2018 PLP 151 (YLRN)

JAWAD HASSAN, J.

Through this constitutional petition, the Petitioner has called in question judgment and decree dated 16.08.2011 passed by the Respondent No.1, whereby he modified the judgment and decree dated 31.01.2011, passed by learned Civil Judge, Bhalwal.

2. Succinctly, the facts necessary for the disposal of this constitutional petition are that suit filed by the Petitioner for recovery of maintenance allowance and dowry articles was decreed by the learned Judge Family Court, Bhalwal, whereby she was entitled to recover Rs.86,750/- as alternative price of the dowry articles. The Respondent No.3, feeling aggrieved against the said judgment and decree preferred appeal before the learned Additional District Judge, Bhalwal, which was modified vide judgment and decree dated 16.08.2011, whereby the Respondent No.3 was entitled to recover Rs.25,000/- as an alternate of dowry articles.

3. The counsel for the Petitioner has argued that the learned Additional District Judge has wrongly decided issue No.2 and while modifying the judgment and decree of the learned Judge Family Court in which he has erroneously come to the conclusion, therefore, the impugned judgment and decree is not sustainable in the eye of law and is liable to be set aside. He has further argued that the learned Appellate Court has not appreciated the evidence produced by the Petitioner and decided the appeal in a slipshod manner. In support of his contentions, he has placed reliance upon Shafique Sultan v. Mst. Asma Firdous and others (2017 SCMR 393). Lastly, he prayed for dismissal of the writ petition.

4. On the other hand, the Respondent No.2 on account of his non-appearance has already been proceeded against ex-parte by this Court vide order dated 23.05.2017.

5. Arguments heard and record perused.

6. It is reflected from perusal of the record that main issue in this case is Issue No.2 i.e. "Whether the plaintiff is entitled to recover dowry articles from the defendant in accordance with list annexed with her plaint or in alternative Rs.86,750/- as price thereof? OPP." In order to prove her claim, the Petitioner herself appeared as PW-1 and produced Muhammad Hayat as (PW-2). In documentary evidence, the Petitioner got exhibited the copy of the Nikah Nama as Ex.P-1 and copy of list of dowry articles as Ex.P-2 and closed her evidence. On the other, the Respondent No.3 himself appeared as DW-1 and examined Muhammad Sohail as DW-2. After recording issue-wise findings, the learned Judge Family Court, Bhalwal, the decreed the suit as per list vide judgment and decree dated 31.01.2011, whereby the Petitioner was entitled to recover Rs.86,750/- as an alternate price of the dowry articles. Subsequently an appeal tiled by the Respondent No.3 against the said judgment decree, the learned Additional District Judge, Bhalwal modified the judgment and decree whereby he disentitled the Petitioner for recovery of dowry articles and entitled her to recover Rs.25,000/- only as an alternate of the dowry articles instead of Rs.86,750/-. Onus to prove on issue No.2 was upon the Petitioner, which she proved through her evidence and evidence of PW-2, who corroborated her stance.

7. It is common custom and practice in our society that parents give dowry articles according to their financial status and position. The Petitioner herself appeared as PW-1 and gave details of some articles out of the articles which were mentioned in the list and placed her affidavit in this context on record. It is evident from record that the Petitioner was subjected to lengthy cross-examination, but nothing helpful to the husband could be brought on record. The PW-2 also supported the version of the Petitioner and her statement was corroborative of Petitioner's evidence (PW-1). The learned Additional District Judge, Bhalwal has modified the judgment and decree of the learned Judge Family Court, Bhalwal, merely on the ground that the list Exh.P-2 appears to have been prepared by the counsel of the Petiticce at the time of institution of the suit. The learned Additional District Judge has wrongly viewed that the Petitioner has failed to give full detail of each item of dowry articles mentioned in the list and price of each item during evidence as it is very difficult to keep in memory the price of each item of dowry articles at a tardy stage. Regarding financial status of the parents of the Petitioner, no such question was put to the Petitioner during her cross-examination, therefore the finding of the learned Addl. District Judge that father of the Petitioner was working for Rs.1,500/- per month with an agriculturist of the area and that he was not in position to give such huge number of dowry articles, the said finding is given no effect as no person with whom the father of the Petitioner used to work as labourer was produced to substantiate the said stance, therefore, the said finding of the learned Addl. District Judge is brushed aside. Normally the articles of dowry are handed over along with the list to the parents of the male spouse at the time of Rukhsati and it had now become imperative for all the parents irrespective of their being poor or rich to give dowry articles to their daughters at the time of marriage. Reliance is placed on Muhammad Habib v. Mst. Safia Bibi and others (2008 SCMR 1584). So for as dowry articles are concerned, the perusal of list reveals that the same consists of daily use, which are generally given to the brides at the time of their marriages. After perusing the record, I have not found any article(s) which may be termed as extravagate or beyond the financial status and resources of the Petitioner's family. So far as variation in the list of articles and statement of the PW-1 regarding number and price of articles is concerned, the same is not fatal to the case of the Petitioner as minor contradictions/ discrepancies did occur when statements of witnesses were recoded after a considerable period of time. Reliance is placed on Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162) and Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another (2001 SCMR 798). The Petitioner could not be non-suited on the ground of such minor contradictions in her statement. Reliance in this respect is placed upon Hamid Ali v. Mst. Nabila Riaz and 2 others (2012 YLR 2693), wherein it has been held as under:- "Non preparation of list of dowry articles and non-production of receipts of said dowry articles were not fatal to the case of the respondent. Record revealed that ordinary items were mentioned in the said list. Said list was prepared by the respondent who had appeared in the Trial Court as a witness, and her evidence had been corroborated by other witnesses who were cross-examined at length and nothing favourable to the petitioner had been brought on the record. Contradictions in such evidence pointed out by the petitioner were insignificant. Minor variations in the statement of witnesses did occur when their statement were recorded after a considerable period of time. Respondent could not be non-sited on ground of such minor contradictions in the statement of her witnesses when such statements were recorded after about five years from when the marriage between the parties was solemnized." From the perusal of record it reveals that marriage between the spouses was solemnized on 15.05.2008 and the Petitioner remained in the house of the Respondent No.3 for about four months and during this period certainly, the value of dowry articles underwent depreciation on account of their use. I find from the perusal of judgment of learned Judge Family Court that he omitted to consider the depreciation aspect of the dowry articles. In this view of the matter, the impugned judgment and decree of learned Appellate Court is modified and value of dowry articles is enhanced from Rs.25,000/- to Rs.50,000/- to which the Petitioner is held entitled to recover the same from the Respondent No.3 through execution from Executing Court. The impugned judgment and decree is modified accordingly. In view of the above, this petition is allowed and impugned judgment and decree dated 16.08.2011 passed by the Respondent No.1 is modified in the manner stated above. ZC/S-79/L Petition allowed.