MUHAMMAD NAEEM ANWAR, J.- This single judgment in the instant petition shall also decide connected W.P No.1007- M/2023 titled "Mst. Nasira Bibi and others Vs. Stied. Mukammal Shah and others" as both the petitions are the outcome of same Family Suit bearing No.15/3FC of 2017 decided by the learned Family Court on 11.06.2019, and there-against appeal of the present petitioner was decided by the learned Additional District Judge Dir Lower at Chakdarra, Camp Court at Timergara on 02.10.2019. Through connected petition, the respondents (Mst. Nasira with her children, namely Syed Awais Shah and Mst. Syeda Hafsa) have also challenged the validity and correctness of the judgment/order of the learned Additional District Judge Dir Lower at Timergara dated 27.04.2023, whereby their Family Appeal No.04/FCA of 2022 against the judgment/order of the learned Family Court, Dir Lower at Timergara dated 25.11.2021 decreeing the suit of the petitioner Syed Mukammal Shah for custody of the minors, was partially allowed and his suit to the extent of custody of Mst. Syeda Hafsa, was dismissed.
2. Brief facts of the instant petition are that on 26.07.2016, the respondents namely Mst. Nasira and along with: minor Syed Awais Shah and Mst. Syeda Hafsa filed Family Suit No.15/3FC against the present petitioner for (i) dissolution of marriage of the spouses (petitioner and respondent No.1) on the ground of cruelty; (ii) recovery of her five tola gold or its market, value; (iii) recovery of her dowry articles as per the list annexed with the plaint or its worth of Rs.1,51,350/-;(iv) recovery of maintenance allowance of Rs.12,60,000/- for the last three years Rs.15,000/- per month for plaintiff No.1 and Rs.10,000/- per month for each of the minors/ respondents and onwards at the same rate till completion of iddat of the respondent/ wife and till the time of legal entitlement of the respondents/ minors. It was alleged by the respondent/ wife in the plaint that her nikah was solemnized with the petitioner in the year 2001 in lieu of 05 tola gold ornaments while her rukhsati had taken place in the year 2003; that she was given dowry articles by her parents, which are lying in the house of the petitioner/ husband; that after marriage for a short span, the relations between the spouses remained cordial, however subsequently on different pretexts the petitioner/ husband has made her life miserable and even contracted a second marriage without her consent in the year 2009; that the dower was snatched from her about three years ago and thereafter, she along with the minors were ousted from the house. The petitioner/ defendant, on his appearance, submitted his written statement, wherein it was alleged that on demand of the respondent/ wife, he has already divorced the wife vide divorce deed dated 11.07.2016. He asserted that the dower has already been delivered to the respondent/ wife at the time of marriage,, however, same was sold by her at her will for Rs.35,500 for starting the cloth business for him, in which he suffered loss) while some of the amount was spent by him in the household expenses and thereafter, left for Saudi Arabia. The list of dowry articles was termed to be fake and fictitious. On conclusion of the trial and hearing of the parties, the learned trial Court decreed the suit to the extent of (1) dissolution of marriage based on pronouncement of talaq w.e.f. 16.12.2016 i.e., the date of submission of written statement by the petitioner/ husband; (ii) recovery of five tola gold as dower in favor of plaintiff/ wife; (iii) recovery of dowry articles as per the list annexed with the plaint; (iv) recovery of maintenance allowance for each of the respondents/ plaintiffs for the past three years g Rs.3,000/ -per month and onwards till completion of period of iddat of the respondent/ wife; (v) recovery of future maintenance allowance' for each of the minors/ respondents @ Rs.3,000/- per month with 15% annual increase till attaining the age of majority by plaintiff No.2 and marriage of plaintiff No.3 vide judgment and decree dated 11.06.2019. The petitioner challenged the said judgment and decree through Family Appeal No.7/13 of 2019, which was partially allowed by the learned appellate Court through judgment and decree dated 10.02.2019 holding the respondent/ wife entitled for recovery of dowry articles as per decision of jirga dated 11.12.2010 and to that effect, the judgment and decree of the learned trial Court dated 11.06.2019 was modified while rest of the findings were upheld, hence, thiS petition.
