Mushtaq Ahmed & 02 others Vs Ali Haider & others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 326-A/2023

JUDGMENT

Date of hearing...................14.04.2025.................................

Petitioners (Mushtaq Ahmad & 02 others) By Mr. Fida Bahadar, Advocate.

Respondent. (Ali Haider) By Mr. Muhammad Shafiq Awan, Advocate.

MUHAMMAD FAHEEM WALI, J.- Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, petitoners (three in numbers) have prayed as under: - “It is, therefore, humbly prayed that on acceptance of instant writ petition the Hon’ble Court may be pleased to set-aside the judgment / decree of learned appellate court (respondent No.2) to the extent of Juzz “Alif”, “Bay”, “Jeem”, “Daal” and “Ray” of the heading of plaint and the decree / judgment / order of trial / family court may kindly be restored / upheld to the extent of Juzz “Bay” and “Jeem” and the suit of the petitioners may kindly be decreed in favour of petitioners against the respondent No.1 as prayed for in the heading of the plaint, and right of visitation of respondent No.1 regarding minor

to the extent of night stay at the home of respondent may kindly be struck down.”

Aggrieved from the same impugned judgments and decrees of the courts below, respondent No.1 has also filed connected W.P.No. 490-A/2023 with the following prayer: -

“It is, therefore, respectfully prayed that on acceptance of the instant writ petition, the impugned judgments and decrees of learned respondents No.4 & 5 may graciously be set-aside to the extent of non-decision of suit of the petitioner about appointment of guardian of minor respondent No.3 till decision of guardianship application filed by respondent No.2 and non-decision of suit to the extent of prayer of appointment of guardian by learned appeal court and enhancement of past maintenance from Rs.8000/- to Rs. 12,000/- per month by learned appeal court and allowing the respondent No.2 to retain the gold ornaments being part of dower received by her after dissolving marriage on the basis of Khulla for no fault of the petitioner, being result of illegal exercise of jurisdiction by the respondents No.4

& 5, failure to exercise jurisdiction vested in the said respondents, against the law on the subject and judgments of the superior courts of the country, result of misreading, non reading, non consideration and misrepresentation of record by the said respondents, and, praying that on acceptance of the instant writ petition the petitioner may kindly be appointed as guardian of the minor / respondent No.3 as prayed for in the prayer “bay” of the plaint of the petitioner by modifying the impugned judgments and decrees of learned respondents No.4 & 5, the respondent no.2 may kindly be directed to return the gold ornaments already received by her as part of dower in view of dissolution of marriage on the basis of Khula for no fault of the petitioner and impugned judgment and decree of respondent No.5 may kindly be modified to this extent and by modifying the impugned judgment and decree of respondent No.5 the order of enhancement of past maintenance allowance of the minor / respondent No.3 be set- aside and to this extent the judgment and decree of respondent No.4 may kindly be restored, and, any other relief which this Hon’ble Court may deem fit may kindly be

granted to the petitioner in the best interest of justice and law.”

2.As in both the referred writ petitions, same judgments and decrees of the courts below have been called in question, therefore, in order to avoid repetition of facts and findings, this court deems it appropriate to decide them through this single judgment.

3.Facts of the case, in brief, are that marriage between Ali Haider (hereafter to be referred as the plaintiff) and Mst. Sehrish (hereinafter to be referred as defendant No.2) was solemnized on 29.07.2016 in accordance with Sharia Muhammadi in lieu of dower to the tune of 15 tolas gold ornaments, which was stated to have been paid. As per averments of the plaint, Mushtaq Ahmad (hereinafter to be referred as defendant No.1) while exercising undue influence over father of plaintiff had compelled him to incorporate one Kanal land as well in the Nikahnama; that out of their wedlock Master Mustafa Ali (hereinafter to be referred as defendant No.3) was born on 21.05.2017 and the

expenditures, occurred upon his birth, were stated to have been borne by the plaintiff; that defendant No.2 had statedly abandoned her

