Shahbaz Khan Vs Mst Saba Sajid and others

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) W.P. No. 365-A/2025 with CM No. 681-A/2025

Shahbaz Khan.

(Petitioner/s)

VS

Mst. Saba Sajid and others.

(Respondent/s)

Present: Mrs. Sehrish Habib Dilazak, Advocate, for petitioner.

Sardar Muhammad Azeem, Advocate, for respondents No. 1 and 2.

Date of hearing: 17.09.2025

JUDGMENT

AURANGZEB, J.- Through the instant writ petition, the petitioner has prayed as under;

“It is, therefore, humbly prayed that on acceptance of instant petition, the impugned judgments passed by the learned Courts below may graciously be set aside being illegal and against the law and the suit of the respondent/plaintiff may either be dismissed or the matter may be remanded back to the learned trial Court to re-decide the issues in the light of evidence available on record. Any other relief, deemed fit and appropriate in the

circumstances of the case, may also be granted in favour of petitioner.”.

2.Precisely, the facts giving rise to the filing of the instant writ petition are that respondents No. 1 and 2/plaintiffs instituted a suit against the petitioner/defendant seeking restitution of conjugal rights, recovery of five tolas of gold ornaments as dower, possession of the residential house mentioned in column No. 16 of the Nikahnama, maintenance allowance for the minor at the rate of Rs. 20,000/- per month, maintenance for respondent No. 1/wife at the rate of Rs. 15,000/- per month, recovery of medical expenses, and recovery of dowry articles. The petitioner/defendant was duly summoned, whereupon he entered appearance and contested the suit by filing his written statement, incorporating therein counter- claims for restitution of conjugal rights as well as other reliefs. On the basis of divergent pleadings, the learned trial Court framed the requisite issues and directed the parties to adduce their respective evidence, which they accordingly produced. Upon appraisal of the evidence available on record and after hearing the learned counsel for both sides, the learned trial Court decreed the suit of respondent No. 1/wife in the following terms:

a. Plaintiff No. 1 is held entitled to recovery of gold ornaments weighing five tola.

b. Plaintiff No. 1 is also held entitled for recovery of possession of house as per Nikahnama for her residence till subsistence of marriage. c. Plaintiff No. 1 is held entitled to recovery of maintenance allowance for plaintiff No.2 @ Rs. 7000/- per month since birth till his majority. d. Plaintiff No. 1 is held entitled to recovery her maintenance allowance @ Rs. 4000/- per month since institution of suit till rehabilitation by defendant and in case of dissolution of marriage, till completion of her iddat period.

e. Plaintiff No. 1 is held entitled to recover medical expenses @ Rs. 15000/-against defendant. f. Plaintiff No. 1 is held entitled to recovery of dowry articles as per list annexed bailiff report dated 21.07.2022 or in alternate its market value. g. Defendant is held entitled for restitution of conjugal rights subject to provision of house as per Nikahanama for residence of plaintiffs.

Both the parties, feeling aggrieved of the judgment and decree of the learned trial Court, preferred their respective appeals. The learned appellate Court, through a consolidated judgment and decree dated 24.02.2025, partially modified the findings of the trial Court. Being dissatisfied with the outcome of the appellate proceedings, the petitioner has invoked the constitutional jurisdiction of this Court through the instant writ petition

3.Arguments heard and record perused.

4.Through the instant judgment, this Court is called upon to determine the rival claims of the parties arising out of their matrimonial relationship,

particularly in respect of dower, possession of immovable property, dowry articles, maintenance allowance, medical expenses, and restitution of conjugal rights. The factual background, evidence adduced, findings recorded by the learned trial Court and their modification by the learned appellate Court, as well as the arguments advanced before this Court, necessitate a detailed appraisal of the record in order to reach a just and equitable conclusion.

