2026 PLP 507 (MLD)

Abid Hussain Chattha, J.

This single Judgment shall decide the titled Petitions intrinsically connected to each other qua mutual family claims of Benish Ghaffar, Muhammad Essa, Muhammad Umar Farooq and Muhammad Aslam, hereinafter referred to as (the Petitioner , the Minor , Respondent No. 1 and Respondent No. 2 or the latter two collectively as the Respondents ), whereby, they have questioned the impugned Judgments and Decrees dated 22.10.2021 and 24.04.2025 passed by Judge Family Court and 01.02.2022 by Additional District Judge, Liaquatpur, District Rahim Yar Khan.

2. The terse consolidated facts of the titled cases are that initially the Petitioner on 05.04.2019 invoked the original jurisdiction of the Family Court by filing a suit for recovery of maintenance, dower and dowry articles against Respondent No. 1 maintaining that her registered Nikah with Respondent No. 1 was solemnized on 30.06.2018 and she started to perform her matrimonial obligations but no child was bestowed to the couple. The attitude of Respondent No. 1 was cordial for some time which later turned hostile due to her persistent demand for payment of dower of cash amount of Rs. 5,000/- and constructed house of 5 Marlas as stipulated in the Nikahnama. She was frequently subjected to torture and coerced to relinquish her claim of dower but she refused to do so. Consequently, Respondent No. 1 initially stopped her maintenance and later four months prior to the institution of the suit expelled her from his house by confiscating her dowry articles. Respondent No. 1 hails from an affluent family and owns a show room and mobile phones shop. As such, he comfortably earns between Rs. 80,000 to 90,000 per month. Hence, she is entitled to her maintenance at the rate of Rs. 15,000 per month from four months prior to the institution of the suit with 40% annual increase, dower house as listed in the Nikahnama or its alternative value of Rs. 1,500,000/- and dowry articles as per list Mark A or its alternative value of Rs. 810,000/-.

3. Respondent No. 1 resisted the suit and additionally responded by instituting a counter suit on 30.04.2019 for jactitation of marriage. He averred that no oral or registered Nikah ever took place in any gathering and the Petitioner never resided with him. He never affixed his thumb impressions or signatures on the Nikahnama relied upon by the Petitioner which is fake and forged having been fraudulently prepared by her in order to blackmail and extort money from him. He claimed that he has an extended family, the members whereof, are highly educated enjoying considerable political status in society and as such, it is not possible that he could have married the Petitioner in their absence. He alleged that the Petitioner on her own about a week ago has started to canvass that she has contracted Nikah with him and Rukhstai will be materialized soon. Hence, the claims of maintenance, dower and dowry are superficial and imaginary. Accordingly, Respondent No. 1 prayed for jactitation of marriage.

4. After framing issues and recording pro and contra evidence of the parties, the Family Court concluded that Nikah is proved, however, the consummation of marriage is not proved. Hence, while dismissing the suit for jactitation of marriage, the Family Court partially decreed the suit of the Petitioner holding her entitled to receive 50% of agreed dower as mentioned in the Nikahnama. The remaining claims of the Petitioner for recovery of maintenance allowance and dowry articles were declined due to non-consummation of marriage. The Petitioner and Respondent No. 1 preferred their separate Appeals against the decision of the Family Court which were dismissed by the Appellate Court by upholding the findings of the Family Court. The Petitioner and Respondent No. 1 have filed separate Petitions before this Court assailing the concurrent findings of the Courts below.

5. As a subsequent development, the Petitioner filed an application bearing C.M. No. 5211 / 2022 in titled W. P. No. 3493 / 2022 claiming therein that after the decision of the Appellate Court, Respondent No. 1 entered into a compromise with her and the spouses lived together in a rented house, whereafter, she became pregnant, hence she may be allowed to produce additional evidence regarding her pregnancy report, lease agreement of rented house and discharge report of FIR No. 447 / 2022 registered by the brother of Respondent No. 1 which falsely alleged that the Petitioner had been abducted. The Petitioner in her W. P. No. 1829 / 2024 also disclosed that during the pendency of W. P. No. 3493 / 2022, Respondent No. 1 reconciled and started to live with her in a rented house from 11.08.2022 and the Minor was born on 25.03.2023.

6. Later, the Petitioner instituted a suit for recovery of maintenance allowance of the Minor on 22.01.2024 against Respondent No. 1 as father and Respondent No. 2 as grandfather of the Minor claiming therein that out of her wedlock with Respondent No. 1, the Minor was born but lately Respondent No. 1 left her and the Minor for Dubai and is not paying maintenance of the Minor. She averred that time and again, Respondent No. 1 reconciles and deserts her who is now remitting his entire income to Respondent No. 2 who being in easy circumstances is even otherwise responsible as grandfather to provide maintenance to the Minor in the absence of Respondent No.

