Shah Afzal Shinwari Vs Mst Sara Ihsan

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) W.P No. 1344-M/2023 With Interim Relief

Shah Afzal Shinwari son of Gul Afzal Shinwari...............................................(Petitioner) v/s Mst. Sara Ihsan & others.......................(Respondents) Present: - Barrister Amir Javid, ASC, for petitioner/ defendant.

Mr. Iftkhar Ahmad (Senior), ASC, for respondent/plaintiff.

Date of hearing: 11.5.2026

JUDGMENT

SALAH-UD-DIN, J.- Through the instant writ petition preferred under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks issuance of an appropriate writ, citing the following enumerated prayer for redressal of his grievance:-

“It is therefore prayed that by accepting this writ petition impugned judgments/decree of respondent no.2 and 3 dated 26.02.2021 and 17.08.2023 may please be declared as un-lawful, without lawful authority, without jurisdiction and therefore in effective against the rights of petitioner. And the suit of the respondent No. 1 be decreed as khula.”

2.The present dispute had its genesis when respondent No. 1, namely Mst. Sara Ihsan (the then plaintiff), instituted a suit against the present Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

petitioner, namely Shah Afzal Shinwar (the then defendant), before the learned Family Court seeking dissolution of marriage on the grounds of persistent mental and physical torture, the petitioner's contracting of a second marriage during the subsistence of the matrimonial bond, and his failure to discharge the obligation of payment of dower.

Besides seeking dissolution of marriage, the respondent also claimed recovery of her dower comprising 70 tolas of gold and 05 marlas of house situated at Hayatabad, Peshawar, or, in the alternative, the prevailing market value of 70 tolas gold. She further sought recovery of maintenance allowance, medical expenses incurred by her, and restitution of her dowry articles.

3.Upon being served, the petitioner/ defendant contested the suit by filing a comprehensive written statement, wherein he raised various legal as well as factual objections to the claim of the respondent/plaintiff. The learned Family Court undertook both pre-trial and post-trial reconciliation proceedings in accordance with the law, however, all efforts qua effect an amicable settlement between the parties proved unsuccessful.

Consequently, upon completion of the pleadings Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

and in view of the contentious questions of fact and law arising therefrom, the learned trial Court framed the following amended issues, along with certain additional issues, at different stages of the proceedings:-

I. Whether plaintiff has got cause of action against the defendant?

2.Whether plaintiff is entitled to recovery of dower 70 tolas of gold along with house of area 05 marlas (House No. 612, Street No. 37 Phase No. 1 Hayat Abad Peshawar) or the market value of entire unpaid dower?

3.Whether dower 100 tolas gold is already paid and is in possession of the plaintiff?

4.Whether the nikkahnama produced by the plaintiff is fake and entry of the house as dower of the plaintiff is post-written with the connivance of the plaintiff? 5- Whether the plaintiff is entitled to recovery of maintenance allowance @Rs. 50,000/- per month from March, 2015 till the decision of the court and expiry of Iddat period?

6.Whether plaintiff is entitled to the recovery of Rs. 200,000/- as medical expenses incurred on her treatment since March 2015?

7.Whether plaintiff is Nasheza, self-deserted and unaware of marital obligations, therefore, not entitled for any maintenance?

8.Whether plaintiff was physically assaulted and forced to leave the house of defendant on 11.03.2015?

9.Whether plaintiff is entitled to the recovery of dowry articles or its market value as per list annexed as "A"?

10.Whether the plaintiff is entitled to recovery of rent @ Rs. 30,000/- per month since March, 2015 of the house (No. 612, Street No. 37 Phase No. I Hayat Abad Peshawar) written as plaintiff's dower?

11.Whether plaintiff is entitled to the decree as prayed for?

12.Whether defendant is entitled to the decree of restitution of conjugal rights?

13.Whether defendant is entitled to receive back dower and other expensive items/jewelry gifted to plaintiff, if she is not willing to fulfill the marital obligations?

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Relief!

ADDITIONAL ISSUES.

(a). Whether defendant has contracted second marriage without the permission of plaintiff?