5.The record demonstrates that

respondent/plaintiff No. 1, the wife, instituted a suit seeking recovery of her dower articles i.e. 05 tolas of gold ornaments, possession of a 05-marla residential house entered in her name in the Nikahnama, recovery of dowry articles given to her by her parents, fixation of maintenance allowance for herself and her minor son (respondent/plaintiff No. 2), as well as reimbursement of medical expenses incurred at the time of the birth of the minor. The marriage between the parties was solemnized on 02.10.2020. A careful scrutiny of the Nikahnama Ex. PW1/1 reveals that in column No. 15, 05 tolas of gold ornaments were recorded as dower, while column No. 16 records that a 05-marla house was transferred to the wife in lieu of dower. In addition, deed Ex. PW1/4, executed on

06.09.2020, evidences transfer of the said house by the petitioner/defendant husband in favour of the respondent/wife.

6.The case of the wife is that although the gold ornaments were entered in the Nikahnama as dower, the same were later snatched away by the family members of the husband and continued to remain in their possession. She further claimed absolute ownership and possession of the 05-marla house, along with recovery of dowry articles, maintenance, and medical expenses. The husband/petitioner resisted the suit on multiple grounds. He denied the allegation of snatching of gold ornaments, asserted that the house was given only for residential use during the subsistence of marriage, and also denied liability for medical expenses.

Additionally, he filed a counter-claim for restitution of conjugal rights. On the basis of these divergent pleadings, the learned trial Court framed issues and allowed both parties to adduce their respective evidence.

7.In support of her claim for 05 tolas of gold ornaments, the respondent/wife produced pronote Ex. PW1/7, signed by the husband, wherein he expressly acknowledged his liability and undertook to

pay the ornaments. The document bore signatures of PW2 and PW3 as attesting witnesses, who fully corroborated the respondent/wife’s version. Nothing substantial could be elicited in their cross-examination to discredit their testimony. In respect of the 05-marla house, the respondent/wife relied upon both the Nikahnama Ex. PW1/1 and deed Ex. PW1/4, which explicitly recorded transfer of ownership in her favour.

The husband admitted execution of the deed but sought to argue that it was meant only for residential use. For the recovery of dowry articles, the wife annexed a list with her plaint. The learned trial Court deputed a bailiff who, after verification, submitted a report dated 21.07.2022 along with the list of articles, against which no substantial objection was raised by the husband.

8.As regards maintenance, it was admitted that respondent/plaintiff No. 2, Shahzain, was the legitimate son of the petitioner/husband. The wife contended that since her desertion, neither her nor her child’s maintenance had been paid. With respect to medical expenses, the wife produced receipts and medical record Ex. PW1/2 relating to treatment and delivery. The husband, in his counter-claim, prayed for restitution of conjugal rights.

9.The learned trial Court, after evaluation of evidence, held that the wife was entitled to recovery of 05 tolas of gold ornaments on the basis of Ex. PW1/7.

With regard to the house, it held that the wife was entitled to its possession but only for residence till subsistence of marriage. The Court decreed recovery of dowry articles as per the bailiff’s report.

Maintenance of minor Shahzain was fixed at Rs. 7,000 per month with 10% annual increase until majority.

Maintenance of wife was fixed at Rs. 4,000 per month from the date of institution of suit until her rehabilitation with the husband. The Court partially allowed recovery of medical expenses in a lesser sum than claimed. It also decreed the husband’s claim for restitution of conjugal rights.

10.Upon appeal, the learned appellate Court, after reappraisal of the record, upheld some findings and modified others. The award of 05 tolas of gold ornaments in favour of the wife was maintained. As to the house, the appellate Court disagreed with the trial Court’s finding and held that the wife was entitled to ownership and possession, as both Ex. PW1/1 and Ex.

PW1/4 unequivocally conferred ownership rights and not merely residential use. The recovery of dowry articles was maintained. The maintenance of minor

Shahzain at Rs. 7,000 per month with 10% annual increase was also maintained, considering prevailing inflationary trends and the father’s legal, moral, and social obligation. With respect to maintenance of wife, the appellate Court modified the trial Court’s finding by enhancing it to Rs. 5,000 per month, aligning with column No. 20 of the Nikahnama, which stipulated such an amount in case of differences. Regarding medical expenses, the appellate Court enhanced the award to Rs. 25,000, keeping in view the receipts and record produced. The decree of restitution of conjugal rights in favour of the husband was maintained, subject to wife’s entitlement to maintenance under the Nikahnama during desertion.

