Syed Taskeen Ali Vs Mst. Syeda Sadaf Batool and others

V

Iudgment Sheet

PESHAWAR HIGH COURT. PESHAWAR

fludicial Departrnent)

WP No.L923-P|2O2O

Syed Taskeen Ali v.

Mst. Syeda Sadaf Batool, etc.

IUDGMENT

Nemo for the petitioner

For respondents: Mr. Waiid Sattar. Advocate.

Date of hearing: 24.03.2025 ,1.**{c*

Dr. Khurshid lqbal. I.'

1.The subject writ petition and the connected one #4049-P /2020 have arisen in the background of a family dispute between Syed Taskeen Ali [petitioner) and Syeda Sadaf Batool (respondent). Directed against one and the same judgments of the learned courts below and involving common questions of law, these are proposed for disposal by this single opinion.

2.The parties belong to Dera Ismail Khan. They got € married in Peshawar on 24.02.2010. Allah Subhdnahu wo' Ta'dld blessed them with two daughters Syed Farwa Batool and Syed Meerab Batool, 6 and 4 years old, respectively, at the time of filing of the suit by respondent on 18.07.20L6. Their relations got strained which ultimately landed them in litigation. Alleging physical and psychological cruelty on the part of the petitioner's suspicion of her moral integrity, the respondent filed a composite family suit against the petitioner, who contested it.

3.The respondent sought decree for:

a. dissolution of her marriage; and Recovery oft b. 05 tola gold ornaments and share of the petitioner in an 08 marlas ancestral house, situated in Mohallah Roshan Chiragh, Dera Ismail (DI) Khan, as dower;

c. maintenance from 05.03.2012 till 28,05.2016 and onward till expiration of lddat, at Rs.3000/- per month for herself, and d. maintenance at the rate of Rs. L0,000/- for each of the minors per month and onwards at the same rates with Llo/o annual increase, and;

e. dowry articles as per the list she appended with the plaint.

4.The petitioner denied the assertions of the respondent in his written statement and prayed for

O restitution of conjugal rights.

5.By its judgment dated 05.11.2018, the learned trial court partially decreed the suit in the following terms:

o share of petitioner in the house or its market value, as dower;

o maintenance of the respondent at the rate of Rs.3000 l- per month from May 20L6 till the expiry of period of Idda$ o maintenance of the minors at the rate of Rs.2500/' per month for each from May 20L6, till the date and onwards at the same rate with Rs.250/- annual increase for each till their marriage, and; o dowry articles as per the list attached with the plaint;

o Respondent's claim for recovery of 05 tola gold ornaments;

o Petitioner's prayer for restitution of conjugal rights; o custody of the minors but granted him visitation rights twice a month within the court premises.

6.Both parties preferred appeals. The learned appellate court reversed the decree to the extent of share of the petitioner in the house on the ground that the same was in lieu of dower of Rs. 5,000/- and 05 tola gold ornaments, which has been paid. The appellate court modified the decree regarding minors' maintenance by enhancing it to Rs. 3,000/- per month per head. It upheld the remaining decree.

7.The record reveals that for the first time, attendance in this case was marked by Mr. Aftoz Ahmed, Advocate, when the matter was initially fixed for hearing on

v

L0.07.2020. Thereafter, on four consecutive hearings, the petitioner remained absent, resulting in the dismissal of the petition for non-prosecution vide order dated 04.04.2022. An application was moved for restoration of the main writ petition, which was allowed with cost of Rs. 10,000/-. For the next two hearings, the petitioner again remained absent, leading to the withdrawal of the power of attorney by his counsel, Mr. Arshad |amal Qureshi. On the following date, i.e., L2.0L.2024, the petitioner did not appear. For the subsequent hearing Mr. Muhammad Ali Khan, Advocate, appeared on his behalf and sought time for argumerts, having been freshly engaged. On the previous date, an adjournment was sought by the junior associate of counsel for the petitioner, citing the indisposition of the learned counsel. Today, once again, none appeared on behalf of the petitioner. The litigation commenced in the year 20L8, This petition was filed in the year 2020. To prevent further delay in the disposal of the case, the court opted to decide the matter on the basis of the material available on the record, along with the submissions of the learned counsel for the respondents. Arguments heard, and the record perused.

