Amjid Ali Vs Mst. Hina

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No. 428-M/2025

Amjad Ali S/o Babar Shah ..............(Petitioner)

V/S

Mst. Hajra W/o Amjad Ali & others......(Respondents) Present: Mr. Hazrat Bilal, AHC, for petitioner. Mr. Zegar Sher Advocate, for the respondents.

Date of hearing: 04.08.2025

JUDGMENT

SALAH-UD-DIN, J.- Amjad Ali, the petitioner, through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has challenged the judgment and decree of the learned Additional District Judge-V/ Izafi Zilla Qazi/ Judge Family Court, Swat, dated 21.03.2025, whereby Family Appeal of petitioner was dismissed and appeal filed by the respondent No. 01 was partially allowed and the decree of the learned trial court dated 31.7.2024, was modified.

2.The brief facts giving rise to this petition are that the plaintiff (respondent No.1) instituted a suit against the defendant (petitioner), wherein she stated Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

that their marriage was solemnized approximately six to seven months prior to the filing of the present suit.

According to the plaintiff, she received four tolas of gold ornaments at the time of Rukhsati/ marriage, however, later on the same were forcibly snatched from her which is still in the possession of defendant.

The plaintiff asserted that their marital life remained cordial for the initial two weeks; however, thereafter, the attitude of the defendant and his family members changed. Despite such circumstances, the plaintiff endured the situation for the sake of preserving her marriage. It was further alleged that the defendant did not accord her the status of a wife, and that his sisters attempted to poison her, resulting in her hospitalization. Subsequently, the defendant’s father called the plaintiff’s father and compelled him to take her back. At that time, the defendant allegedly took her gold ornaments and expelled her from the matrimonial home, leaving her with only the clothes she was wearing. The dowry articles provided by the plaintiff’s father at the time of marriage are stated to still be in the possession of the defendant. The plaintiff further contended that a compromise had earlier been affected between the spouses following a previous suit filed by her. However, the defendant later attempted to compel Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

her to work at the landlord’s house in order to save rent expenses. Upon her refusal, the defendant allegedly subjected her to severe physical assault and again expelled her from their home. Consequently, the plaintiff was forced to reside at her parental home.

During this period, the defendant neither contacted her nor provided any financial support, due to which she developed aversion towards him and ultimately instituted the present suit.

3.On being summoned, the petitioner/

defendant put his appearance before the learned trial Court and contested the claim of the respondents/ plaintiffs through his detailed written statement, wherein various legal & factual objections were raised by him. After failure of pre-trial reconciliation, the learned trial Court framed as many as 09 contentious issues from the divergent pleadings of the parties, with directions to the parties to lead their respective evidence. The respondent/ plaintiff herself stepped into the witness box as a witness and recorded her statement, she also produced her witnesses. On contrary, the petitioner/ defendant recorded his statement and also produced his witnesses as DWs. On conclusion of the trial, after failure of efforts of post- Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

trial reconciliation of parties and hearing of the arguments, the learned trial Court vide its judgment and decree dated 31.7.2024, decided the suit of the respondents/ plaintiffs in the following terms: - Alif: Dissolution of marriage stands dismissed. Bay: Recovery of 4 tola dower stands dismissed. Taa: Recovery of maintenance stands dismissed. Saa: Recovery of dowry articles stands decreed. Jeem: Stands dismissed being not entitled to any other relief.

Meanwhile restitution of conjugal rights is granted in favour of the defendant.

4.Being aggrieved by the judgment and decree of the learned Trial Court, both the petitioner/ defendant and the respondent/plaintiff preferred separate family appeals. The learned Appellate Court, after hearing the parties, dismissed the appeal filed by the petitioner/ defendant and modified the decree of the learned Trial Court by accepting the appeal of the respondents/ plaintiffs, through its judgment/ order dated 21.03.2025, in the following terms: -

The cruelty on the part of Amjad Ali (appellant/ defendant) is not proved. The marriage between the spouses cannot be dissolved on the basis of cruelty. A decree for the restitution of conjugal rights is passed in favour of Amjad Ali. He will provide separate house of Mst. Hajra (appellant/ plaintiff) with all the allied facilities as per his financial status.

The dower i.e. four tolas of gold has been paid by the husband/ Amjad Ali. The snatching back of the dower is not proved Mst. Hajra is not entitled to dower.

Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

The list of dowry articles submitted by Mst. Hajra is proved. She is entitled to dowry articles as per the list annexed with the plaint or its market value i.e. Rs. 400,000/-.

