ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constt: Petition No.S-214/2023

(Mst. Mehwish Janvri v/s 3rd Additional District Judge Larkana and another)

__________________________________________________________________________

DATE             ORDER WITH SIGNATURE OF HON’BLE JUDGE___________________

 Before:

            Mr. Justice Nisar Ahmed Bhanbhro

1.     For orders on office objection “A”

2.     For hearing of M.A No.491/2023 (S/A)

3.     For hearing of main case.

 

Petitioner:                               Mst. Mehwish Janvri

                                                Through Mr. Naushad Ali Tagar, Advocate.

Respondent No.1:                   Abdul Waris BhuttoAssistant Advocate General, Sindh.

 

Respondent No.2:                   Safiullah

Through Ms. Mehran Jagirani, Advocate

 

Date of hearing:                      16-05-2025

Date of Decision:                   16-05-2025

 

O R D E R

 

Nisar Ahmed Bhanbhro J.- The petitioner through instant petition has challenged the order dated 01-06-2023 passed by the court of learned Additional District Judge-III Larkana(Appellate Court), in family Appeal No.9/2023 (Re-Mst. Mehwish V/s Safiullah), wherein the appeal of the Petitioner was dismissed and judgment and decree dated 12.01.2023 passed by the Court of Learned Family Judge Larkana (Trial Court) in family suit No.195/2022 was maintained.

2.         The facts of the petitioner’s case are that she filed a suit for maintenance and dissolution of marriage by way of Khula. She claimed that marriage between the parties was solemnized about 18 years back and out of the wedlock she mothered three children namely Mehroz Fatima aged 15 years, Samar Abbas aged 07 year and Qurat-ul-Ain aged 3 years. By passage of time Respondent No 2 changed his attitude towards Petitioner and finally, four months prior to the filing of suit she was kicked out of the house and all the possible efforts for reconciliation through nekmards failed, therefore, she approached the trial court with the prayer that she may be granted maintenance allowance of Rs.20,000/- per month for herself, Rs 10,000 against the monthly rent of house, and Rs 15000 per child each month, so also the marriage between the parties may be dissolved on ground of Khulla. She also claimed that Haq Mahar was fixed as one Tola Gold but remained unpaid.

3.         On summons, Respondent No 2 appeared before Trial Court, filed his written statement, denied the allegations levelled by Petitioner and submitted that Petitioner herself left the house while taking two daughters with her and leaving minor son Samar Abass at his house. He has taken tender care of family, Petitioner was a disobedient wife and she had had brawls in house over trivial issues. He cannot pay huge maintenance allowance as he was not doing any business, but working as a labor over shop. The maintenance allowance claimed by the petitioner was excessive and not payable by him. He claimed that the Haq Mahar was paid at the time of Nikah in the shape of Gold, such a fact finds mention in the nikahnama. The Petitioner had filed a fictitious suit which was liable to be dismissed.

4.         After the filing of written statement by the respondent No 2, the pre-trial proceedings were held before Trial Court, which failed, hence marriage between the parties was dissolved by way of Khula vide decree dated 21-06-2022.

5.         To resolve the controversy of Haq Mehr andfixation of maintenance of minors,the trial court framed issues. To support her claim petitioner examined herself and respondent No.2 also examined himself, thereafter, closed side for evidence. The Learned Trial court after hearing the parties decreed the suit of petitioner to the extent of payment of maintenance of Rs.5000/- per month for 02 minor daughters with 10% annual increase till their legal entitlement and Rs 1000 per month for maintenance of Petitioner and directed Petitioner to return Haq Mehr of 01 Tola Gold to Respondent No 2 in lieu of the decree dated 21.06.2022 wherein the marriage of the parties was dissolved by way of Khula.

6.         The Petitioner dissatisfied with the Decree preferred family appeal No.9/2023, before the District Judge Larkana which was assigned to Learned Appellate Court for disposal in accordance with law. The Learned Appellate Court after hearing the parties dismissed the appeal and maintained the judgment and decree passed by the trial court.

