Fahim Ullah Vs Mst. Palwasha and others

JUDGMENTSHEET

o

(Judicial f,iepartsnent)

Dateofhearingt !LL!2!4

For Petitioner:

For Respondent:

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Through this writ petition,

the petitioner has invoked the constitutional jurisdiction of this Court underArticle 199 of the Constitution of Islamic Republic of Pakistan, 1973, calling in question the legality and propriety ofthe ll judgrnent passed by the leamed Additional District Judge-II, Bannu, whereby the appeal of the petitioner against the order of the leamed Executing Court dated l4-ll-2023 was dismissed vide judgment dated 30-01-2024 and his prayer for payment of decretal dower through installments was declined.

2.Concise facts of the case are that, the respondent instituted a family suit before the learned Family Court, Bannu, for recovery of her unpaid dower, dowry and maintenance etc' The leamed Family Cour! vide judgment and decree, decreed the suit in her favour in the following manner:-

l. Decree for recovery of 16 tola gold omaments in lieu of remaining dower in fnow of the respondent/plaintif against the pe t i t ioner/defe ndant.

2.Decree for recovery of maintenance in fnow of the respondent/plaintiff against the petitioner/defendant from 05-07-2019 tiil 25- 08-2020 (as in light offaisla salisi dated 25- 08-2020, the defendanr has given divorce the plaintifi) @ Rs.4,000/- per month alongwith maintenance Ior 03 months of iddat period

3.Decree for recovery of uttdisputed dowry articles in the same used condition in which they are lying in the defenda*'s house in favour ofthe plaintiffagainst the defendant.

1.Ctaim of the defendant for restitution of corljugal rights stands refused.

3.The decree having attained finality, the respondent initiated execution proceedings before the trial Court/executing Court' During pendency of

the execution petition, the petitioner/judgment- debtor moved an application seeking permission to discharge the decretal liability by payment of Rs.5,000/- per month as pleading

financial hardship.

4.The leamed Executing Court dismissed the said application on the ground that the proposed installment was highly meager and that acceptance thereof would frusfiate the decree, as it would take EIil inordinately long time to satisfr the decretal amount. The petitioner being aggrieved from the said order, preferred an appeal before the leamed Additional District Judge-II, Bannu, met the same fate. Hence, the present writ petition.

5.Learned counsel for the petitioner contended that the Courts below failed to exercise jurisdiction vested in them by law It was argued that the petitioner is a police official, drawing a minimum and limited salary, having to maintain his second

wife, children, and dependent parents, and that denial of reasonable installments is contrary to the spirit of family law and equity.

6.Conversely, leamed counsel for the respondent supported the impugned judgments and argued that dower is amandatory and enforceable obligation, and that the petitioner cannot be permitted to delay execution on the pretext of financial consfraints.

7.I have heard the leamed counsel for the parties and have carefully gone through the available record.

E. It is settled law that dower (Haq Mehr) is an obligatory debt upon the husband and its prompt payment is enforceable through legal process. At the same time, it is equally well-established that execution proceedings are meant to enforce a decree and not to punish thejudgment-debtor.

9.The discretion to allorv payment of decretal

amount in installments isjudicial in nature, to be exercised fairly, reasonably and equitably, keeping in view the financial capaclty of the judgment- debtor, thenature of the decretal amount, and the likelihood of actual satisfaction of the decree within a reasonable time.

10.In the present case, it is not disputed that the lsa govemment servant seryrng as a

police official, having a fixed and limited income but the record reflects that he is burdened with multiple dependents, including aged parents. These factors were not properly appreciated by the Courts below. As the Executing Court was justified in observing that the proposed payment of Rs.5,000/- per month was insufficient, the outright dismissal of the application, without fixing a reasonable installment after balancing the rights of the decree- holder with the paying capaclty of the judgment- debtor, amounts to a failure to properly exercise

discretion in accordance with law. The purpose of allowing installments is to ensure real and effective execution of the decree. An order which makes compliance practically impossible would neither serve the ends of justice nor advance the cause of equity.

11.In family matters, Courts are expected to adopt a compassionate and pragmatic approach, so that enforcement of rigfuts does not result in undue hardship or social dislocation.

12.Keeping in view the financial status of the petitioner, his service profile, and the legitimate right of the respondent to recover her dower within a reasonable timeframe, this Court is of the considered view tltat fixation of Rs.25,000/- per month as installment strikes a fair balance between competing equities.

13.For the foregoing reasons, this writ petition is allowed. Consequently, the impugned orders

passed by the learned Executing Court and the leamed Additional District Judge-II, Bannu, are hereby set aside. The petitioner is directed to satisfi the decretal dower amount by palng monthly of Rs.25,000/-, per month. The petitioner is further directed to clear the arrears of dower accrued for the period from 0l-09-2023 to 3l-12-2025, by making payment at the same rate of Rs.25,000/- per month, in lumpsum or in such manner as may be calculated accordingly and thereafter continued monthly payment till the satisfaction of decree. In case of two consecutive defaults, the respondent shall be at liberty to seek enforcement ofthe decree through coercive process in accordance with law. The execution petition shall proceed accordingly

15.r2.2025 -Sd- .&Et @,]llat /tte@' Judge

(S.D Hon'ble lvfr. Justice Abdul Fqaz.

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