11.Having examined the matter afresh, this Court proceeds to record its findings. On the issue of 05 tolas of gold ornaments, it is by now a settled principle that dower is an integral part of Nikah under Islamic law, enforceable through civil proceedings. Ex.

PW1/7 constitutes a clear acknowledgment of liability on part of the husband. The testimony of the attesting witnesses fully corroborates the claim. The defense taken by the husband was nothing more than bald denial, unsupported by credible evidence. The concurrent findings of the Courts below are well-

reasoned and warrant no interference. On the question of the 05-marla house, both Ex. PW1/4 and column No. 16 of Nikahnama leave no doubt that the house was transferred in ownership to the wife. The recital of Ex. PW1/4 specifically records transfer of ownership and possession. The assertion of the husband that it was meant for residence only stands contradicted by documentary evidence. The appellate Court was correct in modifying the trial Court’s finding by granting absolute ownership and possession to the wife. In the case of “Muhammad Yousaf vs. Huma Saeed and others” reported as 2024 SCMR 1078 the Hon’ble Apex Court has held as under;

“2. We have heard the learned counsel. As noted above, the sole controversy is regarding the intent of the parties in respect of the plot described in column 17 of the Nikah Nama. The learned counsel for the petitioner has argued that the plot described in column 17 of the Nikah Nama could not have been construed as part of the dower or treated as a gift because the title/heading of the column is 'special conditions', thus making it distinct from the other columns which have been specifically provided for the purposes of settling the terms of dower. It was the petitioner's stance before the trial court that the parties had intended that a house was to be constructed on the plot and that the respondent would be entitled to live in it during subsistence of the marriage. The counsel has stressed that column 17 of the Nikah Nama must be construed in accordance with its heading/title, distinct from columns 13 to 16.

3.The description of the plot in column 17 of the Nikah Nama is explicit and not disputed. However, there is no condition stipulated in the column except the description of the plot. The petitioner had filed his written statement in response to the plaint and had expressly admitted the description of the property but he had taken the stance that the plot was meant for the construction

of a house and the respondent was to live in it for as long as the marriage subsisted. A plain reading of the description of the property, as mentioned in column 17, does not indicate nor supports such a stance. If such an interpretation is accepted then the property would not form part of the dower separately mentioned in columns 13 to 16 of the Nikah Nama. The copy of the Nikah Nama has been attached with the paper book before us at pages 87 to 88 and no condition has been stipulated in column 17 except describing the property. The question that has arisen for our consideration is how the terms and conditions stipulated in a Nikah Nama should be interpreted and if there is doubt and ambiguity regarding the intent of the parties, how can it be resolved.

Nikah Nama; a civil contract.

4.The Nikah Nama contains the terms of the Nikah i.e. the contract between a man and a woman, having the object to enable them to legitimately live together and enjoy all the rights as husband and wife. The terms and conditions are meant to secure the rights and interests of both the parties; the husband and the wife. The Nikah is a civil contract and its essential requirements 'rukn', also called a 'sighah', are offer, 'Ijab' and acceptance, 'qabool'. The offer and acceptance would be valid if made by parties who are competent to enter into a valid marriage contract. The offer and acceptance can either be made expressly and directly by the two contracting parties or through their duly appointed agents or messengers. The most crucial factor is existence of free consent i.e. absence of coercion, undue influence, fraud, misrepresentation or mistake. It is settled law that a presumption of truth is attached to the Nikah Nama and it enjoys the status of a public document. Likewise, there is a strong presumption of truth regarding the entries recorded in the Nikah Nama. In exercise of powers conferred under section 11 of the Ordinance of 1961, the competent authority has made the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 ('the Rules of 1961'). The matters relating to registration of marriages and the issuance of licenses to Nikah Registrars are regulated under the Rules of 1961. Form II of the Rules of 1961 has prescribed the form of Nikah Nama and its entries. The titles of columns 13 to 16 relate to 'dower' while the heading of column 17 is 'special conditions, if any'. As will be explained later, neither the prescribed form nor the headings of the entries contained therein are conclusive for ascertaining the intent of the two parties to the marriage contract. But before we examine this aspect it would be beneficial to understand the significance of 'dower' in the context of a marriage contract'