matrimonial abode several times at the instance of her mother while plaintiff rehabilitated her through intervention of Jirgas; that on 22.10.2018 defendant No.2 had allegedly gone to her paternal abode on the pretext of her brother’s wedding ceremony and thereafter refused to rejoin the plaintiff despite his repeated hectic efforts, thus, as a last resort he moved to arbitration council for contracting second marriage, notice whereof was sent to defendant No.2 but with no fruitful result, thus, finally his application was allowed on 30.05.2019; that the plaintiff repeatedly asked defendant No.2 to take her dowry articles from his house but to no avail, hence, the suit. On being summoned, the defendant No.2 appeared and contested the suit by filing her written statements, wherein she also prayed for (1) dissolution of marriage on the ground of non-payment of maintenance from 2016, (2) recovery of dower in the shape of gold ornaments weighing 15 tolas, (3) possession of plot measuring 01 Kanal bearing Khasra No. 318 situated at Banda Sinjlian, Mauza Salhad Tehsil and District Abbottabad as per entries in Nikahnama, (4) recovery of maintenance allowance of

defendant No.2 @ Rs.10,000/- per month from February 2016 till completion of Iddat period, (5) recovery of maintenance of minor / defendant No.3 from May 2017 till attaining the age of majority @ Rs.30,000/- per month with 20% annual increase and (6) recovery of delivery expenses amounting to Rs.2,28,000/- . The defendant No.2 also alleged in her written statement / plaint that plaintiff has miserably failed to perform his matrimonial obligations and he wants to end this nuptial tie as he has not claimed restitution of conjugal rights in his plaint; that behavior of plaintiff and his parents was not cordial towards her from the very beginning of her marriage; that defendant No.2 was not even allowed to talk with her parents in isolation and that plaintiff and his mother had maltreated her by abusing and fighting with her, thus, requested for dismissal of the suit of plaintiff and decreeing her suit as prayed for. Out of divergent pleadings of the parties, ten (10) issued were framed including relief.

The learned trial court after recording pro and contra evidence and hearing learned counsel for the parties partially decreed the suit as under: -

“In light of findings on the above discussed issues, the case is decided as follows: - Defendant No.2 is held entitled to the recovery of 06 tolas gold bangles.

 Defendant No.2 is held entitled to the recovery of one Kanal plot as per entries in Nikahnama or in alternate its market value.

 Defendant No.2 is held entitled to the recovery of her future maintenance allowance @ Rs.10,000/- per month subject to rehabilitation with plaintiff.

 Defendant No.2 is held entitled to the recovery of maintenance allowance of minor son / defendant No.3 @ Rs.8000/- per month from 22.10.2018 till institution of instant suit and onwards @ Rs.12000/- per month with 10% annual increase till minor attains age of majority.

 The permanent custody of minor is retained with defendant No.2 subject to any immediacy of threat to the interest and welfare of

minor in continuance of such custody.

 Plaintiff is entitled to exercise visitation rights with minor son as per schedule.

 Remaining claims of parties stand dismissed. Parties are left to bear their own costs.”

Aggrieved of the findings of learned trial court, both the parties went in appeal and the learned appellate court vide impugned judgment and decree dated 06.02.2023 delivered the following verdicts: - “As a cumulative consideration of foregoing discourse, the captioned family appeals are disposed of in terms: -

(a)The marriage of Mst. Sehrish Bibi with Ali Haider is dissolved on the basis of Khula, as a consequence whereof she would retain the dower already received in the shape of golden ornaments, but will forego the remaining one including one Kanal plot mentioned in the Nikahnama.

(b)Mst. Sehrish is not entitled to decree for past maintenance. However, she would be entitled to the maintenance for the Iddat period @ Rs.10,000/- per month.

