Riffat Sultana

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

W.P. No._____________/2001 Mst. Riffat Sultana daughter of Rafique Ahmad wife of Mirza Khalique Baig, caste Mughal, R/o House No. 1530, Ward No. 8, Street No. 4, Khawaja Colony, Railway Road, Multan. Petitioner VERSUS 1. Additional District Judge, Multan. 2. Sardar Muhammad Babar, Judge Family Court, Multan. 3. Mirza Khalique Baig S/o Sarwar Baig, caste Mughal, R/o H. No. 63, Hundred feet Road, Nuun Chowk, Shah Rukn-e-Alam Colony, Multan. Respondents

Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

Respectfully Sheweth: 1. That briefly stating facts of the writ petition are that the marriage of the petitioner was solemnised with the respondent No. 3 on 10.8.88 in accordance with the injunctions of Islam. Out of this wedlock, three children were born. Out of which Mirza Bilal Baig aged about

year is alive and is living with the petitioner.

From the beginning, the behaviour of the respondent No. 3 was not amicable with the petitioner. The birth of Bilal Baig was done as scissorian case. At this birth, the attitude of the respondent

became very cruel. He announced that he would not own and look after the petitioner and the baby because he did not want to open a disabled persons home. Near about 8/9 years ago, the respondent gave severe beating to the petitioner and turned out her and the baby from his house in three clothes and snatched all the dowry, other ornaments and articles of the petitioner which were gifted to her by petitioner’s parents, relatives uncle & aunt. Now, the petitioner is living with her relatives and earning her and her child’s livelihood by doing manual labour. It is pertinent to state here that the expenses upon the birth of the three children were borne by the petitioner’s uncle and the respondent had not spent even a single penny in this regard. Now, the respondent is living in Saudi Arabia and his monthly income, according to his own statement and admission is more than thirty thousand rupees per month. 2. That in violation of the family laws Ordinance, the respondent No. 3 has contracted another marriage without obtaining the permission from the petitioner or from the Conciliation Court/Chairman of the Union Council of the Halqa. 3. That the petitioner tried her level’s best that the respondent should take her and the son to his house and bear the expenses of their livelihood, but all in vain. Thereafter, the petitioner instituted the suit for the recovery of dowry amount incurred upon the purchase of the articles amounting to Rs. 400,000/-. The respondent contested the same and the respondent No. 2 vide his judgment and decree dated 30.5.2000, illegally decreed the suit to the extent of Rs. 100,000/-. The copy of plaint is Annex “A”, written statement Annex “B”, Issue Annex “C”, Statements of the petitioner and witnesses Annex “D”, statements of the respondent and his witness Annex “E”, documentary evidence of the petitioner Annex “F”, judgment Annex “G” and Decree Annex “H”.

4. That the petitioner feeling aggrieved from this judgment filed an appeal before respondent No. 1, who vide its judgment and decree dated 26.6.2001 very graciously dismissed the same and thereafter directed the appellant to make up the deficiency of court fee valuing Rs. 15,000/- within one month, otherwise, the appeal shall stand rejected with costs. The copy of the grounds of Appeal Annex “J”, judgment Annex “K”, and decree Annex “L” are attached with the petition. 5. That the judgment and decree dated 26.6.2001 passed by respondent No. 1 through which he dismissed the appeal of the petitioner on merit and confirmed the judgment and decree of the respondent No. 2 of one lack rupees price of dowry articles and ordering to make up the deficiency of court fee valuing Rs. 15,000/- within one month, otherwise, the appeal shall stand rejected with costs, (which the respondent No. 1 has already dismissed vide his judgment as para No. 8) are not in accordance to the injunctions of Islam. They are against law and facts of the case. These are based on non-reading and mis-reading of evidence adduced by the parties. These are void, ultra vires, without jurisdiction, based on exercised of jurisdiction not conferred upon them and based on malafide intention to the extent of question of the price of dowry considering it as Rs. 100,000/- instead of actual price of more than 4 lacks of rupees and are liable to be modified to the extent of the valuation of the dowry i.e. Rs. 400,000/- on the following amongst other: GROUNDS a)

That Holy Qur’an and Sunnah is the Supreme law of land; and being Muslims, we are bound to follow the same in its strict sense. Any kind of diversion amounts to be answerable on the Day of Judgment herewith. In this regard, the relevant verses from the Holy

Quran are quoted as follows: -

Surah An-Nisa (The women): 19.