3. Brief facts of the connected W.P No.1007-M/2023 are that the petitioner filed Suit No.1/3 of 2021 for the custody of the minors/ respondents namely Syed Awais Shah and Syeda Hafsa, who are his offspring from the respondent No.1, on the ground that they are in the custody of the respondent/ mother but she is unable to properly look after them and thus if their custody is not handed over to him, the welfare of the minors will' be affected. The respondent/ wife appeared and contested the suit through her detailed written statement. Issues were framed. On conclusion of trial, the learned trial court decreed the suit with directions to the respondent/ mother to hand over the custody of both the minors to the petitioner/ father vide judgment dated 25.11.2021. Her appeal against the said judgment and decree was partially allowed by the learned appellate Court through impugned judgment and decree dated 27.04.2023 by reversing the decree to the extent of the minor Mst.
Syeda Hafsa, against which, the respondents have filed the connected petition. They have also challenged the validity and correctness of the judgments and decrees of the learned Courts below dated 11.06.2019 & 02.10.2019, which have been challenged by the petitioner through instant writ petition.
4. Arguments heard. Record perused.
5. Separation of the spouses through pronouncement of talaq by the petitioner/ husband is an admitted fact, however, the respondent/ wife through her suit has prayed for dissolution of marriage on the ground of cruelty and the petitioner/ plaintiff when appeared before the learned trial Court has taken a plea that he has already divorced the respondent/ wife through pronouncement of talaq vide divorce deed dated 11.07.2016 but he, during the course of evidence, could not produce any witness of this deed. Similarly, he has not conveyed the said talaq to the respondent/ wife before submission of his written statement on 16.12.2016, rather admitted during his cross examination that he cannot say that when he has divorced the respondent/ wife, therefore, in such circumstances, the learned Courts below have rightly held that the pronouncement of divorce/ talaq shall be given effect from 16.12.2016. More-so, the respondent/ wife has claimed that her dower was fixed as five tola gold at the time of nikah, which fact has not been disputed by the petitioner/ husband in his pleadings, however, the controversy through instant petition is the direction of the learned Courts below for payment of the dower to the respondent/ wife being outstanding against him. The respondent/ plaintiff has averred in the plaint that though the dower was paid to her at the time of marriage, however, subsequently it was snatched from her. On contrary, in his written statement, the petitioner/ husband has not denied the factum of selling out of the dower of the respondent/ plaintiff, however, alleged that same was sold with the consent of the respondent/ plaintiff for settling the business of cloth, wherein he suffered loss and some of the amount was spent in household expenses. The learned Courts below have granted a decree for recovery of five tola gold as her dower in favor of the respondent/ wife.
6. During the course of arguments, learned counsel for the petitioner contended that once the dower has already been paid to the respondent/ wife, which was later relinquished by her in favour of the petitioner/ husband, then in such circumstances, she could not raise the claim for recovery of her relinquished dower from the petitioner/ husband. In support of his contention, he referred to the portion of the cross examination of DW-2, wherein he stated that: Similar was the contention of the petitioner (DW-1) in his written statement as well as during his cross examination. It was averred by the petitioner/ defendant in his written statement that: But when questioned, in her cross examination, the respondent/ wife (PW-1) has replied in the following manner: The above deposition Of the respondent/ wife brought on record by the petitioner himself during her cross examination, would go against the stance of the present petitioner/ husband, thus, the petitioner/ husband could not establish on record that selling of her dower with at her own will/ consent for settling a, business for the petitioner, thus, in such an eventuality the relinquishment of dower on part of the respondent/ wife in favor of the petitioner/ husband is mere an assertion because it was neither supported by any overwhelming evidence of petitioner either oral or documentary nor he could bring on record any admission from the respondent/ wife or her witnesses.
7. It is relevant to note here that talaq has been pronounced by the petitioner/ husband and the spouses have offspring's (respondents No.2 86 3) from the wedlock while there was no request on behalf of the respondent/ wife for dissolution of marriage on the ground of khula rather she has insisted for dissolution of marriage on the ground of cruelty, which has been proved by her in accordance with law. The petitioner has also contracted a second marriage and recently the Hon'ble Supreme Court in the case of 'Dr. Farmal Maqsood and another Vs. Khurram Shehzad Durrani and others' (Civil Petitions No.308-P & 1388 of 2019) decided on 03.05.2024, has held that the provisions of section 2 (ii-a) of the Act of 1939 are still intact in the Statute and thus taking an additional wife is still a valid ground for dissolution of marriage u/ s 2 of the Act of 1939, therefore, the learned Courts below while considering the evidence on record along with the factum of having additional wife has rightly dissolved the marriage on the ground of cruelty.
