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Official Citation: 2026 LHC 1518
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Jawad Hassan)
Parties: SHAHROZ vs ADJ ETC
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Jawad Hassan), officially reported as 2026 LHC 1518. In this matter between SHAHROZ and ADJ ETC, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Jawad Hassan) DECISION DATE: 23-02-2026 CASE DETAILS: Writ Petition-Family-Maintenance 2092-24 ============================================================ Stereo. H C J D A 38.
IN THE LAHORE HIGH COURT, RAWALPINDI BENCH, RAWALPINDI JUDICIAL DEPARTMENT
W.P.No.2092 of 2024
Shahroz s/o Sarfraz Masih Versus Additional District Judge and others
JUDGMENT
Dates of Hearing: 09.02.2026 and 23.02.2026 Petitioner by: M/s. Muhammad Ahsan Khan and Mudassar Hassan, Advocates. Respondents by: Mr. Muhammad Musarrat Nawaz Khan and Syed Haider Ali Shah, Advocates. Barrister Zain Mansoor, Assistant Attorney General assisted by Ms. Areej Omar Ramay.
If 'having it all' means having the same lives that men have traditionally had, then this is very hard for us to do. But if it means having a productive balance between professional and family responsibilities, then perhaps we are better off than the men, and should be trying to persuade them to do the same. Rt Hon. the Baroness Hale of Richmond DBE, President of the Supreme Court of the UK
JAWAD HASSAN, J. Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has impugned the judgments and decrees dated 08.12.2023 and 20.04.2024 passed by the Civil Judge 1st Class, Mianwali, and Additional District Judge, Mianwali, respectively; whereby the petition for judicial separa tion/dissolution of marriage between the Christian spouse (the Petitioner and the Respondent No.3/Mst. Tareeza) under the Christian Divorce Act, 1869 (the “Act”) was dismissed.
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(I) OVERTURE OF THE CASE 2. This judgment examines the legality of the concur rent findings of the learned Courts below dismissing the Petitioner’s claim for judicial separation/dissolution of marriage between Christian spouse under the Act, and whether such findings are supported by proper evidence under the Qanoon-e-Shahadat Order, 1984 (the “QSO”) and Order XX Rules 1 and 6 of the Code of Civil Procedure, 1908 (the “CPC”). The said Act was enacted to amend the law relating to the divorce of persons professing the Christian faith and to confer jurisdiction upon certain Courts in matrimonial matters. (II) PRELUDE OF THE CASE 3. The Petitioner and the Respondent No.3, who are Christians by faith, contracted marriage under the Catholic School of Thought on 06.06.2022. He earlier filed a petition under Section 10 of the Act for judicial separation/dissolution of marriage on the ground of adultery before the Civil Judge, Mianwali, which was resisted by the Respondent No.3/wife and ultimately was dismissed vide order dated 23.11.2022. Feeling aggrieved, the Petitioner preferred an appeal; however, during its pendency, he sought withdrawal of both the main petition and the appeal with permission to file a fresh one, which was allowed. Consequently, the Petitioner filed a fresh petition for judicial separation/dissolution of marriage under Sections 7 and 10 of the Act on the main ground of cruelty against the Respondent No.3. The said petition was contested by the Respondent No.3, and out of the divergent pleadings of the partie s, two issues were framed by the trial court. After recording the evidence of both sides, the learned Civil Judge dismissed the petition vide judgment and decree dated 08.12.2023. Feeling aggrieved, the Petitioner filed an appeal before the learned Additional District Judge, which also met the same fate vide judgment and decree dated 20.04.2024. Hence, this petition. (III) PETITIONERS’ SUBMISSIONS 4. Mr. Muhammad Ahsan Khan, Advocate, submitted that both the Courts below misread the pleadings of the parties and decided the case on the issue 3
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of adultery by applying Sections 10 and 11 of the Act, despite the fact that the Petitioner had also sought dissolution on the ground of cruelty. He also submitted that both the learned Courts failed to consider the law laid down by this Court in the judgments reported as AMEEN MASIH versus FEDERATION OF PAKISTAN and others (PLD 2017 Lahore 610 ) and SAIMA versus ADDITIONAL DISTRICT JUDGE and others (PLD 1922 Lahore 214), wherein it has been held that cruelty is one of the recognized grounds for dissolution of marriage under the Act and that before the promulgation of the Federal Laws (Revision and Declaration) Ord inance, 1981, Section 7 of the Act was available and the grounds of divorce under the U.K. Matrimonial Causes Act, 1973 (the “UK Act”) introduced the principle of irretrievable breakdown of marriage, and that the Act must be interpreted in light of the UK Act. Section 7 of the Act as amended by the Divorce (Amendment) Act, 1975, reads as follows: “Section 7: Court to act on principles of English Divorce Court. Subject to the provisions contained in this Act, the Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the Courts, are as nearly as may be conformable to the principles and rules on which the Court of Divorce and Matrimonial Causes in England for the time being acts and gives relief.”
Learned counsel urged that the Petitioner appeared in the witness box and deposed on oath that the Respondent No.3 behaved in such a way that he could not reasonably be expected to live with her, which portion of his testimony remained unchallenged and therefore amounts to an admission. On the other hand, the Respondent No.3, while appearing as DW -1, did not contravene this evidence and even admitted that she had been living separately for more than one and a half year, which now exceeds to two years as required under Section 10 of the Act. Therefore, the Petitioner is entitled to a decree for judicial separation/dissolution of marriage even on the basis of “desertion.” He argued that there is no fixed standard to determine cruelty, as it depends upon the conduct of the parties, which is to be assessed through 4
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their statements and behavior. He submitted that both the impugned judgments reflect non -reading and misreading of material evidence and a failure to apply the settled interpretation of law laid down by the superior courts. He lastly prayed that, since the marriage between the parties has irretrievably broken down and the requirements of law stand sat isfied, both the impugned judgments and decrees be set aside, and the Petitioner be granted a decree for dissolution of marriage under the Act. (IV) RESPONDENTS’ SUBMISSIONS 5. Conversely, Mr. Muhammad Musarrat Nawaz Khan, Advocate, has objected to the maintainability of this Petition on the ground that, while passing the impugned judgments and decrees, both the learned Courts below properly evaluated the evidence on record and rightly dismissed the Petitioner’s Petition for judicial separation/dissolution of marriage under the Act. He added that nothing has been specifically proved regarding adultery or cruelty against Respondent No. 3, who is otherwise still willing to reconcile with the Petitioner. (V) DETERMINATION BY THE COURT 6. Perusal of the record reveals that this was a second round of litigation, wherein the Petitioner filed a case before this Court for judicial separation/dissolution of marriage under the Act. It is noted that the trial Court framed two issues, which read as follows: a. Whether the plaintiff is entitled to a decree for dissolution/separation of marriage between the parties as prayed? OPA b. Whether the plaintiff has no cause of action to file the instant suit hence suit is liable to be dismissed? OPR c. Relief. In order to prove his case, the Petitioner/husband appeared in the witness box as PW1, while the Respondent No.3/wife appeared as DW1. After recording their respective oral evidence, both parties closed their evidence without producing or exhibiting any material documentary proof i.e. the 5
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Marriage Certificate, etc. The trial Court, although dismissed the petition on the ground that the Petitioner failed to annex any document to prove adultery but did not properly consider the question of “judicial separation/dissolution of marriage on the grounds of cruelty or desertion ”, and failed to follow the settled dictum laid down in the judgment (PLD 2017 Lahore 610 ). On the basis of mere oral assertions, the learned Court dismissed t he petition in the following manner: 8. Admittedly, a husband can file a petition for dissolution of marriage on the grounds of adultery as mentioned in section 10 ibid Act but the right of husband to file a petition for dissolution of marriage subject to a restriction imposed through section 11 of ibid Act. Meaning thereby, whenever, a husband file a petition for dissolution of marriage against his wife in Christianity, as per section 11 ibid Act, it is mandatory for a husband to implead the adulterer as a co -respondent but in the present case, the instant petition has been filed without placing the adulterer as co-respondent. The contentions of learned counsel for the petitioner that the petitioner is not in a position to nominate the adulterer as a respondent is not supported by any solid reaso n as the petitioner failed in annex any document according to which, it could be ascertained that he has made positive efforts for tracing out name of the adulterer. Petitioner is also failed to annex any document according to which, it could be ascertained that the respondent/wife leading the life of a prostitute, the petitioner failed to make out his case according to the exceptions provided in section 11 of ibid Act, as the stance of the petitioner is not backed by any solid reasons/document, thereby, the same is acceptable at all. 9. It is also very important to state here that learned counsel for the petitioner argued that action of the respondent has caused mental distress and agony to the petitioner as well as his family members and it is also a valid ground for the judicial separation between the parties. Suffice it to say, that petitioner was firstly required to bring on record adequate evidence with regard to the respondent involved in the habit of adultery or prostitution 10. As discussed above, th e petitioner neither through document nor by way of any direct/oral evidence could prove that the respondent is ever been involved in adultery, therefore, there is no question of any distress and agony which allegedly petitioner and other family 6
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members ha s gone through. Therefore, in view of the above said situation, this is not a case, in which the petitioner is allowed to file the petition without placing the adulterer as co -respondent. Consequently, this issue is decided against the petitioner as negative accordingly.