1. The suit was resisted by Respondent No. 2 for himself and as special attorney of Respondent No. 1 on the basis of earlier stance of Respondent No. 1 that since there is no Nikah, the Minor is not the legitimate son of Respondent No. 1 and as such, is not entitled to maintenance, particularly, when Writ Petition of Respondent No. 1 is pending before this Court. The Family Court after recording respective evidence of the parties dismissed the application of the Respondents for conducting DNA test to ascertain the paternity of the Minor by holding that the Minor born during the subsistence of a valid marriage would be presumed as legitimate son of Respondent No.

1. Eventually, the Family Court partially decreed the suit on 24.04.2025 and the Respondents were required to provide for maintenance of the Minor at the rate of Rs. 5,000/- per month from the date of institution of suit till his legal entitlement with 10% annual increase.

7. Learned counsel for the Petitioner submitted that the Petitioner is the legally wedded wife of Respondent No. 1 and out of this wedlock, the Minor was born. The Courts below have misread the evidence in the first place to conclude that consummation did not take place between the couple which fact has now unequivocally proven wrong with the subsequent birth of the Minor. As such, the Petitioner is entitled to receive her maintenance, full dower and dowry articles as prayed for which have been duly proved by the Petitioner.

8. Conversely, learned counsel for the Respondents contended that no Nikah was solemnized between the Petitioner and Respondent No. 1 and the evidence on record in this respect was misread and non-read to dismiss the suit for jactitation of marriage. Further, the Minor is not legitimate son of Respondent No. 1 and as such, not entitled to maintenance, particularly when no date of birth of the Minor has been mentioned in the plaint and the Petitioner disclosed the date of birth for the first time in Writ Petition filed before this Court. The application for conducting DNA test to determine the paternity of the Minor was unlawfully dismissed by the Family Court. Without prejudice to the above, Respondent No. 2 is a retired Government employee who is not in easy circumstances, hence could not be burdened with the obligation to maintain the Minor on behalf of his son. Respondent No. 1 has also filed a separate declaratory suit challenging the paternity of the Minor which is pending adjudication before the Court of competent jurisdiction and the said aspect of the case has been ignored by the Family Court while decreeing the claim of maintenance of the Minor. Therefore, the suit for jactitation of marriage is liable to be decreed and as a necessary corollary thereto, all claims of the Petitioner and the Minor are required to be discarded.

9. Arguments heard and record perused.

10. At the outset, it is noted that the Petitioner instituted her W. P. No. 1829 / 2024 on 09.01.2024 against the last impugned Judgment dated 01.02.2022 after a delay of more than 23 months and as such, is badly hit by laches. However, in case titled, FBR through Chairman, Islamabad and others v. Messrs Wazir Ali and Company and others (2020 SCMR 959), the Supreme Court of Pakistan has unequivocally endorsed the principle that when a common question of law is decided in one case, another case involving the same point that is time barred is liable to be heard on merits. Further, in case titled, Quetta Development Authority through Director General v. Abdul Basit and others (2022 PLC (C.S.) 288), it has been held that a litigant cannot be non-suited by allowing laches to be stumbling block in the way of dispensation of justice since rule of laches is applied in accordance with facts and circumstances of each case and it cannot be made rule of universal application. In the instant case, the Petitioner approached this Court though belatedly yet during the pendency of Petition of Respondent No. 1 and assailed the same Judgments and Decrees in the wake of subsequent developments including birth of the Minor and as such, delay on account of laches is condoned as the same does not cause any prejudice to Respondent No. 1.

11. To begin with, the Petitioner had brought a simple suit for recovery of maintenance, dower and dowry substantiating her claims on the strength of a registered Nikahnama. In the wake of denial of Nikah, she was compelled to prove the validity of Nikah and veracity of Nikahnama by producing two independent witnesses, the Nikah Khawan and Secretary of the concerned Union Council as PW-3 and PW-4, respectively, who unequivocally testified that indeed Nikah was solemnized at the residence of the Petitioner in a small private gathering and was registered in accordance with law. Respondent No. 1 and his witnesses acknowledged that the fact of Nikah came to their knowledge in 2019 but Nikahnama was never challenged before any forum till the institution of suits by the Petitioner and Respondent No.

