Mst. Nighat Bibi Vs Shahi Dildar & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No. 1765-M/2025 Mst. Nighat Bibi vs. Shahi Dildar & others

For petitioner(s) Mr. Asghar Ali Advocate For respondents Mr. Ali Namdar Khan Advocate Date of hearing 10.09.2026

JUDGMENT

Dr. Khurshid Iqbal, J.-

1.Through the present constitutional petition under Article 199 of the Constitution, Mst. Nighat Bibi (the petitioner/wife) calls in question the judgment and decree the learned Appellate Court passed on dated 18.12.2025 in a family dispute against Shahi Dildar (respondent No.1/husband). The learned Family Court had dissolved the marriage on the ground of cruelty and granted relief concerning dower, maintenance and dowry articles. The Appellate Court reversed the finding on cruelty and the dissolution founded upon it, reduced the dower decree from ten to seven tolas of gold ornaments, and set aside the decree for past maintenance, while maintaining the adjudication concerning dowry articles. The questions raised are whether that appellate intervention was within jurisdiction, whether the evidence sustained dissolution on cruelty, and whether the consequential determinations respecting dower, maintenance and dowry disclose an error warranting constitutional interference.

2.The petitioner instituted her plaint on 12.09.2022. She pleaded that the parties had married approximately three years earlier and that ten tolas of gold ornaments were fixed as her dower, which, according to her, remained unpaid. She claimed that her parents had provided dowry articles valued at Rs.5,34,600/- on the occasion of rukhsati and that those articles remained with the respondent. She alleged that his conduct had been harsh from the beginning of matrimonial life, that he subjected her to cruelty, and that he had failed to maintain her for the preceding seventeen months. Her prayers were for dissolution of marriage on the ground of cruelty, recovery of ten tolas of gold as dower, restoration of the dowry articles and maintenance at Rs. 5,000/- per month with effect from 01.02.2021.

3.Respondent No.1 resisted the suit by a written statement. He denied the allegations of cruelty and pleaded that the full dower had Page 1 of 11

already been paid. He further alleged that, while her marriage with him still subsisted, the petitioner contracted another Nikah with one Saqlain Mushtaq in Punjab. Notably, his written statement contained no prayer or counterclaim for restitution of conjugal rights. Such relief was mentioned for the first time in the memorandum of appeal, notwithstanding his assertion there that it had been sought at the trial. The distinction between a defence against dissolution and an affirmative claim for restitution is material to the procedural controversy presently raised.

4.The Family Court framed issues covering cruelty, dower, maintenance, dowry articles and the alleged second marriage. The statutory attempts at reconciliation did not succeed. The parties thereafter led their respective evidence. By judgment and decree dated 25.02.2025, the learned Family Court dissolved the marriage on the ground of cruelty; decreed ten tolas of gold ornaments as dower; ordered return of the dowry articles specified in the list except the articles at serial Nos. 7, 8, 10, 16, 18, 22, 24, 25 and 27; and granted maintenance at Rs. 5,000/- per month from 01.02.2021 until completion of the period of iddat. The trial Court reasoned, in substance, that respondent No.1 had not proved payment of dower and that the petitioner leaving of the matrimonial home was attributable to domestic violence by the respondent. It also took note of a criminal case registered by the petitioner's father against Saqlain Mushtaq and an ex parte decree for jactitation of the purported second marriage obtained by the petitioner.

5.In appeal, the respondent principally questioned dower, maintenance and the associated reliefs, but did not distinctly assail, in the memorandum of appeal, the decree of dissolution on cruelty as an independent ground. Although he requested restitution of conjugal rights, the learned Appellate Court declined to adjudicate that affirmative relief because it had never formed part of the written statement or the trial. Nevertheless, treating the appeal as a continuation of the original lis and referring to Order XLI, rule 2, of the Code of Civil Procedure, 1908, it reconsidered the finding on cruelty. It concluded that the petitioner's dealings with Saqlain Mushtaq and her departure from the matrimonial home undermined the allegation that respondent No.1 had compelled her to leave due to cruelty. It consequently set aside the dissolution on that ground. The Appellate Court also treated three tolas of gold mentioned in the petitioner's testimony as already received on account of dower and decreed the balance of seven tolas. It denied past maintenance but affirmed the decree relating to the remaining dowry articles. The result was the continuance of the original matrimonial tie as an incident of reversal of Page 2 of 11

the decree of dissolution, not the grant of a separate decree for restitution.

