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P L D 2014 Lahore 154

Before Ali Baqar Najafi, J

MUHAMMAD SHIRAZ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJJAR KHAN and others---Respondents

Writ Petition No.4734 of 2010, decided on 24th May, 2013.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of

maintenance allowance and jewellery---Conditions of Nikahnama---Scope---Husband filed suit for
restitution of conjugal rights whereas wife filed suit for recovery of maintenance allowance and for
implementation of conditions imposed in Nikahnama---Trial Court decreed suit of wife which was
maintained by the Appellate Court with certain modifications---Validity---Plaintiff-wife could not prove
that she had any other gold ornaments except 7-tolas gold bangles which allegedly were already taken by
husband with the promise that he would purchase gold ornaments of equal weight for her---Plea of wife
that 10-tolas gold ornaments were the same which were given to her on the eve of marriage vide clause 17
of Nikahnama and was to be retained by her but same were not purchased by him as promised---
Maintenance fixed and conditions for payment of amount under clause 20 of Nikahnama were to be made
applicable only on the desertion of plaintiff-wife---Condition for payment of amount on desertion did not
become operative in presence for decree of restitution of conjugal rights---Clause 17 of Nikahnama
imposing condition did not come within the ambit of actionable claim---Constitutional petition, in
circumstances, was partly allowed to the extent of imposition of clause 17 and claim under clause 20 of
Nikahnama and was dismissed to the extent of maintenance.

Sakina Bibi v. Muhammad Latif and others 2003 YLR 1006 rel.

Arshad Ali v. Additional District Judge Vehari and others 2002 CLC 1450 and Muhammad Akram
v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515 distinguished

(b) West Pakistan Family Courts Act (XXXV of 1964)--

----S. 5, Sched.---Transfer of Property Act (IV of 1882), 130---Transfer of actionable claim---Scope---

Clause 17 of Nikahnama imposing condition did not come within the ambit of "actionable claim".

Sakina Bibi v. Muhammad Latif and others 2003 YLR 1006 rel.

Raja Saghir-ur-Rehman for Petitioner.

S. Mansoor Hussain Bukhari for Respondents Nos. 3 and 4.

Date of hearing: 24th May, 2013.

JUDGMENT

ALI BAQAR NAJAFI, J.---Through this constitutional petition, the petitioner seeks setting aside
of the judgment and decree passed by the learned Additional District Judge, Gujjar Khan, whereby
respondent No.3 was granted past maintenance allowance at the rate of Rs.2000/- per month and 10-Tolas
of gold ornaments on the basis of clause (17) of Nikahnama.

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