B. The petitioner prayed for the dismissal of the whole suit of the respondent/plaintiff. On the other hand, Respondent No. 01 prayed for enhancement of the maintenance of the minors and restoration of the findings of the learned appellate court, pertaining to share of the petitioner/husband in the house, as part of the dower.

g. As far cruelty on the part of the petitioner, the respondent furnished evidence of the fact that he was suspicious about her character. In her deposition, she reiterated her stance of physical violence. Her witness Sikandar Shah (P.W-02) supported her stance. The petitioner in his sole statement admitted that he was doubting the character of the respondent/plaintiff. But he failed to substantiate his assertion. He did not categorically deny from the assertion of physical violence.

10.Coming to the issue of dower, two points are worth noting: firstly, the nikahnama was tendered by the respondent in her statement and its copy exhibited as Ex. PWLIL The petitioner raised no obiection on it being wron& illegal and inoperative on his rights. Secondly, the nikah khwan was not examined as a witness in its support. The

non-examination of the nikah khwan is of no effect. The reason is that the nfkahnama was not objected to, nor did the petitioner produce evidence in rebuttal. Given the view of the appellate court on dower, columns 13 to L6 of the nikahnama needs discussion. The aforesaid columns need to be read and given effect holistically to explore the intention of the parties. In other words, one column cannot be read separately from another. Column No. 13 transpires that the amount of dower was Rs.5000 f , which has been termed as prompt in column No, 14. Column No. 15 states that gold ornaments, weighing 05 tola, were paid at the time of rukhsati. Column No. L6 requires the parties to mention immovable property with its details and market value either for the whole or a portion of it. The learned appellate court erred while interpreting column No. L6 separately from other columns and considering it to the extent of alternate dower only. Moreover, no condition has been mentioned in column No. 17. Though Rs. 3000/- per month maintenance and visitation right of the respondent/plaintiff to her parents and relatives has been there, but that has nothing to do with dower.

11.Columns No. t3 to 16 of the nfkahnama visa-a-vis the intention of the parties, has been interpreted by higher courts in a number of cases. In MsL Yasmeen Bibi v. Muhammad Ghazanfar Khan and others, PLD 20L6 SC613, the august Apex Court has ruled that a promise made in the nikahnama regarding a house (share of house in the case in hand) could be considered as part of the dower. Reference may be made to Muhammad Qayyum Anjum v, Additional District Judge, Muzaffargarh and 2 others, 2022 MLD 4L6 [Lahore High Court (Multan Bench)J in which it was held that columns No. 13 to L6 of the ntkahnama reflect the intention of the parties as to dower in cash as well as in kind, such as, articles/or property a husband promised to give to his wife as dower.

L2. The most recent one is Muhammad Yousuf v, Huma Saeed and Others 2024 SCMR 1078. In that case, the august Apex Court has discussed the issue from two perspectives. The first one is that the nfkahnama, being in the nature of a civil contract, the free consent of both the parties is essential to negotiate its terms and conditions, including most notably, dower. The mere headings in the nikahnama in form II of the Rules 1961, cannot be said to reflect intention

are not of the parties. The headings of the nfka hnama, thus, conclusive proof. The august Court has observed that in order to determine the intention of the parties, the entries are to be read as a whole and the words given "literal, plain could and ordinary meaning.,, It follows that the instrument term' not be interpreted inconsistently with its expressed both the the august court has added. while the freedom of parties to negotiate the terms of the nfkah is indispensable' the freedom of the bride is of greater importance in the