6.Mr. Asghar Ali, learned counsel for the petitioner, contended that the Appellate Court could not reopen the entire dispute when the dissolution decree had not been specifically challenged and when respondent No.1's request for restitution of conjugal rights was itself procedurally incompetent. In this regard, learned counsel relied upon the judgment of the Hon’ble Supreme Court in Province of Khyber Pakhtunkhwa through the Secretary, Forest/Environment Department, Peshawar and others v. Sher Muhammad and others, (Civil Appeal No. 328 of 2018, decided on 14.05.2026, approved for reporting). He argued that the allegation of cruelty had been proved before the Family Court, that all ten tolas of dower remained recoverable, and that the three tolas referred to by the petitioner were parental ornaments, not part payment of dower. He accordingly sought reversal of the appellate judgment in relation to cruelty, dower and maintenance.

7.Mr. Ali Namdar Khan, learned counsel for the respondents, supported the Appellate Court's assessment of the evidence and submitted that cruelty had not been established when the parties' entire matrimonial circumstances were considered. He particularly relied upon the petitioner's admissions concerning contact and subsequent stay with Saqlain Mushtaq. The learned counsel did not challenge or advance any substantial argument against the direction requiring respondent No.1 to pay the remaining seven tolas of dower. Nor has respondent No.1 brought a separate constitutional petition challenging that monetary obligation.

8.This court heard the learned counsel for the parties and examined the record with their assistance. Constitutional scrutiny under Article 199 is not a second appeal on facts. Where a competent appellate forum has evaluated relevant evidence, this Court ordinarily does not replace a possible factual inference with another merely because a different conclusion might also be drawn. Intervention remains justified where a material piece of evidence has been overlooked or misread, a statutory limitation has been disregarded, an irrelevant consideration has controlled the result, or the conclusion is manifestly arbitrary or legally unsustainable. In matrimonial litigation, that discipline is particularly important because the decision affects not merely competing financial claims but the legal status, security and dignity of the spouses.

9.The first question is one of appellate competence. Section 14 of the West Pakistan Family Courts Act, 1964, as applicable, confers a statutory right of appeal subject to the exceptions stated therein. Clause (a) of subsection (2) must be read with section 2(viii)(a) of the Dissolution of Muslim Marriages Act, 1939, which concerns habitual Page 3 of 11

assault or conduct making a wife's life miserable even without physical ill-treatment. In Fazal Rahman and others v. Mst. Fahmida and others, (PLD 2022 Peshawar 1), this Court explained the restricted character of the statutory exclusion and recognized the appellate forum's competence in the circumstances contemplated by that exception, including determination of the legal basis of dissolution and connected claims for dower. Thus, the mere fact that a Family Court has pronounced upon cruelty does not, of itself, place every associated finding beyond permissible appellate scrutiny.

10.In Ghulam Qadir and others v. Sh. Abdul Wadood and others (PLD 2016 Supreme Court 712), the Hon'ble Supreme Court explained the wider character of an appeal as a continuation of the original proceedings, distinct from the narrower supervisory ambit of revision. That general statement must, however, be applied subject to the governing special statute. Likewise, Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another (2023 SCMR 246) demonstrates that appellate examination of the mode and factual basis of dissolution must proceed through reasoned assessment of the evidence, not assumptions or prejudicial impressions. The appellate process is not rendered powerless merely by an imperfectly framed ground when the determination challenged is inseparably connected with the decree under examination; equally, it is not a licence to confer substantive relief never sought or tried. The judgment in case of Sher Muhammad (supra), relied upon by learned counsel for the petitioner, arose from a civil dispute and concerned the limits of granting substantive relief beyond the pleadings at appellate stage. It is distinguishable on that basis from Mst. Tayyeba Ambareen (supra), which specifically examines the scope of appellate reappraisal in matrimonial proceedings and the circumstances warranting interference with the trial Court's findings.