Thereafter, the Appellate Court also dismissed the appeal, observing that the Petitioner had failed to prove adultery in the first round of litigation and had withdrawn the petition and appeal with permission to file a fresh one, and now he could have relied on the second ground of the Respondent’s alleged unbearable acts and conduct. The learned Appellate Court, however, passed the impugned judgment in a sketchy and stereotypical manner, without discussing in detail the evidence of the par ties (PW/DW), and upheld the judgment of the trial Court. For ready reference, the operative paragraph of the judgment dated 20.04.2024 is reproduced as under: Perusal of above stated provisions of law and facts of petition coupled with evidence of parties, especially the grounds taken by the appellant/petitioner for judicial separation i.e. adultery and disobedient behavior, mental distress and agony to the petitioner and his family due to the acts and deeds of respondent. It is observed that in first round of litigation as well as in second round of litigation, the appellant/petitioner hopelessly failed to name the adulterer even he failed to show any positive efforts for tracing out the adulterer nor he provided any piece of documentary evidence through which it can be ascertained that the respondent was leading immoral life. Secondly, if the second ground of mental distress and agony due to the acts of respondent was available with the appellant/petitioner then prima facie said ground was required to be mentioned in the first petition for judicial separation but said was not mentioned in the first petition, therefore, on failure to prove the allegation of adultery at the time of appeal in first round of litigation, the petitioner had withdrawn the appeal and suit with permission to file a fresh but even grant of permission and availing opportunity to mention the second ground of unbearable acts and deeds of respondent, the appellant/petitioner hopelessly failed to prove alleged acts and deeds of resp ondent, caused mental distress and agony to the petitioner as well as his family. The appellant/petitioner in his cross examination as a PW -1 admitted it correct that no witness accompanied him in support of his version to prove the immoral and abusive and unbearable behavior of respondent. Therefore, keeping in view the above stated facts and circumstances of the case, the learned trial court rightly decided and dismissed the petition for judicial separation of petitioner with the respondent.
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7. Although both the learned Courts below dismissed the Petitioner’s petition, their decisions appear to have been based largely on technical grounds rather than a proper appraisal of the merits and evidence of the case. Recently the Supreme Court of Pakistan in the j udgment authored by the Hon’ble Mr. Justice Shahid Waheed, reported as “PROVINCE OF PUNJAB through the District Collector, Bhakkar versus MUHAMMAD CHIRAGH and others” (PLD 2026 SC 53), has held that: The phrase "off on a technicality" aptly encapsulates the situation before us and underscores its complexity and implications. In our assessment, we believe that the order issued by the District Judge was flawed and ought to have been revised by the High C ourt. Before delving into the specific reasons for this conclusion, it is important to acknowledge that legal practitioners sometimes make unintentional mistakes when drafting pleadings or filing cases. Such errors, while regrettable, often result in outco mes that can attract sanctions or penalties. However, in the administration of justice, it is crucial to recognise that not all mistakes warrant strict punitive measures. To give life to the principle that wrong must not go unpunished, and that right must not go unenforced, a degree of leniency must be accorded to errors that do not stem from contumacy or intentional misconduct. By adopting a more forgiving approach towards certain minor mistakes, the judiciary can prevent the rigid application of A rules f rom hindering the broader mission of justice delivery. This perspective is vital because the judiciary is respected not because it has the technical ability to legitimise unfairness. Instead, its respect is rooted in its fundamental role as an arbiter of f airness-capable of identifying and rectifying injustices. The expectation that the judiciary must act to eliminate any form of injustice serves as a cornerstone of trust in the legal system. It is this ability to priorities substantial justice over mere te chnical compliance that fortifies the integrity and efficacy of our legal processes.” 8. Nub of the case is not whether the allegations of adultery or cruelty are ultimately true or false; rather, the question is whether the learned Courts below have adjudicated the lis in accordance with the statutory discipline embodied in the Act, read with the settled pro cedural framework governing civil trials. In other words, whether the degree of judicial satisfaction mandated by law, particularly in Christian matrimonial causes, stands 8
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demonstrably fulfilled from the record. Hence, the case falls on two moot points: (I) Whether the allegations of adultery and cruelty have been adjudicated after strict compliance with the evidentiary discipline required under the Code of Civil Procedure, 1908, read with Sections 10 and 12 of the Act? (II) Whether the plea of desertion w as legally available on the facts and properly examined by the Courts below? MOOTPOINT No.1 (Evidentiary Requirement) 9. It is evident that the impugned judgments were passed without fully considering the evidence, which amounts to non -compliance of the requirements of Order XX, Rules 1 and 6 of the CPC. For ready reference, Order XX, Rules 1 and 6 are reproduced as under: Rule 1. Judgment when pronounced. (1) On completion of evidence, the Court shall fix a date, not exceeding fifteen days, for hearing of arguments of parties. (2) The Court shall, after the case has been heard, pronounce judgment in open Court, either at once or on some future day not exceeding thirty days, for which due notice shall be given to the parties or their advocates. …. Rule 6. Contents of decree. (1) The decree shall agree with the judgment ; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. (2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid. (3) The Court may direct that the costs payable to one party by the other shall be set-off against any sum which is admitted or found to be due from the former to the latter.
In view of the aforesaid provisions, this discipline assumes even greater significance in Christian matrimonial jurisprudence. The superior Courts have consistently held that the bond of Christian marriage is treated as a solemn 9
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and enduring civil status, and its dissolution is not to be granted lightly. There exists no concept analogous to dissolution at will; relief is conditioned upon strict proof of statutor y grounds as has been set out by this Court in Mst. Parveen Amanual v. ADJ I and 2 others reported as (PLD 2009 Lahore 213), wherein it was observed: “The bond of marriage between Christian husband and wife is of a permanent nature and as such the wife has to prove her case on the concrete facts after leading reliable and cogent evidence to the facts on which the claim of dissolution of marriage is based. Only then the Court can grant a decree for a judicial separation within the meaning of section 22 of th e Divorce Act, 1869 or to dissolve the marriage under section 10 of the same Act. Therefore, mere assertion of the wife that she is not ready to live with the husband is not sufficient for dissolving the marriage between the petitioner and respondent No.1. The learned Additional District Judge has rightly remanded the case to the learned Judge Family Court. The instant writ petition has no force and the same is dismissed. The case shall stand remanded to the learned Judge Family Court Rahimyar Khan who shal l proceed with the case from the stage on which the petitioner made better statement and after framing the issues and recording evidence regarding those issues, shall decide the matter, after issuing notice to the parties to appeal before it. The case be decided preferably within three months from the date of receipt of this order.” The necessity of such discipline to be followed, particularly in proving adultery even for the purposes of the Act, has been further reiterated by this Court in the case reported as Saima v. Additional District Judge (PLD 2022 Lahore 214), wherein it was held: “Undeniably, under Section 10 of the Act ibid, it is clear from bare reading that unless and until anyone of the grounds as 10
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mentioned above is not proved marriage cannot be dissolved meaning thereby to get the dissolution of marriage, the party is required to allege and prove the allegation of adultery.” Further reliance is placed on the judgment reported as MUSHTAQ versus Mst. FAREEDA (1979 C L C 457), wherein while discussing the mode of taking evidence by the Court under Section 51 of the Act, it has been held that: There is no doubt that the petitioner was at liberty to verify his case in whole or in part by affidavit as provided in section 51 of the Act. Ordinarily such affidavit should not be accepted without corroborative evidence of adultery for the evidence of the husband or the wife or the co -respondent alone ought to be corroborated, either by a witness or by surrounding circumstances. (See Halsbury's Laws of England, 4th Edition, Volume XIII, p. 279, paragraph 566). It is all the more necessary to avoid any possibility of obtaining dissolution of the marriage by collusion between the two spouses. Therefore, the learned District Judge ought not have passed the decree nisi on evidence by the affidavit alone.
10. It is globally settled law by the superior Courts and in procedural law of Pakistan, where the record does not reflect structured recording of evidence, formal exhibition of documents and cumulative evaluation thereof, the judicial satisfaction mandated under Section 12 of the Act cannot be said to have been lawfully attained. In matters affecting civil status and personal honour, the discipline of proof remains the cornerstone of jurisdiction. Furthermore, to discuss or elaborate reliance upon an allegation of adultery in the absence of cogent and legally admissible evidence is not only contrary to the procedural mandate of the CPC and the statutory safeguards of the Act, but also implicates the constitutional guarantee of dignity under Article 14 of the Constitution. The statutory sche me itself, particularly Section 11, which ordinarily requires the alleged adulterer to be impleaded as a co -respondent, reflects the gravity with which such a charge is treated. An imputation of adulterous conduct affects personal honour and civil status a nd cannot be invoked casually or sustained except upon strict proof in accordance with law. The Courts should assist in the framing of alternate grounds so far as to allow 11
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the Christian community to seek divorce in a dignified manner without relying upon frivolous claims of adultery. 11. In this context, it is also worth mentioning that in exercise of its constitutional jurisdiction under Article 199 of the Constitution, this Court can review the judgments to ensure that the lower courts acted in accordance with law and properly considered the evidence before them. However, it must be emphasized that this Court cannot assume the functions of a civil court to re- examine evidence or to pass a decree in favor of either party. The primary responsibility for determining the facts and granting relief rests with the Civil Court, which is empowered to adjudicate disputes based on the evidence and material placed before it. This Court under its discretionary writ jurisdiction under Article 199 of the Constitution, is neither an appellate forum nor a vehicle for re -appraisal of evidence meticulously recorded by the learned forums below. It is a well -settled principle, consistently reinforced by the superior judiciary, that the Constitutional jurisdiction of this Court is not designed to undertake a roving exercise of re-evaluating factual findings or to substitute its own opinion for that of the Family court and the Appellate Authority, who are t he primary fact -finding tribunals entrusted with the appreciation of evidence. While this Court retains the power to interfere where orders are suffering from jurisdictional defects, patent illegality, non - consideration of material evidence, or where the forums below have acted in violation of the law declared by the superior courts, it cannot embark upon a de novo assessment of the evidence as if sitting in regular appeal. However, where the impugned judgment demonstrably overlooks crucial admissions and fails to apply settled legal principles, as has occurred in the present case, the appropriate remedy is not for this Court to re-adjudicate the factual matrix itself, but to remand the matter for fresh determination in accordance with law. Such remand ensures that the statutory forums, vested with the original and appellate jurisdiction to evaluate evidence, perform their bounden duty to render decisions that are both legally sound and factually comprehensive, thereby safeguarding the rights of the parties t hrough proper adjudication 12
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rather than through this Court's limited supervisory intervention. Reliance is placed on the judgments reported as “ SHAHBAZ Versus FAKHIRA BIBI ” (2021 MLD 1506), “TARIQ JAVED Versus Mst. TAHIRA BIBI and 2 others” (2006 MLD 1956 ) and “ TAHIR UMAR versus Messrs BATA SHOE (PAKISTAN) LIMITED through Managing Director and 3 others ” (1991 MLD 1236). MOOTPOINT NO.02 (Plea of Desertion) 12. In view of the above, it…
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