context of our socio-cultural norms relating to women's

rights, which we call the second perspective of the august of nikah is to Court s iudgment. The crucial aspect in process ensure, what the august Court said, "an informed understanding of her rights." In most cases, the bride is as' father' represented through her close male relatives, such etc' brother, paternal and maternal uncles, brothers-in-law, than At the event, the focus is more on celebrations rather the proceedings of nikah during which the terms and

conditions are reduced into writing' There is every possibility that the bride has not been afforded an

opportunity to read and understand the entries in

nikahnama and, most particularly, to foresee the actual arises' the realization of the entries in future' When a dispute understanding of terms and conditions entered in the granted by our nikahnama by the woman are taken for respectable district courts. For this reason, the august Court the terms and ruled that in case of ambiguity or doubt as to conditions laid down in the nikahnama- [r]hebenefitoughttogoinfavourofthewifeifthere!?,: record to establish not ,ifrt prepoiarroni, of Zvtdence on that she had been inforied of her rtghts, she understood she had the each column of the'[nikah nama] and tha-t settle the terms and conditions out freedom to negotiate ind of free consent

13.True, it is implicit that a woman has the right of given our socio- expressing her free consent. Nevertheless, cultural norms, a woman ordinarily does not get an exercise her opportunity to meaningfully and demonstrably conditions of her free consent in negotiating the terms and conditions were set nikah, it is presumed that the terms and (and also out by the husband. Even otherwise dower maintenance of wife) is the obligation of husband who according to his proposes its quantum and mode of payment husband who own financial means. In other words, it is the

happens to be dictating the terms and conditions to the drafuman of the instrument. The burden, thus, lies on him under the doctrine of contra proferentem, a Latin phrase: 'against the offerer' [Cornell Law School Legal Information I nstitute : http s //www. law. corn ell.ed u/wex/contra p roferentem Accesse d 29.03.20251. It is, however, worth clariffing, as the august Court has observed that the burden will shift to wife where it is proved on balance of probability that the wife has meaningfully and demonstrably availed the opportunity of settling the terms and conditions of her nikah.

L4. The august Court also referred to a survey report: "Diagnostic Study of Nikah Namas in Puniab: A Review of Woman's Marriage Rights" published [in 20231by the Centre for Human Rights and Musawi with the support of the National Commission for Human Rights. As regards the nature of the dower and the agents (to the exclusion of the bride) involved in its fixation, the report has concluded that role of the nikah registrars and the male members (including wali/wakeel nikah) of the bride create negative impact on the bride's freedom to settle the dower. A further reading of the report would transpire that key challenges in respect of dower include:

[I]nadequate false perception that including or asking for higher amount of haq mahar will lead to burdening of marriage; attitudinal bias in favour of insignificant haq mahar amount (i.e., a token amount, such as, Rs. 5000/' in the case in hand mentioned in columns No. 73 and 14); inadequate knowledge on haq mahar as a mandatory validiiy requirement for a marciage; mistnformed belief that haq mahar could be waived off tf the bride consents to it; guide fatie perception that religious/socio-culrural norrns 'the marciage & fitling out of the nikahnama, even if in contravention of the law; lack of knowledge pertaining to criminal liabitity of the nikah registrar for failure to record the correct dower amount in the nikahnama; Iimited knowledge that haq mahar is the legal propefty of the bride alone & cannot be given to family, vakil/wali or anyone else on her behalf.

15.This socio-cultural perspective overlaps with a similar concept known as legal anthropology. The latter concept has been discussed by this court in Saddam Hssain v. Bibi Haibia [writ petition No.606 -B/20237 with reference to legal anthropology. The relevant portion of the judgment is reproduced below:

76.[...] In legal anthropology, we study law not as a discrete entity being positivist in character, but tn a cross cularal context, As E, Adamson Hoebel, for example, has offered anthropological definition of law as under:

[a] Social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recogntzed privilege of so acting, 10 [Hoebel, E. Adamson, (7954), The Law of Primitive M an. H aryard, Massachusetts : Atheneuml.

