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This case involved a family dispute over dower and maintenance filed in a Family Court in Peshawar. A wife and her children (petitioners) had sued her husband (respondent) for recovery of dower, money she claimed to have given him, and monthly maintenance for herself and four children. While the case was pending, the trial court granted interim maintenance of only Rs. 5,000 per month for the youngest child, and refused any interim maintenance for the other three children, after the husband denied he was their biological father, claiming they were from the wife's first marriage.
The wife then approached the Peshawar High Court asking it to increase the maintenance amounts. The High Court dismissed the petition. It held that since the husband had specifically disputed paternity of three of the children in his written statement, this was a factual dispute that could only be resolved through evidence at trial, not through a writ petition. Courts exercising constitutional jurisdiction cannot decide disputed facts unless a party's right is clear beyond doubt. The court also noted the trial court had correctly rejected the husband's claim that the youngest child was illegitimate, since there was no evidence supporting his allegation of an undissolved prior marriage.
The judgment matters because it clarifies that interim orders in family maintenance cases, especially where paternity is contested, are provisional and not ordinarily open to challenge through writ petitions; such disputes must await full trial evidence.
یہ مقدمہ پشاور کی فیملی کورٹ میں دائر ایک ایسے خانگی تنازعہ سے متعلق تھا جس کا تعلق حق مہر اور نان و نفقہ سے تھا۔ ایک بیوی اور اس کے بچوں (درخواست گزاران) نے اپنے شوہر (مدعا علیہ) کے خلاف دعویٰ دائر کیا تھا جس میں حق مہر کی وصولی، وہ رقم جو بیوی کے دعوے کے مطابق اس نے شوہر کو دی تھی، اور اپنے اور چار بچوں کے لیے ماہانہ نان و نفقہ کا مطالبہ کیا گیا تھا۔ مقدمہ زیرِ سماعت تھا کہ ٹرائل کورٹ نے صرف سب سے چھوٹے بچے کے لیے ماہانہ پانچ ہزار روپے عبوری نان و نفقہ منظور کیا اور باقی تین بچوں کے لیے کوئی عبوری نان و نفقہ نہیں دیا، کیونکہ شوہر نے اس بات سے انکار کیا تھا کہ وہ ان کا حقیقی باپ ہے اور دعویٰ کیا تھا کہ یہ بچے بیوی کی پہلی شادی سے ہیں۔
اس کے بعد بیوی نے پشاور ہائی کورٹ سے رجوع کیا اور نان و نفقہ کی رقوم میں اضافے کی درخواست کی۔ ہائی کورٹ نے یہ درخواست مسترد کر دی۔ عدالت نے قرار دیا کہ چون
Generated from the full judgment text below — not a substitute for reading the actual opinion.
Present : Shakeel Ahmad, J. Mst . TAHIRA and others--Petitioners versus MUHAMMAD IRFAN and another--Respondents W.P. No. 2507-P of 2017, decided on 19.6.2017. Constitution of Pakistan 1973-- ----Art 199--West Pakistan Family Courts Act, 1964, S. 17-A--Suit for Recovery of Dower & Maintenance--Grant of Interim Maintenance by trial Court--Disputed Parentage--Factual Controversy--Validity--Respondent had denied paternity of children in his written statement as well as in reply to application for interim maintenance by contending that they are children of petitioner’s first husband--Since paternity of children has specifically been denied by respondent in his written statement, therefore, question whether children are lawful issues of respondent and are entitled for interim maintenance allowance can only be resolved after recording pro & contra evidence and subject to proof--Even otherwise, disputed question of facts cannot be investigated while exercising constitutional jurisdiction of high Court--It is incumbent upon party seeking constitutional remedy to show that such party had a clear right and that such right is so clear as not to admit a reasonable doubt or controversy--Though respondent had disputed legitimacy of one child on ground that petitioner had contracted second marriage without obtaining divorce from him, but learned trial Court rightly held that there is nothing on record to support his stance--Petition dismissed. [P. 3] A Mr. Barkat Ullah Khan, Advocates for Petitioners. Date of hearing: 19.6.2017. Judgment Through this Constitutional petition the petitioners have assailed the impugned order dated 25.04.2017 of the Judge Family Court-IV, Peshawar and seek the following relief:-- “It is, humbly prayed that by accepting the instant writ petition, the impugned order of the learned trial Court dated 25.04.2017 may kindly be modified to the extent that the interim maintenance amount fixed by the learned trial Court for the Petitioner No. 5 may kindly be enhanced upto Rs. 25,000/- instead of Rs.5000/-. Besides this, the interim maintenance for the Petitioners No. 2 to 4 at rate of Rs.25000/- each may also be allowed till the final disposal of the suit. Any other relief not specifically prayed so far but deemed fit may also be granted in favor of the petitioners/plaintiffs against the respondent/defendant.”
