6/8/22, 2:44 PM 2022 C L C 634

2022 C L C 634
[Lahore (Rawalpindi Bench)]
Before Reheel Kamran, J
SAFEER AHMAD----Petitioner
Versus
Mst. GULSHAN BIBI and others----Respondents
Writ Petition No.3392 of 2021, decided on 26th January, 2021.
(a) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Suit for recovery of maintenance allowance---Scope---
Petitioner/husband assailed award of maintenance allowance to the respondent/wife
on the ground that she herself had left his house of her own volition---Validity---
Respondent levelled allegations of bad and disrespectful behaviour on part of the
petitioner towards her and she deposed in her evidence that on account of torture
inflicted by the petitioner upon asking for maintenance, she had left the house of
the petitioner and to that extent her testimony was not discredited in cross-
examination by the petitioner---Respondent had left the house of the petitioner
under compelling circumstances to reside with her parents and the petitioner could
not prove any attempt on his part to reconcile with her---Defence witnesses had
admitted the date of desertion as well as the fact that the petitioner had not paid any
amount of maintenance from the said date till dissolution of the marriage---Decree
for maintenance was rightly passed in favour of the respondent---Constitutional
petition was dismissed, in circumstances.
(b) Family Courts Act (XXXV of 1964)---
----Ss.5, 10(5) & 10(6)---Suit for dissolution of marriage on basis of Khula---
Return of dower---Scope---No legal requirement exists in a suit for dissolution of
marriage to restore to the husband the Haq Mehar received by wife in consideration
of marriage at the time of Nikah---In terms of S. 10(5) of the Family Courts Act,
1964 the surrender of dower by wife in a case of dissolution of marriage through
khula is no more mandatory or a matter of course rather it is discretionary---Such
surrender is not automatic but depends upon direction of the Family Court---
Surrender by the wife under S. 10(5) is only a part of the dower and not the whole
of it---Scope of discretion of the Family Court in this regard covers not only
whether or not to direct surrender of the dower by the wife but also how much or
what part of the prompt or deferred dower---Such direction for surrender has to be
within the ceiling prescribed by the legislature in either case i.e. up to fifty percent
of the deferred dower or up to twenty five percent of the admitted prompt dower---
Any direction by the Family Court to the wife for the surrender of dower has to be
part of either of the two, namely deferred dower or admitted prompt dower and not
both---In the decree for dissolution of marriage, in case whole or part of the
deferred dower is outstanding, subject to S. 10(5), it is mandatory for the Family
Court under S. 10(6) to direct the husband to pay the same to the wife.

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(c) Family Courts Act (XXXV of 1964)---

----Ss.5 & 14---Constitution of Pakistan, Art.199---Suit for recovery of
maintenance allowance---Appeal---Constitutional petition---Maintainability---
Scope---Award of maintenance allowance at the rate of Rs.5000/- per month---
Husband/petitioner challenged such award in Constitution jurisdiction of High
Court---High Court observed that the same had already been considered by
legislature to be too meager even to allow an appeal under S. 14 of the Family
Courts Act, 1964, therefore, entertaining a writ petition would tantamount to
defeating the legislative intent and purpose of restricting the challenge to such
decree Constitutional petition was dismissed.
Sarfraz v. Additional District Judge and 5 others 2017 YLR 1684; Abdul
Hameed v. Additional District Judge, Dera Ghazi Khan and 3 others 2014 CLC 11
and Mst. Tabassum v. Waqar Hussain and another 2011 MLD 351 ref.
Chaudhry Riaz Ahmed for Petitioner.
ORDER
RAHEEL KAMRAN, J.----Through this writ petition, the petitioner has
challenged the judgment and decree dated 09.09.2021 passed by the learned
Additional District Judge, Sohawa whereby the appeal preferred by the petitioner
against the judgement and decree dated 05.03.2021 passed by the learned Judge
family Court, Sohawa partially decreeing the suit for dissolution of marriage,
recovery of maintenance allowance, iddat period allowance and dowry articles etc.
was dismissed.
2. It is pertinent to mention here that through the impugned judgments and
decrees, suit of respondent No.1 was partially decreed in the following terms:
(i) prayer for the decree of dissolution of marriage on the basis of khula was
allowed on 12.02.2020 with direction to respondent No.1 to surrender 25%
of her prompt dower and 50% of deferred dower, if any;
(ii) claim of recovery of the past maintenance was allowed at the rate of Rs.
5000/- per month since October 2018 till dissolution of marriage in
February 2020;
(iii) claim of recovery of maintenance for iddat period was allowed at the rate of
Rs.7000/- per month for three months (i.e. Rs.21,000/- in total);
(iv) respondent No.1 was held entitled to receive dowry articles in the list
(Ex.P.2) except gents' articles and gold ornaments or in the alternative price
thereof specified in the said list after 10% depreciation.
3. It is also noteworthy that an amount of Rs.42,000/- has been specified to be
the amount of dower in column No.13 of the Nikahnama annexed with the titled
writ petition, which has been totally paid at the time of marriage, as mentioned in
column No. 15 of the Nikahnama.
4. The petitioner has made the following prayer in the titled Writ Petition:

