Law: Family Courts Act, 1964

Section: 5

Law: Transfer of Property Act, 1882

Section: 130,3

(a) West Pakistan Family Courts Act (XXXV of 1964)--- ----S. 5 & Sched.---Transfer of Property Act (IV of 1882), Ss.130 & 3--- Constitution of Pakistan, 1973, Art. 199---Constitutional petition---Column No.17 of the Nikahnama contained the stipulation that in case of sour relations between the spouses or divorce by the husband, a sum of Rs.1,00,000 shall be paid to the wife---Suit of wife for dissolution of marriage was decreed, whereafter she brought the suit for recovery of Rs.1,00,000 which was dismissed by the Family Court holding that her suit was not maintainable before the Family Court and she was liable to file ordinary civil suit for the recovery of the said amount---Appellate Court, however, found that matter fell within the purview of Entry No.9 of the Schedule to S.5, 'West Pakistan Family Courts Act, 1964 and suit was competent---Validity---Held, Entry No.9 of the Schedule to S.5, West Pakistan Family Courts Act, 1964 did not cover any amount which was not yet the `property of the wife' and she only had a claim to recover the amount from the husband on the basis of any special condition incorporated in the Nikahnama---Such claim could not be equated as a `personal property belonging to wife'---Amount in question was also not covered under the rule of `actionable claims' as envisaged by S.130, Transfer of Property Act, 1882---Family Court in circumstances, had no jurisdiction in the matter and the suit in that behalf before the said Court was not competent---Principles. (b) Transfer of Property Act (IV of 1882)--- ----Ss. 130 & 3---Term `actionable claim' in general means, a claim for which an action will lie, furnishing a legal ground for an action and according to S.3, Transfer of Property Act, 1882, a claim towards a debt. JUDGMENT MIAN SAQIB NISAR, J.---The petitioner and respondent No.1 were married and it is mentioned in Column No.17 of the Nikahnama that in case of sour relation between the spouses or divorce by the petitioner, a sum of Rs.1,00,000 shall be paid to respondent No.1. Respondent No.1 filed a suit for the dissolution of marriage, which was decreed, whereafter she brought the present suit for the recovery of the amount…

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