2. The facts, in nutshell are that the petitioners have filed a suit for recovery of dower, educational documents of the Petitioner No. 1, recovery of Rs. 12/- lacs , given to the respondent/defendant by the Petitioner/Plaintiff No. 1 as credit, maintenance @ Rs.25000/- for herself and minors. The petitioners submitted an application under Section 17-A of the Family Courts Act, 1964 for granting interim maintenance to the Petitioners No. 2 to 5. The learned trial Court vide order dated 25.04.2017 directed the respondent to pay maintenance allowance to Petitioner No. 5 Zara Fatima at the rate of Rs. 5000/- per month to be paid to the minor petitioner on 14th of each month, failing which right of defense of the Respondent No. 1 shall be struck off to the extent of maintenance allowance for the minor and a decree shall also be passed to that effect, however, the Petitioners No. 2 to 4 were refused interim maintenance, hence this petition before this Court.
3. Perusal of record reveals that the Respondent No. 1 has denied the paternity of the Petitioners No. 2 to 4 in his written statement as well as in reply to the application for interim maintenance by contending that the Petitioners No. 2 to 4 are the children of petitioner/plaintiff No. 1 from her first husband namely Mirza Muhammad Ayub Baig . Since the paternity of the Petitioners No. 2 to 4 has specifically been denied by the Respondent No. 1 in his written statement, therefore the question whether the Petitioners No. 2 to 4 are lawful issues of the defendant/Respondent No. 1 and are entitled for interim maintenance allowance can only be resolved after recording pro & contra evidence and subject to proof. Even otherwise disputed question of facts cannot be investigated while exercising the constitutional jurisdiction of this Court, it is incumbent upon the party seeking constitutional remedy to show that such party had a clear right and that such right is so clear as not to admit a reasonable doubt or controversy. Though the Respondent No. 1 had also disputed the legitimacy of Petitioner No. 5 on the ground that the Petitioner No. 1 had contracted second marriage with one Mirza Muhammad Ayub Baig without obtaining divorce from him. It was rightly held by the learned trial Court that there is nothing on the record to support this stance of Respondent No. 1. The photo copy of from-B appended with the plaint shows that the minor Petitioner No. 5 namely Zara Fatima is entered as daughter of Muhammad Irfan .
4. The impugned order is an interim decision. Maintenance has been fixed at the rate of Rs.5000/- for Petitioner No. 5 temporarily which can obviously be modified latter. It is not a final order adversely affecting the Petitioner No. 5. This Court does not want to prejudice proceedings by commenting upon the claim of the petitioners. However, it is held that interim order in the kind cannot be interfered with in a writ petition like this.
5. In the present, the judgment being provisional shall be revisited by the Court at the time of making final decision.
6. The above discussion leads to the obvious conclusion that the impugned order does not warrant any interference of this Court, therefore, this writ petition being bereft of merit, is dismissed in limine . (Z.I.S.) Petition dismissed