Kashif Shehzad vs Adj etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN

JUDICIAL DEPARTMENT

W.P. No.3546 of 2026

Kashif Shahzad Versus Addl. District Judge, etc.

JUDGMENT

Date of hearing: 13.10.2026.

Petitioner by: Mr. Tahir Mehmood, Advocate.

Respondents by: Mr. Abdul Qayyum Khan, Advocate for respondents No.3 to 6.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through this single judgment, I intend to dispose of the instant writ petition and connected W.P. No.5068 of 2026, as common questions of law and fact are involved in these cases.

2.Through this constitutional petition, the petitioner calls in question the judgment and decree dated 18.02.2026, passed by the learned Additional District Judge, Kabirwala, whereby the appeal preferred by respondent No.3, Mst. Shakeela Bibi, was partly allowed and the judgment and decree dated 19.11.2025, passed by the learned Judge Family Court, Kabirwala, were modified in two respects: the maintenance allowance of the minor children was enhanced, and recovery of Rs.5,00,000/-, stipulated in Column No.19 of the Nikahnama, was allowed. The petitioner seeks restoration of the Family Court’s decree to that extent.

Through connected W.P.No.5068 of 2026, respondents No.3 to 6 have also challenged the afore-mentioned judgments and decrees dated 19.11.2025 and 18.02.2026, passed by learned Courts below.

3.The marriage between the petitioner and respondent No.3 was solemnized on 10.09.2015, and two minor sons were born of the

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wedlock. By a compromise decree dated 30.04.2019, maintenance of the minors was fixed at Rs.4,000/- per month each. The petitioner divorced respondent No.3 on 23.02.2023. The learned Judge Family Court, by judgment and decree dated 19.11.2025, declined the claim for enhancement of the minors’ maintenance, relying on the compromise decree, and dismissed the claim of Rs.5,00,000/- under Column No.19 of the Nikahnama. However, respondent No.3 was held entitled to get Rs.300,000/- as alternative of dowry articles. In appeal, the learned Additional District Judge, by judgment and decree dated 18.02.2026, enhanced the maintenance to Rs.10,000/- per month for each minor with an annual increase of 10%, and allowed recovery of Rs.5,00,000/- under Column No.19. Respondent No.3 was held entitled to recovery the dowry articles lying with petitioner as per list Ex.D-3 or the alternate price as fixed by learned Judge Family Court. Aggrieved by these modifications, the petitioner invoked the constitutional jurisdiction of this Court.

4.Learned counsel for the petitioner contends that the maintenance of the minors was settled by the compromise decree dated 30.04.2019, which was under execution, and that the appellate Court could not enhance it without legally sufficient grounds. He submits that the stipulation of Rs.5,00,000/- in Column No.19 is unenforceable because the husband’s right to pronounce divorce cannot lawfully be made conditional on payment of damages or compensation. He contends that the learned Judge Family Court correctly appreciated the record, and the learned appellate Court interfered without lawful justification.

5.Conversely, learned counsel for the respondents supports the impugned judgment. He submits that the earlier decree did not permanently foreclose the minors’ right to seek enhancement in view of their changing needs, and he refers to the order dated 31.05.2024 in the execution proceedings, which recognized the petitioner’s liability under the compromise decree while leaving the minors free to institute separate proceedings for enhancement. He adds that the learned appellate Court considered the school fee record, the ordinary expenses

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of growing children and the petitioner’s financial circumstances. As to Column No.19, he argues that the petitioner expressly acknowledged the undertaking and that enforcing a financial obligation arising upon divorce does not deprive him of the right to pronounce divorce.

6.Arguments heard. Available record perused.

7.The questions for determination by this Court are: (i) whether the compromise decree dated 30.04.2019 barred a subsequent claim for enhancement of the minors’ maintenance, and whether the enhancement made by the appellate Court is sustainable; (ii) whether the undertaking of Rs.5,00,000/- recorded in Column No.19 of the Nikahnama is enforceable; (iii) whether the decisions on the award of dowry articles call for interference in exercise of constitutional jurisdiction.

