2026 PLP 1243 (YLR)

Hassan Nawaz Makhdoom, J.

The petitioner has filed this writ petition against judgments and decrees dated 09.09.2024 and 13.02.2025 passed by respondents No.2 and 1 respectively. By means of judgment dated 09.09.2024, the claim of respondents Nos.3 to 6 ("the respondents"), inter alia, regarding maintenance allowance was partially accepted and the appeal filed by the present petitioner against the said judgment was dismissed vide judgment dated 13.02.2025.

2. The petitioner has filed the present writ petition and has confined his prayer as under:- "Under the circumstances and submissions expounded above, it is therefore, most respectfully prayed that while accepting this writ petition, both the impugned Judgment and consolidated Judgment and Decree dated 13.02.2025 and 09.09.2024 respectively may very graciously be set aside, recalled and modified as under:- a) Quantum of monthly maintenance allowances fixed for minors "respondents Nos.4 to 6" from 40,000/- PKR to 25,000/- PKR per month may very kindly be fixed. b) The additional expenses imposed on the petitioner at the pretext of educational expenses in addition to the monthly maintenance may very kindly be termed as illegal and unlawful and the liability in this regard may be set-aside. c) That the Quantum of maintenance may be set in accordance with the financial capacity of the petitioner...."

3. Briefly, the facts of the case are that marriage between the petitioner (husband) and respondent No.3 (wife) was solemnized on 03.04.2007 and in this wedlock three children i.e., respondents Nos.4, 5 and 6 were born. The petitioner, expelled respondent No.3 from his house in February, 2020 and ever since had stopped providing maintenance to the respondents. The marriage between the petitioner and respondent No.3 ended by way of khula/divorce dated 13.07.2023, which is reflected by Divorce Registration Certificate available at page-62 of this file. In these circumstances, the respondents filed a suit, inter alia, for recovery of past and future maintenance allowance (and recovery of dower). In the said suit, the petitioner filed his written statement and refuted the averments of the respondents. Upon divergent pleadings of the parties, respondent No.2 framed eight issues. As reflected in the judgment dated 09.09.2024, respondent No.3 withdrew her suit for recovery of dower amount on 11.07.2024. The impugned judgment dated 09.09.2024 also reflects that the petitioner's right of cross-examination and right of defence was struck off vide order dated 08.05.2024. The statement of respondent No.3 was recorded as PW-1, available at page 100, and of her father as PW-2, available at page-104 of this file, in terms of the issues framed and vide judgment and decree dated 09.09.2024, the suit of the respondents was partially decreed by holding that respondents Nos.4 to 6 (children) are entitled to recover maintenance allowance from the petitioner @ PKR 40,000/- per month per head as well as the expenses incurred on education of each minor with 10% annual enhancement. Respondent No.3 was also held entitled to recover Rs.30,000/- per month from 08.07.2022, till the existence of marriage between the petitioner and respondent No.3. The petitioner, aggrieved by the said judgment passed by respondent No.2, filed a family appeal before respondent No.1/Appellate Court. The Appellate Court vide (consolidated) judgment and decree dated 13.02.2025, dismissed the appeal and upheld the findings of respondent No.2 regarding grant of maintenance allowance to the respondents.

4. Learned counsel for the petitioner has essentially laid challenge to the quantum of maintenance and submitted that the petitioner is not a man of means, being presently unemployed, thus, cannot afford provision of maintenance as granted by both respondents Nos.1 and

2. Learned counsel for the petitioner has relied upon a letter dated 27.10.2023 regarding conclusion of contract period of his employment with the Ravi Urban Development Authority, Government of Punjab, to establish that his employment contract has expired. In addition, it was submitted that the petitioner's right of defence and right of cross-examination was struck off vide order dated 08.05.2024 (supra), for which reason he was precluded to present his defence.

5. Conversely, learned counsel for the respondents has questioned the maintainability of this writ petition on the ground that after exhaustive fact finding by both the Courts, the petitioner cannot invoke constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") as a substitute of an appeal. He has relied upon judgment by Hon'ble Supreme Court of Pakistan in cases reported as "Arif Fareed v. Bibi Sara and others" (2023 SCMR 413).

6. Arguments heard and documents on the file perused.

7. As regards the first assertion of the petitioner that he is unemployed while relying on a letter dated 27.10.2023, available at page-88 of the file, it is observed that the petitioner could not substantiate his claim of present unemployment. It is also observed that the petitioner, having his right of defence and right of cross-examination been struck off vide order dated 08.05.2024, had never assailed the same at any forum. Hence, it attained finality.