'Dower'; right of the wife

5.'Dower' is obligatory because it is an essential requirement of a valid marriage contract. The validity of marriage remains effective even if the dower has not been expressly mentioned in the marriage contract because, in such an eventuality, reasonable dower 'Mehr-ul-Misel' is presumed. Dower is distinct from a gift, which is over and above it. Dower is given by the husband to the wife and its determination is subject to the consent of the wife, since it is her exclusive right. This right of the wife is relatable to a thing which has marketable value. It can be in the form of cash or property or both. It may be prompt or deferred. In case the parties do not specify the nature of the payment of dower it is presumed to be prompt as provided under section 10 of the Ordinance of 1961. The dower becomes the exclusive property of the wife and it is given by the husband as a symbol of respect for her. It has many benefits for both the parties because it ensures stability in the relationship. It is an acknowledgment of equality of the wife because it recognizes her right to own property. It also serves the purpose of ensuring that the right to divorce is not abused by the husband. Dower has the benefit of serving as a financial security in the case of dissolution of marriage or in the event of the passing away of the husband. Its determination at the time of the execution of the Nikah Nama must necessarily be guided by an informed understanding of the bride regarding her rights. The freedom to negotiate and settle the terms by the bride, therefore, becomes crucial. The form of Nikah Nama nor its headings are conclusive or sacrosanct. It is the intent of the parties which would be the determining factor. Interpretation of the terms of Nikah Nama;

6.As noted above, a Nikah Nama is in the nature of a civil contract and it contains the terms agreed upon by the parties, the husband and the wife. It is, therefore, obvious that the foundational principle of Nikah is the free consent of the contracting parties, which inherently involves the informed understanding of each party regarding his or her rights and freedom to negotiate and settle the terms and conditions. The bride is, therefore, entitled to negotiate the terms of dower or at least take informed decisions in the context of its determination before the contract is executed. The entries in the Nikah Nama, described in form II of the Rules of 1961, are not conclusive nor can the intention of the contracting parties be ascertained merely on the basis of its headings. This Court has held that Nikah Nama is the deed of marriage contract entered into between the parties and its clauses/columns/ contents are to be construed and interpreted in the light of the intention of the parties. The headings, therefore, are not sufficient to determine the intention of the two parties to the Nikah Nama. It is a settled law that any ambiguity in a contract is to be resolved by ascertaining the

real intention of the parties. In order to interpret the terms of a contract, the court has to first ascertain the intention of the parties. The contract has to be read as a whole and the words are to be taken in their literal, plain and ordinary meaning. The court cannot imply, while interpreting the contract, something that is inconsistent with its express terms. Moreover, a stipulation not expressed in the written contract can also not be applied merely because it may appear to be reasonable to the court.

7.The courts, while interpreting the contents and terms and conditions of a Nikah Nama, also have to take into consideration the factor of free consent of the bride and her freedom to settle the terms and conditions as a person having an informed understanding of her rights. This is crucial in the context of the social and cultural norms generally prevalent in the society. If an ambiguity or doubt arises in relation to the terms and conditions of the Nikah Nama, an entry or column thereof, then the benefit ought to go in favor of the wife if there does not exist preponderance of evidence on record to establish that she had been informed of her rights, she understood each column of the Nikah Nama, and she had the freedom to negotiate and settle the terms and conditions out of free consent. In case the columns of the Nikah Nama have been filled by others without her meaningful consultation then a doubt or ambiguity cannot be interpreted against her rights or interests. It is noted that the rule of contra proferentem, known as the rule of interpretation against the draftsman, is a recognized principle of contractual interpretation which provides that in case of an ambiguous promise, agreement or term, the preferred construction should be the one that works against the interests of the party which had drafted the contract. Nonetheless, an ambiguity cannot be construed against the interests and rights of the wife except when it has been established on the principle of balance of probabilities that she was informed of her rights, understood each column of the Nikah Nama and she had the freedom to negotiate and settle the terms and conditions out of free consent. It is implicit in the expression ''free consent" that the wife, at the time of executing the Nikah Nama, had the freedom to settle the terms and conditions as an informed person competent to enter into a contract. Paternal tendencies of the society and dominance of the male members in relation to deciding the terms and conditions on behalf of the bride has generally been accepted as a cultural and social norm of the society. It places a bride in a disadvantageous position, inevitably adversely affecting her capacity to execute the contract with free consent. As an illustration, reference may be made to the social and cultural norms and tendencies recently highlighted in a survey report titled "Diagnostic Study of Nikah Namas in Punjab: A Review of Woman's Marriage Rights'. The report has been published by the Centre for Human Rights and Musawi with the support of the National Commission for Human Rights. The findings of the diagnostic studies manifest the adverse effects in relation to the rights of women at the time of execution of the marriage contract due to the entrenched social and cultural