(b). Whether defendant has contacted second marriage of plaintiff because she was medically unfit?

After recording the pro and contra

evidence adduced by both the parties and hearing their learned counsel, the learned Family Court, vide judgment and decree dated 26.02.2021, decreed the suit instituted by the respondent/ plaintiff, in the following terms:-

i. Decree for the possession of house in lieu of dower as per the heading of plaint.

ii. Decree for recovery of 52 tolas gold ornaments. iii. Decree for the recovery of maintenance allowance of plaintiff @ Rs. 10,000/- per month since institution of suit till completion of her Iddat period.

iv. Claim of Rs. 200,000/- as medical expenses stands dismissed.

v. Decree for recovery of dowry articles according to list annexed with the plaint or its market value. vi. Claim of recovery of rent of Rs. 30,000/- per month of the house stands deleted for want of jurisdiction. vii. Decree for dissolution of marriage. viii. Claim of defendant for restitution of conjugal rights stands dismissed.

ix. Claim of defendant regarding expensive items/jewelry as gift stands deleted for want of jurisdiction.

4.Feeling aggrieved by the judgment and decree passed by the learned Family Court, both the parties preferred their respective family appeals before the learned appellate Court. Upon hearing the parties and reappraising the material available Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

on the record, the learned Additional District Judge/I.Z.Q., Kabal, Swat, vide the impugned consolidated judgment and decree dated

17.08.2023, partly allowed both the appeals and modified the judgment and decree of the learned Family Court, to the following extent:-

“26. For what has been discussed above, appeal bearing No.15/FCA, of 2021 filed by plaintiff is partially allowed and the findings of the learned trial court on the issue of maintenance are modified and plaintiff is held entitled to the maintenance allowance @ Rs.10,000/- per month from May 2015 till expiry of her iddat period. Similarly, the cross appeal bearing No.10/FCA of 2021 filed by defendant is also partially allowed and the findings of the learned trial court on issue No.9 are also modified and it is held that plaintiff is entitled for the dowry articles mentioned at serial No.1 to 37, 49 to 52, 59, 73, 74, 76 to 81, or its market value as given in the list, while, rest of the finding of the learned trial court with respect to the other issues were kept maintained. No order as to costs.”

5.Still feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned appellate Court, the petitioner/defendant has invoked the constitutional jurisdiction of this Court by filing the instant writ petition, seeking its setting aside on the grounds set-forth therein.

6.Learned counsel for the petitioner/

defendant assailed the impugned judgments and decrees on two principal grounds. Firstly, he contended that at the time the impugned judgments and decrees were passed, The Dissolution of Muslim Marriages Act, 1939 (hereinafter referred Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

to as the "DMMA, 1939") and the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as the "MFLO, 1961") had not been extended to the erstwhile FATA/PATA areas. Consequently, according to the learned counsel, both the learned Family Court and the learned appellate Court lacked the requisite jurisdiction to entertain and adjudicate the suit, rendering the impugned judgments and decrees coram-non-judice and without lawful authority. Secondly, learned counsel vehemently argued that the learned Family Court failed to frame a specific issue with regard to the allegation of cruelty, despite the same constituting one of the principal grounds for dissolution of marriage i.e.

contracting of second marriage by the petitioner/ defendant without permission of the respondent/ plaintiff. It was contended that such omission has materially prejudiced the defence of the petitioner and has vitiated the entire trial, thereby rendering the impugned judgments and decrees legally unsustainable. In respect of extension of family laws to the areas of FATA/PATA in terms of its retrospective effect or otherwise, the learned counsel placed reliance on the judgments reported as PLD 2006 Supreme Court 602, PLD 2012 Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Supreme Court 217, PLD 1995 Peshawar 14, 2003 PLC 272, PLD 2005 Lahore 377, PLD 2006 Karachi 221, PLD 2015 Peshawar 14, PLD 2017 Sindh 140 & 2022 CLC 626. With regard to non- framing of issue of cruelty, the learned counsel cited the judgment of the august Supreme of Pakistan rendered in case titled “Muhammad Afza & another v/s Muhammad Hayat & others”

reported as 1994 SCMR 12.