O ye who believe! It is not lawful for you to inherit women by force; And prevent them not from remarrying. In order to take away part of what you have given the, Except in case they commit a clear act of indecency; And consort with them with fairness. Then, if you dislike them, it may be that you dislike a thing, whilst Allah has appointed a great deal of good therein.

20.

And if you should desire to change one wife for another, And you have given one of them a heap, then take not anything thereof. Will you take it unjustly and with open sinfulness?

21.

And how can you take it. When one of you has gone into the other, And they (the wives) have taken from you a most firm Covenant?

58.

Surely, Allah commands you to pay back the trusts to their owners; and then when you judge amongst men, judge with equity. Surely, what a good advice does Allah (advise) you with. Indeed Allah is Hearing. Seeing.

b)

That according to the prevailing law of the land, the petitioner has adduced oral as well as documentary evidence. But the respondents No. 1 & 2 did not appreciate the same. They did not bother to read and discuss the same in the impugned judgment and as such these judgments are based on non-reading and misreading.

c)

That the petitioner in her examination inchief has categorically stated that the value of the dowry articles is Rs. 400,000/-.

But, in the cross-examination, not a single question/suggestion was put that the price of the dowry was not Rs. 400,000/-. In the same manner, Mr. Shafique Ahmad appeared as P.W.2 and he deposed that the value of dowry was amounting to Rs. 400,000/-. No suggestion was put that the value of the dowry was not Rs. 400,000/-. Moreover, the petitioner has produced receipt and list of dowry articles as documentary evidence Exhibit P1 to P8 and no document as evidence is adduced by the respondents No. in their rebuttal. As per law, when something is stated in examination inchief and no suggestion is put to rebut the same, then it will be considered that the other party has admitted the same as true. In the instant case, the petitioner and her witnesses have categorically stated that the value of the dowry articles is Rs. 400,000/- and not a single suggestion was put that the value of the dowry is not Rs. 400,000/-. It means that the respondent No. 3 has accepted and admitted as true that the value of dowry of the

petitioner

is Rs. 400,000/-. Therefore, the

respondents No. 1 & 2 were bound to decree the suit of the petitioner as prayed for i.e. to the tune of Rs. 400,000/-. The respondents No. 1 & 2 have erred by not decreeing the suit as prayed for. d)

That feeling aggrieved by the judgment of the respondents No. 1 & 2, the petitioner had invoked the appellate jurisdiction of the respondent No. 1. The respondent No. 1 was legally bound to peruse the record of the case and give his own independent

findings upon the crucial issues, but he has not done the same in accordance with law and illegally confirmed the decision of respondent No. 2. e)

That petitioner has proved his case beyond reasonable doubt and as such she is entitled to the decree upto the tune of Rs. 400,000/-.

f)

That the petitioner is living from hand to mouth. She has no proper and profitable source of income and the respondent No. 1 has not given any relief and dismissed the appeal without any cogent reasons. And thereafter to block the way of the petitioner to knock the doors of the Higher forum, the respondent has malafidely passed such a harsh order to pay the court fee. Had the petitioner be given some relief, then the petitioner would be in a position to pay the court fee. In this way, the judgment and decree of the respondent No. 1 is illegal, ultra vires and based on malafide intentions.

g)

That petitioner has no other efficacious and speedy remedy but to invoke the constitutional jurisdiction of the Hon’ble High Court. Keeping in view the above-mentioned facts, it is respectfully prayed that writ, direction or order may very graciously be issued that the judgments and decrees of the respondents to the extent of valuation of Dowry articles assessing as Rs. 100,000/- (one lac rupees) are illegal, ultra vires, without jurisdiction and malafide and the same may very graciously be modified and case of the petitioner may very graciously be decreed as prayed for and amount of the decree be may very graciously be increased from Rs. 100,000/to Rs. 400,000/-.

