2026 PLP 1338 (YLR)

Abid Hussain Chattha, J.

This single Judgment shall decide the titled Petitions since the same are directed against the impugned Judgments and Decrees dated 21.02.2024 and 11.12.2024 passed by Judge Family Court and Additional District Judge, Sialkot, respectively.

2. For ease of reference, Mehnaz Saleem shall hereinafter be referred to as (the Petitioner ) and Kashif Iqbal as (the Respondent ).

3. Precisely, the Petitioner instituted a suit for recovery of dower, maintenance allowance and dowry articles against the Respondent which was partially decreed by the Family Court through the impugned Judgment dated 21.02.2024 and she was held entitled to receive maintenance allowance @ Rs. 15,000/- per month for her Iddat period i.e. Rs. 45,000/- in total and dower Rs. 1,000,000/-. She was also held entitled to recover some of the dowry articles or in alternative its value to the tune of Rs. 1,000,500/-.

4. Both the parties preferred cross Appeals against the decision of the Family Court which were decided by the Appellate Court vide impugned consolidated Judgment dated 11.12.2024 in the manner that Appeal filed by the Petitioner was dismissed, whereas, that of the Respondent was partially allowed and the decree of the Family Court was modified in the manner that claims of the Petitioner qua maintenance allowance and dower were dismissed, whereas, the quantity and quantum of claimed dowry articles was reduced and alternative value was set at Rs. 400,000/-.

5. Learned counsel for the Petitioner submitted that maintenance allowance was denied to the Petitioner against the evidence on record. The Courts below have failed to consider proved polygamy on the part of the Respondent who contracted third marriage with the Petitioner without disclosing second marriage and afterwards contracted fourth marriage during the subsistence of marriage with the Petitioner. Under such circumstances, the Petitioner was expelled from the house of the Respondent in three wearing apparels and was not even allowed to take back her belongings including gold ornaments. The Respondent subsequently orally pronounced divorce to the Petitioner which cannot be regarded as lawful, hence, she is entitled to receive her maintenance allowance and deferred dower in terms of Section 6(5) of The Muslim Family Laws Ordinance, 1961 (the Ordinance ). Similarly, the Appellate Court erred to reduce the quantity and quantum of dowry articles against the evidence on record. It was prayed that the impugned Judgments are liable to be modified and her claims be decreed as prayed for.

6. Conversely, learned counsel for the Respondent submitted that the Appellate Court erred in law to award dowry articles or in the alternative Rs. 400,000/- to the Petitioner against the evidence on record. The Petitioner failed to prove her claim of dowry articles and the Judgment of the Appellate Court to this extent is liable to be set aside.

7. Arguments heard. Record perused.

8. The claim of the Petitioner put forward in the plaint is that she was married with the Respondent through registered Nikahnama against prompt dower of Rs. 5,000/- and deferred dower of Rs. 1,000,000/-. She moved in the house of the Respondent and started performing her marital obligations. The Respondent had only disclosed the factum of his first wife who had died before her marriage. However, after marriage it transpired that the Respondent had already contracted second marriage and the Petitioner was his third wife. This led to confrontation between the spouses and eventually, she was expelled from the house of the Respondent after one month of marriage leaving behind her dowry articles including gold ornaments. Subsequently, the Respondent has also contracted fourth marriage. Since her expulsion, the parents of the Petitioner are bearing her expenses. Accordingly, she claimed decree of past and future maintenance allowance @ Rs. 20,000/- per month, dowry articles or in the alternative Rs. 2,273,000/- and deferred dower to the tune of Rs.1,000,000/-.

9. The Respondent in his written statement submitted that the claim of deferred dower is based on forged entry in the Nikahnama and as such, is not payable. He further claimed that the Petitioner did not bring any dowry articles and is not entitled to maintenance allowance since she has voluntarily left his house and is not ready to reside with him and perform her marital obligations. However, he did not specifically deny the fact of four marriages pleaded by the Petitioner but stated that frivolous application was made against him in this behalf by the Petitioner which has been filed.

