2011 PLP 1268 (YLR)

SYED AKHLAQ AHMAD, J.

Through this writ, Mst. Sahib Noor/petitioner wants this court to set-aside the concurrent judgments and decrees passed by the Judge Family Court Chakwal dated 25-10-2003 and Addl. District Judge Chakwal dated 9-4-2004 whereby the suit for recovery of maintenance and recovery of dowry of the appellant/plaintiff was dismissed and her appeal against the said decision failed.

2. Facts giving rise to this petition are that Mst. Sahib Noor/petitioner was married with Zafar Iqbal/respondent. No.1 in the year 1991. She resided with him in Salala (Oman). Thereafter she along with her husband returned to Pakistan. Respondent No.1 lived in Pakistan for a month and then alone left for Salala where he contracted second marriage with a Sri Lankan girl. Despite this the petitioner lived in the house of the parents of respondent No.1 for the honour of her parents. It is alleged that respondent No.1 never sent any maintenance to her. On 23-3-2000 he contracted third marriage with Mst. Taj Bibi on telephone. In the month of December, 2000, he visited Pakistan and turned the petitioner out from his house after beating. He also kept her dowry articles with him. The petitioner filed suit for recovery of maintenance and for recovery of dowry against respondent No.1 in which maintenance was claimed from December, 2000 to January 2003 and also for future @ Rs.5,000 per month. She also claimed dowry articles as per list attached with the plaint or Rs.3,17,260 as its price in lieu thereof. It is stated that respondent No.1 is serving in Municipal Office of Sultanate of Oman and drawing Rs.50,000 per month as salary. In addition to that he has also 4/5 commercial vehicles. In this way, his total income is not less than Rs.2/3 lac per month. According to the petitioner, respondent No.1 can easily pay Rs.5,000 per month as maintenance. Regarding this suit, respondent No.1 was served on his permanent address as well as on the address where he was serving. Despite this, he failed to appear before the Judge Family Court Chakwal. Hence, ex parte proceedings were initiated against him.

3. In support of her claim Mst. SahibNoor/petitioner appeared as P.W.1. She supported her claim in plaint and closed the evidence after tendering list of dowry articles as Exh.P-1. Ex parte arguments were heard and vide order dated 25-10-2003, learned Judge Family Court Chakwal dismissed the suit of the petitioner. Against this decision, the petitioner filed an appeal under section 14 of the Family Courts Act which too met the same fate. Hence, this writ.

4. Learned counsel for the petitioner contends that both the courts below have concurrently committed illegality and irregularity while not appreciating the ex parte evidence having no rebuttal. Hence, the judgments and decrees passed by both the courts below are liable to be declared without any lawful authority and the suit of the petitioner/plaintiff merits to be decreed as a whole.

5. On the other hand, learned counsel for respondent No.1 opposed this writ and strongly defended the impugned judgments and decrees passed by both the courts below. It is contended that no writ lies against the concurrent findings. No receipt of purchase of dowry articles has been proved by producing any witness of it.

6. I have .considered the arguments advanced by the learned counsel for the parties with care and have also gone through the record.

7. It has been laid down in Syed Arif Ali Sabri v. Abdul Samad through L.Rs and 2 others' 2008 YLR 2309 that "When there is concurrent findings of courts below, the scope of the constitutional petition for interference is very limited and it can only be interfered when the orders of the Courts below are fanciful or based on misreading or non-reading of the evidence." The same view has also been taken in Sadruddin v. Aslam Madad Ali and others' PLD 2008 Karachi 2005.

8. Now I come to the merits of -the case. It has been specifically stated in the petition that the petitioner has been given beating and that the respondent No.1 did not try to domicile the petitioner nor offered any maintenance during this period. This statement has been supported by the petitioner while appearing as P.W.1. by stating that she is in desertion since December, 2000. Respondent No.1 has never tried to domicile her nor paid any maintenance. Her articles of dowry were in accordance with the list which is in possession of the respondent. It is worth Rs.3,17,

260. Salary of respondent No.1 is Rs.50,

000. He has also kept 2/3 vehicles from which he earns Rs.2/3 lac. He can easily pay Rs.5,000 to her.

9. It is very important to note that there was no rebuttal to the aforesaid evidence of the petitioner from the other side. There is nothing on record to presume that the petitioner is a disobedient wife. With special reference to the allegation of the petitioner that respondent No.1 has married two other wives, the petitioner has a right under Muhammadan Law to claim separate accommodation and maintenance. She cannot be compelled to live with the other wives of respondent No.1. Even according to the law the wife can refuse to live with the parent of the husband. It has been held in 'Muhammad Tauqeer v. ADJ and others 2001 MLD 1650 that: "(7) As to the second question regarding disentitlement of respondent No.3 on account of her refusal to stay with the parents of the petitioner, it is the petitioner who is the husband of respondent No.3 and if he arranges for her to live with him and she refuses to do so she would be considered disobedient wife and thus disentitled to the maintenance allowance. From the record I find that it has not been denied that respondent No.3 remained with the petitioner as long as her Visa allowed. Thereafter she returned to Pakistan. Regarding controversy of whether parent of the petitioner refused to keep her or she left the house of her own accord, suffice it to say that she is not under obligation to remain with the parents of the petitioner. She has throughout the proceedings to even today she submitted that she is willing to live with the petitioner and perform conjugal duties if he provides her proper arrangements and accommodation. (8) As for the contention of the learned counsel for the petitioner that her condition of having separate house is unreasonable, it has been consistently held by the Courts that when there are two wives, each is entitled to separate accommodation and cannot be compelled to live with the other. Therefore, her demand does not appear to be unreasonable in this behalf. If the petitioner arranges separate accommodation for respondent No.3 wherever he works and resides respondent No.3 is bound to stay with him and if she refuses to do so she world be doing so unreasonably. (9) The judgment cited by the learned counsel for the petitioner is of no help to him. It has been held in the judgment cited above that disobedient wife is not entitled to maintenance. However, the learned counsel for the petitioner has not been able to produce any judgment in which it has been held that a wife who does not live with the parents of her husband when the husband does not keep her with him is not entitled to maintenance. A wife cannot be considered disobedient merely on the ground that she does not reside with the parents of her husband in Pakistan after he sends her back from a foreign country where he is gainfully employed."