8. The grounds agitated before this Court by learned counsel for the petitioner are purely factual in nature, not leading to any patent or material error of law or jurisdictional defect in the judginents passed by respondent No.2 (Family Court) and maintained by respondent No.1 (Appellate Court). This Court cannot exercise its constitutional jurisdiction under Article 199 of the Constitution to re-examine the case of the petitioner in the form of an appeal or revision thereby defying the intention of legislature and defeating the purpose of the statute, in run of the mill cases. In this regard reliance can be placed on the law enunciated by the Hon'ble Supreme Court of Pakistan, in unequivocal terms, in case of "Arif Fareed v. Bibi Sara and others" (2023 SCMR 413), relating to family matters/litigation. The relevant excerpt of the judgment is as follows:- "7. ...we may reiterate that the right of appeal is the creation of the statute. It is so settled that it hardly needs any authority. The Family Courts Act, 1964 does not provide the right of second appeal to any party to the proceedings. The legislature intended to place a full stop on the family litigation after it was decided by the appellate court. However, we regretfully observe that the High Courts routinely exercise their extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as a substitute of appeal or revision and more often the purpose of the statute i.e., expeditious disposal of the cases is compromised and defied. No doubt, there may be certain cases where the intervention could be justified but a great number falls outside this exception. Therefore, it would be high time that the High Courts prioritise the disposal of family cases by constituting special family benches for this purpose...." This Court is also fortified by another judgment of the Hon'ble Supreme Court in case of "Muhammad Shamim Ali v Mst. Asma Begum and others" (2024 SCMR 1642). The relevant part of the said judgment is reproduced hereunder:- "

9. Since the legislature has conferred exclusive jurisdiction upon the Family Courts, by virtue of section 5 of the Family Act, to expedite family cases and tried to cordon off family litigation to the extent of a single family appeal, it would not reflect well on a Constitutional Court to interfere with the exclusive jurisdiction of the Family Courts under the Writ Jurisdiction as provided under Article 199 of the Constitution, unless the jurisdiction exercised by the Family Courts was contrary to law and/or findings reached in exercise of said jurisdiction are perverse and without proper appreciation of evidence that non-interference would lead to a grave miscarriage of justice or for that matter injustice. It is pertinent to state here, at the expense of reiteration, that the learned Counsel for the Petitioner's assertions about supposedly fake and fabricated receipts of dowry articles is a factual inquiry, which was undertaken by the Family Court and the Appellate Court and could not have been done by the High Court in its jurisdiction under Article 199 of the Constitution,..."

10. Moreover, the High Court, whilst relying on previous dicta of this Court has rightly held that the ambit of a Writ Petition is not that of a forum of appeal nor does it automatically become such a forum in instances where no further appeal is provided, and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. This Court in M Hamad Hassan[1] has held: "The right to appeal is a statutory creation, either provided or not provided by the legislature; if the law intended to provide for two opportunities of appeal, it would have explicitly done so. In the absence of a second appeal, the decision of the appellate court is considered final on the facts and it is not for High Court to offer another opportunity of hearing, especially in family cases where the legislature's intent to not prolong the dispute is clear. The purpose of this approach is to ensure efficient and expeditious resolution of legal disputes. However, if the High Court continues to entertain constitutional petitions against appellate court orders, under Article 199 of the Constitution, it opens floodgates to appellate litigation. Closure of litigation is essential for a fair and efficient legal system, and the courts should not unwarrantedly make room for litigants to abuse the process of law. Once a matter has been adjudicated upon on fact by the trial and the appellate 'courts, constitutional courts should not exceed their powers by re-evaluating the facts or substituting the appellate court's opinion with their own the acceptance of finality of the appellate court's findings is essential for achieving closure in legal proceedings conclusively resolving disputes, preventing unnecessary litigation, and upholding the legislature's intent to provide a definitive resolution through existing appeal mechanisms...." There is also a recent judgment of the Hon'ble Supreme Court of Pakistan in case reported as "Syed Raheel Ahmed v Mst. Syeda Zona Naqvi and others" (PLD 2024 SC 902) wherein same view has been adopted.

9. It is trite law that while exercising jurisdiction under Article 199 of the Constitution, this Court can neither resort to re-examine or re-consider the facts of a case that have already been decided by the lower courts, having competent jurisdiction, nor can this Court enter into resolution of any factual controversy while exercising such jurisdiction. In the absence of a second appeal, the decision of the Appellate Court is taken as a final one. It is not open for this Court to offer another opportunity of hearing, especially in family matters where the legislature's intention with regards to bringing the family disputes to a definitive conclusion is very much clear. The view adopted by the Hon'ble Supreme Court of Pakistan in the above noted recent authoritative judgments make it lucid that the practice of entertaining constitutional petitions while exercising jurisdiction under Article 199 of the Constitution, against an appellate Court's order/judgment, has been deprecated by the Apex Court.

10. In view of the above observations, this writ petition is devoid of any merit, not presenting any exception for invoking jurisdiction under Article 199 of the Constitution. Hence, the same is accordingly dismissed. MQ/R-16/L Petition dismissed. [1] 2023 SCMR 1434