7.         Learned counsel for the petitioner submits that the Haq Mehr viz; 01 tola gold was taken by the respondent No.2 and it was sold out for business purposes and never returned back to the petitioner. He contends that the Respondent No 2 runs business of cosmetics and earns bounty of amount each month, his bank account statement shows that millions of rupees are parked and debited from his account yearly despite of that he has failed to maintain children and wife which resulted into separation between the parties. He contends that the courts below committed illegality and did not appreciate the evidence led by the parties and declined the relief to the petitioner without any rationale. He prayed for allowing of this petition and modifying the impugned judgment and decree passed by Courts below by increasing maintenance allowance of petitioner until expiry of Iddat period and of the minors for now and for future.

8.         Ms. Mehran Jagirani Learned Counsel appearing on behalf of the respondent No.2, contended that the judgment and decree passed by the Courts below is well reasoned and based upon the proper appreciation of the evidence, there is no misreading or non-reading of the evidence on record. The Petitioner filed suit for dissolution of marriage on the ground of Khula, therefore, she was required to pay back the Haq Mehr amount on dissolution of the marriage. She contended that the respondent No.2 is a laborer, he hardly earns money to meet his livelihood, despite of that he is paying monthly maintenance for the children to the petitioner. She contended that if the maintenance allowance is increased the respondent No.2 would not be able to pay the same. She prayed for dismissing the petition and maintaining judgments of court below.

9.         Learned Assistant Advocate General supported the impugned judgment and decree but contended that the judgment and decree passed by the courts below required modification to the extent of maintenance allowance for the minors and for the petitioner. He supported the case of Petitioner for increase in maintenance allowance.

10.       Heard arguments of the parties and examined material available on record.

11.       Addressing the issue of Haq Mehr which Petitioner is directed to pay back to her Respondent No 2,Learned Counsel for the petitioner contended that Haq Mehr amount was not payable in lieu of the dicta laid down by Honorable Supreme Court in the case of Aamir Raza Versus Ruhi Mumtaz reported in 2023 SCMR 1394., in which the Honorable Supreme Court of Pakistan has been pleased to hold as under:

5.  We have heard the learned counsel for the parties at a considerable length and gone through the material available on record with their able assistance. Per section 10(5) of the West Pakistan Family Courts Act, 1964, 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. We find that the learned trial Court while decreeing the suit vide order dated 27.08.2020, disregarded the earlier judgment dated 28.11.2018, which directed the respondent to "surrender 50% of her deferred dower". The house from the petitioner, as mentioned in Nikahnama, is the deferred dower and as per the khula judgment, the respondent is only entitled to fifty percent (50%) of the house (deferred dower). This premise is grounded in section 10(5) ibid that while obtaining dissolution on the sole basis of khula, the respondent is bound to surrender fifty percent (50%) percent of her share in deferred dower. We refer to the judgment of this Court in the case of Muhammad Arif v. Saima Noreen (2015 SCMR 804) which held that the wife, in case of khula, has to forego the dower amount as per Section 10 of the ibid Act.

6.  For what has been discussed above, this petition is converted into an appeal and allowed. The impugned order is modified to the extent of the deferred dower and the respondent is held entitled only to fifty percent (50%) share in the house in question or market value thereof.

 

12.       Section 10 of West Pakistan Family Court Act 1964 envisages that if the wife seeks dissolution of marriage by way of Khula, she has to return the Haq Mehr amount if paid.The judgmentof Honorable Apex Court was carefully examined and it was found that the same pertained to the Family Courts Act 1964 for the Province of Punjab. There is difference in enactment of two provinces, Section 10 of The West Pakistan Family Courts Act 1964 reads as under:

10. Pre Trial Proceedings. (1) When the written statement is filed, the Court shall fix an early date for a pre – trial hearing of the case.

(2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their counsel.

(3) At the pre – trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.  

Provided that notwithstanding any decision of judgment of any court or tribunal, the family court in a suit for dissolution of marriage, if reconciliation fails shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.

The Proviso to Section 10 of the West Family Courts Act 1964 for province of Punjab reads as under:

(5) In a suit for dissolution of marriage if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty five per cent of her admitted prompt dower to the husband.