10. In view of the above position of law, the observation of the courts below with regard to disobedience of the petitioner is based on surmises and conjectures. Mere offer by the father of the husband of the petitioner during hearing of appeal before the 1st Appellate Court is of no consequence as he has not mentioned the response given by the petitioner to the said officer. I, therefore, find that the petitioner is entitled to get maintenance from respondent No.1 from December 2000 to January 2003 @ Rs.5,000 per month till the time the marriage between the spouses subsists.

11. Claim of recovery of dowry articles has also been successfully proved by the petitioner by examining herself as P.W. 1. and producing list of dowry articles duly signed by her and exhibited as Ex.P-1 on the file without any objection from any side. The observation of the courts below that the petitioner failed to produce receipt of her dowry articles was merely procedural technicality which ought to have been ignored specially when the evidence was not rebutted and ex parte proceedings were not got set-aside by the respondent .No. till to date.

12. According to Lubna v. Mian Muhammad Azam 2001 YLR 2415 [Lahore] "By virtue of section 17 of the West Pakistan Family Court Act, 1964, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure, 1908 except sections 10 and 11 of the Code are not applicable to the proceedings before any Family Court By making the provisions of the Evidence Act and the C.P.C. inapplicable before the Family Court, the law maker intended to give greater freedom to the Family Courts and release them from the cobweb of procedural technicalities embodied in the Evidence Act and the C.P.C." The same view has been taken in 'Javed Bashir v. Judge of Family Court' 2003 MLD 814 and in 'Muhammad Javed Iqbal v. Mst. Tahira Naheed and others' 2002 CLC 1396 [Lahore].

13. The contention of the learned counsel for the-respondent that no receipt of purchase of dowry articles was proved through production of any witness in the court does not have any force. In such like cases, the exact and strict technical compliance was not required. Provisions of Qanun-e-Shahadat Order 1984, being not applicable to the proceedings to be conducted by the Family Court, their rigours and technicalities had to be evaluated and appreciated as a prudent man would assess and reach a conclusion.(Shafqat Ali v. Nighat Preveen and others, 2008 CLC 806 [Lahore] relied upon).

14. It will not be out of place to mention that it was not a run away marriage. It was an arranged marriage of the petitioner with respondent No.1. According to the customs which are deeply rooted in our society, parents whether rich or poor, always give dowry to their daughters at the time of marriage mostly over and above their status. So giving of dowry to the petitioner by her parents cannot be disputed.

15. As in this case, the list of dowry articles was annexed with the plaint right from the inception which was not only the basis of the suit but was also mentioned in the plaint and the same was exhibited by the family Court without any objection from the defendant. This being so, no objection could subsequently be taken in respect of its admissibility. `Muhammad Javed Iqbal v. Mst. Tahira Naheed and others' 2002 CLC 1396 [Lahore] and 'Dr. Muhammad Ali Chohan v. Mst. Fakhr-un-Nisa and another' 2009 CLC 255 [Peshawar] relied upon. The failure of the courts below to believe Exh.P-1 read with the statement of P. W.1 was, thus, a clear cut illegality.

16. It is important to note that the respondent has contested the appeal of the petitioner before the 1st Appellate Court as well as before this court but as stated by the learned counsel for the appellant, till to date he has not bothered to move any application before the trial court for setting-aside the ex parte proceedings and decree to .submit his point of view. I, therefore, find that the judgments and decrees of both the courts I below are result of non-reading and mis-reading of evidence, non-discussion of the pleadings and non-appreciation of law on the point.

17. During the course of arguments, learned counsel for the petitioner brought this fact to the notice of the court that after the decision of appeal, respondent No.1 has divorced the petitioner.

18. Resultantly I allow this writ petition. Judgments and decrees of both the courts below are set-aside. The suit for recovery of maintenance of the petitioner stands decreed ex parte in her favour and against respondent No.1 @ Rs.5,000 per month from December, 2000 to January, 2003 and till the marriage between the spouses subsists. Likewise suit for recovery of dowry articles of the petitioner also stands decreed ex parte in her favour and against respondent No.1 as per list of dowry articles Exh.P-1 or Rs.3,17,260 as its price in lieu thereof with cost throughout. M.U.Y./S-186/L Petition accepted.