Allah Nawaz Niazi and another Vs Mst Iram Firdous and others

JUDGEMENT SHEET

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

(Judicial Department)

W.P No. 157-D/2023 with C.M No. 49-D/2024 & I.R

Allah Nawaz Niazi and another Vs Mst. Iram Firdous and others

W.P No. 169-D/2023

Mst. Iram Firdous Vs Allah Nawaz Niazi and others

For petitioners Syed Abid Hussain Sherazi, Advocate For respondent Mr. Saif ur Rehman Khan, Advocate Muhammad Anwar Awan, Advocate

Date of hearing 22.9.2025

JUDGMENT

FARAH JAMSHED, 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, whereby through consolidated judgement dated 16.10.2023, both the appeals filed by the petitioners and respondent No. 1 were partially allowed.

2.The concise facts of the controversy emanating from the record are that the respondent/plaintiff filed a family suit

against the petitioners for recovery of dower Rs. 1000/-, past and future maintenance allowance @ Rs. 5,000/- per month, possession of suit house and gold ornaments weighing 03-1/2-tola, 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-I, D.I.Khan and after hearing learned counsel for the parties, the learned appellate Court, partly allowed both the appeals vide consolidated judgement and decree dated 16.10.2023 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 tells that the marriage between the parties was solemnized in accordance with Shari’ah against a dower of Rs.1,000/–, which still remains unpaid, as reflected in the Kabin-nama dated 21.04.2014 (Ex.PW- 3/1). A scrutiny of the evidence adduced by the respondent reveals that she produced strong and convincing material in support of the Kabin-nama. Although the petitioners, in their written statement, termed the said Kabin-nama to be fake, fabricated, and fictitious, and denied its execution, yet the respondent successfully produced the marginal witnesses as well as the scribe of the document, all of whom in their depositions categorically affirmed its execution.

Moreover, petitioner No.2, during cross-examination, admitted the execution of the Iqrar-nama.

7.This Court finds no reason to differ from the concurrent 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 raised by the petitioners regarding fabrication of the document remained unsubstantiated and was effectively rebutted through reliable testimony of the marginal witnesses and the scribe. Even the admission made during cross-examination by petitioner No.2 further fortifies the respondent’s claim. Consequently, the conclusion reached by the Courts below with respect to the fixation and non-payment of dower and restitution of conjugal rights are borne out of the record and do not suffer from any legal or factual infirmity warranting interference in constitutional jurisdiction.

8.The second limb of arguments advanced by learned counsel for the petitioners 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. 2 without any justifiable cause and in the absence of any reasonable fault attributable to the petitioner-husband or his family. It may be observed that before entering into the controversy and claim of the adversaries, it is necessary to examine the law governing the entitlement of wife for maintenance. Para-277 of D.F Mulla's book "PRINCIPLES OF ISLAMIC LAW" ("Muhammadan Law") 7th Edition reads that husband is bound to maintain his wife unless she is too young for matrimonial intercourse, so long, as she is faithful and obeys his reasonable orders, but the husband is not bound to maintain her wife who is disobedient. For ease of reference, relevant portion of para ibid is reproduced herein below;

"277. Husband's duty to maintain his wife. The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse,) so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal of disobedience is justified by non-payment of prompt (S. 290) dower, or she leaves the husband's house on account of his cruelty."

Para-278 of the Muhammadan Law ibid is also relevant, facsimile whereof reproduced below for ready reference;

"278. Order of Maintenance. If the husband neglects or refuses to maintain his wife without any lawful

cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, 1898, section 488, in which case the Court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees."

In view of the provisions referred hereinabove and appraisal of the evidence demonstrates that the respondent-plaintiff has not only failed to discharge her part of obligation rather on the contrary, factum of leaving the house of the petitioners-defendants by the respondent-plaintiff at her own has been established on record, thus, she is not entitled for the relief of past and future maintenance.

9.So far as to the claim of the respondent regarding gold ornaments weighing 11⁄2 tola is concerned, it is evident from the record that reliance has been placed upon the Iqrar- nama (Ex.PW-3/1). Perusal of the same reveals that petitioner No. 2 had merely undertaken to give gold ornaments weighing 11⁄2 tola to the respondent. However, the perusal of the Iqrar- nama itself clarifies that the said ornaments were neither stipulated as part of dower (mahr) nor were they declared to vest ownership in the respondent. Rather, the commitment was confined to the purpose of zaib-o-zīnat (beautification). Even, the assertion contained in the plaint regarding the said gold ornaments are against the spirit of the Iqrar-nama (Ex.PW-3/1.

In the absence of any declaration of ownership or proof that the said ornaments constituted part of the respondent’s enforceable marital rights, the same cannot be treated as a recoverable item

of property in her favour. In the instant case, the respondent has failed to demonstrate through evidence that the ornaments in question formed part of her dower or that ownership thereof was ever transferred to her. The undertaking contained in the Iqrar-nama is, at best, a moral commitment, and does not translate into a legally binding obligation enforceable before this Court. It is well-settled that claims in respect of gold ornaments, or other property must be substantiated through cogent evidence establishing the respondent’s ownership. In the present case, the respondent has failed to discharge that burden.

Resultantly, the respondent’s claim regarding gold ornaments weighing 11⁄2 tola is without legal foundation and the same is hereby declined.

10.Examination of record coupled with the testimonies of the witnesses, the learned Additional District Judge-I, 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."

Now coming to the points for determination as mentioned in para 5 of this judgment, perusal of the impugned consolidated judgment dated 16.10.2023 that the learned appellate Court has not taken into account the material evidence led by both sides in respect of granting a decree for recovery of maintenance allowance and 1-1/2 tola gold ornaments. The pleadings, documentary evidence, and depositions of witnesses were not appreciated in its

proper perspective to such extent. Similarly, while passing a decree for restitution of conjugal rights, learned appellate court failed to take consideration that the same is subject to payment of dower to a wife, hence, the findings of learned appellate court suffer from infirmity, illegality and irregularity and needs interreference. Other than these two aspects, the findings of the appellate Court based on proper appraisal of evidence and needs no interreference.

11.In view of the foregoing analysis of the case, the judgments and decrees passed by the Courts below, to the extent of granting recovery of maintenance allowance and 1-1⁄2 tola of gold ornaments in favour of the respondent-wife, are hereby set aside.

The remaining findings recorded by the learned Appellate Court are upheld and maintained. Consequently, this petition as well as connected W.P. No. 169-D/2023 stand disposed of in the above terms.

Announced

JUDGE

(S.B) Hon’ble Mr. Justice Ms. Farah Jamshed