Abdullah Vs Mst Samiyat & three others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA),

SWAT.

(Judicial Department)

W.P. No. 992-M/2023

AbdUllah Vs. Mst. Samiyat and three others.

Present: Mr. Israr Ahmad, Advocate for petitioner. Mr. Sahib Zada, Advocate for respondents.

Date of hearing: 06.10.2025

JUDGMENT

SABIT ULLAH KHAN, J.- Through the instant petition, the petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, assailing the judgment and decree dated 20.06.2023 passed by the learned District Judge/ Appellate Court, Buner, as well as judgment and decree dated 27.09.2022 passed by the learned Judge Family Court- IV, Buner. The petitioner seeks setting aside of the decrees to the extent of dissolution of marriage, maintenance allowance awarded to respondent No.1, and marriage expenses decreed in favor of respondent No.2.

2.The brief facts of the case are that the respondent/ wife instituted a family suit seeking Mushtaq Ahmad/SSS (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

dissolution of marriage, recovery of dower, maintenance for herself and her minor daughter along- with marriage expenses for respondent No.2. The learned trial court initially decreed the suit ex-parte, which was subsequently set aside and remanded for fresh adjudication, vide judgment/ order dated 21.01.2022. Upon remand, both the parties adduced their respective evidence.

3.Respondent No.1 alleged that she had been expelled from the petitioner’s house on account of cruelty, non-payment of dower and maintenance, and his contracting a second marriage. Conversely, the petitioner/ defendant denied these allegations, asserting that the respondent No.1 had voluntarily left the matrimonial home and was provided maintenance through an intermediary, Tahir Ali, who, however, was neither, who was never produced nor summoned in Court.

4.The learned trial court, after appraisal of evidence, decreed the suit partially, granting dissolution of marriage under Sections 2(II-a) and VIII(a) of the Dissolution of Muslim Marriages Act, 1939 and further awarding maintenance to both respondents and marriage expenses to respondent Mushtaq Ahmad/SSS (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

No.2. On appeal, the appellate court modified the ground of dissolution to Section 2(ii), dismissed the claim for dower on account of contradictory pleadings, but maintained the rest of the decree. Aggrieved, the petitioner filed the present writ petition challenging the concurrent findings of both the courts below.

5.Arguments of learned counsel for the parties have been heard and the record has been perused.

6.The principal contention raised by the petitioner is that respondent No.1 voluntarily left the matrimonial home without coercion or maltreatment or neglect and therefore failed to establish cruelty or neglect as grounded for dissolution of marriage or entitlement to maintenance. He further claimed that the had been providing maintenance through an intermediary named Tahir Ali. However, this assertion remained unsubstantiated, as no credible evidence or testimony of said intermediary was produced.

7.Both the learned Trial Court and the Appellate Court, upon careful evaluating the evidence, concurrently held that the petitioner had failed to maintain respondent No.1 for a period exceeding two years. The record disclosed that respondent No.1 had Mushtaq Ahmad/SSS (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

been residing with her parents for the past six to seven years, during which period no reliable proof was furnished to demonstrate that the petitioner had extended any financial support. The absence of disinterested witness or documentary evidence, substantiating petitioner’s claim led to the conclusion that respondent No.1 was indeed neglected and not maintained, thereby entitling her dissolution of marriage and maintenance under the law. The question as to whether the ground of dissolution of marriage on account of the husband contracting second marriage without due compliance of law continues to subsist notwithstanding the repeal of Section 13 of the Ordinance VIII of 1961, stands conclusively determined. The Supreme Court has categorically ruled that the repeal brought about by Ordinance XXVII of 1981 did not efface or render redundant the insertion earlier made through clause (iia) of Section 2 of the Dissolution of Muslim Marriages Act, 1939. That clause, being part of the present statute, continues to retain full force, validity, and enforceability, and remains one of the recognised and operative grounds available to a wife for seeking dissolution of marriage.

Mushtaq Ahmad/SSS (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

8.It has been further explicated that clause (ii a) of Section 2 of the Act of 1939, read conjointly with Section 6 of the Muslim Family Laws Ordinance, 1961, creates a statutory obligation upon the husband not to contract second marriage during subsistence of an existing marriage except with prior permission of the Arbitration Council. The failure of the husband to obtain such permission and the contracting of another marriage in contravention of Section 6 of the Ordinance, 1961, constitutes not only a penal violation but also squarely furnishes aA legal basis for the wife to invoke dissolution of marriage. The findings recorded by the learned Appellate Court, that such ground has ceased to exist after the legislative amendments, was repelled by the Supreme Court in unequivocal terms, declaring that the law as originally enacted in 1939 remains fully intact and operational.

Thus, the latest pronouncement of the Apex Court reaffirms that contracting a second marriage without prior permission of the Arbitration Council continues to be a valid and subsisting ground for dissolution of marriage under clause (ii A) of Section 2 of the Dissolution of Muslim Marriages Act, 1939.

This interpretation is binding and leaves no room for Mushtaq Ahmad/SSS (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

ambiguity. The ground stands preserved, recognised, and enforceable in law notwithstanding any repeal or omission elsewhere.

9.The findings recorded by the learned Appellate Court, to the extent that marriage on account of the husband contracting second marriage in violation of Section 6 of the Ordinance, 1961, are erroneous, contrary to the settled principles laid down by the Apex Supreme Court, and hence unsustainable in law.

The Appellate Court fell in manifest error in treating clause (ii A) of Section 2 of the Act, 1939, as having lost its efficacy, whereas the Apex Supreme Court has conclusively declared that the said provision continues to be valid, effective, and enforceable, notwithstanding the repeal of Section 13 of the Ordinance VII of 1961 by Ordinance XXVII of 1981. Accordingly, the findings of the Appellate Court in para-No. 9 are hereby rectified, and it is held that contracting second marriage without prior permission of the Arbitration Council, as mandated by Section 6 of the 1961 Ordinance, constitutes a valid and subsisting ground for dissolution of Muslim marriage within the meaning of clause (ii A) of Section 2 of the Act of 1939.

Mushtaq Ahmad/SSS (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

10.In view of the foregoing discussion, the instant writ petition being devoid of any merit is hereby dismissed.

Announced Sd/-

06.10.2025 JUDGE

Mushtaq Ahmad/SSS (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan