Faisal Imran Versus Mst. Shaheen
Jawad Hassan, J .--- Through this single judgment, I intend to decide this writ Petition as well as connected case i.e. W.P. No.1666 of 2025, titled as "Faisal Imran v. Mst. Shaheen" as both have arisen out the judgments and decrees passed against the same parties (Petitioner and Respondent).
2. The Petitioner/Faisal Imran (the "Petitioner") through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") has assailed the vires of impugned order and judgment dated 27.01.2025 and 21.04.2025, respectively passed by learned Courts below, in an execution Petition, whereby his objections were dismissed. Whereas in the connected Writ Petition No.1666 of 2025, the Petitioner has challenged the order dated 22.10.2020 and judgment dated 21.10.2021, passed by the learned Courts below, whereby his application for setting aside ex-parte judgment and decree dated 23.01.2018 was dismissed.
3. Brief facts of the case are that a suit for recovery of maintenance as well as dower and dowry articles was filed by the Respondent against the Petitioner, while a suit for restitution of conjugal rights was filed by the Petitioner against the Respondent before the Family Court, Rawalpindi. The suit for restitution of conjugal rights filed by the Petitioner was decreed and the Respondent was directed to perform marital obligations with the Petitioner. Similarly, the suit for recovery of maintenance filed by the Respondent was also decreed subject to performance of marital obligations. However, the Respondent, after appearing before the Family Court, refused to comply with the judgment and decree and did not agree to perform marital obligations; therefore, payment of maintenance was refused by the Family Court. The claim for recovery of dower was also refused, as the decree for dissolution of marriage on the basis of khula was passed. Thereafter, the Petitioner was arrested in execution of the decree and was ordered to pay the decretal amount to the Respondent and upon depositing Rs.50,000/-, he was released by the order of the Family Court. The salary of the Petitioner, who is serving in the Pakistan Army, was also attached by the Family Court for recovery of maintenance. Half share in the house was also given to the Respondent by the Family Court, which was mentioned in Column No.14 of Nikahnama . Earlier, vide order dated 06.05.2017, the Judge Family Court held that the Respondent was not entitled to maintenance, as the same was subject to performance of marital obligations, which she refused to perform; therefore, the maintenance already recovered from the salary of the appellant was ordered to be adjusted towards recovery of dower of 5 tolas gold, which amount has also been recovered and the decree to that extent stands satisfied. Subsequently, on an application filed by the Petitioner/Judgment-Debtor, the Judge Family Court passed another order dated 19.05.2023, referring to the earlier order dated 06.05.2017, and directed the decree-holder to submit Goshwara while considering the factum of khula and earlier directions; however, the executing Court, vide impugned order dated 27.01.2025, ignored the earlier orders and the appellate Court also did not appreciate the contentions of the Petitioner in this regard. Hence, this Petition.
4. Learned counsel for the Petitioner submitted that the impugned orders passed by the learned Courts below are against the law and facts of the case and, therefore, are not sustainable in the eyes of law. He contended that the learned Courts below have failed to appreciate that the decree for recovery of maintenance was conditional, i.e. subject to performance of marital obligations by the respondent; however, since the Respondent refused to comply with the said condition and did not perform her marital obligations, she was not entitled to any maintenance. He urged that despite the said position, the Respondent, who has even contracted a second marriage, is still insisting upon recovery of maintenance, which aspect has been completely ignored by the Family Court while dismissing the objections filed by the Petitioner. He next argued that the entire decretal amount has already been paid by the Petitioner to the Respondent during execution proceedings and no outstanding liability remains; however, the learned Family Court has wrongly rejected the objections of the Petitioner in this regard. He also contended that both the learned Courts below have failed to consider and properly examine the earlier orders dated 06.05.2017 and 19.05.2023, which were material for proper adjudication of the controversy, and thus the impugned orders suffer from legal infirmity.
5. Conversely, learned counsel for the Respondents has vehemently objected to the maintainability of this Petition by defending the impugned orders and judgments being passed in accordance with law.
