2010 PLP 608 (MLD)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, Mst. Salbia Zafar, daughter of Zafar Ali Khan, seeks setting aside of the judgment and decree, dated 19-3-2009, passed by the learned Additional District Judge, Khanewal in appeal filed by defendant/ respondent No.2 Farhan Aftab. The petitioner/plaintiff has sought restoration of the judgment and decree of the learned Judge, Family Court, dated 21-1-2009.

2. Brief facts of the instant writ petition are that respondent/ defendant No.2. Farhan Aftab son of Aftab Ahmad and the petitioner were married on 24-1-2004 for an unpaid Haq Mehr of Rs.1000, 30 Tola gold ornaments and a house on plot of one kanal, the Nikahkhanwan had been brought by respondent No.1 with the Baraat and copy of the Nikahnama was not provided to the parents of the petitioner at the time of marriage and subsequently all copies were removed by the respondent from the record so copies of Nikahnama are with him. A copy of list of dowry articles valuing Rs.15,45,295 (Exh.P.1.) prepared at the time of marriage by the parents of the petitioner was given to respondent; bridal gifts given to the bridegroom/the respondent valued Rs.4,02,750; out of the wedlock a daughter namely Memona was born, who is in custody of the petitioner. Thereafter relations between the spouses became strained and ultimately on 4-4-2005 the petitioner was kicked from his house by the respondent in three clothes, and then the respondent divorced the petitioner.

3. The petitioner filed a suit for recovery of dowry articles and the articles of bridal, gift on 29-2-2008. It was alleged in the plaint that plaintiff/petitioner belongs to a rich family, her parents gave her a huge dowry as per appended list (Alif) of the plaint. Defendant. Defendant/ respondent had given her gifts in shape of a Warri, mentioned in the list (Bay) of the plaint. The respondent No.2 filed a written statement on 29-3-2008 controverting the claim of the petitioner and alleged that the A list of dowry articles produced by the plaintiff was not correct. The respondent-defendant produced his own list along with the written statement. From the divergent pleadings of the parties necessary issues were framed.

4. The pre-trial reconciliation failed and in the light of divergent pleadings of the parties the learned Judge Family Court framed the following issues. Issues.

1. What the articles were given to the plaintiff in dowry by her parents and she took the same to the house of the defendant? OPP

2. What the articles of dowry are in occupation of the defendant and what is their price? OPP

3. Whether the plaintiff is entitled to recover the articles in dispute from the defendant or in alternative the price thereof? OPP

4. Whether the estopped by her words and conduct to bring the suit? OPD

5. Whether this Court has got no territorial jurisdiction to try this suit? OPD

6. Relief. 4-A. The parties led their evidence. The petitioner-plaintiff lady produced three witnesses, namely, Muhammad Asad, P.W.1, Hasnat Haider P.W.2 and Mudassar Ali Khan P.W.3. The defendant-respondent produced Muhammad Shafiq Tariq as D.W.1., Abdul Mateen as D.W.3, Ghulam Shabbir as D.W.4, Athar Ali Khan was D.W.5, Muhammad Ikhlaq Hussain as D.W.6 and defendant-respondent himself appeared as D.W.2. The learned Judge, Family Court vide judgment and decree, dated 21-1-2009 decreed the suit of the petitioner as claimed by her on the basis of list of dowry articles and the list of bridal gifts articles produced by her in her evidence and an amount of Rs.19,48,045 was decreed in her favour. The respondent-defendant assailed the said judgment and decree, dated 21-1-2009 in appeal before the learned District Judge, and the learned Additional District Judge vide his judgment and decree, dated 19-3-2009 accepted the appeal and dismissed the claim of the petitioner on the basis of her list and decreed the suit of the petitioner to the extent of Rs.5 lacs on the basis of the list of articles produced by the respondent and prepared at the time of marriage. The said judgment and decree of the learned Additional District Judge has been assailed in this writ petition and prayer has been made for restoration of the judgment and decree, dated 21-1-2009 of the learned Judge, Family Court.

5. The learned counsel for the petitioner contends that the judgment and decree of the learned lower appellate Court is totally unjustified, illegal, void and is against the settled principles of law; that the judgment and decree of the learned Judge, Family Court was based on correct appraisal of evidence on the record; that the findings of the trial Court are based on cogent reasons which cannot be set aside on the basis of the view founded on presumptions and conjectures. Submits that the judgment of the learned lower appellate Court is arbitrary and whimsical. Learned counsel for the petitioner further contended that Judge Family Court after appraisal of evidence passed the judgment and decree, dated 21-1-2009 which is based on cogent and convincing evidence; that the list of dowry articles was exhibited without any objection of defendant/respondent and same was in knowledge of defendant/respondent. Learned counsel for the petitioner further argued the case and vigorously supported the judgment and decree of the learned trial Court as the same is based on rational reasons, there is no misreading or non-reading of evidence. According to him learned lower appellate Court without any justification modified the judgment and decree of Judge Family Court from Rs.15,00,000 (Rs.15 Lacs) to Rs.500,000 (Rs.5 Lacs) for such substantial reduction in the amount of decree lower appellate Court gave no convincing reasons. Learned counsel submitted that evidence produced by the parties before the Judge Family Court could not be evaluated and appraised in the manner as it was presented under C.P.C. and Qanun-e-Shahadat Order, 1984 is not applicable in family cases. Replying the contention of the learned counsel for the respondent that bridal gift cannot be recovered in the family suit. Learned counsel for the petitioner submitted that in the schedule of Muslim Family Court Act, 1964 at Serial No. (10) of the Schedule wife can file suit for recovery of personal property and her belongings bridal gifts are covered in this provision of the Schedule. Learned counsel for the petitioner makes reliance on "Muhammad Habib v. Safia Bibi" (2008 SCMR 1584). "The contention of the husband was that no list of dowry article was prepared at the time of marriage, same was fabricated subsequently. Supreme Court held that the list of articles revealed that those were ordinarily given to a bride at the time of her marriage no illegality or irregularity had been pointed out." "Mirza Shahid Baig v. Mst. Lubna Riaz" (2004 CLC 1545). "In family cases before Family Courts the evidence adduced could not be evaluated and appreciated in a manner as it was appreciated in cases presented under C.P.C. The fixation of price on the basis of list of dowry articles can be made by Family Court. "Muhammad Javed Iqbal v. Mts. Tahira Nahid" (2002 CLC 1396), "Civil Procedure Code and Qanoon-i-Shahadat do not apply before the Family Court." "List of articles was annexed with the plaint and it was in the notice of the defendant right from the inception which was not only the basis of the suit but was mentioned in the plaint and the same was exhibited without any objection.... Suit was decreed by the Family Court in favour of the plaintiff as per the list." "Mst. Shahnaz Begum v. Muhammad Shafi" (PLD 2004 Lahore, 290 and 1080) "Articles of dowry, bridal gifts, presents or all other movable properties are the belonging of bride and the husband if deprived her of the same, she has the right to recover all these articles even though the same were given in contradiction of Dowry and Bridal Gifts (Restriction) Act, 1979."

