2026 C L C 92
[Balochistan]
Before Rozi Khan Barrech and Shoukat Ali Rakhshani, JJ
ZULEKHA ---Petitioner
Versus
MUHAMMAD NABI and another --- Respondents
Civil Petition No. 1029 of 2024, decided on 23rd April, 2025.
(a) Family Courts Act (XXXV of 1964) ---
----S.5, Sched.---Guardians and Wards Act (VIII of 1890), S. 25--- Suit for past and future
maintenance of minors, recovery of dower amount and house rent ---Counter guardianship
application filed by the husband--- Right of dower ---Enforceability ---Trial Court through
consolidated judgment decreed the suit of the wife excluding the relief of house rent and
dismissed guardianship application, but the Appellate Court accepted the appeal of the husband and set aside the decree passed in favour of the wife ---Validity ---Appellate Court
while adjudicating upon the matter pertaining to dowry article and maintenance had not only misconceived the law, but had also made a blanket observation without referring to a particular statement of a witness, thus, the Appellate Court had not appreciated and analyzed
the evidence of the petitioner in its true prospective, thus, the reasons drawn by the Appellate Court for setting aside the decree for recovery of dower amount and maintenance was contrary to law and sheer result of misreading of evidence ---Dower amount cannot be waived
of under any circumstances as it is an indefeasible right of the spouse and she enjoys exclusive and absolute right over her dower, which cannot be relinquished at any cost ---
Judgment and decree of the appellate court was set aside and that of the Trial Court was restored ---Constitutional petition was allowed, in circumstances.
Mst. Haseena Bibi v. Abdul Haleem PLD 2024 SC 291 rel.
(b) Guardians and Wards Act (VIII of 1890) ---
----Ss. 17(3) & 25--- Custody of minors ---Welfare of minor ---Paramount consideration ---
Non-consideration of factor of intelligent preference by minors ---Effect ----Pea of inability of
the mother to afford the expenses of children--- Legality ---It is primary duty of the father to
bear the expenses of the children and merely the inability of the mother to afford the
expenses of their children does not disqualify her from retaining the custody of the minor(s) -
--If the minor is old enough to form an intelligent preference, the court may consider that preference as well, but such right of preference had not been given to the children.
Mst. Razia Bibi v. Riaz Ahmad 2004 SCMR 821 and Raja Muhammad Owais v. Mst.
Nazia Jabeen 2022 SCMR 2123 rel.
Rizwan Somro for Petitioner.
Shah Wali for Respondent No. 1.
Arbab Nasruminallah, Additional Advocate General for Respondent No. 2.
Date of hearing: 14th April, 2025.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---The instant constitutional petition filed by the
petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), carries the following relief;
"It is accordingly prayed that impugned order dated 13.07.2024 passed by Additional
District Judge -IX Quetta, may kindly be set aside and appeal filed by respondent No.1
may kindly be dismissed straightaway, in the interest of justice."
2. Facts germane for disposal of the instant petition are that petitioner filed family Suit
No. 40/2023 against respondent No.1 for past and future maintenance of minors, recovery of
dower amount and house rent before the learned Family Judge -1, Quetta ("Trial Court"),
which was contested by respondent No.1 by filing written statement, wherein the allegations were strenuously denied.
In the meanwhile, respondent No.1 filed an application bearing No. 84 of 2023 under
section 25 of the Guardians and Wards Act, 1890 ("Act of 1890") for custody of minors.
3. The Trial Court vide order dated 27.10.2023 consolidated both the cases and out of
divergent pleadings framed seven issues, whereafter the parties led their respective evidence and also recorded their statement. After due appraisal of evidence, the Trial Court vide consolidated judgment dated 20.04.2024 decreed the suit of the petitioner to the extent of dower amount and maintenance of minors, whilst the application of respondent No.1 was dismissed. Being aggrieved, respondent No.1 filed an appeal before the learned Additional District Judge -IX, Quetta ("Appellate Court"), which was allowed vide impugned Order
dated 13.07.2024 by the Appellate Court and the judgment and decree of Trial Court was set aside, hence this petition.
