2001 PLP 175 (YLR)

4. Mir Tanveer Hussain, the learned counsel for the appellant has vehemently argued that neither the appellant nor Khani Zaman, the father of the appellant, has admitted the execution of divorce, deed Exh. DA. The respondent has also failed to prove the execution of the same through his evidence even the respondent has not stated anything about the execution of the divorce deed. Therefore, the respondent has failed to prove the fact that the dower was relinquished by the appellant. Even otherwise in Sunni Law, a wife is entitled to claim dower from her husband even though She had expressly contracted not to do so. In support of the contention he has cited PLD 1997 Lahore page

417. The learned counsel has further maintained that the copy of the impugned judgment was delivered to the appellant on 30‑11‑2000, therefore, the appeal has been filed within the prescribed period of limitation.

5. On the contrary, Zaffar Iqbal Akhter, the learned counsel for the respondents has controverted the arguments raised by the learned counsel for the appellant. He has submitted that the photostat copy of the ' Nikahama' appended with the appeal negates her claim about the fixation of dower Rs. 50,

000. The learned counsel further maintained that the execution of divorce deed is admitted by the appellant in her plaint but her claim is that she had not relinquished the dower as consideration for ' Khula' and she has failed to prove her version. On the other hand, the respondent has amply proved the execution of dower deed Exh. DA. It was also argued on behalf of the respondent that the appeal has been tiled after the expiry of prescribed period of limitation and the appellant could not explain the delay of each and every day. On this account the appeal is not maintainable. The learned counsel has cited the following case law in support of his contention: (i) 1992 SCR 338; (ii) 1993 SCR 44; (iii) 2000 YLR 2698,

6. I have carefully attended to the submissions made at Bar, after perusing the record made available with care. At the very outset, it will be appropriate to deal with the point of limitation. The learned counsel for the appellant has argued that because of the firing of the Indian Armed Forces, the roads often remain closed even though the appellant applied for the copy of the impugned judgment on 8‑11‑2000 but the same was delivered to her on 30‑11‑2000. Thus, her appeal has been filed within prescribed period of limitation. A separate application for extension of time has also been presented by the appellant. Section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993, (hereinafter to be referred as the Act) postulates that a decision or a decree passed by a Family Court shall be appealable, before this Court within thirty days. Whereas rule 22 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998 prescribes that an appeal under section 14 shall be preferred within thirty days of the passing of the decree or decision, excluding the time requisite for obtaining copies thereof, provided that the Appellate Court may, fort sufficient cause, extend the said period.

7. It will be useful to mention here that the Act is a special law and special period of limitation has been provided for the institutions of appeals under the Act. Thus, section 5 of the Limitation Act stands excluded by virtue of section 29(2) of the Limitation Act, which permits the application of only sections 4, 9 to 18 and

22. In this manner section 12 of the Limitation Act has been made applicable to the cases filed under the Act. It has been already observed by this Court in a case reported as Raja Muhammad Maqsood v: Mst. Kausar Nisar 2000 YLR 2698, referred to above by the learned counsel for the respondents, that only sections 4, 9 to 18 and 22 of Limitation Act would apply to the cases presented under the Act so far as and to the extent to which they were not expressly excluded by special law. Therefore, the case‑law stated above does not render any help to the respondent. As it has already been held that section 12(2) of Limitation Act, is applicable to the instant case, therefore, the time spent in obtaining the copies of judgment and decree has to be excluded in computing the period of limitation for appeal. The perusal of the copies of the judgment and decree shows that an application for obtaining copies was submitted on 14‑11‑2000 but the same were prepared on 30‑11‑2000 and delivered on 4‑12‑2000. A separate application for exclusion of time spent in obtaining copies of the judgment and decree has been presented which is also supported by an affidavit but no counter‑affidavit has been filed by the respondent, therefore, after excluding the time spent for obtaining copies has to be deducted from the prescribed period of limitation. The apex Court of Azad Jammu and Kashmir in an unreported case titled Mst. Shaheen Akhter v. Muhammad Alain (Appeal No. 61 of 1999 and Muhammad Alain v. Mst. Shaheen Akhter (Appeal No. 62 of 1999, decided on 28‑6‑1999), has observed that in the case "where the date for delivery of the copy of a judgment has not been fixed or the concerned applicant has not been informed about the necessity of the supply of the stamps, or making up the deficiency in the same, the period which is to be excluded for the purpose of limitation for filing an appeal would be reckoned from the date of the application and not from the date of supplying the stamps". It was further opined at page 18 of the judgment that "It is well -settled principle of law that the time requisite for obtaining a copy is to be deducted from the period of limitation prescribed by law". In the present case, it has not been controverted that the judgment was orally announced and was written by the learned Judge of Family Court at a belated stage. It is also contended by the learned counsel for the appellant that he applied for the copies of the judgment and decree on 8‑11‑2000 but the same were prepared on 30‑11‑2000. No counter affidavit was filed to rebut the aforementioned contention of the learned counsel for the appellant. In view of the above stated position the time spent in obtaining copies of the judgment and decree have to be excluded in computing the period of limitation, therefore, the delay is condoned and it is held that the appeal is not time barred. In this respect so far as the case‑law cited by the learned counsel for the respondents is concerned, is not applicable to the instant case because of distinguishable facts. In Mehboob's case (1992 SCR 338) the petition for leave to appeal was dismissed on the basis that the petitioner. failed to bring forward a sufficient cause for condoning the delay. Naseeb Ullah's case (1993 SCR 44), deals with a declaratory suit about the execution of a gift‑deed wherein it was observed that without pleading exemption of limitation in the plaint about the knowledge of the execution of the gift‑deed the same cannot be extended or allowed.