Any other writ, order, direction or relief which this Hon’ble Court deems fit, may please be extended in the favour of petitioner to meet the ends of justice. Humble Petitioner, Dated: ___________

Through: Syed Muhammad Afaq Shah, Advocate High Court, 93-District Courts, Multan.

CERTIFICATE: Certified as per instructions of the client, that this is the first petition on the subject matter. No such petition has earlier been filed before this Hon’ble Court. Advocate

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

W.P. No. ______________/2001

Mst. Riffat Sultana

Vs.

A.D.J. etc.

AFFIDAVIT of: Mst. Riffat Sultana daughter of Rafique Ahmad wife of Mirza Khalique Baig, caste Mughal, R/o House No. 1530, Ward No. 8, Street No. 4, Khawaja Colony, Railway Road, Multan.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned petition are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of January 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief.

DEPONENT

IN the lahore high court, multan bench, multan.

In re: C.M. No. _____________/2001 In W.P. No.____________/2001 Mst. Riffat Sultana

Vs.

A.D.J. etc.

APPLICATION FOR DISPENSING WITH THE FILING OF CERTIFIED COPIES OF ANNEXURES. ========================================= Respectfully Sheweth:That certified copies of Annexures “A to H” are not available. However, uncertified/photo state copies of the same have been annexed with the petition, which are true copies of original documents. It is, therefore, respectfully prayed that this Hon’ble court may please dispense with the filing of aforesaid copies of documents. PETITIONERS Dated: __________

Through: -

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2001 In W.P. No.____________/2001 Mst. Riffat Sultana

Vs.

A.D.J. etc.

DISPENSATION APPLICATION.

AFFIDAVIT of: Mst. Riffat Sultana daughter of Rafique Ahmad wife of Mirza Khalique Baig, caste Mughal, R/o House No. 1530, Ward No. 8, Street No. 4, Khawaja Colony, Railway Road, Multan.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of January 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief.

DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

W.P. No.____________/2001 Mst. Riffat Sultana

Vs.

A.D.J. etc.

INDEX S. No. NAME OF DOCUMENTS 1

Urgent Form

2

Stamp Paper worth Rs. 500/-

3

Writ Petition.

4

Affidavit

ANNEXES PAGES

5 6 7 8

Dispensation Application.

9

Affidavit.

10

Application U/s 151 C.P.C.

11

Affidavit.

12

Vakalatnama PETITIONERS

Dated: ____________ Through: -

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

W.P. No._____________/2001 1.

Mst. Riffat Sultana daughter of Rafique Ahmad wife of Mirza Khalique Baig, caste Mughal, R/o House No. 1530, Ward No. 8, Street No. 4, Khawaja Colony, Railway Road, Multan.

2.

Bilal Baig S/o Mirza Khalique Baig, caste Mughal, R/o H. No. 1530, Ward No. 8, Street No. 4, Khawaja Colony, Railway Road, Multan. Petitioner VERSUS

1.

Additional District Judge, Multan.

2.

Sardar Muhammad Babar, Judge Family Court, Multan.

3.

Mirza Khalique Baig S/o Sarwar Baig, caste Mughal, R/o H. No. 63, Hundred feet Road, Nuun Chowk, Shah Rukn-e-Alam Colony, Multan. Respondents

Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

Respectfully Sheweth: 1.