4. Heard. Record perused with the able assistance of learned counsel for the adversarial
parties.
5. The Trial Court in pursuance of the trial rendered the following decree;
"1. The plaintiff is entitled for the recovery of dower amount of Rs. 50,000/ - from
defendant. 1.
2. The plaintiff is entitled for recovery of maintenance allowance of Rs. 5000/ - per
month for iddat period as the marriage of the parties was dissolved through
Talaqnama dated 19th April 2022.
3. The plaintiff is entitled for recovery of maintenance allowance of minors i.e. Irfan
Ali. Imran Ali and Kamran Ali and Rs. 7500/ -, 7500/ -, 7500/ - per month is fixed as
maintenance allowance of minors, from date of institution of suit 14th June, 2023 and onwards till the age of majority with enhancement of 10% per annum, first enhancement shall commence from April, 2025, elder son is already doing work, therefore he is not entitled for maintenance allowance.
4. The plaintiff is not entitled for the rent amount.
5. The claim of mobile settled through settlement in Court of Judicial. Magistrate -IX,
Quetta dated 18th August, 2023.
6. The father/Muhammad Nabi is not entitled for custody of minors."
6. However, in appeal preferred by respondent No.1, the decree was 6. overturned in the
terms below;
"Appeal of appellant is allowed and Impugned judgment and decree dated: 20.04.2024 being contrary to law and Norms of Justice is set aside. Suit No.40/2023 of respondent Zulekha is dismissed. No order as to cost."
7. The Appellate Court while adjudicating upon the matter in hand pertaining to dowry
article and maintenance has not only misconceived the law, but has also made a blanket observation without referring to a particular statement of a witness, thus, it can be concluded with no hesitation that the Appellate Court has not appreciated and analyzed the evidence of the petitioner in its true prospective, thus the reasons drawn by the appellate court for setting aside the decree for recovery of dower amount of Rs. 50,000/ - and maintenance is contrary to
law and sheer result of misreading of evidence.
8. The apex court in the case of "Mst. Haseena Bibi v. Abdul Haleem" (PLD 2024
Supreme Court 291) held that the dower amount cannot be waived of under any circumstances as it is an indefeasible right of the spouse and she enjoys exclusive and absolute right over her dower, which cannot be relinquished at any cost. For ready reference, relevant paras Nos. 6 and 8 of Mst. Haseena Bibi's supra is reproduced hereunder;
"6. Evaluation of the Iqrarnama dated 09.04.2013 (Ex.DW -1/ 1) reflects the
prevailing societal practice where familial agreements and compromises are entered
into without their active participation, particularly, in matters deeply entwined with their rights and well- being. The delivery of Mahr is one such right, the duty of which
is bestowed upon the husband for the financial support and stability of his wife. Such entitlement to dower has the origin in the Holy Quran, and the inspiration of the same entitlement has been made part of the statutory law. The Holy. C.A. No. 1227 of 2016 Quran presses - upon the presentation of dower to wife by commanding: "present them
'their Mahr" (the Quran IV:4). The inspiration of the guiding principles of the Holy Quran is made part of Section 5 of the Dissolution of Muslim Marriages Act, 1939 (the "Act"), which reads as under: "5. Right to dower not be affected. Nothing contained in this Act shall affect any right which a married woman may have under Muslim tutu to her dower or any part thereof on the dissolution of her marriage Dower, therefore, is a right rendered by Islam and has a footing in statutes. It is a well-known fact that no estoppal lies against a statute and it has been held by this
Court in the case of Bahadur Khan and others v. Federation of Pakistan [2017 SCMR
2066], that there could be no estoppel against the statute or the rules having statutory
force. Since right to dower has its footing in Section 5 of the Act, therefore, a wife cannot be estopped from such right and any agreement where she waives the same is void. Reference can also be made to the case of Zulfiqar Ali v. Musarrat Bibi and
others [2006 SCMR 1136]. where this Court emphasized on the exercise of the free
will and consent of the respondent -lady while executing agreement on her behalf
concerning her dowery etc. In the cited case, the brothers could not show the
authority, exercised by them on behalf of their sister, while entering into such agreement, with her husband. The petition was dismissed and the agreement was held
as having no value in the eyes of law.