Furthermore, the dower is the right of the lady given to her by Shariah (Holy Quran and Sunnah) and its relinquishment in favor of the husband is the sole prerogative of the wife and her such right could not be discretionarily or arbitrarily exercised by the court, as held in the case of "Ana Liaqat Vs. Additional District Judge, Gujranwala and 02 others" (PLD 2021 Lahore 757) that ' in the present case, neither the lady agitated the ground of khula nor it was her request while making statement before the Court and certain other grounds existed on the basis of which decree for dissolution of marriage could have been passed. High Court set aside impugned judgments and decrees passed by both the Courts below and dissolved the marriage between the parties based on grounds asserted by the petitioner." In case of `Mukhtar Ahmad Vs. Ansa Naheed and 02 others' (PLD 2002 SC 273), the apex Court has observed that 'where the marriage was dissolved on the other grounds also then the wife would be entitled to recover amount of dower and dowry but in case of dissolution of marriage on the ground of khula, situation would be examined keeping in view the offer she had made for getting marriage dissolved on khula'. Similar view was taken in the case of `Aansa Naheed Vs. Mukhtiar Ahmad and 02 others" (1994 MLD 661, Lahore). In the matter in hand, though the petitioner/ husband has alleged that the dower was sold with the consent of the respondent/ wife rather relinquished by her in his favour, but he has failed to establish this fact by producing any sort of evidence. In a similar situation, in the case of Mst. Jamila Bibi Vs. Mian Khan and another' (PLD 1997 Lahore 417), it was held that 'wife could relinquish her dower but condition precedent to such relinquishment was that same would-be outcome of free-will and not result of undue influence,' coercion, misunderstanding or fraud.' Likewise, in the case of `Abdul Ghafoor Vs. Mst. Rukhsana Bibi and 02 others" (19971 PLD 168), it was held that 'plaintiff had denied execution of document and also relinquishment of dower amount, therefore, some unimpeachable evidence should have been brought on record to show that plaintiff had entered into alleged transaction voluntarily or had actually signed or thumb marked relinquishment deed' whereas in this matter, no document regarding the alleged relinquishment of dower was executed between the petitioner and respondent No. 1. In the case of `Abdul Waheed Vs. Zahida Parveen and others" (2005 MLD 14, Lahore), the Court has decreed the dower in favor of the wife when the husband has failed to prove its alleged relinquishment through execution of a deed in his favor in accordance with the provisions of Qanun-e-Shahadat Order, 1984. The Hon'ble Islamabad High Court in the case of 'Malik Musawar Khan Vs. Mst. Nadia Yaseen Malik and others" (PLD 2023 Islamabad 135) has observed that the Court cannot on its own deprive a lady of her dower and cannot order her to relinquish the same because the dower is the right of the woman given by Shariah and reliance was also placed on the supra case of Ana Liaqat' case (PLD 2021 Lahore 757).
8. Insofar as the reliance of the learned counsel for the petitioner on Hadiths from Ashraf-ul-Hidaya (Urdu), Volume-IV is concerned, he referred to the following two Hadiths at pages No.99 & 100 of the said Book: It was the contention of the learned counsel for the petitioner that the respondent/ wife has once taken the possession of the dower and then has gifted/handed over/ relinquished it to the husband/petitioner, therefore,' she could' not claim return of the same, however, the petitioner has failed' to produce any such evidence on the record regarding the relinquishment of the dower and even it was not his categoric stance in his pleadings, thus, in such circumstances, the claim of the petitioner could be not be considered in light of the referred , to above Hadiths. Similar is the case of fatwa from Tafseer-e-Majidi because fatwa is an opinion and can be given by a mufti which has got no binding force, and the Court is required to decide the lis between the parties based on preponderance of evidence. Thus, in view of above dicta laid down by the superior Courts qua relinquishment of dower in juxtaposition with the evidence on the record, the petitioner could not prove the alleged factum of relinquishment of dower in favor of petitioner in accordance with law, as such, the learned Courts below have rightly granted the decree for recovery of dower in favor of the respondent/ wife being snatched from her.
