Muhammad Bilal alias Hazrat Bilal Vs Mst. Naveela Akhtar & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNUBENCH.

(Judicial DepartmenQ

P # 406-8 o 2024

Muhammad Bilal alias Hazrat Bilal Vs Msl: Naveela Akhtar & others

JUDGMENT

Date of hearing: 30-04-2026 For Petitioner: Mt Mir Khan. Khdfla*. Advocate. (Througlr video-link) For Respondent: Mr. Mutuhid Islam. Advocale, (Through video-link)

SABIT ULLA H KHAN, "/.-- Throu gh this consolidated judgment, I propose to decide the instant constitutional petitions directed against the consolidated judgment and decree dated 24.07.2024 passed by the leamed District Judge, Karak, whereby both the appeals preferred by the parties against the judgment and decree dated 13.11-2023 rendered by the learned Judge Family Court, Karak, were partially allowed. Since common questions of fact and law are involved in both petitions, the same are being decided together through this single judgment in order to avoid conflicting findings and to ensure complete and effective adjudication of the controversy between the parties.

(S,B) HON'BLE MR, JUSTICE SABIT ULLAH KHA

2.The facts necessary for disposal of the instant petitions, as bome out from the record, are that respondent No.l/wife instituted a suit before the learned Family Court seeking recovery of dower, dowry articles, maintenance allowance, medical expenses and other ancillary reliefs against the petitioner/husband. It was pleaded that the Nikah between the parties was solemnized in February, 2018 in accordance with Muslim rites and customs in the presence of respectable witnesses and the dower was fixed at 2/z tolas of gold omaments payable on demand. It was further averred that the Rukhsati took place on 05.04.2019 whereafter customary dowry and household articles provided by the parents of the wife were taken to the matrimonial home.

Out of the wedlock, a female child namely plaintiff No.2 was born. The wife further alleged that after the birth of the minor child, the conduct and behaviour of the husband became harsh, humiliating and oppressive.

According to the pleadings, she was subjected to mental torture, verbal abuse and threats on trivial domestic matters. Despite repeated efforts made by her as well as elders ofthe locality for reconciliation and rehabilitation, the husband allegedly refused to rehabilitate her and ultimately expelled her from the matrimonial home along

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with the minor child. It was further alleged that the husband failed to return the dower and dowry articles and also neglected to provide maintenance allowance to the wife and minor child, thereby compelling her to institute the suit before the leamed Family Court. The petitioner/husband contested the suit by filing written statement. While admitting the relationship of marriage and fixation of 2Yz tolas of gold ornaments as dower, he asserted that the same had already been paid prior to Rukhsati, thus discharging his liability towards dower.

He denied several household and dowry articles claimed by the wife and further took the plea that he had already pronounced Talaq and subsequently dispatched written Talaqnarna, thereby severing the marital relationship between the parties. The learned Family Court, after failure of reconciliation proceedings, framed issues arising out of the pleadings of the parties and afforded full opportunity to both sides to adduce evidence. Upon conclusion of trial and hearing arguments advanced by leamed counsel for the parties, the leamed Family Court vide judgment and decree dated 13.11.2023 partially decreed the suit and held the wife entitled to recovery of 03 mashas of gold ornaments, partial recovery of household and dowry articles or their market value as

(S,B) HON'BLE MR JUSTICE SABIT ULLAH KHAN

assessed in the lists placed on record, maintenance allowance at the rate of Rs.3,000/- per month from 22.10.2021 till the date of divorce, a lump sum amount of Rs.30,000/- towards maintenance during the period of Iddat, maintenance allowance for the minor daughter at the rate of Rs.4,000/- per month with annual increase of l0%, medical expenses amounting to Rs.10,000/- and visitation rights in favour of the father. Feeling dissatisfied, both parties preferred separate appeals before the leamed appellate Court. The leamed appellate Court vide consolidated judgment and decree dated 24.07.2024 partially allowed both appeals and modified the judgment of the leamed trial Court to the extent that the wife was held entitled to recovery of fulI dower consisting of 2Yz tolas of gold omaments in addition to the market value of household and dowry articles ,l assessed in lists Mark-A and Mark-B. However, Anicle No.l0 of list Mark-B, namely refrigerator, was excluded from the decree on the reasoning that the father of the wife was a fruit seller and financially weak person and therefore provision of such costly article appeared improbable. The leamed appellate Court further observed that during arguments the wife disclosed the maker of the refrigerator as "PEL" whereas in list Mark-B the same

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had been mentioned as "Dawlance", thereby creating doubt regarding the existence of the said article. The appellate Court funher modified the visitation arrangement by directing that the father would be entitled to meet the minor daughter twice a month at a mutually agreed place while the remaining findings of the leamed Family Court were maintained.