8.The first question is whether the compromise decree dated 30.04.2019 barred a subsequent claim for enhancement. The earlier decree is not disputed, but it cannot be construed as freezing maintenance permanently regardless of the minors’ changing needs. The father’s duty to maintain his children is a duty of the Shariah and is recognized by the law. It is a continuing obligation measured by the needs of the child and the means of the father, and these change with age, education, health and the cost of living. A decree fixing maintenance fixes it at a moment in time and on the circumstances then prevailing, however it does not decide what the minors will need in future years. A claim for enhancement rests on changed circumstances that arose after the earlier decree, and so gives rise to a fresh cause of action. Moreover, the minors’ right to maintenance is their own and is not extinguished by an arrangement between their parents. This is borne out by the order dated 31.05.2024 in the execution proceedings, which preserved the petitioner’s liability under the compromise decree while leaving the minors at liberty to seek enhancement through separate proceedings. The petitioner’s objection that the earlier decree was an absolute bar is therefore untenable.

9.The learned appellate Court considered the school admission forms and the fee certificate of English Public School, Mari Shahu, showing fees of Rs.4,000/- per month for each minor. The children’s

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reasonable needs, however, extend beyond tuition fees to food, clothing, healthcare, transport and other ordinary expenses. The Court also considered the petitioner’s status as a landlord and his other family responsibilities. His second marriage and additional dependents may be relevant to the assessment of his capacity, but they do not extinguish the minors’ independent right to reasonable maintenance, and a father cannot reduce one child’s entitlement by assuming further obligations. On the material considered, the enhancement to Rs.10,000/- per month for each minor, with its tuition component being a part of the total, cannot be held to be wholly unsupported by the record, nor does the annual increase of 10%, which responds to the rising cost of living, establish any illegality. The quantum of maintenance is a question of fact to be assessed by the competent forum, and this Court does not reassess it merely because another view is possible. No jurisdictional defect, disregard of material evidence or perversity has been shown. The challenge to the enhancement fails.

10.The second question concerns the award of Rs.5,00,000/- under Column No.19 of the Nikahnama dated 10.09.2015. The appellate Court relied upon the petitioner’s admission in cross-examination that he had undertaken to pay the said amount in the event of divorce, and the fact that he divorced respondent No.3 on 23.02.2023. It also considered the relevant contents of the Nikahnama available on the judicial file. Section 17 of the Act excludes the formal application of the Qanun-e-Shahadat Order, 1984 to family proceedings; hence, formal exhibition of an attested copy was not indispensable, particularly when the petitioner admitted the stipulation. The learned Judge Family Court also declined the claim not for want of proof, but on the ground that the stipulation was legally unenforceable. The controversy, therefore, is confined to whether a sum stipulated as payable upon the husband pronouncing talaq can lawfully be recovered through a decree.

11.The right to pronounce talaq belongs to the husband. As observed in Muhammad Sajjad v. Additional District Judge, Jalalpur Pirwala, District Multan and 2 others (2022 CLC 729), the Holy Qur’an recognizes this right, subject to the limits prescribed by Islam

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(Surah Al-Baqarah, 2:227–228; Surah At-Talaq, 65:1). Neither Shariah nor the codified law makes its exercise conditional upon payment of a stipulated sum. Section 7 of the Muslim Family Laws Ordinance, 1961 regulates the procedure following pronouncement of talaq; it does not authorise the parties to impose a monetary penalty upon its exercise. Such a stipulation, irrespective of its description as compensation, operates as a financial deterrent to the exercise of the right and is, therefore, unenforceable.