(c)The maintenance of minor Mustafa Ali is enhanced from Rs. 8000/- to Rs. 12000/-from 22/10/2018 till the disposal of suit and onward @ Rs. 15000/- per month with 10% annual increase, till the age of majority. The amount of Rs. 100,000/- maintenance already paid shall be adjusted accordingly by the executing court.

(d)The custody of minor Mustafa Ali will remain with his mother Sehrish Bibi till the age of 7 years, thereafter, father will be at liberty to approach the court of competent jurisdiction.

(e)Visitation rights of the father Ali Haider would be regulated as per schedule given in para # 20 of this judgment, (supra).

(f)Mst. Sehrish Bibi will not be entitled for the delivery expenses.

The judgment & decree of the family court is accordingly modified. Family court is directed to modify/amend the decree accordingly and shall also make necessary entries to that affect in the appropriate column of the register of decrees, as stipulated in rule 22 (1) (4) of the West Pakistan Family Court Rules, 1965. Cost to follow the events.”

Dissatisfied with the findings of the courts below, both the parties have approached this court by filing instant and connected writ petition.

4.I have heard arguments of learned counsel for the parties and gone through the record with their able assistance.

5.Perusal of record transpires that admittedly the plaintiff had filed a suit against the defendants for lifting of dowry articles from his house as well as for custody of minor (Mustafa Ali) for his better future, while in response, the defendants sought dissolution of marriage, recovery of dower and maintenance etc. The learned Family Court, after hearing arguments, passed decree for recovery of 06 tolas gold ornaments, recovery of one Kanal Plot or its market value, recovery of future maintenance allowance at the rate of Rs. 10,000/- per month, but subject to rehabilitation with the plaintiff, recovery of maintenance allowance for minor at the rate of Rs. 8000/- from 22.10.2018 till institution of suit and future maintenance at the rate of Rs.

12000/- per month with 10% annual increase till his age of majority. Additionally, the custody of minor was handed over to

defendant No. 2 by holding the plaintiff entitled to visitation rights. In appeal, the judgment of the learned Family Court was modified by the learned appellate Court by dissolving the marriage between the parties on the basis of Khula and consequently, the defendant No. 2 was held not entitled to claim her unpaid dower. Similarly, the maintenance allowance of the minor was also enhanced by the learned appellate Court. In the light of evidence available on record, coupled with submissions made by the learned counsel for the parties at bar, this Court has to determine the following points;

i. Whether the marriage between the parties was rightly dissolved by the learned appellate Court, on the basis of Khula and consequently, the defendant No. 2 was rightly held not entitled to dower?

ii. Whether the issues of maintenance allowance of defendants were rightly decided by the learned Courts below?

iii. Whether the findings of the Courts below on the issue of custody of minor were correct?

6.In order to resolve the first point for determination, i.e. the dissolution of marriage

between the parties on the basis of Khula, this Court is of the view that the plaintiff, while bringing his suit before the learned Family Court, just prayed for a direction to the defendant No.2 (wife) to lift her dowry articles with further prayer for the custody of minor, however, he has not prayed for restitution of conjugal rights. Such plea of the plaintiff itself clarifies his intention that he was not willing to rehabilitate defendant No. 2. It has also been brought in evidence that the plaintiff failed to provide any maintenance to the defendant No. 2 during the period of desertion. No doubt, the defendant No. 2 failed to prove any sort of physical torture on the part of plaintiff, but when the plaintiff himself is not willing to keep matrimonial relations with the defendant No. 2, by rehabilitating her and providing her proper maintenance, the defendant No. 2 cannot be forced to rehabilitate with the plaintiff. Moreover, the evidence also suggests that the plaintiff has contracted second marriage after obtaining permission from the concerned union council, which is also suggestive of the fact that he was not serious towards keeping matrimonial relations with the defendant No.2. The defendant No.

