2026 PLP 474 (CLC)

MOHSIN AKHTAR KAYANI, J.

Through the instant writ petition, the petitioners have assailed the judgment and decree dated 31.05.2023, passed by learned Judge Family Court, Islamabad, whereby their suit for maintenance and recovery of personal belongings was partially decreed. They have also challenged the judgment and decree dated 27.04.2024, passed by learned Additional District Judge-II, Islamabad, whereby trial Court's judgment was partly upheld. The petitioners seek a decree for the full amount claimed in the original plaint.

2. Brief facts referred in the instant case are that petitioner No.1, Ayesha Qureshi, was married to Respondent Tauseef Javed Chaudhry on 30.12.2011, in accordance with Islamic rites, against a dower of Rs.50,000/- and 20 Tolas of gold ornaments. The gold ornaments were in a specific design described as prompt dower. Two daughters Petitioners Nos.2 and 3 were born on 13.04.2013 and 02.06.2018, respectively. According to Petitioner No.1's version in the plaint, the Respondent's behaviour remained harsh, cruel, abusive, and unbecoming of a responsible Muslim husband. He frequently used abusive language and subjected her to physical violence over petty household matters. Both families attempted reconciliation, but on 03.08.2021, the Respondent (husband) again physically assaulted Petitioner No.1. She called her parents for help, and when they arrived, the Respondent became enraged, used abusive language, assaulted the parents, forcibly took Petitioner No.2 with him, and drove away, leaving Petitioner No.1 with Petitioner No.3 at the matrimonial home.

3. The matter was reported to Police Station Airport, Rawalpindi, and Women Police Station, Civil Lines, Rawalpindi on 05.08.2021 and 08.08.2021, respectively, but to no avail. Subsequently, on 10.08.2021, the Respondent handed over Petitioner No.2 to the maternal grandmother. Thereafter, a suit for maintenance and recovery of personal belongings was filed by the petitioner on 02.01.2021. The relief claimed is detailed in Paragraph 10, which is as under:

10. That apart from the car and dowry articles the following personal belongings/articles are lying with the defendant at his house. i. Saudi Riyal 3000/- (three thousand), which is part of the amount received by plaintiff No.1 as General Provident Allowance from her office when she left job. ii. Rs.5,075,000/- (Five Million Seventy Five Thousand) as the amount of the plot in Gulberg Greens, Gulberg Islamabad possessed by Plaintiff 1, acquired during her job prior to marriage, which was sold by the defendant as attorney of plaintiff

1. The sale deed is attached for assistance and perusal. iii. Gold ornament consisting of a bracelet (part of mehr) weighing around 3 tolas, with approximate price of Rs.300,000/-(Three lac). iv. Minor gold jewelry (gifts by relatives) amounting to Rs.400,000/- (Four lac). v. Four suitcases of winter clothes belonging to plaintiffs Nos. 1, 2 and

3. Educational Documents of plaintiff No. 1. i. Masters degree from University of Lausanne, Switzerland. ii. Masters transcript. iii. Bachelor's Degree from Islamic University, Islamabad iv. Bachelors Transcript v. F. Sc Part I and Part II Certificates and Detailed Marks. vi. Matriculation Certificate. vii. Job Leaving Certificates. viii. Misc. Training Certificates. ix. External hard drive and data in software form, saved in one of the laptops of defendant.

4. During trial, learned Judge Family Court partially decreed the suit. Petitioner No.1 was granted Rs.15,000/- per month for three months (Rs.45,000/- in total). Petitioners Nos.2 and 3 were awarded maintenance at the rate of Rs.20,000/- per month from the date of desertion onward, with the same rate applicable in the future and subject to 10% annual increase effective from 01.05.2024.

5. The Trial Court also declared Petitioner No.1 entitled to the alternate market value of a Toyota Vitz (Model 2008) and Rs.200,000/-as alternate value for dowry articles. Simultaneously, Court held that the Respondent was entitled to recover 20 Tolas of dower gold or its equivalent market value from Petitioner No. 1.

6. The decree was challenged in appeal, and the appellate Court maintained the maintenance amounts and additionally allowed past maintenance from the date of desertion. The relief regarding Toyota Vitz was also affirmed. However, the finding regarding return of 20 Tolas of dower gold remained unchanged.

