1984 PLP 3369 (CLC)

(1) Whether this Court has got no jurisdiction to try the present suit? (2) Whether the plaintiff is entitled to receive the dower. If so, then to what amount? OPP. (3) Relief. Parties produced evidence oral and documentary. After hearing the parties, learned Judge, Family Court vide judgment, dated 24th October, 1979 decreed the claim of the plaintiff for a sum of Rs.25,000 as dower amount. Claim for 40 tolas of gold was disallowed. Two appeals one by Mst. Neelofar Tareen and other by Allauddin Arshad were pre ferred against the judgment of the Judge Family Court, Sialkot. Vide judgment and decree, dated 14th June, 1981 learned Additional District Judge maintaining the judgment passed by trial Court, dismissed both the appeals.

3. Constitutional petition has been filed by Allauddin Arshad to assail the judgment passed by Judge Family Court subsequently affirm ed in appeal by learned Additional District Judge with prayer to declare both the judgments to have been passed without lawful authority.

4. I have heard learned counsel for the parties and examined the record. Learned counsel for the petitioner has contended that per entries of Nikahnama only a sum of Rs.25,000 was fixed as dower of the plaintiff at the time of marriage. This amount has been paid/adjusted through 40 tolas of gold as was evident from column No. 17 of the Nikahnama. Once the dower debt had been paid through gold ornaments their subsequent retention by the defendant as alleged by the plaintiff would not go to show that the plaintiff's dower as fixed at the time of marriage had not been paid. On these premises learned counsel for the petitioner has contended that Family Court bad no jurisdiction to try the suit as 40 tolas of gold alleged to have been snatched by the defendant could have been got recovered through a properly constituted civil suit in civil Court. Learned counsel has pointed out that in column No. 13 of Nikahnama which relates to the amount of dower a sum of Rs.25,000 in all has been mentioned. This would show that this was the only amount fixed as plaintiff's dower. Entry against column No. 14 which deals with the nature of dower prompt or deferred, it is recorded as Columns 15 and 16 are crossed. As against column No. 17 the entry is; counsel in view of the entries of the Nikahnama has contended that a sum of Rs.25,000 though fixed as deferred dower was paid/adjusted through payment of 44 tolas of gold at the time of the marriage of the parties. Dower fixed thus was fully paid and nothing remained outstanding. Learn ed counsel contended that the defendant was not debarred to clear the debt though it was agreed to be deferred i. e. payable on death or divorce. Proceeding further learned counsel his contended that it is admitted and has been found to be so by the two Courts below that 40 tolas of gold were given to Mst. Neelofar Tareen at the time of her marriage in satisfac tion of her dower debt. If subsequently the golden ornaments have been taken away by the defendant and were being retained by him that would not in any manner show that the dower amount had not been paid/adjusted in the first instance. Suit for recovery of dower in these circumstances could not be instituted in a Court established under Family Courts Act, 1964. Plaintiff if so advised could only file a suit for recovery of ornaments in a civil Court. Family Court constituted under the Family Courts Act, 1964 had jurisdiction only if the dower remained unpaid. In the instant case the finding recorded by both the Courts below as stated above is that a sum of Rs.25,000 representing the dower amount had already been paid through 40 tolas of gold. In view of the said finding suit filed under the provisions of the Family Courts Act was beyond the jurisdiction of the Court. Learned counsel further contended that orna ments had been retained by petitioner Allauddin Arshad under an agree ment executed between the parties at the time of their separation through divorce.

5. Learned counsel appearing for respondent/lady while replying to the arguments of the learned counsel for the petitioner emphasized that 40 tolas of gold were given as prompt dower whereas Rs.25,000 were fixed as deferred dower payable on death or divorce. In the instant case he asserted that only prompt dower had been paid whereas deferred dower still remained out standing and became payable for the first time after Mst. Neelofar Tareen was divorced by Allauddin Arshad. He has further contended that even if it be assumed for sake of arguments that the amount of dower fixed was Rs.25,000 and was adjusted through 40 tolas of gold its subsequent retention by the defendant would not change its basic character for it was impressed with the necessary characteristics of dower. Therefore the suit clearly fell within the exclusive jurisdiction of the Family Court, being a claim for recovery of deferred dower by an ex-wife.

6. Entries of Nikahnama placed on file of the Court show that Rs.25,000 only had been fixed as dower amount, and the entire had been treated as deferred. Had the dower fixed been more than what has been specified in the Nikahnama entries would have been different. Nikah Khawan has, in column 17 clearly mentioned that 40 tolas of gold were paid in satisfaction of the dower amount. True entry of payment should have been recorded either against column No. 15 or 16 of Nikahnama but this fact alone that it has mentioned -against wrong column would no in any manner detract from its legal efficacy or evidentiary value. Learned Additional District Judge in his appellate judgment has clearly found that a sum of Rs.25,000 only was fixed as dower and 40 tolas of gold were paid in satisfaction of dower by Allauddin Arshad at the time of his nikah. After finding so the learned Additional District Judge proceeded to observe that articles of jewellery weighing 40 tolas of gold were taken back by the defendant (Allauddin Arshad) a few months prior to the time when hiss relations with plaintiff became strained, therefore the amount of dower was still outstanding. After it was found that dower debt had been satisfied through articles of jewellery, the nature of claim put forth by plaintiff was completely changed from a claim for recovery of dower to one for recovery of articles of jewellery or value thereof triable by a civil Court. In this view of the matter on the findings of both the Courts below claim of Mst. Neelofar Tareen for recovery of 40 tolas of gold earlier given to her in satisfaction of dower subsequently snatched and retained by the defendant did not fall within exclusive juris diction of Family Court under section 5 read with the schedule of the Family Courts Act, 1964.

7. On the basis of finding recorded by the Courts below suit filed by Mst. Neelofar Tareen could not be entertained and adjudicated upon by the Family Court. It was a civil dispute triable by a civil Court in its general jurisdiction.

8. In view of foregoing discussion, petition succeeds, judgment record ed by Judge Family Court subsequently affirmed in appeal by learned Additional District Judge is found to be without jurisdiction and is dec lared to have been passed without lawful authority. Parties however are left to bear their own costs. M. Z. M. Petition accepted.