2019 PLP 734 (YLR)

MOHAMMAD IBRAHIM KHAN, J.

Here are these affiliated writ petitions, Writ Petition No. 385-M of 2014 titled as "Anwar Ali v. Mst. Nahid and others" with the prayer:-- "It is, therefore, requested that the judgments of both the courts below may kindly be partially set aside and the suit of the Plaintiff/Respondent No. 1 may kindly be dismissed and the application submitted by the Petitioner for custody of minors/Respondents Nos. 2 and 3 may kindly be accepted as prayer for." And Writ Petition bearing No.488-M of 2014 titled as "Mst. Nahid v. Anwar Ali" with the following perspective prayer:-- "It is therefore respectfully prayed that this petition be graciously accepted, the order and judgment of the learned Izafi Zila Qazi/Additional District Judge (VI) Swat in Appeal No. 4/FCA of 2014, Appeal No. 3/FCA of 2014 and order judgment and decree of learned Civil Judge/Family Judge (1) Gul Kada dated 06.12.2013 to the extension of dower 8 tola gold, past maintenance of the Petitioner except for the Iddat, dowry articles to the extension of furniture may kindly be set aside and resultantly the suit filed by Petitioner/Plaintiff be decreed against Respondent No. 1 with cost throughout. Any other relief though not specifically asked for and the Court deems fit proper in the circumstances of the case may also be granted in favour of Petitioner."

2. Since both these connected writ petitions preferred by rival parties arising out of one and the same impugned judgments and decrees of the learned Courts below, therefore are disposed off through this singled-out judgment.

3. The relation between the parties back in the year 2005, they had entered into marital wedlock, it has been blot out due to strained relations from the very inception. The parties used to quarrel every now and then. Anwar Ali the previous husband had now contracted a second marriage. There are two (2) suits, Mst. Naheed had advanced her prayer for the recovery of 8 tolas gold or its market rate, custody of the minors Muhammad Yaseen (son) and Tajala (daughter) since being born of then union, recovery of Rs. 200,000/- on account of dowry articles as per list annexed with the plaint. As the parties have terminated their relation being husband and wife, therefore by no mean the said Anwar Ali shall call himself to be the husband of Mst. Nahid. The last prayer is for the recovery of Rs. 10,000/- per month on account of maintenance allowance from January 2013 to 02.05.2013 and for her Iddat period.

4. After the written statement was submitted by the previous husband Anwar Ali raising various legal and factual objections. The learned Family Court tie up with this suit along with the petition of Anwar Ali against Mst. Nahid submitted under section 10 of the Guardians and Wards Act for appointment of the Guardian of these minors. The learned Family Court then reduced the divergent pleadings of the parties into framing the following consolidated issues:-- CONSOLIDATED ISSUES:

1. Whether Plaintiff has got cause of action?

2. Whether suit of the Plaintiff bearing No. 157/FC is maintainable in its present form?

3. Whether Plaintiff/Mst. Nahid is estopped to sue?

4. Whether this Court has got the jurisdiction to entertain the present suits?

5. Whether the dower of the Plaintiff was 08 tolas gold ornaments?

6. Whether the dower of the Plaintiff was 07 tolas gold ornaments?

7. Whether Plaintiff is entitled for recovery of her dower?

8. Whether Plaintiff is entitled for recovery of her dowry articles worth of Rs.200,000/-?

9. Whether Plaintiff is entitled for recovery of her maintenance allowance from January, 2013 to 02.05.2013 and for her Iddat period?

10. With whom the welfare of minors lie?

11. Whether Plaintiff is entitled for custody of minors?

12. Whether Defendant is entitled to be appointed as guardian of the minor issues and for their custody?

13. Whether Plaintiff is entitled for recovery of maintenance allowance of her minor issues after they have been handed over to the Plaintiff by the order dated 07.08.2013 of District and Sessions Judge Swat?