For the Act in province of Punjab, the payment of Haq Mehr has been left at the discretion of the Family Court by incorporating word “may” in sub section (5) of Section 10. Since such an amendment is not available for the province of Sindh, wherein section 10 of the Act in its proviso contains the word “shall” which binds the family court to grant Haq Mehr in favor of husband if the wife agitates a claim for dissolution of marriage on the ground of khula. The family Court holds pre-trial proceedings to take reconciliation efforts if the samefails, the suit is decreed for dissolution of marriage on ground of khula, Haq Mehr amount if any paid shall be restored to the Husband. With due reverence judgment in the case of Amir Raza V/s Mst. Rohi Mumtaz (supra) does not support the case of petitioner since the family laws in two provinces are at variance to certain extent.

13.       Meticulous perusal of pleadings of the parties reveals that per averments contained in plaint, the petitioner had stated that Haq Mehr was fixed as 01 Tola Gold but it remained unpaid despite of repeated demands. This fact was denied by the respondent No 2 in written stamen, he asserted that Haq Mehr was promptly paid in the shape of one Toal Gold which remained with the Petitioner. Perusal of evidence of Petitioner manifested that she produced Nikahnamabefore Trial Court, wherein in Column No 14 it was written that Haq Mahar was fixed as 01 Tola Gold, which was promptly paid to the petitioner. During Cross examination Petitioner was confronted with this piece of documentary evidence, wherein she admitted for payment of Haq Mehr but took a new stance that after marriage Gold was taken back by the Respondent No 2 and sold out for the purposes of staring business. This stance of the Petitioner remained not proved, she did not produce any witness in support of her this claim. More importantly petitioner departed from her pleadings wherein she had denied payment of haqmahar and in evidence she stressed that one tola gold was paid to her but returned back to Respondent No 2 for business purposes. This improvement in the evidence discredits the Petitioner narration of not receiving Haq Mehr. The Trial Court during summary proceedings at pre-trial stage dissolved the marriage on the ground of Khula but did not grant the payment of Haq Mehr to the respondent No.2 as parties disputed the payment of the same. Trial Court offered an opportunity to the parties to prove their claim through evidence, which petitioner failed, and based upon the documentary evidence this point was rightly resolved in favor of Respondent No.2. In the given circumstances the decree of Courts below for return of Haq Mehr amount to the Respondent No 2 does not suffer from any infirmity thus does not require interference by this Court under its writ jurisdiction.

14.       Adverting to the issue of maintenance allowance granted to petitioner and minors by Courts below, Petitioner is mother of three children and all of them are residing with her in a rented house. Under the laws of land and Sharria, father is responsible to maintain his children. In case of girl father is required to maintain her until she marries and in case of boy he is required to maintain him until the age of majority which is 18 years. The maintenance of the minors is the responsibility of respondent No.2 which cannot be absolved in any case. The Family Courts are required to adopt child centered approach, which protects rights of the minors and while granting maintenance a reasonable amount be fixed looking at the peculiar financial position of the father. In the present case trial court granted a maintenance allowance of Rs.5000/- for two girls only but did not assign any reason for not granting maintenance of minor boy. Minor Samar Abass appeared in Court, when inquired about his studies he replied that due to the differences in parents he is not being admitted in any School. Respondent No 2 could not offer any explanation for not admitting minor in any school. Minor complained in open Court that his parents were not allowing him to join any school and he wanted to learn, he asked Court to do some favor to him as he may be able to learn. In the said eventuality the Director Private Schools Larkana was called by the court, he was directed to ensure the admission of minor Sammar Abass in any private school of the Larkana city in terms of the 10% benevolent scheme for the poor children. On the direction of this court the Director School Education had got minor admitted in Faran Public School Larkana and as per the statement of petitioner and respondent No.2 the minor is attending the school regularly and school administration is not demanding any fees from them. The administration of the school will continue the study of the minor for the classes up to the grade, the school is imparting education and at no point of time his admission will be terminated on account of non-payment of fees. The Director Private Schools shall ensure that the minor remains in schooling of Faran Public School without any disturbance.This particular part of the order may fall within the definition of Judicial Overreach but in circumstances a minor boy who is willing to learned can be left out of the School, therefore this Court while going beyond the pleadings of parties deemed it appropriate to pass an order for the welfare of minor in particular to the society in general. This sad state of affairs in the family, makes us to think, how the minors are affected mentally and physically on account of disturbance in parents. The family Courts dealing with the custody and maintenance issues of minors should inquire from parents for schooling of children and for determination of welfare of minor’s education should be kept in top priority. The findings of Courts below depriving minor Samar Abass from monthly maintenance when admittedly he is residing with his mother is not sustainable under the law.