11.The reference by the learned Appellate Court to Order XLI, rule 2, C.P.C., is accordingly to be understood as illustrative of appellate practice rather than the source of an unrestricted substantive power. Section 17 of the Family Courts Act excludes the strict application of the ordinary civil procedure and evidence regimes to family proceedings, without extinguishing the obligation to act fairly, within jurisdiction, and upon an intelligible appraisal of the record. Respondent No.1 could not, by describing a new prayer in the memorandum of appeal as an earlier pleading, obtain an original decree for restitution of conjugal rights. The Appellate Court rightly refrained from granting that prayer. Its separate examination of the ground of cruelty, however, was not for that reason alone ultra vires. The petitioner must still show that the appellate determination itself transgressed the governing law or manifestly misread the material evidence.

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12.This brings the discussion to cruelty. Section 2(viii)(a) of the Dissolution of Muslim Marriages Act, 1939, expressly contemplates cruelty consisting of habitual assault or of conduct which makes the wife's life miserable even when it does not amount to physical ill- treatment. The inquiry is therefore not confined to injuries verified by a medical certificate. It may include sustained intimidation, humiliation, coercion and other conduct which, examined in context, makes continued marital life unreasonable. In Mst. Tayyeba Ambareen (supra), the Hon'ble Supreme Court emphasized that mental and physical cruelty alike require examination of the matrimonial relationship as a whole, the nature and intensity of the alleged conduct and its effect upon the affected spouse. In Dr. Faryal Maqsood and another v. Khurram Shehzad Durrani and others (PLD 2025 Supreme Court 262), the Court cautioned that an adjudicatory forum cannot substitute its own findings on a disputed factual ground for evidence not recorded or sufficient reasoning not given.

13.These principles require two corresponding precautions. First, cruelty is capable of proof through credible personal testimony and the surrounding circumstances; it is neither lawful nor realistic to make independent eyewitnesses or physical injuries indispensable in every matrimonial dispute. Second, an allegation of cruelty, however serious, cannot be accepted simply because it is asserted. The decision must identify the conduct complained of, evaluate the witnesses and the probabilities, and explain the causal connection between that conduct and the breakdown or termination of cohabitation. The civil standard is one of the balance of probabilities; proof beyond reasonable doubt is not required.

14.The petitioner testified to harsh treatment by respondent No.1, and her father and brother supported her plea in their respective depositions. The trial Court accepted this evidence as establishing domestic violence and consequent departure. Yet, on appraisal of the testimony described in the record, the appellate Court found the account insufficiently particularized as to acts and circumstances capable of establishing cruelty under the statutory test. Respondent No.1 entered the witness box as DW-1, denied having treated the petitioner cruelly and rejected the suggestion that she had left the matrimonial home because of his conduct. The record, as assessed by the Appellate Court, disclosed no material discrediting his denial on that particular issue. This divergence in appreciation called for examination of the petitioner's own cross-examination, without disregarding the possibility that abuse may take place privately.

15.Under cross-examination, the petitioner admitted having telephone contact with Saqlain Mushtaq, whom she described as a person who had initially been teasing her. She acknowledged that the Page 5 of 11

initial contact was followed by regular telephone communication. She denied contracting a Nikah with him. When confronted with the family suit she had instituted for jactitation of that alleged marriage, however, she identified her signature upon the pleading. The suit for jactitation had been decreed ex parte in her favour by the Family Court at Khwazakhela. She explained that Saqlain Mushtaq had obtained her signature on a blank paper and deceived her; she also acknowledged having attended Court in that litigation. The existence of the jactitation decree is therefore an established procedural fact, while the nature of the underlying relationship must be judged from evidence, not by treating the respondent's allegation of a second Nikah as an adjudicated truth.