6. Heard Record perused.
7. Firstly, I would like to decide the connected case i.e. W.P. No. 1666 of 2025, wherein the Petitioner has challenged the order dated 22.10.2020 and judgment dated 21.10.2021 passed by the learned Courts below, whereby his application for setting aside the ex-parte judgment and decree dated 23.01.2018 was dismissed. The said judgment was passed in a suit for dissolution of marriage on the basis of khula. The record shows that, after the decree of dissolution of marriage on the basis of khula, the requisite divorce certificate dated 14.05.2018 was issued in favour of Respondent/lady, who has since contracted a second marriage and from the said wedlock, has two children. Therefore, both the learned Courts below, particularly the learned trial Court, have rightly observed that at such stage, when the divorce has attained finality and the Respondent/lady has already contracted a second marriage and is blessed with children, the application for setting aside the ex-parte judgment and decree is not maintainable or proceedable in law, as no effective relief can be granted and any interference would disturb the settled rights of third parties.
8. Needless to mention here that the scope of interference by this Court with findings of the Courts below is well settled. The findings of fact can only be interfered with if those findings are vitiated by any error in point of law, or if there has been any misapplication of principle relating to appreciation of evidence or finality, if the finding could be demonstrated to be physically impossible. Moreover, this Court can only interfere in concurrent findings of the Courts below if the decisions passed by them are found patently illegal and against the law.
9. So far as the case i.e. W.P. No.2706 of 2025 is concerned, wherein the Petitioner has assailed the vires of impugned order and judgment dated 27.01.2025 and 21.04.2025, respectively passed by learned Courts below, in an execution Petition, whereby his objections were dismissed. Perusal of record reveals that in order to satisfy the earlier judgment and decree dated 13.10.2008, the executing Court, vide order dated 03.11.2012 (as mentioned in the objection petition) (Page 29 of W.P. No.2706/2025), directed attachment of 50% salary of the Petitioner. Whereupon the Petitioner filed an objection petition against the said attachment, contending that the decree had already been partially satisfied as the residential "Haveli" stood transferred in the name of the decree-holder. It was further asserted that the maintenance allowance decreed in favour of Mst. Shaheen was conditional upon performance of matrimonial obligations by her and even the Appellate Court had held that arrears of maintenance were payable only upon her joining the petitioner and after cohabitation. Hence, the attachment order was vague as it did not specify the number of salaries to be attached and that the same had been passed without affording him an opportunity of hearing. The Judge Family Court/executing court dismissed the said objection petition vide order dated 27.01.2025 in the following manner:
Therefore, the objections raised by the judgment debtor as well as the balance sheet filed by the judgment debtor has no footings. the same are rejected accordingly. Judgment debtor is directed to pay remaining maintenance i.e. Rs. 34,000/-, hand over 05 tola gold ornaments or equivalent present value of the same
Feeling aggrieved thereof, the Petitioner filed an appeal before the appellate Court, which met with the same fate vide judgment dated 21.04.2025, observing that.
"7. So far as, the contention of appellant that the respondent (decree holder) is not entitled to recover any gold ornaments (dower) because as per order dated 19.05.2023 passed by learned predecessor court that the marriage between the parties has been dissolved on the basis of khula subject to surrender of 50% of deferred dower and 25% of prompt dower by the decree holder. However, the decision of learned trial court in suit for dissolution of marriage is available on record wherein the learned trial court decreed the suit of decree holder vide judgment and decree dated 23.01.2018 in terms that plaintiff held entitled to decree of dissolution of marriage on the ground of non-performing of matrimonial obligations, non-payment of maintenance and dower and contracting second marriage by the defendant. So, the suit of the plaintiff for dissolution of marriage was never decreed subject to surrender of any kind of dowry. So, learned executing court rightly dismissed the objections along with balance sheet filed by him directing the appellant to pay remaining maintenance allowance i.e. Rs.34,000/-, handover 05 tolas gold ornaments or equivalent present value of the same.
11. In order to clarify the factual position, this Court perused the judgment and decree dated 23.01.2018, which was passed in the following manner:
"Therefore, this suit of plaintiff is hereby ex-parte decreed in favour of plaintiff in terms that plaintiff is held entitled for the decree of dissolution of marriage on the ground on non-performance of matrimonial obligations with the plaintiff, non-payment of maintenance allowance and dower and contracting second marriage without permission."
Astonishingly, in the earlier judgment between the same parties dated 13.10.2008, the claim of dower was dismissed. The relevant part of the said judgment is reproduced as under:
"21. In view of my findings on above issues, suit of the plaintiff for recovery of dower mentioned at Sr.No.1 is dismissed whereas the suit of the plaintiff mentioned at Sr. No.2 for recovery of maintenance allowance is conditionally decreed....."