9. In view of the dissolution of marriage on the ground of cruelty w.e.f. 16.12.2016 and having no evidence on record regarding the disobedience or self-desertion of the wife, the learned trial Court has rightly held the respondent/ wife entitled for recovery of past maintenance @ Rs.3,000/- per month till; expiry of her iddat. Similarly, the respondents/ minor were his son and daughter and it was his legal obligation to provide maintenance to them till their legal entitlement, therefore, neither the grant of maintenance allowance in favor of the minors nor its quantum @ Rs.3,000/- per month for each of the respondents/ minors with 15% annual increase, could be questioned by him to be against the law or evidence on the'' record. More-so, when the receipts regarding the dowry articles, relied upon by the respondent/ wife, were appearing reliable documents and earlier to the institution of the suit, the decision, of jirga dated 11.12.2010 was an admitted fact then the learned appellate Court has rightly modified the findings of the learned trial court holding the respondent wife entitled for recovery of dowry articles as per decision of jirga dated 11.12.2010.
10. Adverting to the connected W.P No.1007-M /2023, wherein the respondent/ wife has challenged the decisions of the learned Courts below in both the family suits bearing No.15/3FCA filed by her for dissolution of marriage etc. and No.1/3 of 2021 filed by the petitioner for custody of the minors.
Suit No.15/3FCA was decided by the learned Family Court on 11.06.2019 and against said judgment, no appeal was filed by the respondent/ wife while the petitioner/ husband has filed an appeal, which was partially allowed only to the extent of dowry articles vide judgment and decree dated 10.02.2019, therefore, at this stage, the instant petition in 2023 against the judgment of the learned appellate Court dated 10.02.2019 is suffering from laches and in this respect, no plausible explanation has been put forth by the respondents. For issuance of writ of certiorari, one is required to explain the laches as per the principle enunciated by the apex Court in the case of "Member (S & R) Chief Settlement Commissioner Board of Revenue versus Syed Ashfaque" Ali (PLD 2003 SC 132) that "writ jurisdiction is undoubtedly discretionary and extra-ordinary in nature which may not be invoked by a party who demonstrates a style of slackness and laxity on his part. Furthermore, if a party does not choose legal remedy available under the Statute strict speaking Constitutional jurisdiction of the High Court cannot be exercised in his favour. Law is well-settled that a party guilty of gross negligence and laches is not entitled to the equitable relief " No doubt, the provisions of limitation are not applicable to writ petitions, however, the principle of laches requires justification for delayed institution of writ petition for adequate and discretionary relief in the petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioner was supposed to have filed the petition within reasonable time for issuance of the appropriate writ in consonance with the principle laid down by the apex Court in the case of "Pakistan International Airline Corporation and others Vs. Tanveer-ur-Rahman and others" (PLD 2010 SC 676), wherein it was held that reasonable time for filing of writ petition would be 90 days. Reliance is also placed on the cases of "Ardeshir Cowasjee Versus Karachi Building Control Authority (KMC), Karachi" (1999 SCMR 2883) & "Muhammad Din Vs. Abdul Ghani and another" (2012 SCMR 1004). Therefore, their prayer against the judgment and decree dated 10.02.2019 through instant petition filed in the year 2023 cannot be considered by this Court and to that extent, this instant petition is meritless. They have also challenged the correctness of the order of the learned appellate Court dated 27.04.2023 rendered in their Family Appeal No.4 / FCA of 2022 filed against order of the learned trial court dated 25.11.2021 granting a decree for custody of the minors in favor of the petitioner/ father. The appeal of the respondent/ mother was partially allowed by the learned appellate Court and the suit of the petitioner/ father to the extent of custody of the minor Mst. Syeda Hafsa was dismissed vide impugned order dated 27.04.2023. It is the prayer of the respondent/ wife that custody of her minor son namely Syed Awais Shah could not be granted in favor of the petitioner/ father, however, the documents so produced before the Court including Secondary School Certificate of the Board of Intermediate and Secondary Education Malakand, the son Syed Awais Shah is aged about 17 years and has appeared in the Matric Examination.
According to section 352 of Mulla's Principles of Muhammadan, it is the right of the mother to retain the custody of minor son till attaining the age of seven years and in the matter in hand, admittedly, Syed Awais Shah is of about 17 years of age and being present before the Court wants to live with his father/ petitioner whereas, learned counsel for the respondent/ wife could not point out any illegality, irregularity or jurisdictional defect in the impugned order of the learned appellate Court dated 27.4.2023. The case law relied upon by learned counsel for the respondent reported as `Mst.