8. It will not be out of place to mention here that the execution of the divorce deed Exh.DA stands admitted by the appellant in her plaint but according to her, she did not relinquish her dower and the respondent has incorporated the relinquishing of dower at his own. In support of her version she did not produce any document. The perusal of the photostat copy of ' Nikahnama' appended with the plaint also negates her claim that the dower was fixed as Rs. 50,000.

9. Khani Zairian, father and a witness for the appellant, has deposed that Rs. 40,000 were fixed as dower money but he did not mention anything about the execution of divorce‑deed Exh. DA in his examination‑in- chief. However, he has admitted in his cross examination that an F.I.R. against the appellant was lodged at Police Post Lawat about the birth of an illegitimate daughter. He has further admitted that the divorce‑deed was executed but he has refuted the suggestion that the appellant had relinquished her dower.

10. Muhammad Younis, another witness for the appellant, testified that the dower was fixed in tune of Rs. 40,000 but he did not know as to whether the dower was paid or not.

11. Dilshad Bano, the appellant, has stated that Rs. 50,000 were fixed as dower money out of which Rs. 10,000 were forgiven and Rs. 40,000 are still payable by the respondent. However, she has admitted in cross‑examination that she was divorced on the allegation of 'Zina'. She has further admitted that on the allegation of the birth of an illegitimate daughter a meeting of ' Panchayat' was called and a case was also registered against her but she has refuted the suggestion that she had relinquished her dower in consideration for ' Khula'.

12. In rebuttal, the scribe of document Exh. DA, Ghulam Hussain has categorically stated that in the meeting of Panchayat' the dower Rs. 30,000 was relinquished in consideration for ' Khula' and document Exh. DA was written by him. He has deposed in a suggestion put forth by the appellant that because of the family honour, the fact of the illegitimate daughter of the appellant was not mentioned in the divorce deed Exh.DA.

13. Muhammad Hussain, another witness for the respondent has deposed that because of the illegitimate daughter of the appellant, she obtained the divorce and relinquished her dower Rs. 30,000 in consideration for 'Khula'. He has also testified his signature on the document Exh.DA.

14. Zatullah, the father and another witness for the respondents, has fully supported the respondent's version and stated that the respondent lodged in F.I.R. Exh. DB at Police Post Lawat against the appellant about the birth of her illegitimate daughter. He has further deposed that the appellant had relinquished her dower in consideration for ' Khula' in the meeting of ' Panchayat'.

15. The respondent has also stated that in the meeting of ' Panchayat' divorce deed Exh.DA was executed and the appellant had relinquished her dower Rs. 30,000 in consideration for ' Khula' .

16. The above‑stated detailed survey of the evidence of the parties discloses that the appellant has failed to prove her case and the respondent has succeeded not only to rebut the appellant's version rather he has also proved. the execution of document Exh. DA. It, therefore, follows that the appellant had relinquished her dower while exercising her free consent in presence of notables of the village in the meeting of ' Panchayat' and now she cannot claim it again. In such state of affairs, it cannot be held that there were any existing circumstances which coerced and compelled .her to relinquish her dower. I cannot ascribe to this view that under Sunni Law, the wife is entitled to claim dower from her husband even though she has expressly contracted not to do so. Under section 291 of Muhammadan Law, a wife can remit the dower or any part thereof in favour of the husband or his heirs. Even a Muslim girl who has attained puberty is competent to relinquish her dower, though she may not have attained the age of majority (18 years) within the meaning of the Majority Act. (Qasim Hussain v. Bibi Kaniz (1932) 54 Allahabad 806). In cases where the husband betrays indifference for the woman and gives out so that he wants to test the sincerity of the woman, or where the woman feels that the possible way to win or retain the affection of the husband is to remit the dower amount, she is not a free agent and in such circumstances she is not bound by remission of her dower but in the instant case it has been amply proved that the document Exh. DA was executed by the appellant with free will and it was not result of any test of sincerity or betrayal rather it was an intentional and deliberate relinquishment. In this respect reference can be made to the following hooks:‑‑

17. On the above premises of reasoning, I am satisfied that the appellant had realised what she was doing at the time of the execution of divorce deed Exh. DA and she knew the consequences of it, therefore, the remission of dower was an act of a free agent, intended to be a bilateral agreement, entered into by both the parties. In such circumstances, the appellant is bound by it. In view of the aforesaid position, no infirmity or illegality is found in the impugned judgment and decree which is sustained and the appeal is dismissed. H.B.T./30/Sh.C.(AJK) Appeal dismissed.