7.Conversely, learned counsel for the respondent/plaintiff controverted the submissions advanced on behalf of the petitioner and argued that the question regarding the applicability and extension of the DMMA, 1939 and the MFLO, 1961 to the erstwhile FATA/PATA areas was neither raised before the learned Courts below nor made a ground in the instant writ petition.

According to the learned counsel, such a plea, having been raised for the first time during the course of arguments before this Court, is clearly an afterthought and cannot be entertained at this belated stage. He further contended that even if, for the sake of argument, it is assumed that the learned Courts below lacked jurisdiction to adjudicate upon the question relating to the petitioner's contracting Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

of a second marriage, such circumstance would not advance the petitioner's case. Elaborating his submission, he argued that the petitioner's act of contracting a second marriage, without obtaining the consent of or permission from his existing wife, i.e., the respondent/plaintiff, itself constituted an act of mental cruelty and matrimonial misconduct, furnishing an independent and valid ground for dissolution of marriage. Therefore, the objection regarding jurisdiction, even if accepted in part, would not affect the ultimate outcome of the case.

Lastly, learned counsel submitted that it is by now a well-settled principle of law, as consistently enunciated by the august Supreme Court of Pakistan, that the mere omission to frame a specific issue on a particular plea does not, by itself, vitiate the trial or warrant remand of the case, provided the parties were fully aware of the controversy and had adduced evidence thereon. He maintained that evidence is invariably led in the light of the pleadings of the parties and not merely on the basis of the issues framed by the Court. Since, in the present case, the respondent/plaintiff had specifically pleaded persistent mental and physical cruelty, including the petitioner's contracting of a Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

second marriage, both parties had ample opportunity to lead evidence on the said controversy. Consequently, the omission to frame a separate issue on cruelty neither caused any prejudice to the petitioner nor could it be treated as a legal infirmity warranting interference by this Court. In order to bolster his arguments, the learned placed reliance on the judgments reported as 2012 SCMR 2012, PLD 2016 Supreme Court 613,

2020 SCMR 2033, , 1990 CLC 293, 1983 CLC

3107, 1982 CLC 655, 1987 CLC 163, PLD 2009

Lahore 484, 2011 MLD 176 & 2017 MLD 1101.

8.In rebuttal, learned counsel for the petitioner/defendant invited the attention of the Court to the application placed on the record (without number), whereby the petitioner has sought permission to incorporate an additional legal ground in the writ petition concerning the applicability and extension of the DMMA, 1939 and the MFLO, 1961 to the erstwhile FATA/PATA areas. It was contended that, at the time of the institution of the suit by the respondent/plaintiff, as well as on the dates when the learned Family Court and the learned appellate Court rendered the impugned judgments and decrees, the aforesaid family laws Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

had not been extended to the said areas.

Consequently, according to the learned counsel, both the learned Courts below lacked the requisite jurisdiction to entertain and adjudicate the lis.

Learned counsel further submitted that the question of jurisdiction goes to the very root of the matter and strikes at the competence of the Court to entertain the proceedings. Such an objection, being purely a question of law, may validly be raised at any stage of the proceedings, even for the first time before this Court. Therefore, the petitioner's failure to agitate the said question before the learned Courts below, or to specifically plead the same in the original memorandum of the instant writ petition, would not operate as an estoppel nor preclude him from raising the issue of jurisdiction, particularly when it is based upon the alleged non- extension of the relevant family laws to the erstwhile FATA/PATA areas, at the material time.

9.Arguments of learned counsel for

parties were heard in considerable detail and available record perused with their able assistance.

10.At the very outset, it may be observed that the principal grievance of the petitioner/ Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

defendant relates to the mode of dissolution of marriage adopted by the learned Courts below.

