Tahir Bilal Vs Mst Asia Batool and others

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

W.P No. 178-D/2024 with Interim Relief

Tahir Bilal and others Vs Mst. Asia Batool and others

W.P No. 59-D/2025

Mst. Asia Batool and another Vs Tahir Bilal and others

For petitioners Haji Muhammad Shakeel, Advocate [In W.P No. 178-D/2024] For respondents Mr. Saleemullah Khan Ranazai, Advocate Muhammad Faisal, Advocate [In W.P No. 178-D/2024]

Date of hearing 18.9.2025

JUDGMENT

Inam Ullah Khan, J.-

1.This judgement addresses the aforementioned two writ petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 concerning a common legal and factual issue. The petitions have laid challenge to the findings of the learned appellate Court, rendered in proceedings emanating from the suits instituted by respondent No.1 (Mst. Asia Batool), whereby through consolidated judgement dated 16.10.2023, both the appeals filed by the petitioners and respondent No.1 were partially modified and disposed of accordingly.

2.The concise facts of the controversy emanating from the record are that the respondent/plaintiff filed a family suit against the petitioners for dissolution of marriage, recovery of dower Rs. 5000/-, maintenance allowance for herself as well as minor @ Rs.5000/- and 10,000/- per month respectively, possession of suit house and medical expenses Rs. 1,00,000/- etc, details whereof are given in the headnote of the plaint. After being summoned, the petitioners appeared and contested the suit by filing written statement. Learned trial court, after recording evidence of the parties, partially decreed the suit in favour of the respondent in the following terms:

3.Being not content with the said judgment, both the parties preferred separate appeal before learned Additional District

Judge-V, D.I.Khan and after hearing learned counsel for the parties, the learned appellate Court, partly allowed the appeal of Mst. Aisa Batool having made certain modification therein vide consolidated judgement and decree dated 16.11.2024 which is now being challenged in the present writ petition.

4.Arguments heard and record perused.

5.In light of the pleadings and arguments advanced at the bar, the following points for determination arise in the present petitions:

i.

The West Pakistan Family Courts Act, 1964 of the Act was promulgated to provide for the establishment of Family Courts with the object of ensuring expeditious settlement and disposal of disputes relating to marriage and family affairs. Under Section 5 of the Act, subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, the Family Court is vested with exclusive jurisdiction to entertain, hear

and adjudicate upon the matters specified in the Schedule. These matters include:

1.Dissolution of marriage,

2.Dower,

3.Maintenance,

4.Restitution of conjugal rights,

5.Custody of children,

6.Guardianship,

7.Jactitation of marriage,

8.Dowry, and

9.Personal property and belongings of a wife.

It is, therefore, manifest that the Act has exclusive concern with disputes pertaining to marriage and family affairs and matters connected therewith. In light of Schedule-I, a wife may institute proceedings before the Family Court for recovery of her claims, including her personal property and belongings. Conversely, the scope of the husband’s claim before the Family Court is restricted primarily to the relief of restitution of conjugal rights.

6.Adverting to the merits of the case, the record reveals that the marriage between the parties was solemnized in accordance with Shari’ah against a dower of Rs. 5,000/–, which still remains unpaid. At the time of marriage, a Kabin-nama dated 12.07.2016 was duly executed. It has been the consistent stance of the respondent/wife that the attitude of the petitioner, Tahir Bilal, and his family members towards her was cruel; they subjected her to ill- treatment and ultimately turned her out of the matrimonial home on 01.09.2020. Since then, she, along with the minor/plaintiff, has been residing at her parental house. She further asserted that during this period of separation, neither she nor the minor received any maintenance allowance, and she had to bear her medical expenses on her own.

However, a careful perusal of the record reveals that petitioner No.1 used to remain away from home due to his employment and was not present on 01.09.2020—the date when, as per the respondent’s own version, she left the matrimonial house.

Confronted with such circumstances, petitioner No. 1 made sincere efforts to reconcile and persuade the respondent No. 1 to resume cohabitation, but she refused. This fact clearly demonstrates that the element of aversion lies on the part of respondent No. 1. The learned Appellate Court, therefore, rightly set aside the decree for dissolution of marriage on the basis of Khula, as the evidence did not support the plea that the petitioner had treated the respondent with cruelty or that the marriage had become irretrievably broken due to his conduct.

7.A scrutiny of the evidence adduced by the respondents reveals that she produced strong and convincing material in support of the Kabin-nama. Although the petitioners, in their written statement as well as evidence, described the said Kabin-nama as fake, fabricated, and fictitious, denying its execution altogether, yet the respondents successfully produced the marginal witnesses as well as the scribe of the deed, all of whom, in their depositions, categorically affirmed its execution. The statements of the scribe (PW-1) and the plaintiff’s father (PW-5) are consistent and mutually corroborative with respect to the genuineness and due execution of the document.