That briefly stating facts of the writ petition are that the marriage of the petitioner was solemnised with the respondent No. 3 on 10.8.88 in accordance with the injunctions of Islam. Out of this wedlock, three children were born. Now, Mirza Bilal Baig aged about 10 years is alive and is living with the petitioner. From the beginning, the behaviour of the

respondent No. 3 was not amicable with the petitioner. The birth of Bilal Baig was happened as scissorian case. At this birth, the attitude of the respondent became very cruel. He announced that he would not own and look after the petitioner and the baby because he did not want to open a disabled persons home. Near about 8/9 years ago, the respondent gave severe beating to the petitioner and turned out her and the baby from his house in three clothes and snatched all the dowry, other ornaments and articles of the petitioner which were gifted to her by petitioner’s parents, relatives uncle & aunt. Now, the petitioner is living with her relatives and earning her and her child’s livelihood by doing manual labour. It is pertinent to state here that the expenses upon the birth of the three children were borne by the petitioner’s uncle and the respondent had not spent even a single penny in this regard. Now, the respondent is living in Saudi Arabia and his monthly income, according to his own statement and admission is more than thirty thousand rupees per month. 2.

That in violation of the family laws Ordinance, the respondent No. 3 has contracted another marriage without obtaining the permission from the petitioner or from the Conciliation Court/Chairman of the Union Council of the Halqa.

3.

That the petitioner instituted the suit for the recovery of six years past as well as future maintenance allowance from the respondent No. 3 amounting to Rs. 7,000/- per month, on 14.3.98. The suit was contested by the respondent and the learned Judge Family Court/respondent No. 2 decreed the suit to the tune of Rs. 1,000/- per month per head, vide his judgment and decree dated 3.5.2000. The copy of the plaint is Annex “A”, written statement Annex “B”, Issue Annex “C”, statements of the witnesses of the plaintiff/petitioner Annex “D”, statement of the witnesses of the respondent No. 3 Annex “E”, judgment Annex “F” and decree Annex “G”.

4.

That the petitioner, feeling aggrieved from the impugned judgment and decree instituted an appeal before the respondent No. 1. The respondent No. 3 also instituted appeal before the respondent No. 1. The respondent No. 1 vide his judgment and decree dated 26.6.2001 dismissed both the appeals and upheld the judgment and decree passed by the respondent No. 2 dated 30.5.2001. Copy of the Appeal of the petitioner is Annex “H”, judgment Annex “J”, and decree Annex “K”.

5.

That the judgment and decree passed by the respondent No. 1 through which he has dismissed the appeal of the petitioner and upheld the judgment and decree of the learned Family Court, is illegal, ultra-vires, without jurisdiction, with malafide intention, against law and facts, based on nonreading and misreading of evidence and record of the case, as such liable to be set aside on the following amongst other: GROUNDS i)

That the petitioner has by filing recovery suit claimed an amount of Rs. 7,000/- per month as maintenance allowance for the period of six years past and for the future. Thereafter, the petitioner increased the amount of maintenance to the tune of Rs. 10,000/- per month. The respondent, while appearing as his own witness, has admitted in his own statement that he has been earning an amount of Rs. 30,000/- per month. In this way, the case of the petitioner was proved beyond reasonable doubt that the respondent is in a position to pay an amount of Rs. 10,000/- per month easily. But the learned court/respondent No. 2 passed a decree for an amount of Rs. 1,000/- per month per head as maintenance allowance, it is like “giving a drop of water from the ocean to a thirsty person”.

Sura An-Nisa (The women) 34.

Men are protectors over women, on account of that by means of what Allah has made some of them eminent above the others, and on account of what they spend out of their belongings.

59.

O you who believe! Obey Allah, and obey the messenger, and those who have power of command amongst you; therefore, if you differ in anything, then refer it back to Allah and the messenger, if you believe in Allah and the Future Day. This is better and an excellent finish.