According to the petitioner, the marital-tie ought to have been dissolved by way of Khula rather than on the ground of cruelty. A careful perusal of the plaint as well as the deposition of the respondent/plaintiff, recorded as PW-1, reveals that she has consistently and unequivocally narrated the facts and circumstances constituting the basis of her claim. She deposed that, during the initial period of the matrimonial relationship, the parties enjoyed a cordial and harmonious marital life. However, with the passage of time, the attitude and conduct of the petitioner underwent a marked change, whereafter he started quarrelling with her over trivial matters, subjecting her to verbal abuse, physical assault, and persistent mental and physical cruelty. According to the respondent/plaintiff, such maltreatment became a recurring feature of her matrimonial life. The respondent/plaintiff further asserted that the petitioner had developed illicit associations with other women, to which she repeatedly objected and requested him to desist from such conduct, but her efforts proved futile. She further deposed that on 02.05.2015, the petitioner forcibly turned her out of Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

the matrimonial home in the clothes she was wearing, without making any arrangement for her maintenance or shelter. The respondent also stated that, subsequently, she came to know that the petitioner had contracted a second marriage during the subsistence of their marriage, without her consent or permission. According to her, this act caused her immense mental agony and constituted one of the principal acts of cruelty upon which she sought dissolution of marriage.

11.Conversely, the petitioner/defendant levelled serious allegations against the respondent/plaintiff with regard to her character and personal conduct. According to him, the respondent was addicted to smoking cigarettes and consuming intoxicating pills. He further alleged that she has inflicted injuries upon herself by cutting her arms with a razor. It was his case that such conduct created an unbearable and unpleasant matrimonial environment, rendering the continuation of the marital relationship extremely difficult. The petitioner further asserted that the respondent was unable to bear any children and that, owing to the prevailing circumstances, he was constrained to contract a second marriage, which, according to Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

him, was solemnized with the consent of the respondent/plaintiff.

12.In view of the divergent stands taken by the parties, although the respondent/plaintiff was subjected to a lengthy and searching cross- examination, the tenor thereof reveals that she was primarily confronted with matters relating to the initial phase of her matrimonial life. Significantly, she was not cross-examined on the specific allegations of maltreatment and cruelty allegedly inflicted upon her, nor was she confronted with the grave and scandalous accusations levelled against her character, particularly the allegations that she was addicted to smoking cigarettes and consuming pills. It is also borne out from the record that, although the petitioner/defendant asserted that he had contracted a second marriage with the consent and permission of the respondent/plaintiff, however, he failed to produce any cogent, convincing, or legally admissible evidence in support of such assertion. A mere bald plea, unsupported by evidence, is of no legal consequence. It is further evident from the record that due to cruel behaviour of the petitioner/husband, the respondent/wife has allegedly tried to commit suicide. In these Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

circumstances, the findings concurrently recorded by the learned Family Court regarding the dissolution of marriage on the ground of cruelty are well-founded, based upon a proper appreciation of the evidence available on record, and, therefore, call for no interference in extraordinary writ jurisdiction of this Court. However, the mode of dissolution of marriage adopted by the learned Family Court requires separate consideration and shall be dealt with independently in the latter part of this judgment.

13.Now coming to the most crucial issue of jurisdiction of the learned two Courts below with regard to extension of the relevant family laws i.e.

DMMA, 1939 and MFLO, 1961, to the areas of FATA/PATA albeit at the time of passing of the impugned judgments and decrees. During the course of arguments, the learned counsel for petitioner/ defendant placed reliance upon the judgment of this Court rendered in case titled “Mst. Saima Gul & 03 others v/s Haider Zaman & 02 others” reported as PLD 2015 Peshawar 14, wherein it was held that whenever a new legislation is enacted, it does not automatically extend to the erstwhile FATA/PATA unless such extension is made Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

through a competent legislative enactment or by issuance of a notification in the official Gazette by the competent authority. As against this, learned counsel for the petitioner was confronted with the provisions of the DMMA, 1939 itself, which expressly stipulate that the Act extends to the whole of Pakistan and applies to Muslims residing therein.

He was, therefore, called upon to explain how the said statutory provision could be reconciled with the contention that the Act was inapplicable to the erstwhile FATA/PATA at the relevant time. There is no cavil with this settled proposition of law that in respect of the erstwhile FATA/PATA, a statute would not become enforceable unless it was specifically extended to those areas by the competent authority through the prescribed legal mechanism. Consequently, prior to such extension, the Courts functioning in those areas could not assume jurisdiction under such enactments.