3.I have heard learned counsel for the parties at considerable length and have gone through the entire record with utmost care and anxious consideration.

4.The relationship of marriage between the parties, birth of minor plaintiff No.2 and fixation of dower at 2/z tolas of gold omaments are admitted facts on the record.

The principal controversy revolves around recovery of dower, dowry articles and adequacy of maintenance awarded by the Courts below. The record further reveals that although the husband admitted fixation of dower, his sole defence was that the same had already been paid prior to Rukhsati. Under settled principles of Muslim Personal Law, once fixation of dower stands admitted, the burden to prove discharge of such liability squarely rests upon the husband. Mere assertion regarding payment of dower, unsupported by reliable oral or

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documentary evidence, is insufficient to absolve the husband from his admitted legal obligation. The leamed appellate Court, upon proper appraisal of evidence available on the record, rightly concluded that the petitioner/husband had failed to establish that the entire dower consisting of 2% tolas of gold omaments had actually been handed over to the wife. The leamed trial Court, therefore, committed legal error while restricting the decree merely to 03 mashas of gold omaments. The appellate Court correctly rectified the said illegality and restored the lawful entitlement of the wife to the entire dower settled between the parties at the time of Nikah.

The findings recorded by the appellate Court in this regard are based upon proper appreciation of evidence and settled principles goveming dower under Muslim Family Law and thus warrant no interference by this Court. However, insofar as exclusion of Article No.l0 from list Mark-B is concemed, this Court is unable to subscribe to the reasoning adopted by the leamed appellate Court. The said finding, in the considered opinion of this Court, suffers from patent misapplication of legal principles goveming appreciation of evidence in family disputes. The leamed appellate Court excluded the refrigerator primarily on the assumption that the

(S.B) HON'BLE MR. JUST|CE SAB|T ULLAH KHAN

father of the wife was a fruit seller and financially weak person and therefore provision of such costly item appeared improbable. Such reasoning is not only conjectural in nature but is also legally impermissible and contrary to the settled canons of judicial adjudication. A Court of law is required to adjudicate rights and liabilities of parties on the basis of legally admissible evidence available on record and not upon subjective perceptions, personal notions or socioeconomic assumptions regarding financial status of litigants. The profession of a person, by itself, can never constitute a determinative legal standard for assessing the truthfulness of a claim unless supported by independent evidence demonstrating impossibility or fabrication.

Financial modesty or humble economic background of a litigant carmot be treated as legal disqualification disentitling such person from possessing or providing household appliances or articles of domestic use. In our social structure and prevailing customs, it is neither uncommon nor improbable for parents belonging to middle or lower-income groups to arrange household articles for their daughters at the time of marriage through savings accumulated over time, financial assistance from relatives, loans, installments or collective

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family support. Therefore, to discard a specific dowry article merely because the father of the wife happened to be a fruit seller amounts to substituting judicial reasoning with socioeconomic stereotyping, which is wholly alien to the administration of justice. Judicial findings cannot rest upon assumptions founded upon economic class or occupational status of a party.The learned appellate Court further ened in law while attaching undue significance to the discrepancy regarding the commercial make or brand of the refrigerator. The wife during arguments referred to the refrigerator as "PEL" whereas in list Mark-B it had been described as "Dawlance". In the opinion ofthis Court, such discrepancy is too trivial, insigrificant and inconsequential to defeat the substantive claim altogether. Family litigation predominantly involves lay persons who are ordinarily not expected to possess technical precision regarding model numbers, manufacturing specifications or commercial descriptions of household appliances. Minor inconsistency regarding the commercial brand of an article does not ipso facto establish that the article itself never existed. It is a settled principle of appreciation of evidence that minor contradictions, normal discrepancies and immaterial inconsistencies which do not go to the

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root of the matter are to be ignored rather than magnified. Human memory is not infallible and ordinary variations regarding peripheral details are natural and expected in statements of witnesses. Courts are required to examine whether such discrepancy materially affects the substratum of the claim. In the present case, the existence of dowry arrangement itself stood admitted and partially proved through evidence available on record.

