1993 PLP 704 (CLC)

Shamim Abbas Bukhari for Petitioner.. Syed Aftab Sherazi for Respondent. Date of hearing: 29th November, 1992. JUDGMENT' Brief facts of the case are that Mst. Zubaida Bibi (respondent No.l) filed a suit for dissolution of marriage against the petitioner on the grounds of habitual cruelty and misappropriation of dowry. She also claimed Khula`. The suit was resisted by the petitioner who also instituted a suit for restitution of conj al rights. Both the suits were consolidated. ' The learned Judge, Family Court, found all the issues against respondent No.1 and vide judgment dated 7‑5‑1990 the suit for dissolution of marriage was dismissed while the suit of the petitioner for restitution of conjugal rights was decreed. Respondent No.1 file an appeal which was accepted. Before the learned Additional District Judge only the issue regarding Khula` was pressed. It was observed that she was adamant in her hostile attitude towards the petitioner and was not prepared to live with him any more. In this view of the matter, vide judgment dated 8‑11‑1990 the marriage between the parties was dissolved on the basis of Khula`, with the direction that she was to relinquish her claim of dower money and past maintenance. The suit of the petitioner for restitution of conjugal rights was dismissed.

2. Before the learned Additional District Judge, the petitioner raised the contention that he had given to respondent No.l golden ornaments weighing two and a half tolas in lieu of dower and she was also liable to return the same in lieu of Khula`. This plea was not accepted.

3. Through this Constitutional petition the petitioner has challenged the judgment of the learned Additional District Judge dated 8‑11‑1990.

4. The writ petition was admitted to regular hearing on 10‑11‑1991. On that date, learned counsel for the petitioner did not seriously contest the finding of the learned Additional District Judge that it was a 6t case in which the marriage was to be dissolved on the basis of Khnla`, inasmuch as, in the event of allowing the marriage to subsist, the parties were likely to transgress the limits prescribed by Allah Almighty. It was, however, contended that the fact that two and a half tolas golden ornaments were given to respondent No.l in lieu of dower stood proved from the Nikahnama which was produced by the said respondent herself doubt, this document was not daily exhibited, yet it could be read in evidence and the entry made therein regarding payment of dower could be relied upon without confronting respondent No.l therewith.

5. I have heard the learned counsel for the parties. Mst. Zubaida Bibi, respondent No.l, is also present in Court. In my view, this writ petition must fail. It was for the petitioner to prove by producing unimpeachable evidence that he had given two and a half tolas golden ornaments to respondent No.l by way of dower. It is true that in the Nikahnama there is a mention of this fact, but this entry, per se, cannot be relied upon for variety of reasons: Respondent No.l was not confronted with this entry. Had she been specifically questioned on this aspect of the matter, she might have given explanation with regard thereto. In the absence of her examination with regard to this entry, it cannot be safely concluded that she had received two and a half tolas golden ornaments by way of dower. The scribe of the Nikahnama, or for that matter, the Vakil of Mst. Zubaida Bibi and witnesses of Nikah should have also been questioned in this regard so as to elicit truth. No such attempt was made. In the absence of evidence to prove the factum of delivery of two and a half tolas of golden ornaments to respondent No.l by way of dower, it cannot be said that such ornaments were, in fact, handed over to her. Even otherwise, the finding recorded by the learned Additional District Judge is based on material available on record, and it is not for this Court to interfere therewith, particularly so when the same has not been demonstrated either to be fanciful or arbitrary. Merely because another view of the evidence could be taken would be no ground to urge that the said finding should be substituted by this B Court in exercise of writ jurisdiction.

6. For what has been said above, there is no force in this writ petition. It is dismissed with no order as to costs. H.B.T./M‑755/L Petition dismissed.