7. During trial, Petitioner No. 1 also filed a suit for dissolution of marriage on the ground of cruelty and submitted evidence by way of affidavit. The Trial Court, however, passed a decree for dissolution of marriage on 16.06.2022 without accepting the claim of cruelty and held the following findings: Keeping in view the above mentioned facts the plaintiff has recorded her statement regarding dissolution of marriage on ground of Khulla therefore, the suit of the plaintiff to the extent of dissolution of marriage on ground of Khulla is decreed under section 10/4. The plaintiff is directed to return dower amount if paid. Decree sheet be drawn up and copy of this order be sent to concerned Union Council for further proceedings as per law.

8. The learned counsel for the petitioners raised three major legal objections: i. That the direction for return of dower was illegal as the dissolution was sought on grounds of cruelty, and therefore, the Family Court lacked jurisdiction to direct return of dower; ii. That a plot purchased by Petitioner No. 1 in Gulberg Greens, Islamabad, was illegally sold by the Respondent for Rs. 5,075,000/-, which was neither returned nor accounted for and the Trial and Appellate Courts both ignored this aspect; iii. That the maintenance awarded for the minors at Rs.20,000/- per month was insufficient considering the Respondent's financial status and the minors' needs; the original claim was Rs. 25,000/- per child.

9. Conversely, Respondent's counsel contended that the marriage was dissolved on the basis of Khula, not cruelty, hence the return of dower was lawfully directed. The petitioner is not entitled to the dower. Secondly, plot was sold with the consent of Petitioner No.1, and there is nothing due against the respondent. Lastly, maintenance fixed by both the Courts for the minors is based on reasonable classification and conclusions drawn from the evidence in a proper manner.

10. Arguments heard. Record perused.

11. Perusal of record reflects that the dispute pertains to the non-awarding of certain parts of the claims submitted in the suit for maintenance and personal belongings filed by Petitioner No.1 against the respondent. The primary question of importance revolves around the claim regarding a plot owned by Petitioner No.1, which was not awarded despite being clearly mentioned in Para-10 of the plaint.

12. In this regard, I have carefully examined the evidence with the able assistance of learned counsel for the parties. During cross-examination, respondent acknowledged the following facts regarding the plot in question, which are as under:

13. Upon examining the aformentioned admissions of the respondent, and in the light of documentary evidence marked as 'Mark B' an agreement to sell dated 11.08.2017 executed between Tauseef Javed Chaudhry and Muhammad Naeem, it is evident that Plot No. 60, Street No. N-3, Block N (measuring 50 90 = 500 sq Yds) in Sector Gulberg, Islamabad (Registration No. 0779 IBECHS, Code No. RQ7937086) was sold for a total consideration of Rs.5,075,000/-, out of which, Rs.200,000/- was received as earnest money, and the remaining amount was to be paid on or before 16.08.2017 at the time of transfer of the said plot.

14. The document was duly acknowledged by the respondent in his admission made during cross-examination. In addition, the provisional allotment letter dated 13.11.2012 (referred as Mark-C) clearly establishes that the plot was owned by Ayesha Qureshi. This unimpeachable evidence reflects that the plot belonged to petitioner No. 1, ex-wife of the respondent, and was sold by the respondent, who received the entire sale consideration. There is no denial on his part, particularly given his admission' that he sold the plot to Muhammad Naeem, despite not being the lawful owner of the said property. Despite this, both trial Court and the first Appellate Court failed to consider the crucial aspect that when the respondent was not the owner of the property, he could not have lawfully sold it, especially in the light of his clear admission regarding the sale. It is not the case of the respondent, Tauseef Javed Chaudhry, that after the sale of the said plot and receipt of the full sale consideration, the amount was paid to petitioner No.1. In such a scenario, where affirmative evidence of payment to petitioner No. 1 is neither proved nor even claimed by the respondent, a presumption under the law arises against the respondent.

15. The respondent, Tauseef Javed Chaudhry, was under a legal obligation to discharge the burden of proof by demonstrating that after receiving the total sale consideration, the property was transferred and the amount was paid to petitioner No.1, Ayesha Qureshi. In the absence of such evidence, the findings of the trial Court while deciding Issue No. 2 in Paragraph 18 are erroneous. Although the Trial Court acknowledged the sale agreement (Exh.P6) and the respondent's admission, it improperly placed the burden on petitioner No.1 to prove that the witnesses of the said agreement were not summoned. This reflects a misapplication of the general principles of the Qanun-e-Shahadat Order, 1984, which are not stricto sensu applicable in this context.