norms and tendencies. The attempts to suppress child or forced marriages by withholding information, lack of knowledge, training and personal beliefs of the Nikah Registrars and the influence of male members of the family are factors which can adversely affect the freedom of the bride and her free consent in relation to settling the terms and conditions of the marriage contract. The consent of the wali/wakeel may also take precedence over that of the bride. Social and cultural norms and practices may profoundly affect the rights of the brides by depriving their ability to independently decide the terms and conditions by exercising free consent. It, therefore, becomes crucial for a court to be satisfied, while interpreting the contents of the columns of a Nikah Nama, that the wife, at the time of its execution, understood each column and was informed of her rights and that she had exercised her free consent while settling the terms and conditions. It is settled

F

law that no party can benefit from introducing or creating an ambiguity. The weakness or creation of an ambiguity in a Nikah Nama cannot be interpreted against the interest and rights of a wife if it cannot be established that she had the freedom to settle the terms and conditions and had exercised her free will.

8.In the case before us, the entries were recorded in a printed form of Nikah Nama. The columns Nos. 13 to 16 relate to dower. Column 13 refers to dower in cash while the headings of columns 14, 15 and 16 could be construed as ambiguous regarding dower in the form of immovable property. Moreover, the heading of column No.16 could also be misconstrued. The heading of column No.17 describes it as 'special conditions'. As noted above, the description of the property is explicit but it does not mention any condition. It is not the case of the petitioner that the columns were filled by the respondent or pursuant to meaningful consultation carried out with her before or at the time of execution of the Nikah Nama. No such evidence has been brought on record. The stance taken by the petitioner is not supported by the entry. He has asserted that he understood the purpose of column No. 17 but did not attempt to describe the condition in conformity with the stance taken by him during the trial of the suit. The onus was on the petitioner to establish that the property described in column No. 17 was not meant nor intended by the parties to be part of the dower. The ambiguity, if any, cannot be construed against the interests and rights of the respondent in the facts and circumstances of the case before us. Moreover, accepting the stance of the petitioner would amount to reading in the Nikah Nama something not provided therein. The courts cannot construe the Nikah Nama and its entries as having the effect of applying a stipulation not expressly provided therein.

In the case of “Haseen Ullah vs. Mst.

Naheed Begum and others” reported as PLD 2022 Supreme Court 686 the Hon’ble Apex Court has held as under;

----S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Ss.9 & 10---Dower (mehr)---Entries in columns Nos.13 and 16 of the Nikahnama--- Entries in said columns are to be interpreted on the basis of the intention between the parties rather than the headings of the columns, in particular when there is a dispute between the value of the dower and items.

Respondent (wife) instituted a suit in the Family Court wherein amongst other things she sought recovery of her dower i.e. agriculture land (mentioned in column No. 16 of her Nikahnama). Family Court observed that the dower mentioned in column No.16 of the Nikahnama was payable only if the dower specified in column No.13 i.e. seven tolas of gold worth Rs. 1,60,000/- had not been paid, and as the respondent admitted to have received the dower of seven tola gold ornaments specified in column No.13, she was not entitled to claim the dower mentioned in column No.16 of the Nikahnama. The District Court, in appeal, endorsed this finding with the observation that agriculture land mentioned in column No.16 was to be given only in lieu of seven tola gold ornaments specified as dower in column No.13 of the Nikahnama, which the respondent had admittedly received. The High Court held that the facts and circumstances of the case clearly showed that the dower mentioned in column No.16 was in addition to, not in lieu of, the one specified in column No.13 of the Nikahnama. Family Court and District Court acted on what the heading of column 16 prima facie suggested, i.e., the mentioning of any property that is given "in lieu of the whole or any portion of the dower", without ascertaining the intent of the parties. This approach of the said Courts is not in consonance with the settled principles of construction of contracts. Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties. The High Court rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No.16 of the Nikahnama, irrespective of its placement in a particular column.It is a matter of common knowledge that the persons who solemnize Nikah or

the Nikah Registrars are mostly laymen, not well- versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.