12.The presence of a column in the prescribed Nikahnama concerning restrictions upon the husband’s right of divorce does not validate every stipulation entered therein. Nor can the parties’ consent or the husband’s admission render enforceable a term contrary to law. This principle, however, does not invalidate every obligation undertaken in a Nikahnama beyond dower. Property or benefits promised to the wife, such as the gold ornaments upheld in Muhammad Awais v. Zahida Parveen (2024 CLC 2129) and the house upheld in Muhammad Sajjad (supra), stand on a different footing, as they create obligations to confer benefits upon the wife rather than impose a penalty upon the exercise of the right of talaq.

13.The issue stands settled by Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another (2008 SCMR 186), wherein the Hon’ble Supreme Court declined to enforce a Nikahnama stipulation requiring payment of Rs.2,50,000/- by the wife in the event of khula and an equivalent amount by the husband in the event of divorce. The Court rejected the proposition that such conditions could lawfully deter the parties from dissolving the marriage. The principle has subsequently been followed in Mst. Zeenat Bibi v. Muhammad Hayat and 2 others (2012 CLC 837), Muhammad Asif v. Mst. Nazia Riasat and 2 others (2018 CLC 1844), Muhammad Sajjad (supra) and Muhammad Awais (supra). In the latter case, this Court upheld recovery of eight tolas of gold ornaments promised in Column No.17 but set aside the compensation of Rs.500,000/- stipulated in Column No.19 for divorce. The present case is governed by the same principle.

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14.The appellate Court further erred in observing that Courts lack jurisdiction to declare a stipulation in a Nikahnama contrary to law. A Family Court, while adjudicating claims falling within its jurisdiction, is competent to examine the legality, interpretation and enforceability of the relevant terms; their inclusion in a Nikahnama does not place them beyond judicial scrutiny. The learned Family Court rightly declined the claim on the ground of legal unenforceability, whereas the appellate Court decreed it on the strength of the petitioner’s admission and an authority that cannot prevail over the settled legal position. The resulting error of law warrants correction in constitutional jurisdiction. Accordingly, the challenge to the award of Rs.5,00,000/- under Column No.19 succeeds. This finding is confined to the amount stipulated as payable upon divorce and does not affect respondent No.3’s dower or any property or benefit promised to her under the Nikahnama.

15.The third question relates to the award of dowry articles. The record reflects that the learned Courts below after examining the oral as well as documentary evidence produced by the parties, assessed the claim regarding dowry articles in the light of the financial circumstances of the parties, the duration of the marriage and the evidence relating to the articles actually entrusted to or retained by the petitioner. The learned Appellate Court relied upon list Ex.D-3, which had been brought on record by the petitioner himself, and directed the return of the articles mentioned therein or payment of their alternate price, as already determined by the learned Judge Family Court. No convincing ground has been shown to demonstrate that this conclusion is based upon misreading or non-reading of any material evidence.

14.For the foregoing reasons, the petitioner has failed to show that the impugned judgment and decree dated 18.02.2026 suffer from any jurisdictional defect, material illegality or perversity in respect of the enhancement of the minors’ maintenance and the award of dowry articles, and mere disagreement with the appellate Court’s assessment on those matters is not a ground for constitutional interference, which would otherwise amount to an impermissible exercise of appellate jurisdiction in the guise of review. The appellate Court was justified in

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enhancing the minors’ maintenance notwithstanding the earlier decree, and the award of dowry articles is based on evidence brought on record. However, the award of Rs.5,00,000/- under Column No.19 of the Nikahnama is not sustainable in law for the reasons recorded above, and the appellate judgment is liable to be set aside to that extent.

15.Consequently, W.P. No.3546 of 2026 is partly allowed. The judgment and decree dated 18.02.2026 passed by the learned Additional District Judge, Kabirwala, are set aside to the extent they allowed recovery of Rs.5,00,000/- under Column No.19 of the Nikahnama, and the judgment and decree dated 19.11.2025 passed by the learned Judge Family Court, Kabirwala, are restored to that extent. The judgment and decree dated 18.02.2026 shall remain intact in all other respects. Connected W.P. No.5068 of 2026 is dismissed. There shall be no order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge *Sultan*