16.The petitioner further stated that she had spent about three months with Saqlain Mushtaq, but asserted that he had confined her in a room and that her father had secured her release. She alleged that he had taken away three tolas of her gold ornaments, which she attributed to her parents. She was unable to recall the exact time when she left her home to meet him. She nevertheless admitted travelling from Khwazakhela to Mingora and then onward to Pindi, carrying a bag, and that from the bus stand Saqlain Mushtaq took her to his house. Her father, examined as PW-2, acknowledged the jactitation proceedings, in which he was a witness, and stated that he had brought her back from Hafizabad, Punjab. The trial Court also recorded that the father had lodged a criminal case against Saqlain Mushtaq. The record presently described does not disclose the result of that criminal case, and no further outcome can be presumed.

17.These circumstances require careful distinction. Telephone communication, travel, or a period of stay with another person cannot in law be treated as conclusive proof of a consensual second marriage, nor can they negate an allegation of confinement or deception without inquiry. The decree for jactitation, albeit ex parte, likewise cannot simply be ignored when assessing the husband's allegation of a second Nikah. Conversely, the jactitation decree does not establish that respondent No.1 subjected the petitioner to cruelty. The factual question relevant to dissolution remains whether this respondent committed conduct falling within section 2(viii)(a) and whether that conduct was proved upon the record. Equating the petitioner's personal circumstances or perceived moral conduct with the absence of cruelty would be a serious misdirection.

18.Having applied that distinction, this Court finds no sufficient ground under Article 199 to disturb the Appellate Court's ultimate conclusion on cruelty. The petitioner and her relatives asserted harsh treatment, but the evidence as evaluated did not establish with sufficient clarity the specific course of conduct and its connection with Page 6 of 11

her departure. Her account of the circumstances of leaving and subsequent events required cautious appraisal; the evidence of respondent No.1 disputing cruelty remained materially intact. The appellate conclusion is sustainable, not because association with Saqlain Mushtaq proves fault or deprives the petitioner of legal protection, but because the affirmative statutory ground of cruelty was not satisfactorily made out on the totality of evidence. A finding rejecting proof of cruelty does not amount to a finding validating the alleged second marriage or rejecting, as a matter of law, the petitioner's account of coercion by Saqlain Mushtaq.

19.The effect of setting aside the decree of dissolution should also be stated precisely. The parties' original Nikah continues in law to the extent that the trial Court's dissolution decree no longer operates, unless and until the marriage is otherwise brought to an end by a mode recognized by law. This is not an enforceable decree compelling the petitioner to resume cohabitation, nor does it adjudicate any future or independent proceeding concerning marital status. In particular, respondent No.1's unpleaded request for restitution of conjugal rights has not been granted.

20.Turning to dower, there is no dispute that ten tolas of gold ornaments were fixed as the consideration of marriage. The Nikah Nama records that amount without specifying a division between prompt and deferred dower or a distinct mode of payment. Dower is the wife's proprietary entitlement, not an optional promise. As explained in Muhammad Yousaf v. Huma Saeed and others (2024 SCMR 1078), the recorded terms of Nikah and dower are to be interpreted in accordance with their purpose and the parties' intent, while protecting the wife's proprietary rights. Section 10 of the Muslim Family Laws Ordinance, 1961, provides that, where no mode of payment is specified, the entire dower is presumed payable on demand. The obligation to prove a pleaded discharge by payment lies upon the husband.

21.The learned Family Court accepted that respondent No.1 had failed to prove payment of the stipulated ten tolas. The learned Appellate Court, however, considered the petitioner's admission that she had possessed three tolas of gold ornaments, allegedly taken by Saqlain Mushtaq. It disbelieved her explanation that those three tolas were a separate gift from her parents because that particular assertion had not been pleaded in the plaint, the ornaments were absent from the dowry list, and no cogent independent basis for the claimed parental origin was established. On that combined appreciation of the competing versions, the Appellate Court treated three tolas as part satisfaction of the dower obligation and allowed the remaining seven tolas.