Relevant parts of the ibid judgment of Mst. Saima Gul Supra, relate to the issue-in-hand are reproduced as under:-

“18. The Dissolution of Muslim Marriages Act, 1939 is not so far applied to the Provincially Administered Trible Areas (thereafter PATA) as well the Muslim Family Laws Ordinance 1961; all the family cases shall be dealt purely under the Mohammadan Law.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

24.The petitioner has arranged a second marriage, though without the permission of the respondent, but as the Muslim Dissolution of Marriages, Act and Muslim Family Laws Ordinance have not been applied to the PATA, and the respondent could not be granted decree of her dissolution on the ground of 2nd marriage, being she herself, opted to invoked the jurisdiction of the Family Court, established in the PATA, but as from the facts and circumstances of the case, when both the spouses, could not live within the limits of God, as ordained, and no one out of both the spouses, is ready either to divorce or to take Khula', in such circumstances, this Court has left with no other option to partially accept both these Writ Petitions, modify the impugned judgments and decree of learned Lower Courts to the extent that the marriage between the parties shall stand dissolve but on the basis if Khula'. The petitioner (wife) is not entitled to demand further for the 8 tola unpaid, Haq Mahr, outstanding against the respondent (Husband) and likewise the respondent is not entitled to receive back the 7 tola gold, and the one plot/price of land fully described thereof in the dower deed dated 4-5-2002 being already given to the petitioners. Rest of the impugned judgment shall stand intact and the respondent is liable to pay the maintenance allowance @ Rs. 2000 per month from the date of institution of the suit till the expiry of the "Iddat" period for petitioner (wife) while have to pay regularly the maintenance allowance Rs.1500/- per month per child at the same terms and conditions as decreed by the learned Lower Appellate Court. All these two Writ Petitions are disposed of in the above-mentioned terms.”

Reference can also be made to the

earlier judgment of this Court, delivered in the case of “Sadbar Khan v/s Amir Hussain & another” reported as PLD 1995 Peshawar 14, wherein it was expounded that any law or act of Provincial Assembly could not be extended to Tribal Area by an independent notification by the Governor in the manner required by Article 247 (3) of the Constitution of Pakistan, 1973. Where no such notification had been issued by the Governor, no law or Act of Provincial Assembly or amendment in Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

any law would be extended to such area. In the case of “Sarfaraz Khan v/s General Manager, English Soap and Cosmetic Company, Swat” reported as 2003 PLC 272, it was held by this Court that in absence of extension of Ordinance of 2002 to the Provincially Administered Tribal Areas presumption would be that the extension of the Industrial Relations Ordinance, 1969 to the Provincially Administered Tribal Areas had not been repealed and was still in the field.”

In context of the case in hand

admittedly the family suit was instituted by the respondent/plaintiff in District Swat in the year 2018 and was decided by the learned Family Court on 26.02.2021. Equally undisputed is the fact that the petitioner contracted the impugned second marriage in the year 2014. Therefore, even if it is assumed, for the sake of argument, that the DMMA, 1939 and the MFLO, 1961 had not yet been extended to the erstwhile PATA at the time when the second marriage was contracted, no statutory prohibition under the said enactments could have operated against the petitioner on the date of the alleged act. Even otherwise, although the statutory consequences envisaged U/S 6 of the MFLO, 1961 Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

regarding polygamy may not be attracted in the peculiar facts of the present case owing to the non- extension of the said law to the erstwhile FATA/PATA at the relevant time, however, the petitioner's second marriage cannot be viewed in isolation from its consequences. It is a settled principle of law that, unless expressly provided otherwise, every statute is presumed to operate prospectively and not retrospectively. A person cannot be visited with adverse civil or penal consequences on account of an act which was not prohibited by law at the time of its commission.