Abdul Haq v. WAPDA 1991 SCMR 1436;

HBFC v. Shahinshah Humayun 1992 SCMR 19 and Sandoz Limited v. Federation 1995 SCMR 1431 ref. The figures (1) and (2) mentioned in columns Nos.13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column No.13 and (2) four Kanal agriculture land mentioned in column No.16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Petition for leave to appeal filed by husband was dismissed with costs throughout.

12.It is to be observed that a Nikah Nama is in its essence a civil contract, the terms of which embody the mutual obligations agreed upon by the husband and wife. The placement of property or other stipulations in any column of the prescribed form cannot be regarded as conclusive in determining their true legal effect. What is material is the intention of the parties at the time of execution of the marriage contract. Where a property is simply described in the form without any condition attached, the plain wording of the entry prevails, and any subsequent interpretation inconsistent with the recorded terms cannot be accepted. Ambiguity, if created by the drafting or

filling of the form, cannot be resolved against the wife unless it is shown that she was fully informed, understood the implications of each entry, and gave free consent to such limitation.

13.The concept of dower (mehr) forms an essential element of the marriage contract and is distinct from gift or any other form of benefit. It is the exclusive right of the wife, may be in the form of cash or property, and whether prompt or deferred, becomes her absolute ownership once stipulated. The significance of dower lies not only in its obligatory nature but also in its role as a safeguard of the wife’s financial security, equality, and dignity. Headings of prescribed columns in the form of Nikah Nama cannot, therefore, be treated as decisive in determining the scope of dower; rather, the true substance of the entry and the surrounding intention must govern.

14.In interpreting the terms of a Nikah Nama, the courts are required to ascertain the real intention of the parties by reading the contract as a whole, applying the ordinary meaning of its words, and giving effect to the principle of free consent of the bride. Where doubt arises, it is a settled rule of construction that such ambiguity should not operate to the detriment of the wife, particularly in view of social and cultural

tendencies that often curtail her freedom of negotiation. The judicial approach must therefore be to protect the rights of the wife by ensuring that ambiguities are resolved in her favour, and that no term is implied into the contract unless expressly provided for by the parties themselves.

15.As regards dowry articles, the same were identified through the bailiff’s report. No serious objection was raised by the husband. Both Courts below, therefore, rightly decreed the claim. With respect to maintenance of the minor, it is undeniable that under Islamic injunctions and statutory law, the father is bound to provide for his children until majority in the case of a son and until marriage in the case of a daughter. The fixation of Rs. 7,000 per month with 10% annual increase is neither excessive nor arbitrary. It is a reasonable figure keeping in view inflationary pressures. Both Courts below committed no error in this regard.

16.Similarly, maintenance of wife during subsistence of marriage is a legal and moral obligation of the husband. The Nikahnama itself stipulates Rs. 5,000 per month in case of differences. The appellate Court rightly enhanced the amount from Rs.

4,000 to Rs. 5,000 in conformity with the contractual

stipulation. Regarding medical expenses, the receipts produced by the wife clearly showed that her expenditure exceeded what was calculated by the trial Court. The appellate Court, therefore, correctly enhanced the award to Rs. 25,000. Finally, as to restitution of conjugal rights, the marital bond between the parties continues to subsist. Both under Islamic and statutory law, spouses are obliged to cohabit and discharge matrimonial duties. The husband’s claim was rightly decreed, while the wife’s entitlement to maintenance during desertion was also preserved.

17.In further elaboration, it is well-settled that a wife’s entitlement to maintenance flows directly from the solemnization of a valid marriage and is neither contingent upon consummation nor dependent upon the performance of Rukhsati. The moment a valid marital bond is created, the husband comes under a binding legal, moral, and constitutional duty to provide financial support to his wife. This obligation is rooted not only in the classical principles of Islamic jurisprudence, wherein marriage is conceived as a solemn civil contract (‘aqd) founded upon mutual respect, compassion, and responsibility, but also in the higher objectives of Sharīʿah (Maqāṣid al-Sharīʿah), which emphasize dignity, justice, and protection of the

family. To treat maintenance as a quid pro quo for obedience or physical submission distorts the very ethos of marriage envisaged under Islam and undermines the egalitarian spirit of our constitutional order.