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22.The distinction must be maintained between proof of possession of ornaments and proof of their payment as dower: one does not inexorably establish the other. The absence of a parental-gift entry in a dowry list is a circumstance bearing upon credibility, not an irrebuttable presumption that the gold originated with the husband. The burden of proving discharge of dower remains upon respondent No.1. Nevertheless, the Appellate Court's partial-credit finding rested on its assessment of the petitioner's admissions in the context of the husband's assertion of payment and the absence of a pleaded or otherwise substantiated separate source of the admitted ornaments. Having regard to the limited ambit of Article 199, and there being no material before this Court demonstrating a manifest misreading sufficient to displace that factual assessment, the award of seven tolas is maintained. This conclusion is confined to the present record and must not be understood to create a general rule that every ornament possessed by a wife is presumed to be dower.

23.The balance of seven tolas of gold ornaments thus remains recoverable from respondent No.1 as unpaid dower and, in terms of section 10 of the Ordinance of 1961, is payable on demand. If the decree is satisfied by delivery of gold ornaments of the decreed weight, the obligation stands discharged accordingly. If delivery cannot be made and monetary satisfaction is required, the governing principle stated in Mst. Ayesha Shaheen v. Khalid Mehmood and another (2013 SCMR 1049) is that a decree for gold or its alternate market value must be implemented so as to enable the decree-holder to procure the equivalent gold at the relevant time of payment; the valuation must not be frozen at an outdated figure that defeats effective restitution. The respondent has neither brought his own constitutional challenge against the seven-tola decree nor sought its disturbance here.

24.The petitioner's claim to maintenance at Rs. 5,000/- per month from 01.02.2021 until completion of iddat, as decreed by the trial Court on 25.02.2025, requires separate legal treatment. Maintenance during a subsisting marriage is a legal obligation of the husband; it cannot be made a discretionary reward for conformity with subjective expectations of obedience. The Hon'ble Supreme Court in Dr. Seema Hanif Khan v. Waqas Khan and others (reported as 2025 SCP 392; also PLD 2026 Supreme Court 91) warned against resolving maintenance claims through stereotypes or unproved conclusions of 'disobedience' or 'self-desertion', and required findings anchored in evidence, including the fact of payment or its lawful explanation. The earlier decision of this Court in Mst. Safina Noor v. Muhammad Ayub and others (2023 CLC 244) illustrates that past maintenance may fail where the fact of unjustified separate residence is affirmatively established on the evidence; it does not authorize an automatic forfeiture merely because the wife has left the matrimonial home.

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25.Tested by that standard, the record does not justify the trial Court's conclusion that the petitioner had established a right to the whole of the claimed arrears solely upon its finding of cruelty, which has not survived appellate review. The claimed period commenced on 01.02.2021; the petitioner alleged seventeen months of non- maintenance and attributed her separate residence to the respondent. The Appellate Court, however, found the causal allegation unproved upon considering her cross-examination, the circumstances of her departure and respondent No.1's evidence. The order refusing arrears is maintained as a conclusion confined to the pleaded period and the evidence bearing upon that particular claim, not as a sanction for her contacts with Saqlain Mushtaq or as a declaration that her independent dignity or freedom of movement defeats maintenance rights. The record as presented supplies no adequate foundation for determining a different period or quantifying any separate entitlement in this constitutional proceeding.

26.Equally, the finding on past maintenance does not extinguish the continuing incidents of a subsisting marriage. If the spouses resume matrimonial life, respondent No.1 remains bound to provide maintenance in accordance with law. Nothing herein determines any later or independently arising claim based upon subsequent neglect or justified separate residence; any such claim must be considered on its own pleaded facts and proof. The declaration made by the Appellate Court as to maintenance in the event of resumption of the matrimonial union is understood in that limited and lawful sense.

27.The dowry claim stands on a materially different evidentiary foundation. The parents of the petitioner were shown to have purchased articles for her upon rukhsati and to have delivered them to the matrimonial household, and the respondent admitted receipt of certain articles. It is settled that the existence of dowry cannot be rejected merely for want of a contemporaneous signed inventory or because the financial status of the bride's family is thought insufficient. In Mst. Sharaini Bibi and another v. Additional District Judge and others (2023 MLD 51), the Lahore High Court explained the evidentiary significance of rukhsati and ordinary matrimonial practice. In Muhammad Ikram v. Mst. Nabeela Nasim Cheema and others (2013 MLD 939), it was emphasized that the flexibility of family procedure does not relieve the Court of the obligation to screen the list and testimony for truthfulness and consistency. These principles support the concurrent findings to the extent of articles established through testimony, surrounding circumstances and admission.

