Ms. AYISHA QURESHI vs TAUSEEF JAVED CHAUDHRY S — 2026 CLC 474 ISLAMABAD

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Ms. AYISHA QURESHI VS TAUSEEF JAVED CHAUDHRY S.5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), Ss.2(viii)(a) & 2(viii)(d)---Constitution of Pakistan, Art.199---Husband selling immoveable property/plot belonging to wife to athird party---Recovery claim by wife to the extent of total sale consideration, granting of---Respondent/father failing to pay maintenance to minor children---Obligation of father to pay maintenance---Financial capacity of father, consideration of---Dissolution of marriage on the basis of khula---Cruelty as a ground---Scope and effect---Family court ordering wife to return dower---Legality---Cruelty was established and wife was allowed to retain the dower---Factual background was that petitioner No.1/wife married respondent No.1/husband in 2011 against a prompt dower of Rs. 50,000/- and 20 tolas of gold, and had two daughters from the marriage---She alleged persistent cruelty, abuse, and violence by the respondent/husband, culminating in incidents in 2021 where she was assaulted, and her parents were abused---A suit for maintenance and recovery of personal belongings was filed, including claims for dowry, gold ornaments, a plot worth Rs. 5,075,000/- (belonging to the petitioner No.1/wife)---The family court partially decreed the suit, granting limited maintenance, recognizing alternate value of dowry articles, and ordering return of dower gold---On appeal, maintenance was enhanced, but other reliefs were partly upheld---The pivotal issues for determination before the High Court were as to "whether the family court and appellate court erred in (i) ignoring the sale of petitioner No.1's plot by the respondent/husband, (ii) awarding insufficient maintenance for minors given the respondent's financial capacity; and, (iii) directing wife to return dower despite dissolution being sought on cruelty?"---Determination---Held: The document (agreement to sell the plot which belonged to the petitioner No.1) was duly acknowledged by the respondent in his admission made during cross-examination---In addition, a provisional allotment letter clearly established that plot sold by the respondent was owned by petitioner No. 1 / wife---This unimpeachable evidence reflected that the plot belonged to the petitioner No.1, ex-wife of the respondent, and was sold by the respondent, who received the entire sale consideration --- There was no denial on respondent's part, particularly given his admission that he sold the plot to one "MN" despite not being the lawful owner of the said property---The respondent / husband was under a legal obligation to discharge the burden of proof by demonstrating that after receiving total sale consideration the property was transferred and the amount was paid to petitioner No.1/wife---First appellate court's findings that petitioner/wife failed to produce sale deed by which plot was sold were beyond pleadings as such assumption was outside the scope of pleadings and was not even claimed or argued by the respondent at any forum---Moreover, it erroneously placed burden upon petitioner No.1 to prove that witness of the said agreement were not summoned---Trial Court and appellate court were under the obligation and had proper jurisdiction to resolve the issue of plot rather than just saying that the plot amount was not prayed for as both the courts could mold the relief in order to grant substantial justice---Both findings of courts below, though concurrent, were not based upon proper appreciation of evidence---Plot in question admittedly belonged to petitioner No.1/wife which was evident from documentary record and admission made by respondent that he sold the same to a third party and received sale consideration---Resultantly, claim of petitioner No.1 to the extent of total sale consideration of Rs.50,75,000/- was decreed by High Court in her favor---With respect to the maintenance of minors, respondent/father possessed sufficient means to maintain his children which was otherwise a heavy obligation of the father in all respects, however, in the present case, respondent's (father's) conduct indicated his lack of serious efforts to pay maintenance---Financial status shown by respondent (father) pertained to the period 2019-2021, thus, as of the present year 2025, the respondent/father, who had failed to pay regular maintenance for the minors, did not merit any leniency---Accordingly, as he had not paid the arrears of maintenance, the maintenance was fixed at Rs.25,000/- by the High Court---With respect to the third question for determination in the present case i.e. cruelty as highlighted in the suit for dissolution of marriage filed by petitioner No.1, on plain reading of the record and S.2 (viii)(a) & (d) of Dissolution of Muslim Marriages Act, 1939 (the "Act 1939"), the elements of cruelty and mental torture were established which petitioner No.1/wife endured during the subsistence of her marriage and those were sufficient to be considered against the respondent who had failed to refuse such allegations---Moreover, selling of plot in question which belonged to the petitioner No.1/wife and not transferring the consideration/sale proceeds to her was cruelty under S.2(viii)(a) of the Act 1939---Respondent failed to pay a single penny in maintenance which amounted to cruelty, as non-maintenance of one's wife and minor children was not justifiable under any social or legal framework---Therefore, petitioner No.1/wife was entitled to adecree for dissolution of marriage on the basis of cruelty, a ground which stood fully established---Respondent's claim for adjustment of dower amount of 20 tolas of gold was not sustainable---The simple khula decree granted by family court was modified, and the marriage stood dissolved on the ground of cruelty---Condition imposed upon petitioner No.1/wife for return of 20 tolas of gold was waived of---Constitutional petition was allowed, in circumstances.

Ms. AYISHA QURESHI vs TAUSEEF JAVED CHAUDHRY S — 2026 CLC 474 ISLAMABAD

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