6. Conversely learned counsel for the respondent stated that bridal gift cannot be recovered through family suit. It is not in the jurisdiction of the Judge Family Court to grant the decree with regard to bridal gifts. He got adjournment specially to cite case-law on the point that bridal gifts cannot be recovered in a family suit. Ultimately he could not produce the same.

7. Learned counsel for the respondent contended that Judge Family Court did not apply his judicious and conscious mind to the facts of the case. Learned trial Court did not take into consideration the material statement of independent witness of the defendant/petitioner. Muhammad Ikhlaq Hussain D.W.5. who denied the receipts produced in the evidence by the plaintiff/petitioner allegedly prepared by him. He further submitted that the learned Judge Family Court on the basis of conjectures and surmises decreed the suit of the plaintiff/petitioner in full claim of her. The said judgment is based on misreading and non-reading of evidence; that the list of dowry articles prepared at the time of marriage was delivered to the bridegroom which has been placed on record as Exh.DB which was prepared by Athar Ali brother of bride. Learned counsel made reliance on Export Promotion Bureau and others v. Qaiser Shafiullah (1994 SCMR 859 (b), Abdul. Wali Khan through Legal Heirs and others v. Muhammad Saleh (1998 SCMR 760), Muhammad Ramzan v. Judge, Family Court and others (2005 MLD 631, Lahore), Abdul Faheem v. Mst. Shahnaz Begum (2003 CLC 1450 Peshawar) and Mst. Shabnam v. Liaqat Ali and 3 others (2004 MLD 69 Peshawar).

8. I have heard the parties at length and perused the record.

9. Both the Courts below have appreciated and evaluated the evidence on the file with their own angles. The learned Judge Family Court decreed the suit for recovery of dowry articles and bridal gifts to the extent of full claim of the plaintiff while after appraising and evaluating the same evidence the learned Additional District Judge modified the judgment and decree of the learned trial Court of Rs.500,000 (Rs. five lacs). This Court after going through both the judgments held that the judgment passed by learned trial Court is more rational, based on cogent reasons and convincing arguments as compared to judgment of lower appellate Court which seems to be based on mis reading and non-reading of evidence. Out of the two judgments I am inclined to set aside the judgment passed by the lower appellate Court and restore the judgment passed by Judge Family Court. The reasoning is that both the parties belongs to prosperous families. The respondent is a big agriculturist in District Khanewal. On the other hand the plaintiff/petitioner is the only sister of seven brothers who are also well-off. It is not strange and unbelievable that persons belonging from agriculturist society at the time of marriage given bridal gifts of a high value. The bridal gifts which are personal belongings now of the petitioner after marriage are near about Rs.400,000 (Rs. four lacs) value. Both the parties produced their own list of dowry articles. The learned Judge Family Court accepted the list of dowry articles produced by the plaintiff/petitioner and no objection was raised at the time of accepting the same. The petitioner is a single sister of seven brothers, it is not irrational that seven brothers and parents gave dowry articles as per list (Alif) appended with the plaint. Learned trial Court/Judge, Family Court did not decree the full claim of the plaintiff/petitioner. She had made claim for Rs.15,45,295 for dowry articles and Rs.4,02,750 for Wari/Bridal gifts. Her total claim amounts to Rs.19,48,045, while the suit of the plaintiff-petitioner was decreed for the amount of Rs.15,00,000 (Fifteen lacs). Particularly, the defendant-respondent has not denied the gold ornaments which she brought with her from her parents. Learned trial Court rightly disbelieved the statement of D. W.1 and D.W.5. The learned trial Court rightly observed that a person who gives his letter-head to some one for its use or for preparation of receipts, statement of such a person cannot be believed. Learned trial Court rightly held that D.W.2. and D.W.4 are not eye-witnesses of handing over the dowry articles. To the extent of Wari, i.e. bridal gifts, the claim of the plaintiff-petitioner is unrebutted. The learned Judge, Family Court rightly decreed the family suit of the plaintiff/petitioner.

10. In the light of above discussion I allow this writ petition and restore the judgment and decree of the learned trial Court. M.U.Y./S-27/L Petition allowed.