent. Furthermore, since the claim of dower has been filed after stipulated period of three (03) years mentioned in ibid Section of Limitation Act, therefore, her suit was rightly rejected by the trial Court.
We have gone through the impugned judgments and decrees and could not find any
infirmity in reasoning and perversity in interpretation of provisions of law, therefore, the petition being without any merit is dismissed in limine, however, the petitioner is at liberty to approach competent forum for redressal of her grievance, if any.
MQ/41/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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