2021 PLP 1606 (CLC)

AYESHA A. MALIK, J.

Through this petition, the Petitioner has impugned judgment dated 21.12.2018 passed by Respondent No.2, Senior Civil Judge, Okara and judgment dated 13.05.2019 passed by Respondent No.1, Additional District Judge, Okara.

2. Facts of the case are that Respondent No.3 filed a suit for dissolution of marriage, maintenance allowance, delivery expenses of Respondents Nos.4 and 5 and recovery of dowry articles or its alternate price of Rs.1,650,100/- against the Petitioner, which was decreed by Respondent No.2, Senior Civil Judge, Okara vide judgment dated 21.12.2018 holding Respondent No.3 entitled to recover dowry articles as mentioned in the plaint except the articles deleted in the findings of issue No.4 or alternate price of articles of Rs.300,000/- from the Petitioner. Respondents Nos.4 and 5 held entitled to recover maintenance allowance at the rate of Rs.4,000/- per month each from the date of institution of suit till their legal entitlement or custody is shifted. Respondent No.3 found to be entitled to recover maintenance allowance only for her period of "Iddat" at the rate or Rs.4,000/- per month. Feeling aggrieved both the parties filed their separate appeals before Respondent No.1 who vide judgment dated 13.05.2019, dismissed the appeal filed by the Petitioner and partially allowed the appeal filed by Respondent No.3 holding her entitled to recover articles mentioned in list "Mark-J" or in alternative their deprecated price Rs.100,000/-. The Respondents Nos.4 and 5 also held entitled to recover maintenance allowance at the rate of Rs.7,000/- per month each with 10% annual increase till their legal entitlement. Respondent No.3 was also held entitled to recover past maintenance allowance at the rate of Rs.6,000/- per month from February, 2016 till expiry of her Iddat period and Rs.10,000/- as maternity expenditures of Respondent No.5. Hence this petition.

3. In support of this petition, learned counsel for the Petitioner stated that the Petitioner has proved through evidence that Respondent No.3 did not bring any dowry articles at the time of marriage as it was his 3rd marriage and it is a matter of common practice that dowry is not given in 3rd marriage. Learned counsel stated 'that both the courts were required to keep in mind the financial status of the Petitioner before passing the order on maintenance allowance which was enhanced as the Petitioner is a Traffic Warden (BS-14) in City Traffic Police, Lahore having no other source of income. Learned counsel stated that there are material contradictions in the statements of the witnesses produced by Respondent No.3. Hence, the judgments passed by the courts are based on misreading and non-reading of evidence and are liable to be set aside.

4. On the other hand, learned counsel for Respondent No.3 opposes the submissions made by learned counsel for the Petitioner and prays for dismissal of the instant Petition.

5. The main issue in this Petition is whether Respondent No.3 was able to prove her case with respect to dowry articles, maintenance and delivery expenses. In terms of the record, the list of dowry articles Mark-J was produced by Respondent No.3 on the basis of which the trial court held that Respondent No.3 is entitled to recover dowry articles or in the alternate Rs.300,000/- while keeping in mind the nature of the articles and their depreciation value. In the appeal, the learned Additional District Judge not only endorsed the findings of trial court on this issue but also held Respondent No.3 entitled to recover the items mentioned in the list Mark-J based on the evidence and receipts produced. There is nothing in the evidence of the Petitioner to substantiate his claim that no dowry was given to Respondent No.3. So far as maintenance for Respondent No.3 is concerned, the Appellate Court enhanced the same from Rs.4,000/- to Rs.6,000/- per month from February, 2016 till the expiry of Iddat period and for Respondents Nos.4 and 5 maintenance allowance was enhanced at the rate of Rs.7,000/- per month each with 10% annual increase till their legal entitlement. The Appellate Court also allowed Respondent No.3 to recover Rs.10,000/- from the Petitioner as delivery expenditures on the ground that she gave birth to the minor through a midwife at home hence some expenditures was definitely borne out at the birth of the baby (Respondent No.5). Therefore, the judgment is as per the evidence and record. No illegality is made out. The fact that the Petitioner has married three times and has other children shall not deprive the instant Respondents from their rightful claim.

6. It is noted that in constitutional jurisdiction, this court is not sitting as an appellate court and cannot reappraise the evidence. Interference in constitutional jurisdiction can only be done where the Courts below have acted illegally or with material irregularity or exercised jurisdiction not vested with them or passed orders which were in excess of their jurisdiction. Even in a case where it is alleged that there is misreading and non-reading of evidence, the same will not mean re- appraisal of the evidence but will have to fall within the purview of being a material irregularity or illegality on the part of the subordinate courts.

7. Under the circumstances, no case for interference is made out. Consequently, this petition is dismissed. KMZ/M-107/L Petition dismisse