10. The first issue relates to maintenance allowance. The Family Court held that since the Respondent has pronounced oral divorce upon the Petitioner, therefore, the latter is only entitled to receive maintenance allowance for Iddat period. The Appellate Court disagreed with the findings of the Family Court by holding that there is no conclusive evidence to establish that divorce has been effected, as such, marriage between the parties is still intact. Nevertheless, the Petitioner is not entitled to receive her maintenance allowance as she has belatedly filed the suit and failed to prove her forced desertion which establishes that she is a disobedient wife.

11. The Petitioner, in her plaint, categorically asserted that she was expelled from the house of the Respondent after one month of marriage. On the other hand, the Respondent, in his written statement, admitted that the Petitioner left his house a few days after the marriage. Although, the Respondent attempted to present the departure as voluntary, the factum of separation shortly after the marriage is not denied. The admission of the Respondent that the Petitioner left his house after few days of marriage substantially corroborates the Petitioner s stance that she resided there only for a brief period. It is a settled principle of law that facts admitted need not be proved. The Petitioner has pleaded specific circumstances which led to her expulsion. The fact of non-disclosure of second marriage and subsequently contracting fourth marriage by the Respondent is established on the record. This provided a lawful excuse to the Petitioner to raise the issue of concealment and cheating with the Respondent. Under these circumstances, her expulsion by the Respondent could not be attributed to her in absence of any cogent evidence produced by the Respondent to establish that the Petitioner left the house without lawful cause. Hence, the Respondent as husband bears the legal and moral obligation to maintain his wife. Nikahnama placed on record clearly records the date of marriage as 27.11.2021. The marriage between the parties is intact since none of the parties pleaded divorce. The fact of oral pronouncement of Talak surfaced in a subsequent suit for restitution of conjugal rights filed by the Respondent which was later withdrawn by him. In the absence of conclusive proof of divorce and particularly divorce effectiveness certificate , the marriage shall be regarded as intact. In case titled, Ambreen Akram v. Asad Ullah Khan and others (2026 SCMR 1), it has been held by the Supreme Court of Pakistan that right of wife to maintenance flows unconditionally from the solemnization of a valid marriage and constitutes a binding legal duty. In light of the established fact that the Petitioner was separated from the Respondent within one month of the marriage and has since been residing apart and there being no convincing proof that such separation was due to her own misconduct or disobedience, she is legally entitled to receive maintenance allowance. As such, she is entitled to receive maintenance allowance @ Rs. 15,000/- per month w.e.f. 27.12.2021 i.e. one month after the date of marriage till her legal entitlement with 10% annual increase.

12. The second issue pertains to entitlement of the Petitioner regarding deferred dower. The Family Court awarded deferred dower to the Petitioner by holding that she had been divorced. However, the Appellate Court reversed the same for the reason that there was no convincing evidence regarding dissolution of marriage between the parties. Nevertheless, the Courts below erred in law by not considering the effect of Section 6(5) of the Ordinance in view of the allegation of polygamy pleaded by the Petitioner. The fact that the Respondent contracted third marriage with the Petitioner during the subsistence of second marriage and thereafter fourth marriage during the subsistence of third marriage with the Petitioner was established on the basis of evidence on record. Further, the Petitioner filed a complaint under Section 6 of the Ordinance alleging therein that the Respondent had contracted another marriage without her prior permission on 20.05.2023 and even at that time, she did not allege that any dissolution of marriage or pronouncement of divorce had taken place. Section 6(5) of the Ordinance deals with polygamy and is reproduced as under:- (1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance. (2) An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee and shall state the reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto. (3) On receipt of the application under subsection (2) the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant subject to such conditions, if any, as may be deemed fit, the permission applied for. (4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, [to the Collector] concerned and his decision shall be final and shall not be called in question in any Court. (5) Any man who contracts another marriage without the permission of the Arbitration Council shall (a) Pay immediately the entire amount of dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid shall be recoverable as arrears of land revenue; and (b) On conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both. (emphasis supplied)