12. The record further reflects that during execution proceedings, the executing Court, while deciding the objection petition of the Petitioner/Judgment-Debtor vide order dated 06.05.2017, had specifically held that the amount recovered through attachment of salary of the Petitioner would be treated towards the payment of 05 tola gold ornaments rather than maintenance allowance. It was further observed that since the Respondent/lady was not willing to reside with the Petitioner and perform her matrimonial obligations, she was not entitled to any maintenance allowance under the conditional decree. Consequently, the executing Court directed that the remaining amount of gold ornaments be satisfied through attachment of salary, and both execution petitions were consolidated being based on a single judgment and decree. This finding attained significance as it directly interpreted the nature and effect of the conditional decree. For ready reference the relevant part of the order dated 06.05.2017 is reproduced as under:
"In the view of this court, that the decretal amount which was received by the decree holder by way of attachment of salary of the petitioner/judgment debtor comes under the ambit of 05 tola gold ornaments rather than maintenance allowance. Perusal of the file clearly shows that the conditional decree was passed in favour of the decree holder, that if the Shaheen Akhtar abad with the Faisal Imran, then, she is entitled for the recovery of maintenance allowance. As the Shaheen Akhtar was not willing to abad with the Faisal Imran, so, she is not entitled for any maintenance allowance. In prevailing circumstances, the objection petition filed by the Petitioner/judgment debtor is hereby dismissed and it is directed that the judgment debtor to pay the remaining amount of 05 tola gold ornaments through this attachment of his salary. As both the execution petitions are based on single judgment and decree, so, both execution petitions are hereby consolidated."
13. Subsequently, on another objection petition filed by the Petitioner, the executing Court vide order dated 19.05.2023 reiterated the earlier position and directed the decree-holder to submit Goshwara while taking into consideration the factum of khula as well as the earlier directions contained in order dated 06.05.2017. However, the executing Court, while passing the impugned order dated 27.01.2025, failed to advert to or reconcile the earlier orders, and proceeded to decide the matter afresh in disregard of the settled position already recorded between the parties. The Appellate Court, while affirming the said order, also did not undertake any meaningful examination of these material aspects of the case.
14. A careful perusal of the impugned orders reveals that both the learned Courts below have not only failed to consider the binding effect of the earlier orders dated 06.05.2017 and 19.05.2023, but have also travelled beyond the scope of the original decree while exercising execution jurisdiction. It is a settled principle of law that the executing Court cannot go behind the decree or enlarge its scope; rather, it is bound to execute the decree in its true letter and spirit. In the present case, the conditional nature of the decree regarding maintenance allowance, as well as the earlier determination regarding adjustment of recovered amount towards dower, were material considerations, which have been overlooked, thereby rendering the impugned orders legally unsustainable.
15. In view of the above factual and legal position, and keeping in view the arguments advanced by learned counsel for the Petitioner, it is evident that the learned Courts below have failed to properly appreciate that the decree for maintenance was conditional upon performance of matrimonial obligations, which admittedly were not fulfilled by the Respondent/lady, who has also contracted second marriage. It is further apparent that the question whether the decretal amount has already been satisfied, wholly or partially, and the effect of earlier orders dated 06.05.2017 and 19.05.2023, have not been examined in accordance with law.
16. Consequently, the impugned order and judgment dated 27.01.2025 and 21.04.2025, respectively passed by learned Courts below, cannot be sustained and are hereby set aside. The matter is remanded to the learned executing Court with the direction to decide the objection petition afresh, strictly in accordance with law, after giving due opportunity of hearing to both the parties and by specifically taking into consideration: (i) the conditional nature of the judgment and decree dated 13.10.2008 regarding maintenance allowance and ex-parte judgment and decree dated 23.01.2018 (ii) the effect and binding nature of earlier orders dated 06.05.2017 and 19.05.2023; (iii) the question of satisfaction of decree, wholly or partially; and (iv) the legal limitations governing execution proceedings. The learned executing Court shall pass a reasoned order, without being influenced by any observation made herein, within a period of three (03) months from the date of receipt of this judgment.
17. With these observations, W.P. No.2706 of 2025 is allowed in the above terms, whereas the connected W.P. No. 1666 of 2025 stands dismisse d.
UN/F-15/L Order accordingly.