The dispute merely related to one particular item of household use. Therefore, the discrepancy regarding whether the refrigerator was "PEL" or "Dawlance" could not legally justifu complete exclusion of the article from the decree. The approach adopted by the leamed appellate Court, if approved, would lead to dangerous consequences whereby claims of litigants belonging to financially modest backgrounds may be discarded merely on assumptions regarding their economic limitations. Such an approach offends the foundational principles of equality before law and fair administration of justice. Courts must remain cautious that adjudication does not unconsciously drift into class-based presumptions unsupported by evidence. For the foregoing reasons, this Court is ofthe considered opinion that exclusion of Article No.10 from list Mark-B is

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wholly unsustainable in law and the impugned finding to that extent cannot be allowed to stand.

5.So far as the question of maintenance allowance is concerned, it is an admitted position that both the Courts below fixed maintenance allowance of the wife at the rate of Rs.3,000/- per month and maintenance of the minor daughter at the rate of Rs.4,000/- per month with annual increase of l0%. In the prevailing circumstances, the said amounts are wholly inadequate and unrealistic. It is a matter of common knowledge that there is unprecedented inflation in the country and the cost of food, clothing, shelter, education, medical treatment and other daily necessities has increased manifold. Maintenance awarded by a Court must be realistic, practical and sufficient enough to enable the wife and minor child to live with dignity consistent with prevailing economic conditions' Symbolic or meager maintenance defeats the very object underlying family jurisprudence and frustrates the beneficial purpose of the law relating to maintenance. The husband admittedly failed to produce satisfactory evidence regarding his alleged financial incapacity. Maintenance under Muslim Family Law is not merely a moral obligation but a

(S,B) HON'BLE MR. JUSTICE SABIT ULI'AH KHAN

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legally enforceable duty flowing from marital and parental responsibilities. A husband and father cannot evade such obligation through vague and unsupported pleas. Welfare of the minor child always remains the paramount consideration and the Court is under legal obligation to ensure that the child receives adequate financial support for proper upbringing, education and healthcare. Therefore, keeping tn vlew prevailing inflationary conditions, rising cost of living, educational and medical needs of the minor child and overall circumstances of the case, this Court is of the considered opinion that ends of justice would be adequately met if the maintenance allowance payable to respondent No.l/wife is enhanced to Rs.10,000/- per month whereas maintenance allowance of plaintiff No.2/minor daughter is enhanced to Rs.8,000/- per month with annual increase at the rate of l0%o per annum till she attains majority or becomes disentitled under law.

5l 6, For what has been discussed above, these petitions are partially allowed. The impugned judgment and decree dated 24.07.2024 passed by the leamed appellate Court is modified to the extent that exclusion of Article No.l0 from list Mark-B is hereby set aside and

(S,B) HON'BLE MR, JUSTICE SAB|T ULLAH KHAN

ndents: Nemo

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Vide respondent detailed common No.l/wife is declared entitled to recovery of the said article or its market value in accordance with of today placed on B.A. No, 99-8/2025 law. The remaining hndings recorded by the learned appellate Court regarding recovery of full dower ad Sher Vs The State etc), the tnstarfi consisting of 2/, l.olas of gold ornaments and medical

expenses are found to be lawful, proper and fully cellation application, 1,€, No.10- supported by the evidence available on record and are accordingly maintained. However, the maintenance hereby dismissed nlbninie.

allowance payable to respondent No.l/wife is enhanced to Rs.10,000/- per month whereas maintenance s. allowance of plaintiff No.2/minor daughter is enhanced to Rs.8,000/- per month with annual increase at the rate of l\Yo per annum. Order accordingly' ) Hon'ble Mi lastlcc Abdal Fayaz Announced.

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JUDGE

Judge

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(S,B) HON'BLE MR JUSflCE SABIT U LDIH KHAN