1. The latter in his evidence could not rebut the presumption of correctness attached to registered Nikahnama. This falsified the primary claim of Respondent No. 1 in his pleadings that no Nikah was solemnized and that the Petitioner started to advocate seven to ten days ago that she has contracted Nikah with him which will soon be followed by Rukhsati. The Courts below while concurrently concluding that valid Nikah was effectuated on 30.06.2018 grossly misread the evidence to deny the family claims of the Petitioner by merely holding that consummation of marriage could not be proved which even otherwise being a purely private affair was not required to be explored further after the primary defense of Respondent No. 1 qua absence of Nikah had been disproved and no issue to that effect had been framed by the Family Court. This is particularly so when the Petitioner candidly explained in her evidence that it was a love marriage, Respondent No. 1 had assured him that he will tell his parents when they are ready to accept her, as such, the presence of family members of Respondent No. 1 was not necessary, she resided with the Petitioner soon after marriage and started to perform her matrimonial obligations at the house arranged by Respondent No. 1 at Mehrabad, Kachi Mandi, Liaquatpur. As such, the Courts travelled into an uncharted territory by hypothetically inferring that as no family members of Respondent No. 1 had participated in the marriage, consummation was not proved by disbelieving the testimony of the Petitioner without any reasonable basis especially when stance of Respondent No. 1 had been completed disproved. Needless to state that the Petitioner by producing four witnesses including herself coupled with documentary evidence in the shape of Nikahnama and Marriage Registration Certificate successfully proved her marriage including consummation of marriage. Moreover, the issue of non-consummation of marriage lost its relevance after the birth of the Minor during subsistence of valid and proven Nikah. Hence, the Family as well as the Appellate Court fell in error to award half dower and dismiss the claims of dowry and maintenance due to love and non-consummation of marriage. Therefore, the claims of the Petitioner are required to be redetermined in exercise of constitutional jurisdiction of this Court which is extra-ordinary, corrective, remedial, supervisory and equitable to redress grave miscarriage of justice occasioned on account of misapplication of law and failure to exercise jurisdiction vested in the Courts below.

12. The claim of dower of the Petitioner is straight forward which is evident from stipulations contained in the Nikahnama which stands proved along with consummation of marriage as stated above. Hence, the Petitioner is entitled to her complete dower as prayed for in her suit.

13. The Petitioner emphatically claimed that she had been awarded dowry articles which had been confiscated by Respondent No. 1 at the time of her expulsion. There is nothing on record to disprove her version once the fact of Nikah and Rukhsati had been established. It is an established custom of our society that parents, rich or poor, always bestow their daughters with dowry articles in accordance with their financial status and capacity. Nikah was solemnized at the house of the Petitioner. There is nothing on record to suggest that the Petitioner has contracted marriage against the wishes of her family. The Petitioner and her witness PW-2 had deposed that dowry articles had been made much prior to marriage and were shifted to her house after marriage by Respondent No.

1. The scrutiny of dowry articles, however, reveal that the Petitioner has claimed gold and silver ornaments worth Rs. 440,000 requiring a higher standard of proof in the wake of well entrenched customary principle that ornaments are generally kept in the custody of women unless proved otherwise through cogent and confidence inspiring evidence which is conspicuously missing in the instant case, particularly due to absence of any allegation of snatching and non-production of receipts of such articles. The Petitioner could not lead substantive evidence to suggest that she was awarded such articles and the same were in the possession of Respondent No.

1. Hence, such articles are declined. Items of daily use such as clothes and crockery are also excluded. The other articles are such that are normally given to a bride as part of her dowry. By applying reasonable depreciation due to subsistence of marriage, the Petitioner is held entitled to recover her dowry articles to the tune of Rs. 200,000/- as alternative value of dowry articles.

14. Under the law, a husband is duty bound to maintain his wife and children till their legal entitlement. In a recent case titled, Ambreen Akram v. Asad Ullah Khan etc. decided vide Judgment dated 08.07.2025 in C.Ps. Nos. 1107-L of 2015 and 247-L of 2017, the Supreme Court of Pakistan after an exhaustive analysis held that right of maintenance flows unconditionally from the date of a valid Nikah and constitutes a binding legal duty. Paragraph No. 19 thereof is reproduced as under:

19. A holistic reading of contemporary Islamic jurisprudence, statutory enactments, constitutional protections, and judicial precedents affirm that a wife's right to maintenance is neither contingent upon consummation or rukhsati, nor subject to the discretion of the husband. It flows unconditionally from the solemnization of a valid marriage and constitutes a binding legal duty. In essence, the only legitimate ground for suspending this obligation arises where the husband discharges a high burden of proof to establish that the wife has wholly and without justification withdrawn from the marital relationship understood not merely as physical access but encompassing the full spectrum of emotional, residential, and relational life. Absent such proof, the obligation to provide maintenance persists. This understanding not only gives effect to the egalitarian spirit of Islamic law but also reinforces the constitutional commitment to dignity (Article 14), equality (Article 25), and protection of the family unit (Article 35). In a patriarchal society, where economic dependence often fuels systemic injustice, the right to maintenance must be safeguarded as an essential constitutional, legal, and ethical entitlement. Any attempt to curtail it must therefore be subjected to the strictest constitutional and jurisprudential scrutiny.