18.The statutory framework in Pakistan also reinforces this position. Section 9 of the Muslim Family Laws Ordinance, 1961 provides a clear mechanism for the enforcement of a wife’s claim to maintenance, without making consummation or cohabitation a precondition, while Section 17A of the Family Courts Act, 1964 ensures expeditious relief by empowering the Family Court to grant interim and regular maintenance on the very first date of hearing.

These provisions, read in harmony with Articles 14, 25 and 35 of the Constitution, affirm that maintenance is an unqualified and enforceable right designed to secure the dignity and equality of women within marriage and to safeguard the institution of the family. The only narrowly defined exception recognized in law is where the wife, wholly and without justifiable cause, repudiates the marital relationship in its entirety, including emotional, residential, and relational aspects.

Absent such proof, the duty of maintenance continues throughout the subsistence of marriage and extends

into the period of iddat upon its dissolution. The Hon’ble Apex Court held recently in Civil Petition No.

1107-L of 2015 and Civil Appeal No. 247-L of 2017 decided on 08.07.2025 has held as under;

“We note with concern the language used in the impugned judgment, which states that “...maintenance allowance is the right of wife after consummation of marriage and after crossing the barrier, it becomes the responsibility of the husband to maintain his wife. This formulation is deeply patriarchal. The language employed by courts in family law cases does more than resolve individual disputes; it actively shapes public understanding of rights and obligations within marriage and the broader family structure. Judicial language carries normative force. It influences how justice is perceived, internalized, and practiced. Terms such as “surrender,” or “submit” are rooted in patriarchal frameworks and reinforce outdated notions of gender hierarchy and female subordination. These expressions cast women as passive recipients in marriage rather than equal partners, undermining their legal and constitutional status. It is therefore imperative that judicial reasoning and expression be firmly anchored in the constitutional values of dignity, equality, and non- discrimination, while also reflecting the lived realities of litigants and the prevailing social context. Judges, particularly in family law matters, are not merely arbiters of individual disputes; they are reformers and thought leaders capable of guiding society toward progressive and inclusive thinking. They bear a constitutional and ethical duty to adopt gender-sensitive, rights-based language that affirms the equal legal status of women as full and autonomous persons. Judicial decisions must avoid stereotypes, promote tolerance, and embody the principles of substantive justice. In fulfilling this transformative role under the Constitution, the judiciary does more than interpret law; it reshapes societal attitudes and advances equality through every word it speaks. Language is never neutral. It either reinforces the status quo or propels society toward a more just and equal future”.

19.In light of the above discussion, this Court is of the considered view that the findings recorded by the learned appellate Court are well-founded and supported by the record. No material illegality or

irregularity has been pointed out that would justify interference in revisional jurisdiction.

20.In view of the above, the

petitioner/defendant has failed to justify interference by this Court in the exercise of its constitutional jurisdiction. He was unable to overcome this hurdle and rightly so since it is now a settled principle that this Court does not interfere, while exercising constitutional jurisdiction, with the factual findings recorded by the forums below. In the case of “Maqbool Ali and another vs. Mst. Raheela and others” reported as 2025 SCMR 1275 the Hon’ble Apex Court has held as under;

7.Where the High Court is of the view that the conditions for interference with concurrent findings of fact of the Courts / Tribunals below are satisfied in any particular case, the proper course is to remand the case to the Courts / Tribunals below for recording fresh findings after considering the material or the law, which had earlier been omitted from consideration. We take this view on the strength of the law laid down in the following cases:-

(i)In the case of Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner (PLD 1964 SC 260), it was held as follows:- "In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi-judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal. Where it is felt that questions have been left undecided by such Tribunal or authority or a question has to be decided after the taking of fresh evidence, it

is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against."