14. Relief

5. On 06.12.2013, the learned Family Court Swat was pleased to deliver its findings under the disposal of both consolidated suits, thereby drawn the final outcome under relief, which is reproduced as below:- "As a nutshell of above, plaintiff/ Mst. Nahid has succeeded to establish her cause of action against the defendant in her suit No. 157/FC while defendant has failed to establish any of his claim against the plaintiff therefore, plaintiff is entitled for recovery of 1/2 tola of dowry gold ornaments from the defendant while her dower gold ornaments has already been paid to her to which she is entitled to retain the same in lieu of divorce given by defendant to the plaintiff. Similarly, plaintiff is entitled for the custody of the minor issues and is declared their legal guardian however defendant is allowed for visitation right of the minor issues once in a month and on accession like Eid etc. Likewise, plaintiff is also entitled for recovery of her dowry articles as per list annexed with the plaint except furniture items and except serial Nos. 14 and 15 of her list of dowry articles. She is also entitled for recovery of her maintenance allowance of Rs. 10,000/- for her iddat period. Plaintiff is also entitled for recovery of maintenance allowance for the minor issues @ Rs. 3000/- per month for each with 10% annual increase from 07.08.2013 (the date on which the minor issues were handed over to the plaintiff through court orders) and onwards till majority of the male minor issue and till marriage of female minor issue while petition filed by defendant/Anwar All with case bearing suit No. 225/FC stands dismissed. No order as to costs. Case file be consigned to record room after necessary completion and compilation."

6. Both the parties were dissatisfied with the findings of learned Judge Family Court Swat, therefore, Anwar Ali the previous husband preferred Family Appeal No. 03/FCA of the year 2014 against Mst. Nahid. Likewise, Mst. Nahid filed Family Appeal No. 04/FCA of the year 2014 against her previous husband. Both these appeals were again consolidated for passing of a judgment dated 31.05.2014. The learned appellate Court under Para No.10 of the judgment passed the following verdict:--

7. Having heard arguments of learned counsel for the parties, the available record delved deep into with their valuable assistance.

8. It is absolutely an unflinching fact that the relationship in between the parties by remaining as husband and wife is admitted to have been ended by pronouncement of 'Talaq' as is evident from the affidavit furnished by DW-1 Anwar Ali himself. This factum of divorce has further been supported by the statements of DW-2 Muhammad Nisar, DW-3 Akram Khan, DW-4 Faiz Ali, DW-5 Irshad Hussain and the last witness in defence DW-6 Malak Riaz Ahmad Khan. Therefore, it is absolutely clear that the parties have since then annihilated their relations. Searching for the evidence with regard to fixation of the dower of 8 tolas golden ornaments for which prayer 'Alif' has been prayed for. Whether it was 8 tolas golden ornaments or the dower was fixed 7 tolas golden ornaments for which two (2) separate issues Nos. 5 and 6 have been framed and issue No. 7 pertains to whether Mst. Nahid is entitled to the recovery of her dower. At all statement of Mst. Nahid though may be with certain exaggerations yet when the said Anwar Ali himself admitted that the dower was fixed as 7 tolas golden ornaments besides other witnesses of defence then there is no need further to be fixed in the controversy whether it is 8 tolas golden ornaments or 7 tolas golden ornaments. Whether this dower has ever been paid to Mst. Nahid at the time of Nikah, though Anwar Ali states that at the time of leaving of his house she had taken away the golden ornaments weighing 7 tolas. But according to the statement of Mst. Nahid recorded as PW-1 she has come with a truthful statement that she was minor of the age of 9 years and her Nikah was performed in her absence in the presence of her parents, at that time the 7 tolas golden ornaments were never given to her. However, her voluntarily statement aimed for that those ornaments which were given to her were taken away by the sister of Anwar Ali on the next day as she stated that the golden ornaments belong to her. Therefore, while such statements are recorded, there is no proof given by Anwar Ali that Mst. Nahid has taken the 7 tolas golden ornaments along with her while leaving his house, rather in this context the woman who has been given in Nikah when she was too minor is more plausible to believe that on the next day of marriage the sister of Anwar Ali might have taken the golden ornaments from her as the same have been temporarily arranged at the time of marriage by the sister of Anwar Ali, who demanded its return just after the marriage was solemnized.