16. Similarly, the findings of the first Appellate Court in Paragraph 13 of the impugned judgment, wherein it was held that the petitioner failed to produce the sale deed by which the plot was sold, are beyond the pleadings. Such assumptions and allegations have no basis in the record. Though learned Trial Court acknowledged the sale agreement (Exh.P6) and the admission made by the respondent, it erroneously placed the burden upon petitioner No. 1 to prove that the witnesses of the said agreement were not summoned. Such an approach is a misapplication of the general principle of the Qanun-e-Shahadat, though the same was not stricto sensu applicable in this case. Similarly, the finding given by the learned First Appellate Court in paragraph 13 of the impugned judgment reflects that the petitioner failed to produce the sale deed by which the plot was sold. Such assumption is outside the scope of pleadings and was not even claimed or argued by the respondent at any forum.

17. Before moving further, it is pertinent to resolve the question of molding the relief and granting the substantial justice within the jurisdiction of the courts and courts can mold the relief with the changing circumstances even not prayed for expressly. Courts are empowered by the law to adopt this course and dispense an effective decree which settle the rights of the parties forming the part of the same issue in order to avoid multiple legal actions as held in PLD 1978 SC 220 (Amina Begum and others v. Mehr Ghulam Dastagir), 1997 PLC (C.S.) 671 [Karachi] (Abdul Majid Qureshi v. National Bank of Pakistan). Therefore, learned trial Court and the first appellate Court were under the obligation and had proper jurisdiction to resolve the issue of plot rather than just saying that the plot amount was not prayed for. Even when Exh.P6 is admitted and placed on record and the matter of plot is agitated in the pleadings of the petitioner No. 1.

18. Therefore, both findings given by the Trial Court and the First Appellate Court, though concurrent, are not based upon proper appreciation of the evidence. The plot in question admittedly belongs to petitioner No. 1, which is evident from the documentary record and the admission made by the respondent that he sold the same through Exh.P6 to a third party and received the sale consideration. Resultantly, the claim of petitioner No. I to the extent of the total sale consideration of Rs 50,75,000/- is hereby decreed in her favour.

19. Now adverting to the second question, which relates to the maintenance of the two minors, who originally claimed maintenance at the rate of Rs.25,000/- per month. The learned Trial Court as well as the Appellate Court awarded maintenance at the rate of Rs.20,000/- per month, though the respondent, father of the two minors, admittedly possesses sufficient financial resources. This is evident from his own conduct and admissions made during the course of evidence, particularly in page 162, paragraph 12, which is as under:

20. This aspect outrightly places a heavy obligation upon the respondent (father) to maintain the minors in all respects, and no second view can be taken at this stage. He also acknowledged facts in the following manner: The above stance indicates his lack of serious effort to pay maintenance. The original suit for maintenance was filed on 02.01.2021 before the learned Judge, Family Court. After elapse of more than five years, petitioners Nos. 2 and 3 (the minors) are still claiming maintenance at the rate of Rs.25,000/- per month.

21. It is the lawful duty of the respondent to bear all necessary expenses, which should not be less than Rs.30,000/- per month as claimed in paragraphs 11 and 12 of the plaint. As it is settled law that maintenance is to be awarded considering the financial capacity and living status of the father as also held by this court in 2020 CLC 131 [Islamabad) (Dr. Aqueel Waris v. Ibrahim Aqueet Waris). Therefore, the appropriate maintenance amount would be Rs.25,000/- per month from the date of filing of the suit, to be awarded to the petitioners by the respondent. This aspect was not properly appreciated by the Courts below, despite the fact that respondent Touseef Javed admitted that he is teaching at NUML, and even stated in para-4 of "Exh.D-1" that "I had been drawing a very handsome salary from my job in Universities of Saudi Arabian and out of my saving, my father-in-law borrowed an amount of US$23,410/-, which was transacted into his foreign currency account," and further affirmed in para-8 of the "Exh.D-1" that "I only receive Rs.112,276/- from NUML Islamabad as monthly salary," these admissions clearly indicate the respondent's financial standing. He is evidently capable of affording the claimed maintenance. Moreover, the financial status shown by the respondent pertains to the period of 2019-2021; thus, as of the present year 2025, the respondent, who has failed to pay regular maintenance for the minors, does not merit any leniency. Accordingly, as he has not paid the arrears of maintenance, the maintenance is hereby fixed at Rs.25,000/- per month.

22. Now adverting to the third question raised in this case i.e. cruelty as highlighted in the suit for dissolution of marriage filed by petitioner No.1. She was awarded a decree of Khula with a direction to return the dowry. However, the element of cruelty was not acknowledged.

