17 February 2004	Tuesday	25 Zilhaj 1424

LAHORE, Feb 16: The Lahore High Court has adjudged that benefit should go to women in suits where claims for recovery of dowry articles are not valued for the purpose of court fee and affixing of stamp worth of Rs15 on appeal memos will be sufficient.

Justice Fakharun Nisa Khokhar announced the judgment on Monday after hearing the two sides' counsel and the arguments of eminent scholars in Islamic law, Syed Afzal Haider, S.M. Almas Ali and former Federal Shariat Court judge Barrister Taki Ahmad Khan who were called as amicus curiae.

Two women had challenged the decision of district judges who dismissed their appeals against the orders of family courts, asking them to affix a court fee valuing Rs15,000 and not Rs15 on appeal memos for recovery of dowry articles.

The amicus curiae were of the view that Section 19 of the West Pakistan Family Courts Act, 1964, was a curative and remedial enactment and its relief should be given to women in the form of payment of court fee in case the family courts decided against them in matters relating to the recovery of dowry articles.

They stated that courts were empowered to make rules to regulate procedures in regard to the levy of court fee with the purpose of securing fiscal benefits for the state and not harming the litigants.

The courts were also to look into fee deficiency and then ask one party or the other to make it up. The valuation of the suit was to be done for the purpose of court fee and also for the jurisdictional purposes.

Justice Khokhar agreed to the plea that the amendment to the Family Court Act of October 2001 had an anomaly for being silent over the question if the fee was to be prospective or retrospective. The law provided for suit for money and maintenance as well as immovable property, but fixed a fee of only Rs10 for suits where value of disputed articles was not possible to estimate.

Formulating the proposition, Justice Fakharun Nisa Khokhar held that the respondents had no vested rights in the payment of the court fee as it was a matter between them and the state.

The Court Fee Act did not apply in all the cases related to maintenance allowance because the decrees in such cases were maintenance decrees. Such plaints were for the recovery of dowry articles which were detained by husbands against the wishes of their wives in which the articles' substitution for money was not involved.

The courts were to decide if articles could be substituted for money. The judge held that if cases were decided as such and the court had mentioned in decree sheet the value of article, the appellant would fix a court fee valuing the suit. In case a suit was dismissed and no value was recorded on the decree sheet, a fee valuing Rs10 would be fixed with he appeal memo.

In the instant case, the value of articles was not determined for the purpose of the court fee and remedial and curative part of Article 17(VII), Schedule II of the Court Fee Act, 1870, would apply and a stamp of Rs15 would be affixed with the memo of appeal.