28.The trial Court did not accept the dowry list mechanically. It excluded the articles appearing at serial Nos. 7, 8, 10, 16, 18, 22, 24, 25 and 27. That treatment reflected the evidence concerning articles not Page 9 of 11

proved, items purchased by the husband, and things consumed or used up in the ordinary course of married life. The record also disclosed contradictions concerning the asserted value of furniture. The Appellate Court retained the decree for the remaining articles, thereby preserving the petitioner's proprietary right while refusing to extend restitution to unproved or already consumed property. No ground has been shown for reopening those concurrent findings under Article 199.

29.The mode of satisfying the dowry decree nevertheless requires precision. A decree for return of movable property should ordinarily be discharged by delivery in specie of the very articles proved and still identifiable. The alternative monetary award is intended to compensate for non-delivery, not to provide a windfall or to allow the judgment- debtor to discharge the decree with valueless substitutes. Household furniture, furnishings and appliances, unlike gold, may deteriorate through ordinary use, and their condition and age materially affect valuation. Nor is it sound to assume that an article once owned or delivered has remained new throughout years of matrimonial life.

30.There is no fixed statutory percentage uniformly governing depreciation of household dowry articles. The determination must reflect the nature of each proved article, the period and intensity of its use, its remaining serviceability, the credible evidence of condition and a realistic contemporary market assessment. The need to allow for ordinary wear and tear is consistent with Tanveer Salamat v. Additional District Judge and others (2019 YLR 1862) and the evidentiary approach in Muhammad Ikram (2013 MLD 939). Therefore, the remaining articles shall first be returned if identifiable and available. For a proved article incapable of being returned, compensation shall be assessed by reference to its present market value after reasonable depreciation. As regards ordinary household articles established to have been in use throughout the matrimonial period, fifty percent of their present market value is adopted as an ordinarily appropriate assessment on the circumstances appearing in this record, subject to evidence demonstrating a materially different condition, durability or extent of use. It is a case-specific assessment, not an inflexible rule applicable to every article.

31.The net result is that the Appellate Court had jurisdiction to examine the finding on cruelty in the appeal before it, notwithstanding the inadequacy of respondent No.1's attempt to introduce an original claim for restitution of conjugal rights. Its rejection of the statutory ground of cruelty is sustainable on a reasoned appraisal of the evidence, without making any adverse legal presumption against the petitioner from her contacts with Saqlain Mushtaq. The seven-tola dower decree is maintained with the clarification that it is payable on demand and that, if monetary satisfaction becomes necessary, its alternative value Page 10 of 11

shall be determined consistently with the law governing decrees for gold. The rejection of the pleaded claim for past maintenance and the concurrent decree for the proved dowry articles are likewise maintained, with the foregoing clarification regarding restoration and depreciation.

32.Consequently, the constitutional petition is disposed of subject to the following clarifications: (i) the judgment and decree dated 18.12.2025 are maintained insofar as they reverse the decree of dissolution on cruelty, decree seven tolas of unpaid gold ornaments as dower, decline the claim for past maintenance and uphold recovery of the proved dowry articles; (ii) no decree for restitution of conjugal rights has been granted, and the parties' marital status remains subject to any otherwise valid dissolution recognized by law; (iii) respondent No.1 shall deliver the seven tolas of gold payable on demand or satisfy the obligation through its legally assessed alternate market value; (iv) the dowry decree shall extend only to the articles remaining after exclusion of serial Nos. 7, 8, 10, 16, 18, 22, 24, 25 and 27, with return in specie where possible and otherwise compensation upon the valuation principles stated above; and (v) upon resumption of matrimonial union respondent No.1 remains liable to maintain the petitioner in accordance with law, without prejudice to any separately maintainable future claim based upon its own facts. There shall be no order as to costs. Announced

(sd)

JUDGE

(S.B.): Justice Dr. Khurshid Iqbal

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