Tahir Zeb Vs Mst. Bakht Mina Shah Alias Maham & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Writ Petition No. 96-M/2025

Tahir Zeb Versus.

Mst. Bakht Mina Shah alias Maham and others Present:

Mr. Iftikhar Ahmad (Senior), Advocate for petitioner.

Barrister Dr. Adnan Khan and Aftab Ahmad, Advocate for respondents No.1 to 3.

Date of hearing: 11.12.2025

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- The petitioner has called in question the judgment and decree dated 21.12.2024, passed by the learned Additional District Judge-II/Izafi Zilla Qazi, Swat maintaining the order dated 20.03.2024 of the learned Civil Judge-II/Family Court vide which the ex parte decree was set aside except the dissolution of marriage which was kept intact.

2.Briefly stated, the facts of the case are that respondent No.1/wife instituted a family suit against the petitioner/husband seeking relief of recovery of dower, gold ornaments, a sum of Rs.4,694,470/- on account of dowry articles, Rs.115,000/- in cash, maintenance to the tune of Rs.200,000/-, recovery of hostel expenses amounting to Rs.300,000/- borne by her parents at the rate of Rs.20,000/- per month, recovery of passport, and Tajamul/CS | (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

dissolution of marriage on the ground of cruelty.

According to her assertion, the petitioner had released her from the bond of marriage through Talaq conveyed via phone, the Shari status whereof was affirmed through Fatwas issued by religious scholars. The petitioner was initially served through ordinary process and, thereafter, through affixation as well as mobile phone; however, he failed to appear before the trial Court and was consequently proceeded ex parte. Evidence of the respondent/plaintiff was recorded, and after hearing arguments of her counsel, the suit was decreed ex parte as prayed for vide judgment and decree dated 28.11.2023.

The petitioner has further averred that upon acquiring knowledge of the ex parte decree on 10.12.2023, he moved an application, on 03.01.2024, for setting aside the same.

The application was contested by the respondent/plaintiff, and upon hearing the parties, the learned trial Court vide order dated 20.03.2024 partially accepted the application by setting aside the ex parte decree, except the relief of dissolution of marriage already granted to plaintiff, which was kept intact. Being aggrieved, the petitioner preferred an appeal, which was dismissed vide judgment and decree dated 21.12.2024 by the learned appellate Court, concurring with the findings of the learned trial Court and Tajamul/CS | (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

maintaining the dissolution of marriage. In the above context, the petitioner has invoked the constitutional jurisdiction of this Court through the instant petition.

3.Learned counsel for the petitioner contended that the respondent/plaintiff had sought inter alia the decree of dissolution of marriage on the basis of cruelty which was ex parte decreed by the trial Court. He adds that the remaining ex parte decree was subsequently set aside by the trial Court, however, the ex parte decree of dissolution of marriage was illegally kept intact which had been granted on the basis of cruelty. He states that the factum of cruelty alleged by the respondent/plaintiff was a question which should have been resolved after recording pro and contra evidence which exercise was not allowed in utter violation of the principles of natural justice.

4.Conversely, learned counsel for the respondent/ plaintiff contended that the issue of dissolution of marriage is a past and closed chapter as iddat period of the divorced wife has already expired. He further contends that both the Courts below have granted relief to the petitioner by setting aside the remaining ex parte decree, therefore, the revival of the issue of dissolution of marriage is not warranted under the law.

5.Arguments heard and record perused.

Tajamul/CS | (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

6.The record reflects that the respondent/plaintiff had sought several reliefs in her plaint inter alia dissolution of marriage on the ground of cruelty, asserting that the petitioner had subjected her to mental torture and had failed to provide maintenance, medical expenses, and payment of the remaining dower. It is an admitted position that the learned trial Court accepted this assertion and granted a decree for dissolution of marriage ex parte on the ground of cruelty. The remaining decree was subsequently set aside on application of the petitioner, however, this part of the decree (dissolution of marriage) was subsequently maintained by both the Courts below, primarily on the premise that the iddat period of the respondent/plaintiff had already expired and, therefore, the dissolution of marriage could not be reversed. This state of affairs, however, gives rise to a short yet significant legal question: while the dissolution of marriage may or may not have attained finality and may not be reversible owing to the expiry of the iddat period, the mode and basis of such dissolution namely, whether it was on the ground of cruelty or by way of khula remained a distinct and independent matter requiring lawful determination.

Regrettably, this crucial aspect appears to have been overlooked by both the Courts below. In this context, there is considerable force in the contention of the learned Tajamul/CS | (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

counsel for the petitioner that maintaining the decree of dissolution of marriage on the ground of cruelty, without requiring the respondent/plaintiff to substantiate the allegation through cogent evidence and without allowing the petitioner to rebut the same by leading his own evidence, was contrary to the settled principles of law and fair trial. This Court finds itself in agreement with the said contention and holds that although the dissolution of marriage between the parties may not be done away with, the basis upon which such dissolution rests necessarily calls for judicial determination in accordance with law.

The necessity of such determination assumes added significance in view of the respondent/plaintiff’s claim for recovery of outstanding dower. She has asserted that the marriage was contracted in consideration of 50 tolas of gold as dower, out of which 251⁄2 tolas were paid, 51⁄2 tolas were stated to be in possession of the petitioner/defendant, while the remaining 19 tolas allegedly remained unpaid.

The entitlement to, and the quantum of, dower payable cannot be conclusively adjudicated without first determining the mode of dissolution of marriage, as the legal consequences flowing from dissolution on the ground of cruelty materially differ from those arising out of dissolution by way of khula. Since the remaining part of the decree has already been set aside by the learned trial Tajamul/CS | (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Court, the question regarding the mode of dissolution of marriage also warrants determination afresh in the light of evidence to be produced by the parties, which opportunity has yet to be availed during the trial proceedings. In the absence of such determination, the findings recorded by the Courts below on the issue of dissolution of marriage cannot be sustained in the manner as has been dealt with by the two Courts below.

7.In view of the foregoing discussion, this writ petition is disposed of with the direction that both the parties shall be afforded fair and meaningful opportunity to produce their evidence on the issue of cruelty. Upon completion of the evidence of both sides, if the learned trial Court arrives at the conclusion that the respondent/ plaintiff has successfully established the allegation of cruelty and/or other such grounds listed in her plaint through cogent and reliable evidence, the dissolution of marriage shall be maintained on that ground.

Conversely, if the learned trial Court finds that the respondent/plaintiff has failed to substantiate her plea of cruelty, the mode of dissolution of marriage shall be decided accordingly by recording specific and reasoned findings to that effect. Based on that determination/ conclusion, the learned trial Court shall decide the remaining contested issues, including the claim relating to Tajamul/CS | (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

dower, strictly in accordance with law and on the basis of the evidence so recorded.

Annou nced Dt:10.11.2025

Sd/-

JUDGE

Tajamul/CS | (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah