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Official Citation: 2026 CLC 474
Court / Jurisdiction: ISLAMABAD
Parties: Ms. AYISHA QURESHI vs TAUSEEF JAVED CHAUDHRYHonorable Justice Mohsin Akhtar KayaniWaqas Ahmed Abbasi and Barrister Abdullah Haroon,Abid Hussain Kayani
This judicial decision was delivered by the ISLAMABAD. The matter involves proceedings between Ms. AYISHA QURESHI and TAUSEEF JAVED CHAUDHRYHonorable Justice Mohsin Akhtar KayaniWaqas Ahmed Abbasi and Barrister Abdullah Haroon,Abid Hussain Kayani, officially reported as 2026 CLC 474. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
2026 C L C 474 [Islamabad] Before Mohsin Akhtar Kayani, J Ms. AYISHA QURESHI and 2 others ---Petitioners Versus TAUSEEF JAVED CHAUDHRY and 2 others ---Respondents W.P. No. 2872 of 2024, decided on 17th June, 2025. (a) Family Courts Act (XXXV of 1964)--- ----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 a third 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 a decree 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. Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh 2006 SCMR 100 rel. (b) Dissolution of Muslim Marriages Act (VIII of 1939)--- ----Ss.2(viii)(a) & 2(viii)(d)---Family Courts Act (XXXV of 1964), S.5, Sched.---Dissolution of marriage on the basis of khula---Return of dower by wife upon dissolution of marriage---Exception---Cruelty as a ground, proving of---Factors to be considered by Court---Cruelty whether mental or physical, premeditated or unpremeditated is not diminished by lack of intent---Obviously, if it is a physical act, it would be a question of fact; however, in the event of mental cruelty, an inquiry is required to be conducted regarding the nature of the treatment to determine its impact or repercussions on the mind of the spouse---Mental cruelty may broadly be delineated as a course of conduct that inflicts mental pain with such severity and harshness as to render it impossible for the aggrieved party to continue the matrimonial bond or to cohabit---The matrimonial relationship is inherently based on mutual trust between the husband and wife, encompassing emotions, and it obliges reciprocal respect, love, and affection, aimed at ensuring a fair and balanced adjustment between spouses without generating a sense of anguish and disappointment---While deciding any lis for dissolution of marriage on the ground of cruelty, the Court must assess the intensity and severity of the acts alleged, and determine whether such conduct amounts to something more than mere trivial disputes, which are common in day-to-day married life---The conduct must be of such a nature that no reasonable person could be expected to endure it---The unbecoming attitude of the husband amounts to cruelty, as not only physical torture but also mental, moral, and psychological abuse by a partner constitutes cruelty---The grant of a decree of khula simpliciter is not justiciable when the incidents and the overall conduct of the husband reflect a cruel and oppressive demeanor, otherwise, wife would not approach the Court for dissolution of marriage---While dealing with such disputes the courts are not expected to act in an arbitrary, capricious, or whimsical manner---The most pertinent question for determination, therefore, would be, to what extent the right to dissolve marriage on the basis of khula is exercisable by the wife?---Where the claim for dissolution is based on cruelty, the court is duty bound to make a thorough inquiry into the matter, examine the complete body of evidence, and may even interview the spouses---If the conduct of the husband reaches a level demonstrated through the record that amounts to a cruel relationship, the court is obligated to grant a decree for dissolution of marriage on the basis of khula. Mst. Taiba Amreen v. Shafaqat Ali Kiani 2023 SCMR 246; Faheem-ud-Din v. Mst. Hameeda PLD 1967 SC 97 and Sadia Begum v. Maqbool Ahmad PLD 1984 SC 329 rel. Rifatullah v. Hadiya Mustafa and 2 others 2023 MLD 1237; Mst. Saima Irum v. Tariq Javed 2006 MLD 83; Ana Liaqat v. Additional District Judge, Gujranwala PLD 2021 Lah. 757; Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1952 Lah. 113 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1959 Lahore 566 ref. (c) Constitution of Pakistan--- ----Art.199---Constitutional petition---Relief not expressly prayed for, granting of---Molding of relief by court---Powers of court---Constitutional jurisdiction of the High Court---Scope---When the court is seized of the matter under Art.199 of the Constitution then it does not matter whether the relief has not been claimed or it falls under a specific provision of the Constitution or not---Given the circumstances of the case if relief is found and justice demands that relief is to be given then courts have ample power under Art.199 of the Constitution to grant relief and not refuse the relief on technical or hyper technical grounds as it is against the spirit of the Constitution and the larger interest of the public. Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244 rel. (d) Family Courts Act (XXXV of 1964)--- ----S.5, Sched.---Maintenance of minors, awarding of---Financial capacity of father---Scope---Maintenance is to be awarded considering the financial capacity and living status of the father. Dr. Aqueel Waris v. Ibrahim Aqueel Waris 2020 CLC 131 ref. (e) Administration of justice--- ----Relief not expressly prayed for, granting of---Powers of court---Molding of relief---Scope---Courts can mold relief with the changing circumstances even if such relief is not prayed for expressly---Courts are empowered by the law to adopt this course and dispense an effective decree which settles the rights of the parties forming the part of the same issue in order to avoid multiple legal actions---Courts cannot deny relief just because there is a defect in the prayer and such relief has not been asked for---Courts are not powerless to overlook such defects. Amina Begum and others v. Mehr Ghulam Dastagir PLD 1978 SC 220 and Syed Abdul-ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673 rel. Abdul Majid Qureshi v. National Bank of Pakistan 1997 PLC (C.S.) 671 ref. Waqas Ahmed Abbasi and Barrister Abdullah Haroon for Petitioners. Abid Hussain Kayani for Respondent No. 1. JUDGMENT MOHSIN AKHTAR KAYANI, J.---Through the instant writ petition, the petitioners have assailed the judgment and decree dated 31.05.2023, passed by learned Judge Family Court, Islamabad, whereby their suit for maintenance and recovery of personal belongings was partially decreed. They have also challenged the judgment and decree dated 27.04.2024, passed by learned Additional District Judge-II, Islamabad, whereby trial Court's judgment was partly upheld. The petitioners seek a decree for the full amount claimed in the original plaint. 2. Brief facts referred in the instant case are that petitioner No.1, Ayesha Qureshi, was married to Respondent Tauseef Javed Chaudhry on 30.12.2011, in accordance with Islamic rites, against a dower of Rs.50,000/- and 20 Tolas of gold ornaments. The gold ornaments were in a specific design described as prompt dower. Two daughters Petitioners Nos.2 and 3 were born on 13.04.2013 and 02.06.2018, respectively. According to Petitioner No.1's version in the plaint, the Respondent's behaviour remained harsh, cruel, abusive, and unbecoming of a responsible Muslim husband. He frequently used abusive language and subjected her to physical violence over petty household matters. Both families attempted reconciliation, but on 03.08.2021, the Respondent (husband) again physically assaulted Petitioner No.1. She called her parents for help, and when they arrived, the Respondent became enraged, used abusive language, assaulted the parents, forcibly took Petitioner No.2 with him, and drove away, leaving Petitioner No.1 with Petitioner No.3 at the matrimonial home. 3. The matter was reported to Police Station Airport, Rawalpindi, and Women Police Station, Civil Lines, Rawalpindi on 05.08.2021 and 08.08.2021, respectively, but to no avail. Subsequently, on 10.08.2021, the Respondent handed over Petitioner No.2 to the maternal grandmother. Thereafter, a suit for maintenance and recovery of personal belongings was filed by the petitioner on 02.01.2021. The relief claimed is detailed in Paragraph 10, which is as under: 10. That apart from the car and dowry articles the following personal belongings/articles are lying with the defendant at his house. i. Saudi Riyal 3000/- (three thousand), which is part of the amount received by plaintiff No.1 as General Provident Allowance from her office when she left job. ii. Rs.5,075,000/- (Five Million Seventy Five Thousand) as the amount of the plot in Gulberg Greens, Gulberg Islamabad possessed by Plaintiff 1, acquired during her job prior to marriage, which was sold by the defendant as attorney of plaintiff 1. The sale deed is attached for assistance and perusal. iii. Gold ornament consisting of a bracelet (part of mehr) weighing around 3 tolas, with approximate price of Rs.300,000/-(Three lac). iv. Minor gold jewelry (gifts by relatives) amounting to Rs.400,000/- (Four lac). v. Four suitcases of winter clothes belonging to plaintiffs Nos. 1, 2 and 3. Educational Documents of plaintiff No. 1. i. Masters degree from University of Lausanne, Switzerland. ii. Masters transcript. iii. Bachelor's Degree from Islamic University, Islamabad iv. Bachelors Transcript v. F. Sc Part I and Part II Certificates and Detailed Marks. vi. Matriculation Certificate. vii. Job Leaving Certificates. viii. Misc. Training Certificates. ix. External hard drive and data in software form, saved in one of the laptops of defendant. 4. During trial, learned Judge Family Court partially decreed the suit. Petitioner No.1 was granted Rs.15,000/- per month for three months (Rs.45,000/- in total). Petitioners Nos.2 and 3 were awarded maintenance at the rate of Rs.20,000/- per month from the date of desertion onward, with the same rate applicable in the future and subject to 10% annual increase effective from 01.05.2024. 5. The Trial Court also declared Petitioner No.1 entitled to the alternate market value of a Toyota Vitz (Model 2008) and Rs.200,000/-as alternate value for dowry articles. Simultaneously, Court held that the Respondent was entitled to recover 20 Tolas of dower gold or its equivalent market value from Petitioner No. 1. 6. The decree was challenged in appeal, and the appellate Court maintained the maintenance amounts and additionally allowed past maintenance from the date of desertion. The relief regarding Toyota Vitz was also affirmed. However, the finding regarding return of 20 Tolas of dower gold remained unchanged. 7. During trial, Petitioner No. 1 also filed a suit for dissolution of marriage on the ground of cruelty and submitted evidence by way of affidavit. The Trial Court, however, passed a decree for dissolution of marriage on 16.06.2022 without accepting the claim of cruelty and held the following findings: Keeping in view the above mentioned facts the plaintiff has recorded her statement regarding dissolution of marriage on ground of Khulla therefore, the suit of the plaintiff to the extent of dissolution of marriage on ground of Khulla is decreed under section 10/4. The plaintiff is directed to return dower amount if paid. Decree sheet be drawn up and copy of this order be sent to concerned Union Council for further proceedings as per law. 8. The learned counsel for the petitioners raised three major legal objections: i. That the direction for return of dower was illegal as the dissolution was sought on grounds of cruelty, and therefore, the Family Court lacked jurisdiction to direct return of dower; ii. That a plot purchased by Petitioner No. 1 in Gulberg Greens, Islamabad, was illegally sold by the Respondent for Rs. 5,075,000/-, which was neither returned nor accounted for and the Trial and Appellate Courts both ignored this aspect; iii. That the maintenance awarded for the minors at Rs.20,000/- per month was insufficient considering the Respondent's financial status and the minors' needs; the original claim was Rs. 25,000/- per child. 9. Conversely, Respondent's counsel contended that the marriage was dissolved on the basis of Khula, not cruelty, hence the return of dower was lawfully directed. The petitioner is not entitled to the dower. Secondly, plot was sold with the consent of Petitioner No.1, and there is nothing due against the respondent. Lastly, maintenance fixed by both the Courts for the minors is based on reasonable classification and conclusions drawn from the evidence in a proper manner. 10. Arguments heard. Record perused. 11. Perusal of record reflects that the dispute pertains to the non-awarding of certain parts of the claims submitted in the suit for maintenance and personal belongings filed by Petitioner No.1 against the respondent. The primary question of importance revolves around the claim regarding a plot owned by Petitioner No.1, which was not awarded despite being clearly mentioned in Para-10 of the plaint. 12. In this regard, I have carefully examined the evidence with the able assistance of learned counsel for the parties. During cross-examination, respondent acknowledged the following facts regarding the plot in question, which are as under:
13. Upon examining the aformentioned admissions of the respondent, and in the light of documentary evidence marked as 'Mark B' an agreement to sell dated 11.08.2017 executed between Tauseef Javed Chaudhry and Muhammad Naeem, it is evident that Plot No. 60, Street No. N-3, Block N (measuring 50 90 = 500 sq Yds) in Sector Gulberg, Islamabad (Registration No. 0779 IBECHS, Code No. RQ7937086) was sold for a total consideration of Rs.5,075,000/-, out of which, Rs.200,000/- was received as earnest money, and the remaining amount was to be paid on or before 16.08.2017 at the time of transfer of the said plot. 14. The document was duly acknowledged by the respondent in his admission made during cross-examination. In addition, the provisional allotment letter dated 13.11.2012 (referred as Mark-C) clearly establishes that the plot was owned by Ayesha Qureshi. This unimpeachable evidence reflects that the plot belonged to petitioner No. 1, ex-wife of the respondent, and was sold by the respondent, who received the entire sale consideration. There is no denial on his part, particularly given his admission' that he sold the plot to Muhammad Naeem, despite not being the lawful owner of the said property. Despite this, both trial Court and the first Appellate Court failed to consider the crucial aspect that when the respondent was not the owner of the property, he could not have lawfully sold it, especially in the light of his clear admission regarding the sale. It is not the case of the respondent, Tauseef Javed Chaudhry, that after the sale of the said plot and receipt of the full sale consideration, the amount was paid to petitioner No.1. In such a scenario, where affirmative evidence of payment to petitioner No. 1 is neither proved nor even claimed by the respondent, a presumption under the law arises against the respondent. 15. The respondent, Tauseef Javed Chaudhry, was under a legal obligation to discharge the burden of proof by demonstrating that after receiving the total sale consideration, the property was transferred and the amount was paid to petitioner No.1, Ayesha Qureshi. In the absence of such evidence, the findings of the trial Court while deciding Issue No. 2 in Paragraph 18 are erroneous. Although the Trial Court acknowledged the sale agreement (Exh.P6) and the respondent's admission, it improperly placed the burden on petitioner No.1 to prove that the witnesses of the said agreement were not summoned. This reflects a misapplication of the general principles of the Qanun-e-Shahadat Order, 1984, which are not stricto sensu applicable in this context. 16. Similarly, the findings of the first Appellate Court in Paragraph 13 of the impugned judgment, wherein it was held that the petitioner failed to produce the sale deed by which the plot was sold, are beyond the pleadings. Such assumptions and allegations have no basis in the record. Though learned Trial Court acknowledged the sale agreement (Exh.P6) and the admission made by the respondent, it erroneously placed the burden upon petitioner No. 1 to prove that the witnesses of the said agreement were not summoned. Such an approach is a misapplication of the general principle of the Qanun-e-Shahadat, though the same was not stricto sensu applicable in this case. Similarly, the finding given by the learned First Appellate Court in paragraph 13 of the impugned judgment reflects that the petitioner failed to produce the sale deed by which the plot was sold. Such assumption is outside the scope of pleadings and was not even claimed or argued by the respondent at any forum. 17. Before moving further, it is pertinent to resolve the question of molding the relief and granting the substantial justice within the jurisdiction of the courts and courts can mold the relief with the changing circumstances even not prayed for expressly. Courts are empowered by the law to adopt this course and dispense an effective decree which settle the rights of the parties forming the part of the same issue in order to avoid multiple legal actions as held in PLD 1978 SC 220 (Amina Begum and others v. Mehr Ghulam Dastagir), 1997 PLC (C.S.) 671 [Karachi] (Abdul Majid Qureshi v. National Bank of Pakistan). Therefore, learned trial Court and the first 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. Even when Exh.P6 is admitted and placed on record and the matter of plot is agitated in the pleadings of the petitioner No. 1. 18. Therefore, both findings given by the Trial Court and the First Appellate Court, though concurrent, are not based upon proper appreciation of the evidence. The plot in question admittedly belongs to petitioner No. 1, which is evident from the documentary record and the admission made by the respondent that he sold the same through Exh.P6 to a third party and received the sale consideration. Resultantly, the claim of petitioner No. I to the extent of the total sale consideration of Rs 50,75,000/- is hereby decreed in her favour. 19. Now adverting to the second question, which relates to the maintenance of the two minors, who originally claimed maintenance at the rate of Rs.25,000/- per month. The learned Trial Court as well as the Appellate Court awarded maintenance at the rate of Rs.20,000/- per month, though the respondent, father of the two minors, admittedly possesses sufficient financial resources. This is evident from his own conduct and admissions made during the course of evidence, particularly in page 162, paragraph 12, which is as under:
20. This aspect outrightly places a heavy obligation upon the respondent (father) to maintain the minors in all respects, and no second view can be taken at this stage. He also acknowledged facts in the following manner: The above stance indicates his lack of serious effort to pay maintenance. The original suit for maintenance was filed on 02.01.2021 before the learned Judge, Family Court. After elapse of more than five years, petitioners Nos. 2 and 3 (the minors) are still claiming maintenance at the rate of Rs.25,000/- per month. 21. It is the lawful duty of the respondent to bear all necessary expenses, which should not be less than Rs.30,000/- per month as claimed in paragraphs 11 and 12 of the plaint. As it is settled law that maintenance is to be awarded considering the financial capacity and living status of the father as also held by this court in 2020 CLC 131 [Islamabad) (Dr. Aqueel Waris v. Ibrahim Aqueet…
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