Therefore, if the petitioner's second marriage was not legally prohibited under the applicable statutory regime prevailing in the year 2014, the mere subsequent extension of the relevant family laws could not retrospectively render that act unlawful or constitute, by itself, a statutory ground for dissolution of marriage. In this regard, I am fortified to place reliance on the judgment of august Supreme Court of Pakistan, rendered in case titled “Mst. Sarwar Jan & others v/s Mukhtar Ahmad & others” reported as PLD 2012 S.C. 217, wherein it was held that statute or a provision thereof forming part of substantive law, if created or Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

extinguished or affected rights of person, would ordinarily have a prospective effect except where same was made applicable by clear command of law. Reference can also be made to the judgment of Hon’ble Lahore High Court, rendered in case titled “Muhammad Afzal, Ex-Assistant Sun-Inspector v/s Senior Superintendent of Police, Operation, Lahore & 04 others” reported as PLD 2005 Lahore 377, wherein it was held that no law would authorize punishment of a person for an act, not punishable at the time of its commission. In the case of “Captain S.M. Aslam v/s State & 02 others” reported as PLD 2006 Karachi 211, in respect of prospective application of law, it was expounded by his Lordship that contention that the Illegal Dispossession Act, 2005, was retrospective as it did not provide for its prospective application, was not only fallacious against the settled principles of law but also against the provisions of Art. 12 of the Constitution, which had specifically protected against retrospective punishments. Similarly, in case titled “The State/Anti-Narcotics Force, Ministry of Interior Narcotics Control, through Deputy Director (Law), Karachi v/s Parvez Hussain Haravi & another” reported as PLD 2017 Sindh Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

140, it was held by the Hon’ble Sindh High Court that Control of Narcotic Substances Act, 1997 had no retrospective effect and was only prospective in nature. General principle was enshrined in Art. 12 of the Constitution, which provided that no law would authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission. Exception to such general rule might exist, but the same were rare and generally applied when the retrospective effect had been provided specifically in the statute, being a clear manifestation of the intention of the Legislature.

Nevertheless, the matter does not

conclude there. Although the second marriage, viewed in isolation, may not constitute a statutory violation owing to the non-extension of the relevant family laws at the material time, the consequences flowing from such marriage upon the respondent/ plaintiff stand on an altogether different footing.

The emotional trauma, humiliation, mental agony and psychological distress suffered by a wife as a consequence of her husband's second marriage constitute an independent species of cruelty. Such cruelty is not dependent solely upon the statutory Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

prohibition contained in the MFLO, 1961 but is capable of furnishing a separate and distinct ground for dissolution of marriage. In this regard, reference may profitably be made to the recent judgment of the august Supreme Court of Pakistan, rendered in case titled “ Dr. Seema Hanif Khan v/s Waqas Khan and other” reported as PLD 2026 Supreme Court 91, wherein it has been observed that a husband's second marriage, particularly without the consent of the existing wife, subjects her to severe emotional and psychological suffering amounting to cruelty. Mental torture, emotional distress, neglect and conduct causing loss of trust and insecurity to the wife are also sufficient to constitute legal cruelty. That cruelty u/s 2(viii) of the Dissolution of Muslim Marriages Act, 1939, is of wide scope and is not confined to physical violence alone. It includes any conduct, physical, mental, or emotional, which makes the marital life intolerable, or unsafe for the wife. It was held that the determining factor is the effect of the husband’s behaviour, and whether it renders continuation of the marriage unreasonable or incompatible with dignity and security. Equally settled is the principle that proof of physical violence is not a sine-qua-non Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

for dissolution of marriage on the ground of cruelty.

Reference can be made to the judgment of august Supreme Court of Pakistan, rendered in case titled “Mst. Tayyeba Ambareen and another v/s Shafqat Ali Kiyani and another” reported as 2023

SCMR 246.

Consequently, while this Court is

unable to endorse the reasoning adopted by the learned Family Court to the extent that the petitioner's second marriage, per se, constituted a statutory ground for dissolution of marriage under the family laws which, at the relevant time, had not been extended to the erstwhile PATA, however, the inevitable mental cruelty and emotional trauma resulting from that conduct independently furnish a valid legal basis for dissolution of marriage. In other words, although the statutory consequences of the second marriage may not retrospectively attach to the petitioner's act, the cruelty emanating from the impact of that conduct upon the respondent/plaintiff remains a legally sustainable ground for dissolution of marriage.