23. It is surprising to note that in the affidavit-in-evidence (Exh.P1) submitted in the suit for dissolution of marriage, at page 180, the specific claims of the petitioner are clearly referred to in paragraphs 2, 3, 4, and 6, which are as under i. That the deponent since last 10 years during the marriage period has faced a very miserable life at the hands of the defendant/husband and I have been deserted from the matrimonial house along with my two minors daughters (1) Zunairah Touseef Javed and Nuwayrah Touseef Javed since last approximately one year. ii. That the deponent is not ready to reconcile the matter as her life has become merely a dungeon and if the deponent is forced to live with him, we shall not maintain the limits of Almighty Allah according to the injunctions of Islam and Sunnah as the deponent has development so much hated against the defendant that I do not even want to see his face. iii. That the defendant is a complete phucho case time and again he has hurled filthy abuses upon me and my respectable parents. iv. That the deponent is ready to forge the amount of Rs.50,000/-as dower against defendant whereas the 20 Tolas jewelry is already lying in custody of the defendant which was forcibly snatched from the deponent.

24. For dissolving a marriage based on grounds other than Khula, especially cruelty, courts need to take able assistance from Section 2 of the Dissolution of Muslim Marriages Act, 1939, which reads as follows:

2. Grounds for decree for dissolution of marriage. A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: (viii) that the husband treats her with cruelty, that is to say,

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) Associates with women of evil repute or leads an infamous life, or (c) Attempts to force her to lead on immoral life, or (d) Disposes of her property or prevents her exercising her legal rights over it, or (e) Opstructs her in the observance of her religious profession or practice, or (f) If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

25. On plain reading of the record and Section 2 (viii)(a)(d), the elements of cruelty and the mental torture are established through which petitioner No. 1 had gone dating the subsistence of her marriage and these are sufficient to be considered against the respondent, who has failed to refute these allegations It also evident from the pleadings that petitioner No. I lodged criminal complaints at two police stations as referred therein, which establishes cruelty under Section 2 (viii)(a) of Dissolution of Muslim Marriages Act, 1939 and selling the plot of petitioner and the plot not transferring the consideration to petitioner No. 1 is cruelty under Section 2 (viii)(d) of DMMA 1939 as referred above. Therefore, it is evident and apparent from the record that petitioner No. 1 was not properly and rightly advised, legally, when she stated in her affidavit at paragraph 6 that she is "ready to forge the amount of Rs.50,000/-as dower..." as it is not a case of khula.

26. However, learned Judge Family Court, vide order dated 16.06.2022, referred at page 84 of the record, passed an order, which is in direct contradiction with the claim submitted by petitioner No. 1.

27. These aspects give rise to a different scenario, wherein the element of cruelty was completely ignored. It is a settled principle of law that cruelty whether mental or physical, premeditated or unpremeditated is not diminished by lack of intent. Obviously, if it is a physical act, it would be a question of fact; however, in the event of mental cruelty, an inquiry is required to be conducted regarding the nature of the treatment to determine its impact or repercussions on the mind of the spouse.

28. Mental cruelty may broadly be delineated as a course of conduct that inflicts mental pain with such severity and harshness as to render it impossible for the aggrieved party to continue the matrimonial bond or to cohabit. The matrimonial relationship is inherently based on mutual trust between the husband and wife, encompassing emotions, and it obliges reciprocal respect, love, and affection, aimed at ensuring a fair and balanced adjustment between spouses without generating a sense of anguish and disappointment.

29. While deciding any lis for dissolution of marriage on the ground of cruelty, the Court must assess the intensity and severity of the acts alleged, and determines whether such conduct amounts to something more than mere trivial disputes, which are common in day-to-day married life. The conduct must be of such a nature that no reasonable person could be expected to endure it, as observed in 2023 SCMR 246 (Mst. Taiba Amreen v. Shafaqat Ali Kiani). In the said judgment, the Hon'ble Supreme Court of Pakistan elaborated upon the concept of cruelty, referencing not only principles derived from American and Islamic jurisprudence but also authorities from the Sunnah, including incidents narrated by Hazrat Abu Huraira. There is no ambiguity in the fact that the learned Judge Family Court has misdirected himself and erred in law by disregarding these well-established principles.

30. Even otherwise, the unbecoming attitude of the husband amounts to cruelty, as not only physical torture but also mental, moral, and psychological abuse by a partner constitutes cruelty. Relying upon 2023 MLD 1237 (Rifatullah v. Hadiya Mustafa and 2 others), this Court is of the view that the grant of a decree of Khula simpliciter is not justiciable when the incidents referred to in the evidence and the overall conduct of the respondent reflect a cruel and oppressive demeanor. Otherwise, Petitioner No.1 would not have approached this Court for dissolution of marriage.