8.This Court finds no reason to differ from the findings recorded by the learned Courts below. The evidence produced by the respondent has been rightly appreciated, and the execution of the Kabin-nama, as well as the fixation of dower therein, stand duly

proved. The plea advanced by the petitioners regarding fabrication of the Kabin-nama remained unsubstantiated and was effectively rebutted through the credible and confidence-inspiring testimony of the marginal witnesses and the scribe. The evidence brought on record by the plaintiffs further lends support to the respondents’ stance. Consequently, the conclusions drawn by the appellate court regarding fixation and non-payment of dower, dissolution of marriage on the basis of Khula, possession of the suit house/portion, and restitution of conjugal rights are borne out by the record and suffer from no legal or factual infirmity warranting interference in the exercise of this Court’s constitutional jurisdiction.

9.The second limb of arguments advanced by learned counsel for the respondent/plaintiff Mst. Asia Batool pertains to the claim of past and future maintenance of the respondent.

However, upon scanning the record, it is revealed that the allegation of cruelty, as alleged by respondent, has not been substantiated by any cogent or convincing evidence. Rather, the material available suggests that the respondent-wife left the matrimonial home of petitioner No.1 without any justifiable cause and in the absence of any reasonable fault attributable to the petitioner-husband or his family. Thus, learned appellate court has rightly restricted herself to the extent of only maintenance allowance for Iddat period.

10.So far as the claim of the respondent regarding maintenance allowance for the minor is concerned, it is evident from the record that, under the law, a father is legally bound to maintain and provide for his minor children. The obligation to

maintain a minor child is absolute and continues irrespective of any differences between the parents. While determining the quantum of maintenance for the minor Abdul Hadi, the learned appellate Court was required to consider the earning capacity, financial means, and social status of the father. The underlying object of fixing maintenance is to ensure that the minor is maintained by his father in a dignified manner, enjoying reasonable comfort and standard of living commensurate with the father’s means, and that the burden of maintenance is not unjustly shifted upon the mother. In this view of the matter, the maintenance allowance fixed for the minor at the rate of Rs.

10,000/- per month along with an annual increase of 10% has rightly been determined by the learned Appellate Court, keeping in view the financial position of the petitioner/father.

No illegality, irregularity, or misreading of evidence is found in the said determination warranting interference by this Court in its constitutional jurisdiction.

11.As to the rest of the issues and matters ancillary thereto, the examination of record coupled with the testimonies of the witnesses, the learned Additional District Judge-V, D.I.Khan, has rendered the impugned judgment after due consideration of the scope and essence of the evidence and in strict conformity with law. It was observed by the Hon’ble Supreme Court in M. Hamad Hassan v. Mst. Isma Bukhari and 2 others (2023 SCMR 1434) that:

It was emphasized that the scope of judicial review under Article 199 of the Constitution in such cases was limited to instances of misreading or non-reading of evidence or when the finding was based on no evidence,

leading to miscarriage of justice and that the High Court should not disturb findings of fact through a reappraisal of evidence in its constitutional jurisdiction or use this jurisdiction as a substitute for a revision or appeal and that an interference with the lower courts' findings of fact was beyond the scope of the High Court's jurisdiction under Article 199 of the Constitution. The recent judgments of this Court further elaborated on this view, in Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another (2023 SCMR 246) and held:

8.The object of exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") is to foster justice, preserve rights and to right the wrong. The appraisal of evidence is primarily the function of the Trial Court and, in this case, the Family Court which has been vested with exclusive jurisdiction. In constitutional jurisdiction when the findings are based on mis- reading or non-reading of evidence, and in case the order of the lower fora is found to be arbitrary, perverse, or in violation of law or evidence, the High Court can exercise its jurisdiction as a corrective measure. If the error is so glaring and patent that it may not be acceptable, then in such an eventuality the High Court can interfere when the finding is based on insufficient evidence, mis-reading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where an unreasonable view on evidence has been taken."

12.Now coming to the points for determination as mentioned in para 5 of this judgment, the learned appellate Court

has taken into account the material evidence led by both sides in respect of granting a decree for recovery of maintenance allowance, dower, possession of suit house etc in favour of the respondents.

The pleadings, documentary evidence, and depositions of witnesses were appreciated in its proper perspective to such extent. Besides, the learned appellate Court has correctly applied the legal provisions relevant to the controversy in hand, particularly, the West Pakistan Family Courts Act, 1964. The interpretation placed by the appellate Court is in consonance with the settled principles of law laid down by the superior courts. No misapplication of law, jurisdictional defect, illegality or irregularity have been demonstrated which could justify interreference by this Court in its extraordinary jurisdiction.

13.In view of the foregoing analysis of the case, the judgments and decrees passed by the appellate court is upheld and maintained. Consequently, this petition as well as connected W.P.

No. 59-D/2025, being devoid of merits, stand dismissed.

Announced

JUDGE

(S.B) Hon’ble Mr. Justice Inam Ullah Khan