105. Surely, We have sent down this Book to thee with the truth. That thou mayest judge amongst men by means of what Allah has shewn thee. And be NOT A PLEADER IN FAVOUR OF THE TRATIORS. 106. And ask forgiveness of Allah; Surely, Allah is FORGIVING, MERCIFUL. 107. And argue not on behalf of those who harbour treacherous, sinful. Surah Al-Baqara (The Cow). 233. And mother should suckle their children for two complete years, in the case of those who wish to complete their period of suckling. And it is the duty of father of the child to feed them and clothe them with fairness. No soul is burdened but to the extent of it capacity, LET not the mother suffer injury on account of her child; and a similar (law) holds for his heir; But if they both desire to wean (the child) by mutual consent and counsel, then there is no blame on them (either) And if you (men) desire to provide a wet nurse for your children, then there is no blame on you, when

you pay what you agree to pay with fairness; And reverence Allah, And know that Allah sees what you do. 236. There is no blame on you if you divorce your wives whom you have and touched, Or for whom you have not fixed a portion; And make provision for them, the well-to-do according to his means And the shortened in circumstances according to his means, A provision with fairness; A duty incumbent on all doers of good. 237. And if you divorce them before you have touched them But you have appointed for them a certain portion then (pay) half of what you have appointed unless they remit, or he remits in whose hand is the marriage tie; and if you remit it is nearer to reverence; And forget not benevolence amongst yourselves; for Allah sees what you do. ii)

That in this age of inflation, Rs. 10,000/-(ten thousand) is not a heavy amount. The petitioner No. 2 is born disabled and a huge amount is to be spent on his medicine and other formalities. The respondent No. 3 who is earning Rs. 30,000/- per month can easily give an amount of Rs. 10,000/- per month as maintenance allowance. According to Shariat, (the Supreme law of the world) and the Family laws prevailing in the country, the respondent No. 3 is duty bound to look after his wife and children and pay maintenance allowance according to his own capacity. While he is earning Rs. 30,000/- per month, then he can easily spend an amount of Rs. 10,000/- per month. But while deciding the case, the respondent No. 2 has not appreciated this aspect and illegally decreed the case to the extent of Rs. 1,000/- per month per head. And in appeal, the respondent No. 1 has neither touched nor discussed this contention of the petitioner and the enhancement of maintenance allowance upto

Rs. 10,000/- (ten thousand rupees) and rejected the appeal of the petitioner without giving any kind of verdict in this regard. iii)

That it is the duty of the learned respondent No. 1 to give judgment on the issues raised by the petitioners but the learned respondent No. 1 has neither discussed nor given any verdict about the main plea of the petitioners that the decretal amount may very graciously be increased from Rs. 1000/- to Rs. 10,000/- (ten thousand rupees). It means that the judgment given by the respondent No. 1 is against law and based on onreading and mis-reading of the evidence.

iv)

That, while deciding the appeal of the petitioner, the respondent No. 1 has not used his jurisdiction properly.

v)

That the decision of the respondents No.1 and 2 are harsh and are not based on equity; and are based on malafide.

vi)

That the judgments under this right are against the injunctions of Islam and as such not maintainable.

vii)

That the learned respondent No. 1 has not applied his mind and has discussed the appeal in stereotype style.

6.

That the petitioners have no other efficacious and speedy remedy, but to invoke the extra-ordinary constitutional jurisdiction of the Hon’ble High Court. Under these circumstances, it is humbly prayed that writ, direction and order may very graciously be passed that the judgments of learned respondents No. 1 & 2 are illegal, ultravires,

without

jurisdiction,

with

malafide

intentions, against law and facts of the case, based

on

non-reading

and

misreading

of

evidence, without lawful authority, misuse of

jurisdiction and as such liable to be modified for the amount of maintenance from Rs. 1,000/- to Rs. 10,000/- and as such maintenance allowance may very graciously be enhanced to the tune of Rs. 10,000/- (ten thousand rupees). Any other writ, order, direction or relief which this Hon’ble Court deems fit, may please be extended in the favour of petitioners to meet the ends of justice. Humble Petitioners, Dated: ___________

Through: Syed Muhammad Afaq Shah, Advocate High Court, 93-District Courts, Multan.

CERTIFICATE: Certified as per instructions of the client, that this is the first petition on the subject matter. No such petition has earlier been filed before this Hon’ble Court. Advocate