2020 PLP 1850 (YLR)

AHMAD ALI, J.

Through this single Judgment I intend to decide the fate of two writ petitions, as mentioned below, being the outcome of same Judgment of the Judge Family Court-II and Addl. District Judge-II Mardan: 1) Writ Petition No.2892-P of 2019 Mst. Sana Gul and others v. Usman Khan and others 2) Writ Petition No.4083-P of 2019 Usman Khan v. Mst. Sana Gul and others

2. Brief and essential facts for the disposal of present writ petitions are that the petitioners Mst. Sana Gul and her three children filed a family suit seeking therein decree of dower in shape of 07 tolas gold ornaments, maintenance @ Rs.10,000/- per head, delivery expenses Rs. 12,000/- and return of dowry articles or value thereof. The said suit was contested by the respondent No.1 and he also prayed for the decree of restitution of conjugal rights. After processing the suit in accordance with law, the learned Judge Family Court-II Mardan, vide Judgment dated 28.09.2018 decreed the suit in the following manner: i. Decree of two tolas gold ornaments as dower; ii. Maintenance of minors @ Rs.2500/- per month with 10% per annum increase; iii. Maternity expenses Rs. 12,000/-; iv. Decree of dowry articles per list annexed with plaint excluding items at serial Nos.7, 9 to 13; v. Decree of restitution of conjugal rights subject to provision of separate accommodation and basic facilities of life and payment of dower. Whereas, rest of the claims of both the parties were dismissed.

3. Discontented with the Judgment/ Decree dated 28.09.2018 both the parties filed their respective appeals before the learned Additional District Judge-II, Mardan. The learned appellate court after hearing parties, vide Judgment dated 23.01.2019 modified the decree of learned trial court to the extent that the dower was held to be paid whereas, per annum increase in the maintenance of minors was enhanced from 10% to 20% while rest of the decree of learned Judge Family Court was maintained. Aggrieved of the partial dismissal of their claims, the parties have filed present writ petitions wherein petitioner is praying for the decree of dower, maintenance and other appropriate relief whereas, the respondent No. 1 prayed for setting aside the decree of appellate court with other befitting relief.

4. Arguments heard and record perused.

5. Perusal of the record establishes the fact that the Nikah of petitioner No.1 was performed in the house of respondent No.1 in the year 2005. As per stance of petitioner at the time of Nikah a dower deed was executed whereby the dower was fixed as 07 tolas gold which is still outstanding however, the said dower deed was grabbed by the respondent No.1 and she is not in possession of the same. Respondent No.1 vehemently refuted this and as per his version the Nikah was performed in lieu of dower in shape of 02 tolas gold which was paid to her in the very first night.

6. Admittedly no Nikah Nama of the parties was laid down in the black and white; however only dower deed was executed at the house of respondent No.1 and marginal witnesses of the said deed were his relatives. The respondent No.1 tried to justify his stance of the fixation of dower as 02 tolas gold by bringing on record a dower deed dated 19.05.2011 which contains the signature of petitioner as a token of receiving the said dower/gold.

7. Scriber of the dower deed namely Adam Khan was examined as PW-5 who produced the extract of a dower deed dated 28.09.2005 from his register as Ex.P.W.5/2 which reflected the fixation of dower as 07 tolas gold ornaments. According to PW-5, in the year 2011 the respondent No.1 came to him (PW-5) and requested to scribe a dower deed for two tolas gold on the score that previous dower deed was misplaced. PW-5 could not recall his memory as to scribing of dower deed back in the year 2005, however, he scribed a fresh dower deed dated 19.05.2011 by mentioning dower as 02 tolas gold as per the desire of respondent No.1. The extract of the latest dower deed from the register of scribe was produced as Ex.P.W.5/1. However, PW-5 on receiving the summons of court for evidence, sifted his record and found the extract of original dower deed of the year 2005. Despite lengthy cross-examination on PW-5 nothing beneficial to respondent No.1 could be surfaced.

8. The respondent No. 1 himself appeared in the witness box as DW-2 and during his cross he very frankly admitted the factum of scribing dower deed at the time of marriage by the scribe Adam Khan (PW-5). The relevant excerpt from cross-examination of DW-1/respondent runs as under: Although the respondent No.1 has tried his best to substitute the actual dower deed with a subsequently written dower deed containing less weight of gold with an intent to get escape from the responsibility of the payment of actual dower. Nevertheless, facts that the marriage was solemnized in the year 2005, first dower deed showing 07 tolas gold was scribed on 28.09.2005 coupled with the supra quoted excerpt of the cross-examination of DW-2 (respondent No. 1) lead to an irresistible conclusion that dower of petitioner was fixed as 07 tolas gold. Whereas, the subsequent dower deed dated 19.05.2011 showing 02 tolas gold as dower was planned by respondent No.1 to get escape from his liability at the cost of rights of petitioner. Hence, it is held that the dower of petitioner was seven tolas gold ornaments.

9. Now adverting to the question as to whether the dower was paid or not. Petitioner contended that her entire dower is outstanding whereas, the respondent asserted payment of 02 tolas gold as dower. This it is quite undisputed that the dower to the extent of 05 is unpaid, whereas, to the extent of alleged payment of 02 tolas gold nothing has been brought on record by respondent No.

1. Neither the goldsmith nor the receipt of 02 tolas gold was produced by respondent No.1 in support of his claim of payment of two tolas gold. The statement of petitioner was recorded as PW-2 and she was exhaustively cross-examined but not a single question/suggestion as to payment of 02 tolas gold as dower was put to her. Even otherwise, the stance of payment of dower is wavering because if the dower was paid by respondent No.1 then when was it paid and whether it was paid in the year 2005 or in the year 2011 when the subsequent dower deed dated 19.05.2011 got scribed by the respondent No.1. Thus, I do not hesitate in holding that the entire dower of seven tolas gold is unpaid.

10. Now coming to the maintenance of petitioners. As discussed above, the entire dower is proved to be unpaid, therefore, in the circumstances, a wife can refuse her matrimonial obligations towards her husband. The desertion of wife in the circumstances cannot be taken as her disobedience and during this type of desertion, husband remains liable to maintain his wife until and unless he pays her dower. There is no denial of the fact that no maintenance was paid to her, therefore, respondent No.1 is held entitled to maintenance @ Rs.5000/- from the date of institution of suit till payment of dower and provision of separate accommodation to her. It is to be clarified that if petitioner No.1 after receiving dower and provision of separate accommodation refuses to honour the decree of restitution of conjugal rights, as granted by the learned Judge Family Court, she will no longer be entitled to the maintenance.

11. The maintenance @ Rs.2500/- per month i.e. Rs.83/- per day for each minor is quite insufficient to meet the requirements of the minors in the age of dearness and price hike. Therefore, I while maintaining the maintenance awarded to minors, enhance the same at the rate of Rs. 5,000/- per month for each child from today till the age of majority of son and marriage of the daughter with further increase @ Rs. 10% per annum.

12. With the above modification in the impugned judgment and decree of the learned trial court dated 28.09.2018, both the writ petitions stand disposed of with no order as to cost. ZC/87/P Petitions dispose of.