Mst. Hajra is entitled to maintenance allowance@ Rs. 10,000/- per month from May, 2023 till date and in future till she remains the wife of Amjad Ali. However, if she gets shifted to the house of her husband the maintenance allowance will stop. Mst. Hajra is at liberty to file a separate suit for Khula, if so advised.

Feeling aggrieved by the aforesaid judgment and order of the learned Appellate Court, the petitioner/ defendant has approached this Court by filing the present writ petition.

5.Arguments of learned counsel for both the parties were heard and record gone through with their valuable assistance.

6.The main grievance of the petitioner/ defendant is that the learned Trial Court did not lawfully pass its order with respect to Juz Saa, and the learned Appellate Court also failed to adjudicate Juz Taa and Saa of the plaint in accordance with law. This, according to the petitioner, resulted from misreading and non-reading of the material available on the case record. As per the contents of the plaint, the respondent/ plaintiff had sought in Juz Saa the recovery of her dowry articles or, in the alternative, their market value, and in Juz Taa she prayed for recovery of maintenance allowance at the rate of Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

Rs.10,000/- per month for the preceding three months, continuing until the disposal of the suit and completion of the period of Iddat.

Conversely, in his written statement, the petitioner/ defendant contended that the respondent/ plaintiff was a self-deserted and disobedient wife, thereby disentitled to any claim for maintenance. He further asserted that her dower had already been paid pursuant to a compromise deed dated 11.09.2022, executed before the competent court, and that when she left his house without his permission, she took with her the dower of four tolas of gold. The petitioner/ defendant further stated that he convened several jirgas to resolve the matter, but the respondent/ plaintiff refused to resume cohabitation with him. Additionally, the petitioner/ defendant maintained that some of the dowry articles were purchased by him personally and that the list of dowry articles annexed with the plaint was incorrect. He contended that the list attached with his written statement reflected the true position. To substantiate their respective claims, the learned Trial Court afforded both parties full opportunity to produce their evidence, which they duly availed.

Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

7.A bare perusal of the available record, as well as the judgments of the lower courts regarding maintenance and dowry articles, reveals that according to the plaintiff’s stance, her dowry articles, which were allegedly purchased for her by her parents, are still in the possession of the petitioner/ defendant at his house.

However, according to the petitioner/ defendant, the list of dowry articles annexed with the plaint is incorrect, and the correct list is the one annexed with his written statement. Both parties have supported their respective lists concerning the dowry. Both have produced evidence, and the oral testimonies from either side are substantially similar, such that no version can be accorded preference over the other.

However, the burden of proof rests on the defendant to substantiate the purchase of the articles mentioned in his written statement. It is an admitted fact that neither party has produced documentary evidence in support of their respective claims. The learned Trial Court decreed the suit regarding the dowry, noting that the lists submitted by the plaintiff and the defendant are substantially identical. The defendant’s stance is that some of the dowry articles were purchased by him.

Although there is no positive evidence to substantiate this claim, the plaintiff would still be entitled to those Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

articles even if purchased by the defendant. Dowry articles are deemed the property of the bride, irrespective of whether they were purchased by her parents or her husband. Furthermore, it is on record that during examination-in-chief the plaintiff exhibited her list of dowry articles as Ex.PW-1/1 and the compromise deed, marked Ex.PA (copy available in the case file), reveals that the parties were bound to abide by its terms and conditions. As per para/ term-ii of the compromise deed, the petitioner/ defendant was bound to shift all the articles of the plaintiff to a house where they resided together with their minor children.

The use of the phrase “ ”مدعیہ کا جملہ سامانclearly indicates that the said articles were the property of the plaintiff. Moreover, during cross examination defendant himself admitted that the dowry articles had been shifted by him from the rented house to his parental abode, which is pending in his house.

Therefore, the learned lower Court has rightly decided the matter regarding the issue of dowry articles.

8.As far as the issue of maintenance is concerned, according to the stance of the plaintiff, the relationship between the spouse’s remained cordial for almost two weeks. However, thereafter, the defendant Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

along with other members of his family harassed and physically assaulted her. Despite this, she endured everything for the sake of the honour of her family.

Ultimately, she was ousted from the defendant’s residence wearing only her apparel. On account of this, she filed a suit before the competent court, in which a compromise was affected, and the plaintiff was resettled with the defendant in terms of the compromise deed. However, the attitude of the defendant remained unchanged, and he again assaulted the plaintiff and ousted her from the house.

Consequently, under compulsion, she took residence at her paternal home. Since that time, she has been residing there, but the defendant has neither contacted her nor provided any maintenance allowance to her, due to cruelty plaintiff hates defendant. However, contrary to this, defendant denied the stance of plaintiff and stated that she herself left the house of defendant.