2, on the other hand contended that she was not being provided proper care and attention by the plaintiff, that’s why she was not happy with him and that from the day first of marriage, the plaintiff was intending to contract second marriage, that’s why he used to ignore her and never provided any maintenance to her. Similarly, it also came in evidence that defendant No. 2 was ready to rehabilitate with the plaintiff at second portion of the house, but her request was not acceded to. Such conduct of the plaintiff, i.e.

his non-serious attitude towards rehabilitation of defendant No.2, non-provision of proper maintenance and continuous disregarding his wife by not providing her proper care etc.

clearly amounts to cruelty and entitles the defendant No. 2 for dissolution of her marriage on the basis of cruelty instead of Khula.

7.Even otherwise, it is well settled principle of Muhammadan Law that Khula is a form of dissolution of marriage, which is initiated at the instance of the wife, wherein she relinquishes her dower or some other consideration to secure her release from the marital bond. However, for a decree of

dissolution on the basis of Khula to be granted, it is imperative that the wife makes a specific and unequivocal request to that effect. In the absence of such a categorical plea or express invocation of Khula, the learned appellate court lacks the jurisdiction to unilaterally decree dissolution of marriage on that ground. The court of appeal is not supposed to presume unwillingness or aversion on the part of the wife, sufficient to constitute grounds for Khula, unless the same is pleaded and substantiated by her through her statement or evidence, which is not the case in hand. In the case of “Dr. Faryal Maqsood and another vs. Khurram

Shahzad Durrani & others’ (PLD 2025 SC 262)”, it has been held by the apex Court that the Court cannot grant a decree for dissolution of marriage on the basis of Khula in favour of wife, when the wife has not sought such relief in express or implied words. Relevant findings of the august Court are reproduced hereunder for ready reference;

“Khula is one of the modes for dissolving a marriage. It can either be on the basis of mutual settlement/ arrangement between

the spouses or it can be ordered by a court if the requisite conditions are met. This court in the case of Khurshid Bibi5 has held that Khula is a right and privilege of the wife to seek dissolution of marriage. It is a right which is exclusively conferred on the wife. Khula through judicial order is thus dissolution of marriage by the court/Qazi on the demand of the wife. It authorises the court to dissolve the marriage in an appropriate case against the will or consent of the husband. However, a court on its own cannot order dissolution of the marriage on the basis of Khula when it has not been sought by the wife either expressly or impliedly. It has further been observed that the question of Khula was a subject matter of a specific issue between the parties in the case before this Court. It has been noted in the judgment that the wife in her plaint had consented to the dissolution of marriage on the basis of Khula. The learned counsel for the defendant has placed reliance on Muhammad Arif's case6 in support of his contention that a court is competent to order dissolution of marriage on the basis of Khula even though it may not have been sought by or consented to by the

wife. We have carefully perused the judgement rendered by a Bench consisting of two hon'ble judges of this Court but, with respect, we have noted that the Bench had not considered the law enunciated by this Court in Khurshid Bibi's case (supra) which was rendered by a larger bench consisting of five hon'ble judges. The appellate court, therefore, fell in error by granting a decree for the dissolution of marriage on the basis of Khula when it was not sought by the plaintiff nor had she given express or implied consent thereto as was the case in Khurshid Bibi's case supra. The next question is whether the High Court had validly modified the decrees by ordering the dissolution of the marriage on the ground of cruelty.”

Similarly, in the case of “Ibrahim Khan Vs.

Mst. Saima Khan & others” (PLD 2024 SC 645), honourable Supreme Court held that;

“Now the question is whether, in a prayer for dissolution of marriage on the ground of cruelty or any ground under the DMMA, the Court of its own motion can convert that prayer into a dissolution by way of khula. This question was raised before this Court in Muhammad Siddiq wherein leave was granted to consider whether the

High Court could decree the suit on a ground not raised in the plaint as the plaint did not seek dissolution on the ground of khula but merely dissolution of marriage on the ground of cruelty and non-payment of maintenance. This Court concluded that the High Court could not change the prayer by granting khula as the prayer of khula has to be a specific prayer sought for by the wife.17 Although the facts of Muhammad Siddiq are somewhat different, the issue being whether the wife sought dissolution on the ground of cruelty and non-payment of maintenance or whether she could be granted khula, which was not even prayed by her. Muhammad Siddiq concluded that since she sought dissolution on the ground of cruelty and non-payment of maintenance, the appellant was entitled to submit his defense in the court by submitting evidence before he was made liable to pay any maintenance. Hence, this Court granted the respondent her right to respond and defend the case given that it was titled under the DMMA.”

8.In the light of aforementioned discussions, it is clear that for grant of a decree for dissolution of marriage on the ground of Khula, the foundational requirement under Muhammadan Law is the wife’s clear

expression of her desire to terminate the marital relationship on grounds of her inability to live with the husband ‘within the limits of Allah.’ Therefore, unless such a request has been made and is supported by evidence showing hatred, aversion, or incompatibility, no decree of Khula can be lawfully passed, thus, the appeal court has erred in granting the decree of dissolution of marriage on the basis of Khula when the wife had not prayed for the same.

9.Then comes the issue of dower, it is admitted position on record that as per Nikah Nama, the dower of the defendant No.2 was fixed as 15 tolas gold ornaments along with 1 Kanal landed property. The entries of the Nikah Nama denote that the entire dower was paid to the wife at the time of her Nikah, however, it was claimed by the defendant No.

2 that the gold ornaments were snatched from her by her mother-in-law whereas the landed property was never given to her. During course of evidence, defendant No. 2 claimed that her six bangles out of the dower gold ornaments are in possession of plaintiff. Said factum also gets support from the Jawab-ul- Jawab submitted by the plaintiff, therefore,

learned trial Court rightly decreed six bangles in favour of defendant No. 2. Similarly, the fixation of one Kanal land as dower also got admitted proved through evidence as such to that very extent, the findings of the learned Family Court are correct.

10.So far as maintenance allowance of the defendants is concerned, the learned Family Court decree maintenance allowance at the rate of 10,000/- per month in favour of defendant No.2 subject to her rehabilitation with plaintiff. Though it was proved on record that the differences between the parties emerged due to non-payment of maintenance by the plaintiff, however, the dower in the shape of half of the gold ornaments was already paid to the defendant No.2 and she also failed to prove any physical torture on the part of plaintiff, therefore, she could not be held entitled to claim her past maintenance allowance. However, she would be entitled to her maintenance allowance for Iddat period.

So far as maintenance of the minor is concerned, the learned Family Court, after considering the financial status of the father, has ordered plaintiff to pay Rs. 8000/- per month as past maintenance of minor whereas

Rs. 12000/- as future maintenance with 10% annual increase. The learned appellate Court enhanced the maintenance allowance of minor without giving any plausible reasons, as such, the findings of learned appellate Court to that very extent are not maintainable.

11.The minor admittedly is of tender age and requires attention and care of mother.

The Courts below have given custody of minor to defendant No. 2 i.e. the mother and fixed a schedule for meeting of the minor with plaintiff/father. This Court does not found any infirmity in such findings recorded by the Courts below, therefore, the findings of the Courts below to the extent of custody and visitation of minor, are maintained.

12.Cumulative effect of the above discussion is that the marriage between the parties was wrongly dissolved by the learned appellate Court on the ground of Khula, therefore, while reversing such findings, a decree for dissolution of marriage on the basis of cruelty is hereby passed in favour of the defendant No. 2. She is also held entitled to receive remaining dower i.e. six gold bangles along with landed property as per Nikah Nama. She is also held entitled to

maintenance allowance for iddat period at the rate of Rs. 10,000/- per month. The maintenance allowance of minor, fixed by the learned Family Court is maintained, while the findings of learned appellate Court to that very extent are reversed, while the findings of Courts below on custody and visitation of the minor are maintained. Accordingly, this petition stands partially allowed, whereas the connected petition bearing No. 490-A/2023, stands disposed of accordingly.

Announced:

JUDGE

Tufail.