2010 PLP 1844 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this writ petition the petitioner has assailed the judgment and decree dated 1-10-2009 passed by learned Family Court and judgment and decree dated 1-10-2009 passed by learned appellate Court.

2. Facts relevant for the purpose of disposal of this writ petition are that petitioner filed a suit for recovery of maintenance allowance and return of dowry articles claiming that the marriage between the parties was solemnized on 11-3-2002, she remained 5 to 6 years with her husband and a minor son was born out of their wedlock, who is in the custody of respondent. She further claims that it is a "Watta Satta' marriage. She claimed that her parents have given her dowry articles amounting to Rs.3,10,000 and also claimed maintenance of Rs.3,000 per month. The respondent appeared and contested the suit. The learned trial Court framed issues and after recording the evidence passed a decree in her favour declaring that she is entitled to Rs.2000 maintenance allowance per month from the date of institution of the suit till the existence of marriage and passed a decree of return of dowry articles or in its alternative an amount of Rs.50,

000. The respondent assailed the judgment and decree through an appeal, which was partially allowed and it was directed that petitioner is not entitled for any maintenance and maintained the decree for return of dowry articles or in alternative Rs.50,000, hence the present writ petition.

3. Learned counsel for the petitioner submits that it is an admitted fact between the parties that the marriage still exists and learned trial Court has rightly passed a decree for payment of maintenance allowance.

4. Learned counsel for the respondent submits that it has been proved on record that the petitioner is not willing to live with the respondent as his wife and as such she is not entitled to any maintenance allowance.

5. It is an established fact on record that marriage between the parties still exists, the respondent has not filed any suit for restitution of conjugal rights. He also admits that he is not paying any maintenance to her wife. His only claim is that she has left his house at her own will, the D.W.2 admits that he is not eye-witness of dispute or maltreatment on the part of the respondent. He further admits that he has recorded his statement on the information of respondent to the effect that petitioner has taken Rs.20,000 from his house. It is also an admitted fact on record that it was a "Watta Satta" marriage and normally these type of marriages parents of both the parties give dowry articles to their daughters according to their financial condition. No such evidence is available on record which will show that the financial condition of the parents of the petitioner is weak. The learned trial Court has not evaluated this aspect of the case and has passed a decree of Rs.50,000 in lieu of dowry articles. The argument of learned counsel for the petitioner has a force when he submits that it was a "Watts Satta" marriage and parents of both the parties were given equal dowry articles. Learned appeal Court has passed decree of Rs.2,43,500 being the price of dowry articles in favour of her sister-in-law, the wife of her brother and as suck the learned courts below have not appreciated the evidence available on record.

6. In view of this, this petition is allowed, the impugned judgment and decree passed by the learned appeal Court is set aside and the case is remanded to the learned appeal Court for deciding fresh after assessing the evidence available on record. M.U.Y./M-328/L???????????????????????????????????????????????????????????????????????????????? Petition allowed.