The available record and arguments of

learned counsels for the parties reveals that there was prior litigation between the spouses, which resulted in a compromise. It further shows that at the defendant’s house, other family members assaulted the plaintiff, after which the plaintiff began residing with the Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

defendant in another house. During cross-examination, when the defendant appeared before the court, he admitted that there had been prior litigation between them, which had been resolved through a compromise.

The defendant further admitted that he had never seen the plaintiff with any unknown male and that he had no doubt regarding the plaintiff’s character. Another witness for the defendant, Mian Syed Ghulam Shah (DW-1), appeared before the court and during his cross-examination, also admitted that due to a dispute between the spouses, a compromise had already been affected prior to the filing of the instant suit. In this situation, the record suggests that neither disobedience nor self-desertion has been proved from the available evidence produced by the defendant. It is also an admitted fact from the record that the plaintiff remained in her parental abode and that she is the lawful and wedded wife of the defendant, therefore, under both law and Shariah, the husband cannot absolve himself of his liabilities to pay maintenance etc of plaintiff. The entire record makes it evident that the defendant has failed to prove self-desertion or disobedience by the plaintiff. Furthermore, it is noted from the record that during the pendency of the suit, the defendant contracted a second marriage, which Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

entitles the plaintiff to claim maintenance. In a nutshell, the learned Appellate Court rightly decided the appeals of the parties, and there is no illegality or irregularity in its decision.

9.The impugned findings of the learned Courts below especially learned Appellate Court regarding the factual aspect of the matter are based on correct appreciation of the evidence and during course of arguments, learned counsel for the petitioner could not refer to any evidence on the record, which would have not been considered by the learned Courts below, thus, in such state of affairs, the findings of facts rendered by the learned fora below especially those of the learned Appellate Court are not open to any interference. This Court, while sitting in writ jurisdiction under Article 199 of the Constitution, cannot enter into the factual controversy unless any clue pertaining to illegality or perversity in the judgments impugned before is pointed out. In this regard, the Apex Court in the case tilted M. Hamad Hassan Vs. Mst. Isma Bukhari and 02 others” (2023 SCMR 1434), in Civil Petitions No.4657 to 4659 of 2022 titled “Ibrahim Khan Vs. Mst. Saima Khan and others”, “Muhammad Hussain Munir Vs. Sikandar” Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

(PLD 1974 SC 139), “Muhammad Lehrasab Khan Vs. Mst. Aqeel-un-Nisa” (2001 SCMR 338), “Mst.

Tayyeba Ambareen and another Vs. Shafqat Ali Kiyani and another” (2023 SCMR 246) and “Arif Fareed Vs. Bibi Sara and others” (2023 SCMR 413) has observed that only in exceptional circumstances, the High Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere in the judgments of the learned Family Court or Appellate Court, otherwise High Court lacks the jurisdiction to reappraise the evidence and reach a different conclusion. For reference, such a para from judgment of case tilted “M. Hamad Hassan Vs. Mst.

Isma Bukhari and 02 others” the Hon’ble apex Court held that “(6) Article 199 empowers the High Court to correct jurisdictional or procedural errors, not to re- examine facts. In this case, the petitioner effectively sought a second appeal, which was beyond the Court’s scope, and the High Court rightly upheld the appellate findings.”

“(7)The right to appeal is granted by law, and unless a second appeal is expressly allowed, the appellate court’s decision is final on facts. In family cases, this finality prevents prolonging disputes and ensures Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din

efficient resolution. Allowing repeated constitutional petitions under Article 199 undermines closure, encourages unnecessary litigation, and exceeds the High Court’s jurisdiction, which must respect the appellate court’s factual findings.”[1]

In case tilted ‘Khair-ud-Din Vs. Mst. Sabiha and 05 others’, the Apex Court has held that the proceedings under the constitutional jurisdiction of High Court were not a substitute for an appeal so as to reappraise the evidence recorded by the Family Court. Learned counsel for petitioner could not point out any illegality, irregularity or jurisdictional defect in the impugned finding of the learned Courts below. [2]

10.Resultantly, instant writ petition being bereft of any merits stands dismissed.

Announced. Sd/- Dt: 04.08.2025 JUDGE

1.2023 SCMR 1434, (M. Hamad Hassan Vs. Mst. Isma Bukhari and 02 others”)

2.PLD 2021 SC 85 (‘Khair-ud-Din Vs. Mst. Sabiha and 05 others’ ) Rahmat Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-Ud-Din