15.       Honorable Supreme Court of Pakistan in the case of Malik Mahmood Ahmed Khan Versus Malik Moazam Mahmood Khan reported in P L D 2025 Supreme Court 247 has been pleased to hold as under:

2.  Courts must approach cases involving children with a dedicated child justice approach, rooted in a legal and moral obligation to protect, nurture, and rehabilitate children, ensuring their rights and well-being within the justice system. Child justice encompasses both children in conflict with the law, who require rehabilitative interventions rather than punitive measures, and children in contact with the law, who must be safeguarded and supported throughout judicial processes. As custodians of justice, courts must adopt a child justice approach that prioritizes the best interests of the child, recognizing their vulnerabilities, developmental needs, and potential. This approach demands sensitivity to their circumstances, ensuring access to education, shielding them from exploitation, and fostering an environment conducive to their growth and reintegration into society. As Nelson Mandela aptly said, "There can be no keener revelation of a society's soul than the way in which it treats its children."1 By adhering to these principles, the judiciary not only fulfils its legal obligations but also demonstrates judicial sensitivity towards children, contributing to a just and compassionate society.

 

16.       So far as the maintenance of the Petitioner is concerned, she has been granted maintenance of Rs 1000 per month until expiry of Iddat Period. The trial court lost sight of the fact that Rs.1000/- amount is never sufficient, even if a person takes a cup of tea a day, it will cost Rs 3000. The trial court seized with the matter did not impose sufficient maintenance allowance upon respondent No.2 for payment to Petitioner till the expiry of Iddat period. The petitioner had sufficiently proved to the admission of respondent No.2 that millions of rupees traveled into his account, though the respondent No.2 evasively replied that the said amount belonged to one of his friends. If it was the case, the respondent No.2 was required to examine that friend who was so compassionate with him that he was sending millions of rupees in his account without any business or other dealings. The counsel for the respondent No.2 has argued that the petitioner is not capable of paying even the maintenance allowance which has been already fixed by the courts below. This Contention is without any effects, asresponsibility and capability are two different things. Once a responsibility is saddled upon a person by virtue of any operation of law, he is required to discharge that responsibility fully. He cannot take any excuse for his capability because the maintenance of the children is the prime responsibility of the father. Mother in no circumstances can be compelled to maintain the children. Since the reasoning adopted by the learned trial court for grant of maintenance to the extent of 02 children and grant of maintenance of Rs.1000/- to the petitioner was not based upon the proper appreciation of evidence and circumstances prevailing in the society and the inflation rates which cost heavily on the livelihood of every human being. The courts below should have kept a reasonable maintenance amount upon the respondent No.2, so that the mother could be able to maintain the children without asking for help from any other person including her parents.

17.       This court under its constitutional jurisdiction is very slow in examining the concurrent findings of the courts below but when it appears from the face of record that the findings were perverse, illegal, there was misreading and non-reading of evidence on record, the court will step in and secure the rights of the parties which were affected on account of the acts of the court. The reasons recorded hereinabove demonstrate that the Courts below failed to appreciate the evidence on record, there is serious misreading and nonreading of the evidence on record, which requires indulgence of this Court.

18.       For what has been discussed hereinabove the petitioner has made out a case for interference by this Court, accordingly the judgment and decree passed by the courts below is maintained but modified to the extent of payment of maintenance to the Petitioner and minors. The maintenance allowance of minors is fixed as Rs.5000/- per child per month in Total 15000 from the date of filing of Suit until the marriage of minor girls and up to the age of majority of minor boy with an increase of 10 per cent per year. Whereas the maintenance of the Petitioner is increased to Rs.5000/- per month from the date of filing the Suit till the expiry of Iddat periodwhich will start from date of preliminary Decree for dissolution of marriage by way of Khula. The differential amount shall be deposited by the respondent No.2 before the trial court where execution proceedings are pending. The Respondent No 2 himself undertakes to pay the difference amount within a period of 04 months from today, but he shall not discontinue the monthly maintenance allowance granted to the minor children which shall be deposited within a period of one week time from today and by the 10th day of every month of the Calendar year.

                        This petition stands disposed of in above terms. The parties to bear costs.

 

 

                                                                                                JUDGE

Asghar/P.A