9. Coming to the prayer for the recovery of the dowry articles, besides there is an admission by DW-1 Anwar Ali that Mst. Nahid had brought 2-1/2 tolas golden ornaments given to her by her parents which he had sold afterwards. This admission in the cross-examination is likely:- More so, there is list annexed with the plaint of all those dowry articles which were given by the parents to Mst. Nahid at the time of her marriage. Where there is a list of dowry articles which include household articles like all those articles given in the list, it is reasonably to be believed. When a Muslim girl is married there is no feeling of separation and for that matter it is not possible for any bride or wife in Pakistan to keep the record of purchase of receipts for the list of dowry articles and obtain signatures from the bridegroom/husband side. In support of non-production of receipts of dowry articles where similar cases have been decided by the Hon'ble Courts reported in 2016 YLR Note 43 "Zahid Janan v. Mst. Kausar Begum and 2 others" and 2012 MLD 756 "Mst. Shakeela Bibi v. Muhammad Israr and others", Thus, all the dowry articles as per list are either returnable or its value has been fixed of Rs. 200,000/-. In case the said Anwar Ali is unable to return dowry articles under the list, he has to pay an amount of Rupees almost 70,000/-the approximate value of the used articles as by now these dowry articles might have become along in years to be an auction-able material.

10. Whereas in respect of maintenance allowance of Mst. Nahid, the findings of learned Family Court as well as the learned appellate Court cannot be disturbed as Anwar Ali is well-off person who is abroad in Gulf State where he must be earning plenty of money who can retain even his second wife easily, thereby for the previous period of 3 years before her divorce has taken place till the period of Iddat she is entitled to the maintenance allowance at the rate of Rs. 10,000/- which amount may be figured by mathematical calculation at the time of execution.

11. The last prayer is with regard to custody of the minors. The Court has been informed that during the subsistence of this trial an application under section 491 was preferred before the Court of learned Sessions Judge/Zila Qazi Swat and the said learned Court was pleased to accord the request and these children are now in the custody of their mother Mst. Nahid. Whereas otherwise in view of the case law cited as PLD 1963 (W.P) Karachi 465 " Mst. Nazeer Begum and others v. Abdul Sattar", in the matter of custody of minors especially infants preference will always be given to mother, wherein it has been held:-- (a) Muhammadan Law-Guardianship Mother best entitled to custody of infants during and after dissolution of, connubial relationship-Second marriage with stranger after divorce. Does not deprive mother of her right of hizanat if welfare of infants demands their remaining with mother. Father failing to claim persons of infants within reasonable time after hazina contracts second marriage or from date of his knowledge thereof Presumed to have abandoned his right to custody of infants-Maternal grand-mother next person entitled to custody of female children will their age of puberty on mother's contracting second marriage with stranger after divorce." Since children are minor, therefore mother is the best guardian and she can look-after her children. It would be otherwise very harsh to leave these children at the mercy of their step-mother who has herself a child born of the wedlock between her and Anwar Ali and these days the said Anwar is residing abroad.

12. Consequent to the findings under the observations in view of the statements of the parties and after taking consideration of the arguments advanced before this Court, it is lawful and obvious to accept the connected Writ Petition bearing No. 488-M of 2014 of Mst. Nahid for the prayers enumerated therein. Thereby she is entitled to 7 tolas golden ornaments as dower, dowry articles 2-1/2 tolas golden ornaments, all the dowry articles as mentioned in her list or else if all these articles cannot be provided then the amount of 1/3rd of the total claim of Rs. 200,000/- i.e. amounting to Rs. 66,666/- shall be paid to her, the maintenance allowance of Mst. Nahid to be computed figured by the learned executing Court. There is no payer for maintenance allowance of these minors. Yet each minor is entitled to the maintenance allowance at the rate of Rs. 3,000/- per month with 10% annual increase from 07.08.2013 (the date on which the minor issues were handed over to the Plaintiff Mst. Nahid through Court orders) and onwards till majority of male minor issue (Muhammad Yaseen) and till marriage of female minor issue (Tajala). While the present Writ Petition bearing No. 385-M of 2014 preferred by Anwar Ali stands dismissed being shorn of merits. MQ/257/P Order accordingly.