8. In view of the facts and circumstances of the case and the law laid -down by this
Court supra, we hold that it is imperative that the wife must be made a party to the
agreements concerning her rights. A wife enjoys exclusive and absolute right over her
dower and the same could not be waived via Iqrarnama/ Agreement/Compromise and any such document, registered or 6. C.A.No. 1227 of 2016 - 6- unregistered,
attempting to compromise the wife's right to dower, especially in the context of familial dissolution, lacks legal validity. Further, any Iqrarnama/Agreement/Compromise made by the mother waiving her statutory right of Hizanat of a minor child would be violative of law and cannot be enforced by a Court of law."
9. As far as handing over the custody from the petitioner (mother) to respondent No.1
(father) is concerned, the same cannot be justified in any manner without considering the welfare of the minors. The only ground which prevailed upon the Appellate Court was that the petitioner being jobless and unable to the cope with the financial expenses of her children is not entitled to retain the custody of their children, which view has been depreciated not only by the apex court, but this Court as well. It is primarily duty of the father to bear the expenses of the children and merely the inability of the mother to afford the expenses of their children does not disqualify her from retaining the custody of the minor (s). Our view is fortified with the judgment rendered in the case of "Mst. Razia Bibi v. Riaz Ahmad" (2004 SCMR 821), the relevant excerpt whereof is as infra:
"....It is reflected from the perusal thereof that minor ljaz Ahmad was born on 10- 4-
1990 and by now he is 13 years of age. The learned Single Judge of the Lahore High Court has been mainly swayed by the so- called better facilities enjoved by the
respondent disentitling the petitioner lady from the custody of the minor. It is to be noted for all concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor. The petitioner lady has been looking after her minor son since his birth and maintaining him in a good environment. The father who is under the law to maintain his child, has not provided any maintenance till date. The minor is living since his birth with his mother and welfare of the child, in the circumstances, also lies in favour of the petitioner....."
[Underline is ours]
10. That apart, the children has right of preference as contemplated under the clause (3)
of section 17 of the Act of 1890, which for ease of reference is reproduced hereunder;
"17. Matters to be considered by the Court in appointing guardian.
(1) …..
(2) …..
(3) If the minor is old enough to form an intelligent preference, the Court may
consider that preference."
Be that as it may, the evidence available on record also establishes that the petitioner
proved that the welfare of the minors rest in living with her. The apex court in a recent well celebrated judgment titled as "Raja Muhammad Owais v. Mst. Nazia Jabeen" (2022 SCMR 2123) held that Custody matters requires a great deal of care as the court has to weigh in all factors in order to determine as to where the welfare of the minor lies, therefore, the entire living arrangement and environment of the child has to be reassessed in the context of his welfare. It has further been held that if the minor is old enough to form an intelligent preference, the Court may consider that preference as well, but in the instant case such right of preference has not been given to the children. More -so, per birth certificates the age of son
of petitioner Pervaiz Ali is 19, Irfan Ali 16, Imran Ali 13, and Kamran Ali 11 years, thus, the
Trial Court has rightly excluded the major child and only granted maintenance to the minors
for which by all means they are entitled.
11. In light of the above discussion, we are of the considered view that 2the impugned
judgment of the Appellate Court is unjustified, which cannot be llowed to hold field, thus the
same being unsustainable requires to be set at naught.
12. For the foregoing reasons, the petition is allowed and consequently, the impugned
order dated 13.07.2024 rendered by the Appellate Court is set aside, and the consolidated
judgment dated 20.04.2024 handed down Trial Court is upheld, with no order as to cost.
SA/97/Bal. Petition dismisThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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