2002 PLP 1396 (CLC)

Brief facts necessary for the disposal of this Constitutional petition are that on 27‑4‑1998 Mst. Tahira Naheed (respondent No.1) instituted a suit, against her husband (writ petitioner) for recovery of articles of her dowry in accordance with the list annexed with the plaint. It was alleged by her that about 1‑1/2 months prior to the filing of the suit, the writ petitioner had turned her out of his house and has refused to return her dowry.

2. The suit was contested by the writ petitioner. He alleged in his written statement that at the time of marriage, articles of dowry were not shifted to his house and they remained lying in the house of the parents of respondent No.1 at Khanewal because they wanted the couple to shift at Khanewal. In March, 1998 respondent No. 1 went to the house of her parents and while going away took along-with her writ petitioner's property comprising clothes, jwellary and prize bonds worth Rs.10,

000. Set off to the extent of Rs.75,000 by way of value of the said articles was claimed. It was also alleged that during the .subsistence of marriage, respondent No. 1 could not legally claim dowry. Legal objections regarding valuation of the suit and jurisdiction were also raised.

3. It may be observed that besides the suit for dowry respondent. No. 1 had also filed two suits for maintenance allowance for herself and for the minor children and the writ petitioner had instituted a suit for restitution of conjugal rights against respondent No.

1. All the said four suits were consolidated and were disposed of by the Family Court vide consolidated judgment, dated 31‑5‑2000.

4. The writ petitioner filed four separate appeals against the aforesaid consolidated judgment and separate decrees of the Family Court. For the purpose of this Constitutional petition, consolidated judgment of the Family Court, dated 31‑5‑2000 and order of the District Judge passed on 10‑10‑2000 are relevant whereby he dismissed the writ petitioner's appeal against the judgment of the Family Court whereby suit for dowry was decreed.

5. Mr. Naveed Hashmi, Advocate appearing on behalf of the writ petitioner has assailed the aforesaid judgment of the Family Court and the order passed in appeal by the District Judge on the following grounds:‑‑ (i) That the impugned judgment and order were passed without lawful authority and are against law and facts; (ii) List of articles of dowry Exh.P.2 was not proved according to the provisions of the Qanun‑e‑Shahadat Order by producing scribe and the witnesses of the said document, it was, therefore, not admissible in evidence; (iii) In the decree sheet of the trial Court amount regarding value of dowry is not mentioned. The suit could not have been decreed without mentioning specific amount as the value of the articles of dowry; (iv) Under Article 163 of the Qanun‑e‑Shahadat Order no adverse presumption could be drawn if the party refused to take oath; (v) Evidence was misread and not read by .both the Courts below; (vi) Respondent No.1 did not appear in the witness‑box in support of her claim hence adverse presumption should have been drawn that her claim was false; and that (vii) Both Courts below overlooked the ground of set off taken up by the writ petitioner in his written statement.

6. The writ petition was opposed at the limine stage by Mr. Islam Ali Qureshi, Advocate who had appeared on behalf of respondent No.1. arguments were heard and the certified copies of the relevant record annexed with the writ petition had also been perused.

7. Adverting to the first ground raised by Mr. Naveed Hashmi, Advocate, it may be observed that under section 14 of the West Pakistan Family Courts Act, 1964, decision given or decree passed by Family Court is appeal-able to the District Judge where the Family Court is not presided by District Judge or Additional District Judge. In the present case, the impugned decree was passed by Family Court presided over by the Senior Civil Judge. Both the Courts below, therefore, had lawful authority to pass' the judgment and order respectively which are assailed in this writ petition.

8. Referring to the above second ground of Mr. Naveed Hashmi, Advocate it may be observed that document Exh. P.2 was exhibited by the Family Court without any objection from the other side. Writ petitioner had the notice of the said document right from the inception. The said document was not only the basis of the suit but was mentioned in the plaint and was also annexed therewith. It could not be, therefore objected to in the writ proceedings. Apart from that under section 17 of the West Pakistan Family Court Act; 1964, provisions of Qanun‑e‑Shahadat and the C.P.C. do not apply to proceedings before any Family Court.

9. Referring to the 3rd ground raised by Mr. Naveed Hashmi, Advocate it may be observed that respondent (plaintiff) had claimed specific articles which on the occasion of marriage were given to her according to the list Exh.P.2. This list contains particulars of each and every item of the dowry. Decree for recovery of articles of dowry according to the said list can be executed to the extent of the articles C specified therein. No illegality was committed by the Family Court in not determining the value of the articles as evidence in that regard was not available on record.

10. Referring to the 4th ground taken by Mr. Naveed Hashmi, Advocate, it may be observed that Issue No.4 was to the effect whether plaintiff (respondent No.1) is entitled to recover dowry articles or in alternate price thereof from the defendant. A perusal of the impugned judgment of the Family Court shows that finding on the said issue was returned on the basis of evidence after correct appraisal and the said finding was not based on any adverse presumption against the writ petitioner for his unwillingness to decide the matter in issue on special oath under Article 163 of Qanun‑e‑Shahadat Order.

11. Reverting to the 5th ground, the petitioner's counsel had failed to point out as to which portion of evidence was not read or what piece of evidence was misread by the Family Court. Adverting to the 6th ground taken up by Mr. Naveed Hashmi, Advocate, it may be observed that section 18 of the West Pakistan Family Courts Act, 1964 invests the Court with power to dispense with legal requirement in relation to appearance by any person and to allow that person to be represented through an authorized agent. In the present case, the Family Court had recorded the statement of Mian Abdul Ghaffar father of the plaintiff who was also her special attorney and was fully conversant with the relevant facts of the case. Since appearance of agent was legally permissible hence adverse inference was rightly not drawn by the Family Court due to non‑appearance of the plaintiff (respondent No. 1) in the witness‑box, in support of her claim.

12. Adverting to the last ground, it may be observed that the writ petitioner did not take up this ground in the memo. and grounds of his appeal filed before the District Judge that the Family Court had overlooked plea of set off taken by him in the written statement. Ground F which was not agitated before the Lower Appellate Court cannot be raised in the writ petition.

13. A perusal of the impugned judgment passed by the Family Court on 31‑5‑2000 and impugned order passed in appeal by the District Judge,, dated 10‑10‑2000 reveals that both the Courts below had neither exceeded their jurisdiction nor acted without jurisdiction. The Family Court had examined/assessed evidence and its findings are based on evidence; against such findings Constitutional jurisdiction cannot be exercised. For the reasons stated above, the writ petition is devoid of any force, and is accordingly dismissed. Q.M.H./M.A.K./M‑1264/L Petition dismissed.