13. In the instant case, it is an admitted position on record that the Respondent contracted a subsequent marriage during the subsistence of his marriage with the Petitioner without obtaining permission from her or the Arbitration Council as mandated under the relevant provisions of law. The Respondent was sentenced on this account on the complaint of the Petitioner vide order dated 07.02.2024 passed by Judge Family Court / Magistrate Section-30, Pasrur. An Appeal preferred by the Respondent in this behalf was dismissed on 06.05.2024. It is a settled principle of law that deferred dower becomes payable upon the dissolution of marriage, either upon death of the husband or divorce to the wife. However, this general rule is subject to statutory exception in terms of Section 6(5) of the Ordinance to the effect that where a husband contracts another marriage without the prior permission of the Arbitration Council, he becomes immediately liable to pay the entire amount of dower, whether prompt or deferred, to the existing wife or wives. The object of this provision is to safeguard the financial rights of the wife and to deter arbitrary or deceitful further marriages. In the present case, since the Respondent contracted marriages without fulfilling the mandatory legal requirement and has been penalized for the same, the liability to pay the entire deferred dower has become due, irrespective of the subsistence of the marriage between the parties. The peculiar facts and circumstances of the case, therefore, clearly attract the application of Section 6(5) of the Ordinance, making deferred dower immediately payable to the Petitioner during the subsistence of marriage. Reliance is placed upon on case titled, Muhammad Jamil and others v. Mst. Sajida Bibi and others (PLD 2020 SC 613). Hence, the Petitioner is held entitled to recover her deferred dower amounting to Rs. 1,000,000/-.

14. The last issue is regarding the claim of dowry articles. The Family Court, after conducting a detailed appraisal of oral as well as documentary evidence, partially decreed the suit in the manner stated above. The Family Court scrutinized the list of dowry articles furnished by the Petitioner and compared the same with supporting evidence, including witness statements and dowry receipts. Upon such evaluation, the Family Court came to the conclusion that although certain items were sufficiently proved but other aspects of the claim suffered from deficiencies and inconsistencies in evidence. The gold ornaments were excluded on the basis of well-recognized customary principle that the same are ordinarily retained in the safe custody of women unless proved otherwise through cogent and confidence inspiring evidence which was missing in the instant case. The gift articles were also excluded. Moreover, while determining the alternate value of the awarded articles, the Family Court also took into account the factor of wear and tear with the passage of time ensuring that the decree was equitable and reflective of the realistic value of the articles rather than their original purchase price. The approach adopted by the Family Court demonstrates judicious application of mind and balanced consideration of evidence. Consequently, instead of allowing the claim in its entirety, the Family Court exercised judicial caution and awarded only those dowry articles which were satisfactorily established, or in the alternative, their assessed depreciated value amounting to Rs. 1,000,500/-.

15. The Appellate Court, upon reappraisal of the same evidence, chose to depart from the well-reasoned findings of the Family Court and reduced the quantity and quantum of dowry articles. The principal ground assigned by the Appellate Court for such reduction is that the Respondent had previously been married prior to contracting marriage with the Petitioner and according to prevailing social trends, second marriages are generally solemnized in a simpler manner, without conferring substantial or expensive dowry articles. The Appellate Court further observed that the claimed articles by the Petitioner did not appear to commensurate with the financial position, status, and social standing of her family and that receipts of dowry articles can be easily procured. Such reasoning based on generalized societal assumptions rather than concrete evidence available on record amounts to substituting judicial analysis with conjectures. The determination of a dowry claim ought to rest strictly upon the evidence produced by the parties and not upon presumed social patterns or customary perceptions regarding second marriages. The reduction of dowry articles on such considerations, therefore, reflects a departure from established evidentiary framework. Hence, the finding of the Appellate Court on this account cannot be sustained in comparison to that of the Family Court which is based on correct appreciation of evidence and as such, the latter is maintained.

16. In view of the above, W. P. No. 19363 / 2025 filed by the Respondent is hereby dismissed, whereas, W. P. No. 2743 / 2025 filed by the Petitioner is partially allowed in the manner that she is held entitled to recover maintenance allowance @ Rs. 15,000/- per month since 27.12.2021 with 10% annual increase till her legal entitlement and deferred dower Rs. 1,000,000/-. She is also held entitled to recover her dowry articles as decreed by the Family Court. The Judgments and Decrees of the Courts below are modified, accordingly. UN/M-54/L Order accordingly.