15. In the instant case, valid Nikah between the Petitioner and Respondent No. 1 has been established. The claim of the Petitioner qua her desertion and non-payment of maintenance four months prior to marriage stands proved except for post-reconciliation period of four months. Qua quantum of maintenance, Respondent No. 1 has proudly mentioned in his pleadings that his family members are educated persons and exhibit considerable political influence. Evidence on record further established that the uncle of the Petitioner had served Vice-Chairman of the Union Council and Chairman Market Committee. Respondent No. 2, the father of the Petitioner was retired public servant in the Local Government and is also drawing pension. The Petitioner himself is residing in Dubai since February 2023. In Column No. 20 of the Nikahnama, Respondent No. 1 had agreed to pay maintenance at the rate of Rs. 15,000/- per month to the Petitioner in the event of strained relationship between the couple which serves as an adequate benchmark regarding quantum of maintenance. In fact, this is exactly what the Petitioner sought. Adjusting four months of post-reconciliation period from the claimed period of maintenance, the Petitioner is held entitled to receive maintenance at the rate of Rs. 15,000/- per month from the date of institution of the suit with 10% annual increase till her legal entitlement.

16. During the pendency of the titled Petitions, the Petitioner disclosed the facts of her reconciliation with Respondent No. 1, pregnancy and birth of the Minor. However, since subsequently, suit for maintenance of the Minor was filed which was tried by the Family Court providing an opportunity to the parties to produce their respective evidence, therefore, C. M. 5211 / 2022 in W. P. No. 3493 / 2022 seeking permission for producing additional evidence has become infructuous and is disposed of, accordingly.

17. Record of W. P. No. 3949 / 2025 with reference to Judgement and Decree passed in the suit for maintenance of the Minor reflects that the Family Court aptly held that a child born during the subsistence of a valid marriage is presumed legitimate and proceeded to fix his maintenance in the manner stated above which has not been questioned by the Petitioner or the Minor. Respondent No. 2 conceded that Respondent No. 1 had left for Dubai which fortified the averments of the Petitioner. As such, Respondent No. 1 was under a legal duty to provide for maintenance of the Minor. Respondent No. 2 for himself and as special attorney of Respondent No. 1 contested the suit based on the same premises that Respondent No. 1 did not contract Nikah with the Petitioner which has been disproved as stated above. The financial status of the family including that of Respondent No. 2 has been deliberated above which proves that he is in easy circumstances and in the absence of his son or non-payment of maintenance of the Minor by him, Respondent No. 2 is bound to provide for the maintenance of the Minor. An application of the Respondents for conducting DNA test was rightly turned down since it is trite law that a child born during the subsistence of a valid marriage is presumed legitimate and the mode of determining paternity through DNA test has been deprecated by the Supreme Court of Pakistan in case titled, Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another (PLD 2015 SC 327) in the following words:-

13. The rationale of the law set out in Article 128 of the QSO read with section 2 of Act V of 1962 is quite clear. Both statutes ensure (in specified circumstances) an unquestioned and unchallengeable legitimacy on the child born within the aforementioned period notwithstanding the existence or possibility of a fact through scientific evidence. The framers of the law or jurists in the Islamic tradition were not unaware simpletons lacking in knowledge. The conclusiveness of proof in respect of legitimacy of a child was properly thought out and quite deliberate. There is a much greater societal objective which is served by adhering to the said rules of evidence than any purpose confined to the interests of litigating individuals. There are many legal provisions in the statute book and rules of equity or public policy in our jurisprudence where the interests of individuals are subordinated to the larger public interest. In our opinion the law does not give a free license to individuals and particularly unscrupulous fathers, to make unlawful assertions and thus to cause harm to children as well as their mothers.

18. In view of the above, the W.Ps. Nos. 3493 of 2022 and 3949 of 2025 are dismissed, whereas, W. P. No. 1829 / 2024 is partially allowed by modifying the Judgments and Decrees dated 22.10.2021 and 01.02.2022 passed by the Family Court and the Appellate Court, respectively, thereby, decreeing the suit of the Petitioner in the following manner: (i) The Petitioner is held entitled to receive maintenance allowance @ Rs. 15,000/- per month from the date of institution of suit with 10% annual increase till her legal entitlement; (ii) The Petitioner is held entitled to receive her dower as prayed for with the clarification that alternate value of the house, if required, will be determined by the Executing Court in accordance with prevailing current market value; and (iii) The Petitioner is held entitled to an alternative value of her dowry articles to the tune of Rs. 200,000/. Order, accordingly. UN/B-17/L Order accordingly.