17.Legal Anthropologists argue that law should be defined by function rather than in its positivist expression. Anthropologists and examine it in soctal context Law refers to rules, processes, and norms that regulate social hfe, Legal anthropology, on the other hand, does not limit its attention to formal system of law and courts in contemporaty nation- state.

16.Adverting to the facts of the instant case again, the non-payment of dower in the shape of 05 tola gold ornaments was not proved by the respondent. In this respect a bare perusal of the plaint reveals that the respondent admitted having received the gold ornaments. Her contention is that she had returned the gold ornaments to her mother-in-law on the directions of the petitioner. It is categorically mentioned in column No. 15 that 05 tola gold ornaments of different kinds were given to the respondent at the time of the nikah. The findings of both the courts on this issue need no interference by this court.

t7. Finally, the maintenance allowance of the minors. The respondent claimed Rs. 10,0 00 / - per minor from 28.05.2016 till their puberty with 10 percent annual increase. The trial court fixed the maintenance as Rs. 2500/- per minor keeping in view the fact that the petitioner, as per his admission in his deposition, receives Rs. 23,000/- month salary. The appellate court took note of the fact that the minors are school-going whose fee are very high, but observed that keeping in view the financial status of the petitioner, fixed the maintenance as Rs. 3,000/- per head per month with increase of Rs.250/- till their marriages. This court is surprised that the learned trial court did not decree the solicited 10 percent increase and the appellate court decreed a meagre amount of Rs. 2501- and that, too, with no time

specification. Father is duty bound to main his children. Reference is made to Holy Quran:

(2:233) if they (i,e. the fathers) wish that the period of suckling for their children be completed, mothers may suckle their children for two whole years, (In such a case) it is incumbent upon him who has begotten the child to provide . them (i.e. divorced women) their sustenance and clothing in a fgir mgngl But none shall be burdened with more than he is able to bear; neither shall a mother suffer because of her child nor shatl the father be made to suffer because he has begotten him. [Reproduced from a judgment passed by Honorable the Lahore High Court, Rawalpindi Bench in Writ Petition No. 50 of 2024 in case titled: Muhammad Maroof and others v. Mst Mariam Farooq and others, delivered on 22.0 4.202 4l [underlining supplied]

18.Both the courts below materially ignored the minors' other basic needs, such os, food, clothing shelter and healthcare, needed routinely as well as on special occasions, for example, Eids, family and school events, for social, physical, and mental growth helpful to realize an adequate standard of living within the limits of financial status of the petitioner, which may be considered as factors fulfilling the requirements of "fair manner." At the time of filing of the suit in 20L6, Syed Farwa Batool was 6, and Syed Meerab Batool, was 4 years old. Now the former is aged 14 and the latter, L2' Keeping in view, the financial position of the petitioner and the basic needs of the minors coupled with the current inflation; it seems reasonable to enhance the maintenance to 5,000/- per month for each minor as living expenses with 10 percent annual increase. The petitioner shall be paying their school fee separately directly to their school. However, if the school has any discount scheme in the fee owing to the respondent's iob there, the petitioner will stand absolved to that extent.

Lg. For the reasons articulated above and the above legal principles, the instant fWrit Petition No.1923-P 12020) is dismissed, the connected [writ Petition No.4049'P /2020) is partially allowed in the following terms:

a. The iudgment and decree of the learned trial court as regards the recovery of share of the petitioner in 08 Marla ancestral house situated in Mohallah Roshan Chiragh, Dera Ismail (DI) Khan, as dower, is restored.

b. The maintenance allowance of both the minors is increased to Rs.5000/- per head per month with L}o/o annual increase till the marriages of the minors.

c. The petitioner shall regularly pay the school fees of the minors to the school directly.

20.The petitioner is also directed to pay the cost of Rs.10,000/- imposed by this court vide order sheet dated 06072022 to the respondent No. 01 before the execution court.

Announced

(shohid AIi'JSS')

(S.8.) fusde Dr.lGurrbld lqbal