31. Furthermore, reliance is also placed upon 2006 MLD 83 (Mst. Saima Irum v. Tariq Javed) and PLD 2021 [Lahore) 757 (Ana Liaqat v. Additional District Judge, Gujranwala), wherein the learned Family Courts granted dissolution of marriage on the basis of Khula, despite the fact that the women therein had grounded their claim primarily on cruelty. In such ciftumstances, it is the bounden duty of the judicial forum to confine itself to the evidence available on record and decide the matter in accordance with the surrounding facts and circumstances.

32. While deciding such disputes, the Courts are not expected to act in an arbitrary, capricious, or whimsical manner. The most pertinent question for determination, therefore, is to what extent the right to dissolve marriage on the basis of Khula is exercisable by the wife.

33. Islam has undoubtedly conferred the right upon a wife to seek dissolution on the basis of Khula in extreme situations. However, the right to claim dissolution of marriage on the basis of Khula is not absolute, nor is it an unfettered authority whereby a wife may automatically renounce the marital bond. Rather, this right is reasonably regulated and is subject to judicial scrutiny by the competent Court, which must first satisfy itself about the existence of reasonable circumstances justifying the termination of the sacrosanct relationship between the spouses.

34. In this regard, Verse 229 of Surah Al-Baqarah from the Holy Qura'n outlines the procedure for claiming Khula, specifying the conditions under which a wife may rightfully seek dissolution of marriage. The right of a wife to claim dissolution on the basis of Khula has been authoritatively examined by the superior Courts in PLD 1952 [Lahore] 113 (Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi), PLD 1959 Lahore 566 (Mst. Khurshid Bibi v. Baboo Muhammad Amin) PLD 1967 SC 97 (Faheem-ud-Din v. Mst. Hameeda), and PLD 1984 SC 329 (Sadia Begum v. Maqbool Ahmad).

35. However, where the claim for dissolution is based on cruelty, the Court is duty-bound to make a thorough inquiry into the matter, examine the complete body of evidence, and may even interview the spouses. If the conduct of the husband reaches a level demonstrated through the record that amounts to a cruel relationship, the Court is obligated to grant a decree for dissolution of marriage on the basis of cruelty.

36. While dilating upon this issue, I have also sought assistance from Fazal Karim's "Judicial Review of Public Actions (Volume 3), page 1471-1473" which says that if a relief is not prayed for but it is found as a rightful claim then it must not be refused. Upon finding such relief, even then denying is a very technical view and not a rule of law. I am also of the view that Court cannot deny a relief just because there is a defect in the prayer and such relief has not been asked for: courts are not powerless to overlook such defects, as also held in PLD 1964 SC 673 (Syed Abdul-ala Maudoodi v. Government of West Pakistan). Moreover, when the Court seized of a matter under Article 199, then it does not matter whether the relief has not been claimed or it falls under a specific provision of the constitution or not, given to the circumstances of the case if relief is found and justice demands that relief is to be given then courts have ample power under Article 199 to grant relief and not refuse the relief on technical or hyper technical grounds as it is against the spirit of the Constitution the larger interest of the public as held in PLD 1975 SC 244 (Salahuddin v. Frontier Sugar Mills).

37. In the light of the case law discussed above, it is evident from the record that the respondent failed to pay a single penny in maintenance unless forced through legal proceedings initiated by the petitioners. This fact was admitted by the respondent during cross-examination. Such failure amounts to cruelty, as non-maintenance of one's wife and minor children is not justifiable under any social or legal framework.

38. Therefore, the wife, i.e., Petitioner No.1, is entitled to a decree for dissolution of marriage on the basis of cruelty, a ground which stands fully established from the record in light of the principle laid down in 2006 SCMR 100 (Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh).

39. Accordingly, the respondent's claim for adjustment of the dower amount 20 Tolas of gold is not sustainable. The simple Khula decree granted by the learned Judge Family Court is hereby modified, and the marriage stands dissolved on the ground of cruelty. The condition imposed upon Petitioner No.1, e, the wile, for return of 20 Tolas of gold as mentioned in Paragraph 13 of the Nikahnama is waived of, especially in view of the affidavit submitted by Petitioner No. 1, wherein she categorically stated that the 20 Tolas of jewelry are already in the custody of the respondent, having been forcibly taken on this fact cannot be ignored in any manner.

40. In view of above discussion, instant petition is ALLOWED in the above terms. The findings regarding regarding the enhancement of maintenance have been addressed in paragraph 21, while the claim pertaining to the sale consideration of Rs.5,075,000/- for the plot of petitioner No.1 has been adjudicated in paragraph 18 of the judgment. UN/136/Isl Petition allowed.