(ii)In the case of Nawaza v. The Additional Settlement and Rehabilitation Commissioner (PLD 1970 SC 39), this Court held that the High Court, in the exercise of its writ jurisdiction, does not act as a Court of facts and ought not to enter into and decide disputed questions of fact, although it can interfere with a finding of fact given by a subordinate Court or a Tribunal or other authority if the finding is based on no evidence or is based on a complete misreading of the evidence. Furthermore, it was held that the High Court, in writ jurisdiction, cannot decide disputed questions of fact and that a finding of fact if based on no evidence or misreading of evidence can be interfered with but nevertheless proper course is to remand case back to lower Tribunal for decision.

(iii)In the case of Shabbir Hussain v. Muhammad Afzal (1972 SCMR 47), it was held as follows:- "Court exercising [writ] jurisdiction does not sit as a Court of Appeal but merely as a Court for correcting a grave illegality. Where an inferior authority has acted contrary to law or to rules of natural justice, the practice is to set aside the order of the inferior authority and send the case back for proper decision by that authority, particularly, where that authority has, as in this case, exclusive jurisdiction in the matter. This was pointed out in the cases of Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner (PLD 1964 SC 260), Begum B. H. Syed v. Mst. Afzal Jahan Begum (PLD 1970 SC 29) and Sh.

Khursheed Muhammad v. Settlement and Rehabilitation Commissioner (PLD 1971 SC We see no reason to depart from the principle laid down in the above-mentioned decisions and are in agreement with the learned counsel that the High Court had exceeded its jurisdiction under Article 98 of the Constitution in reversing a finding of fact arrived at by the Settlement Authorities as if it was a Court of Appeal."

(iv)In the case of Muhammad Younus Khan v. Government of N.-W.F.P. (1993 SCMR 619), it was held as follows:- "Where the case has been considered by various authorities, their decision on fact

can be disturbed in exercise of writ jurisdiction if it is against the material on record or without any basis. Even in such cases the High Court refrains from substituting its own finding of fact and proper course is to remand the case to lower Tribunal for proper determination of the controversy."

Similarly, in the case of “Muhammad Shakeel and others vs. Additional District Judge, Faisalabad and others” reported as PLD 2025 SC 572 the Hon’ble Apex Court has held as under;

“The High Court can issue an order of certiorari to rectify jurisdictional errors committed by subordinate courts in family law matters. Such errors can arise when Family Courts or First Appellate Courts issue decisions without jurisdiction, in excess of jurisdiction, or fail to exercise their jurisdiction altogether. Moreover, a certiorari order is applicable when a Family Court or First Appellate Court acts in an illegal or improper manner while exercising its jurisdiction. This includes situations where the court makes determinations without providing an affected party the opportunity to be heard or where the procedural methods employed contravene the fundamental principles of natural justice. It is crucial to recognise that the High Court's jurisdiction to issue certiorari is fundamentally supervisory, meaning it does not possess the authority to function as an appellate body. This supervisory role imposes clear limitations: specifically, it prohibits the High Court from reevaluating or questioning factual findings made by subordinate courts based on their assessment of evidence. The High Court does not engage in reviewing or reweighing evidence that underlies the decisions made by the Family Court or its First Appellate Court. Instead, it may only nullify a decision it finds to be beyond the jurisdiction or grossly erroneous without imposing its own conclusions in place of those reached by the lower courts. Furthermore, certiorari orders can be granted solely when a clear error of law is evident on the face of the record; however, this does not extend to addressing errors of fact, regardless of their severity. Issues pertaining to the sufficiency or adequacy of evidence presented on specific points and the factual inferences drawn from such findings

are relegated exclusively to the purview of the Family Court or its First Appellate Court. These particular matters cannot be contested before the High Court. In summary, within the specified constraints, the High Court's authority under Article 199 to issue certiorari orders in family cases can be exercised legitimately and effectively, maintaining a balanced judicial supervision while respecting the intention of the Family Courts Act of

21.In view of the above this petition is being bereft of any merit is dismissed.

22.As the main writ petition has already been dismissed on merits, the instant C.M. No. 681-A/2025 has, consequently, lost its substratum and has become infructuous. Accordingly, this application, having no independent footing to survive in the absence of the main petition, is hereby dismissed as having become infructuous.

Announced

Tahir Saleem

JUDGE