14.Now coming to the contention that no specific issue regarding cruelty was framed by the Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

learned Family Court, is equally devoid of any substance. The record unmistakably demonstrates that the parties were fully conscious of the controversy relating to cruelty and led their respective evidence thereon without any objection.

The object of framing issues is to identify the real controversies arising from the pleadings of the parties, and where the parties have gone to trial fully aware of those controversies and have adduced evidence thereon, the absence or defective framing of an issue does not occasion a failure of justice. In the present case, the respondent/plaintiff had specifically pleaded various acts of cruelty, including mental and physical maltreatment, as well as the petitioner's contracting of a second marriage.

Both parties led evidence with full knowledge of these pleadings and extensively cross-examined each other's witnesses on the relevant aspects.

Consequently, the omission to frame a separate issue on cruelty neither prejudiced the petitioner/ defendant nor took him by surprise, as the entire trial proceeded with full awareness of the controversy involved. In case titled “Muhammad Ibrahim (deceased) through LRs and another v/s Taza Gul & others” reported as 2020 SCMR Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

2023, it was held by the august Supreme Court of Pakistan that framing or non-framing of issue could not be a ground for reversing the judgment and decree of any court and a party could not pray for remand of the matter at a later stage on the basis that any issue which was required in accordance with the pleadings of the parties was not framed.

Evidence of the parties was to be led in accordance with the pleadings. Moreover, it was not a legal defect if any specific issue was not framed and party claiming that issue did not agitate the matter for decades, and also if the language of existing issues was not in accordance with the wishes of any of the parties. Party had to prove the case pleaded by it through oral as well as documentary evidence, therefore, framing of any specific issue or non- framing thereof did not prejudice the case of the party in any manner unless the party claiming a fresh issue had raised its voice at the time of framing of issues and claimed specific prejudice for non-framing of the issue and prima facie its claim was borne out from the record and in the upper fora the party was continuously raising such issue.

15.For the foregoing reasons, this Court finds no legal infirmity, jurisdictional defect, or Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

material irregularity in the conclusions arrived at by the learned family Court except the slight thin-line in respect of the mode of dissolution of marriage.

The findings recorded by the learned appellate Court are well-reasoned, based upon a proper appreciation of the pleadings and evidence available on record, and are fully in consonance with the settled principles of law. Accordingly, save to the limited extent already modified hereinabove with regard to the reasoning concerning the effect of the petitioner's second marriage, the impugned judgments and decrees call for no interference in the exercise of constitutional jurisdiction.

16.As a necessary corollary to the above discussion and exposition of law, the concurrent finding of the learned Courts below that the respondent/plaintiff was entitled to dissolution of marriage is maintained. However, the reasoning adopted by the learned Family Court, insofar as it treated the petitioner's second marriage, by itself, as a statutory ground for dissolution of marriage under the DMMA, 1939 and the MFLO, 1961, is modified and set aside, keeping in view the legal position regarding the non-extension of the said enactments to the erstwhile PATA at the relevant time. The Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

decree of dissolution is, nevertheless, sustained on the independent ground that the petitioner's conduct in contracting a second marriage inflicted serious mental cruelty and emotional suffering upon the respondent/plaintiff, which, in itself, constitutes a legally recognized ground for dissolution of marriage. The discussion regarding the prospective operation of statutes and the settled principles governing retrospective application of laws shall further reinforce this conclusion.

17.The instant writ petition stands dispose of in the above terms.

18.Needless to observe that the remaining findings and decrees recorded by the learned Courts below, including those relating to the recovery of dower (Haq-e-Mehr), maintenance allowance, dowry articles, and the dismissal of the petitioner's/ defendant's claim for restitution of conjugal rights, suffer from no legal infirmity. The same are, therefore, affirmed and maintained.

Announcement Dt: 11.5.2026 -Sd-

JUDGE

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din