Rabia Bibi Vs. Abdul Qadir and others" (2016 CLC 1460, Lahore), "Lt. Col. Nasir Malik Vs. Additional District Judge, Lahore and others" (2016 SCMR 1821), "Abdul Khalig Vs. Additional District Judge, Quetta and other" (2020 CLC 320), lfst. Afshan Bibi Vs. Judge Family Court/ Guardian Judge Kabirwala" (PLJ 2017 Lahore 115) and `Ghulam Mustafa Vs. Mst. Manzooran Bibi and others" (1994 MLD 1199), being distinguishable from the facts and circumstances of the instant matter cannot be applied.
11. In view of the above-mentioned discussion, the findings of the learned appellate Court, on all the above factual aspects, are the result of correct appreciation of the evidence on the record whereas, this Court while sitting in constitutional jurisdiction, can only interfere if there is any illegality, jurisdictional defect or perversity in the judgments impugned before it rather cannot determine the factual aspect of the matters, which was already decided by the learned Courts below. The apex Court in the cases of M. Hamad Hassan Vs. Mst. Isma Bukhari and 02 others"
(2023 SCMR 1434), in Civil Petitions No.4657 to 4659 of 2022 titled "Ibrahim Khan Vs. Mst. Saima Khan and others", "Muhammad Hussain Munir Vs. Sikandar" (PLD 1974 SC 139), "Muhammad Lehrasab Khan Vs. Mst. Aqeel-un-Nisa" (2001 SCMR 338), "Mst. Tayye ba Ambareen and another Vs. Shafqat Ali Kiyani and another" (2023 SCMR 246) and "Arif Fareed Vs. Bibi Sara and others"
(2023 SCMR 413) has observed that only in exceptional circumstances, the High Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere in the judgments of the learned Family Court or Appellate Court, otherwise High Court lacks the jurisdiction to reappraise the evidence and reach a different conclusion. For reference such a para from judgment of the Hon'ble apex Court rendered in the case of M. Hamad Hassan Vs. Mst. Isma Bukhari and 02 others" (2023 SCMR 1434) is also reproduced hereunder: "6. The objective of Article 199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. However, it is emphasized that the High Court, in its capacity under Article 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts. Its role is limited to correcting jurisdictional errors and procedural improprieties, ensuring the proper administration of justice. In the present case, the Petitioner pursued his case through the family court and its appeal in the district court and then also invoked the High Court's constitutional jurisdiction to reargue his case amounting to a wrongful exercise of jurisdiction whereby the High Court upheld the factual findings of appellate court after making its own assessments on the same. Allowing a re-argument of the case constituted to arguing a second appeal which should not have been entertained regardless of the outcome of the case.
7. The right to appeal is a statutory creation, either provided or not provided by the legislature; if the law intended to provide for two opportunities of appeal, it would have explicitly done so. In the absence of a second appeal, the decision of the appellate court is considered final on the facts and it is not for High Court to offer another opportunity of F hearing, especially in family cases where the legislature's intent to not prolong the dispute is clear. The purpose of this approach is to ensure efficient and expeditious resolution of legal disputes. However, if the High Court continues to entertain constitutional petitions against appellate court orders, under Article 199 of the Constitution, it opens floodgates to appellate litigation. Closure of litigation is essential for a fair and efficient legal system, and the courts should not unwarrantedly make room for litigants to abuse the process of law. Once a matter has been adjudicated upon on fact by the trial and the appellate courts, constitutional courts should not exceed their powers by reevaluating the facts or substituting the appellate court's opinion with their own - the acceptance of finality of the appellate court's findings is essential for achieving closure in legal proceedings conclusively G resolving disputes, preventing unnecessary litigation, and upholding the legislature's intent to provide a definitive resolution through existing appeal mechanisms."
Reliance may also be placed on the case of Whair-ud-Din Vs. Mst. Sabiha and 05 others' (PLD 2021 SC 85), wherein the apex court has held that "Proceedings under the . constitutional jurisdiction of High Court were not a substitute for an appeal so as to reappraise the evidence recorded by the Family Court" Learned counsel for parties could not point out any illegality or legal error in the impugned findings of the learned appellate Court.
12. Thus, for the reasons discussed above, the instant petition, being devoid of merits, is hereby dismissed while the connected W.P No.1007-M/2023 is disposed of in the above terms. No ordessr as to cost.