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"It is therefore, respectfully prayed that the Writ Petition of the Petitioner may
kindly be accepted and impugned order dated 09.09.2021 passed by the
Appellate Court/ADJ Sohawa District Jehlum be set aside and it may be
modified to the extent of maintenance for iddat period only which too may
be decreased and respondent No.1 may be directed to return 100% of dower
amount to the petitioner under section 10(4) of West Pakistan Family Court
Act, 1964 and oblige.
Any other order which this Honourable Court deem fit and proper may also be
passed."
5. Learned counsel for the petitioner contends that the impugned judgment and
decree is unwarranted by law inasmuch as respondent No.1 who obtained khula
herself is not entitled for the payment of partial dower and that she was required to
surrender whole of the dower which she has received at the time of her marriage
with the petitioner. He adds that order of payment of past maintenance at the rate of
Rs.5000/- per month to respondent No.1 is also unlawful inasmuch as it was
respondent No.1 who herself left the house of the petitioner and was not entitled to
claim or receive any past maintenance. He finally contends that the amount of
maintenance allowance for iddat period is unduly harsh and excessive.
6. Arguments heard. Record perused.
7. Through the Punjab Family Courts (Amendment) Act, 2015 (XI of 2015),
inter alia, subsection (4) of Section 10 of the Family Courts Act, 1964 [herein after
referred to as the Act] was substituted and new subsections (5) and (6) in Section
10 were inserted, which read as follows:-
"(4) Subject to subsection (5), if compromise is not possible between the parties,
the Family Court may, if necessary, frame precise points of controversy and
record evidence of the parties.
(5) In a suit for dissolution of marriage, if reconciliation fails, the Family Court
shall immediately pass a decree for dissolution of marriage and, in case of
dissolution of marriage through khula, may direct the wife to surrender up to
fifty percent of her deferred dower or up to twenty-five percent of her
admitted prompt dower to the husband.
(6) Subject to subsection (5), in the decree for dissolution of marriage, the
Family Court shall direct the husband to pay whole or part of the
outstanding deferred dower to the wife."
8. It is manifest that since substitution of subsection (4) of Section 10 ibid
through the Punjab Family Courts (Amendment) Act, 2015 (XI of 2015), there is no
legal requirement, to the extent of province of the Punjab, in a suit for dissolution
of marriage to restore the husband the Haq Mehr received by the wife in
consideration of marriage at the time of Nikah. This was postulated under proviso
to the substituted Section 10(4) of the Act. The said requirement has now been
substituted with the newly inserted subsection (5) in Section 10 of the Act.
9. In terms the Section 10(5) of the Act, the surrender of dower by wife in a case
of dissolution of marriage through khula is no more mandatory or as a matter of

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course rather it is discretionary. Such surrender is not automatic but depends upon
direction of the Family Court. The surrender by the wife under Section 10(5) of the
Act is only a part of the dower and not the whole of it. The scope of discretion of
the Family Court in this regard covers not only whether or not to direct surrender of
the dower by the wife but also how much or what part of the prompt or deferred
dower. Such direction for surrender has to be within the ceiling prescribed by the
legislature in either case i.e. up to fifty percent of the deferred dower or up to
twenty five percent of the admitted prompt dower. Any direction by the Family
Court to the wife for the surrender of dower has to be part of either of the two
namely deferred dower or admitted prompt dower and not both. In the decree for
dissolution of marriage, in case whole or part of the deferred dower is outstanding,
subject to Section 10(5) ibid, it is mandatory for the Family Court under Section
10(6) of the Act to direct the husband to pay the same to the wife.
10. In this case, the petitioner has prayed for the return of entire prompt dower
mentioned in the Nikahnama which has no legal basis in view of the amendments
introduced through the Family Courts (Amendment) Act, 2015 (XI of 2015), in
particular Section 10(5) of the Act. A direction for the surrender of prompt dower
to the maximum limit of 25% has already been decreed against respondent No.1, as
visualized under Section 10(5) of the Act, therefore, any additional claim of the
petitioner is unwarranted by law.
11. As regards decree for maintenance allowance, Rs.5000/- per month is
concerned, the same has been considered by the legislature to be too meager even
to allow an appeal under Section 14(2)(c) of the Act, therefore, entertaining of the
titled writ petition would be tantamount to defeat the legislative intent and purpose
of restricting the challenge to such decrees. Reliance in this regard is placed on the
case of Sarfraz v. Additional District Judge and 5 others (2017 YLR 1684), Abdul
Hameed v. Additional District Judge, Dera Ghazi Khan and 3 others (2014 CLC 11)
and Mst. Tabassum v. Waqar Hussain and another (2011 MLD 351).
12. Even otherwise, respondent No.1 has levelled allegations of bad conduct and
disrespectful behaviour of the petitioner towards her. She deposed in her evidence
that on account of torture inflicted by the petitioner upon asking for maintenance,
she left the house of the petitioner and to that extent her testimony has not been
discredited in cross-examination by the petitioner. Respondent No.1 has left the
house of the petitioner under compelling circumstances to reside with her parents
and he could not prove any attempt on his part to reconcile with her. In his cross-
examination, DWs have admitted the date of desertion to be 20.09.2018 as well as
the fact that the petitioner has not paid any amount of maintenance from the said
date till dissolution of the marriage. In these circumstances, the decree for
maintenance has been rightly passed in favour of the respondent No.1 against the
petitioner.

13. As regards contention of the petitioner that the amount of maintenance

allowance for iddat period is unduly harsh and excessive, suffice it to say that said
amount is barely enough to meet basic needs of respondent No.1 in these times of
high inflation. Therefore, by any stretch of imagination the allowance of Rs.7000/-
per month for iddat period cannot be termed as harsh and excessive.

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14. Learned counsel for the petitioner has failed to point out any illegality or
jurisdictional defect warranting interference by this Court in exercise of jurisdiction
under Article 199 of the constitution of Islamic Republic of Pakistan 1973 in the
impugned judgments and decrees. Accordingly, this writ petition is dismissed in
limine being devoid of any merit.
SA/S-110/L Petition dismissed.

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