2014 PLP 1400 (MLD)

IRFAN SAADAT KHAN, J.

This Constitution Petition has been filed with the following prayers:-- "(a) To hold and declare that both the orders impugned especially of the lower Appellate Court dated 29-1-2008, are unjust, improper, passed without considering the material on record thereby totally negating the versions, stand and claim of jewelries of the Petitioner and thus are of no legal consequences and all effect whatsoever; (b) To declare that the Trial Court was bound to give its findings on the Application where in the ultrasound report of the Respondent No.1 it was clear that she is carrying a baby and the stand of the respondent No.1 side being false and frivolous is liable to be discarded with ample legal justification; (c) That to hold and declare that there is misreading of evidence and therefore the judgments impugned are liable to be reversed and set aside in order to avoid any miscarriage of justice; (d) To order for the grant of Injunction against the respondent No. 3 for the proceeding of the Exh. Application No.15/2008, arising from Family Suit No.1054/2004 may graciously be stayed till further orders, as this Honourable Court be pleased to specific, in its order; (e) To hold that the petitioner being the Citizen of Pakistan is entitled for the fundamental guarantees enshrined in the Constitution as well as he is to be safe-guarded under the law of the land as applicable; (f) For the grant of such incidental and or ancillary relief which this Honourable Court may deem fit under the circumstances' and shall specify the same in its orders; "

2. Briefly stated the facts of the case are that the petitioner was married to the respondent No.1 on 11-10-2002 against a dower amount of Rs.5,

000. During the first few months of the marriage the relations between petitioner and respondent No.1 were good but thereafter strained. It is averred that the petitioner afterwards started beating, teasing, torturing and abusing the respondent No.1 and even asked the respondent to get an amount of Rs.1,00,000 from her parents otherwise he would kill her. At one occasion the respondent No.1 was severely beaten by the petitioner with the result that her three months fetus was aborted. Being disgruntled with the attitude of the petitioner, respondent No.1 left his home in June 2003. Thereafter the elders of the family intervened and patched up the matter and the respondent No.1 started living with the petitioner. However relations went from bad to worse thereafter and the respondent No.1 left the petitioner's home for good. The respondent No.1 then filed a 'suit bearing No. 1290/2003 for dissolution of marriage, which was decreed in her favour by the family Court on 23-4-2004 by way of exparte decree. Thereafter respondent No.1 filed an execution application on 4-5-2005 in response to which the petitioner filed objections. The family Judge vide order dated 25-7-2006 set aside the decree dated 15-3-2005 by allowing the application filed by the petitioner. It is averred that no appeal/Revision was filed by respondent No.1. It is also averred that the petitioner never divorced the respondent No.1 and the respondent No.1 has obtained ex parte Khulla. Thereafter the respondent No.1 filed another suit bearing No.1054/2004 for recovery of dowry articles and the petitioner countered all the allegations leveled by the respondent. Before the learned Judge, witnesses were examined and the learned Judge then decided the matter in favour of the respondent No.1 vide order dated 13-2-2007. The petitioner also filed a family appeal bearing No.22/2007. However the said family appeal was dismissed vide judgment and decree dated 29-1-2008. It is against this order that the present Constitution Petition has been filed.

3. Mr. Muhammad Ali Waris Lari advocate has appeared on behalf of petitioner and submitted that the orders dated 13-2-2007 and 29-1-2008 are illegal as the same have been passed purely on hyper technical basis without adverting to the main controversy in the case and the said orders are not sustainable in the eyes of law. The learned counsel further submitted that the orders are the result of misreading and non-reading of evidence as the learned Courts have not considered the material and evidences produced before them and thus miscarriage of justice has taken place. The learned counsel further stated that the Courts below have not considered the fact that receiving of the dowry articles through some alleged list has totally been denied by the petitioner. While elaborating his view point, the learned counsel submitted that Court has not considered the cross-examination of the witnesses and has not considered the fact that list of dowry articles alleged to have been given to the petitioner is neither acknowledged by the petitioner nor any of his relatives. He stated that the said list is self-made and the witnesses shown are not independent witnesses and thus the respondent No.1 has not given a fair /true statement before the Court. He further stated that some relevant persons have not been made witnesses in the case and the Courts below have totally ignored this aspect. He, therefore, prayed that orders passed by the two Courts below may be set aside.

4. Mr. Arran Sheerin Khattak advocate has appeared on behalf of respondent No.1 and has vehemently opposed the instant petition and submitted that this petition is not maintainable since the same has been filed after delay of nine months from the order and decree. He submitted that in Constitutional matters normally the petitions are filed within 90 days but the instant petition has been filed after 9 months, therefore, the same may be dismissed in limine as neither application for condonation of delay has been moved nor latches have satisfactorily been explained. The learned counsel further submitted that concurrent findings are in his favour, which could not be interfered in constitution petition. He states that the orders have been passed after detailed deliberation therefore cannot be interfered with. He further states that dower amount has been waived in lieu of khulla and the respondent No.1 is entitled to receive back the dowry articles in accordance with law. Learned counsel submitted that examination of witnesses would reveal that the petitioner has usurped the dowry articles of the respondent No.1. He submitted that the petitioner has approached the Court with unclean hands and has filed this petition only to linger on the matter. In support of his above contentions, the learned counsel has relied on the following decisions:-- (1) Sajjad Ahmad v. Mst. Naeema Shafiq and 3 others (2003 CLC 1420) (2) Anwar Rashid v. Mst. Minhaja and another (2000 CLC 1116) (3) Fazal Khitab v. Mst. Naheed Akhtar and another (PLD 1979 SC 864) (4) Mirza Shahid Baig v. Mst. Lubna Riaz and 2 others (2004 CLC 1545) (5) Malik Ghulam Nabi Jilani v. Mst. Pirzada Jamila and others (PLD 2004 SC 129) (6) Ijaz Ahmed v. Judge, Family Court and 5 others (2005 CLC 1913)

5. Mr. Mohammad Ali Waris Lari advocate in his rebuttal submitted that order of the Family Judge is in violation of provisions of section 3 of the Dowry & Bridal Gifts Ordinance 1976 since this is a legal issue going to the roots of the case the same could be raised at any stage. He states that the instant case is a fit case where this court has the jurisdiction to invoke its constitutional authorities as a legal issue has now been raised by him. He further submitted that the respondent No.1 has failed to file any counter objection in the instant petition which proves that the said respondent has no defence. He further stated that so far as concurrent findings are concerned there are plethora of decisions wherein this Court has set aside the concurrent findings after finding the petition to be maintainable. He further stated that the receipts of dowry articles furnished are forged, which has not been considered by the two courts below. The learned counsel submitted that since an important question has been raised which has to be decided that whether provisions of C.P.C., except section 10, as envisaged under section 17 of the West Pakistan Family Act, are applicable to the instant case or not and whether the provisions of Order II Rule 2 C.P.C. would also be applicable or not. In support of his above contentions, the learned counsel has relied upon the following decisions: (1) Tyeb v. Messrs Alpha Insurance Co. Ltd. (1990 C'LC 428) (2) Yaqoob Ali v. Ismail (1987 CLC 526) (3) Mst. Minat Manzoor Bajwa v. Addl. District Judge Islamabad (PLD 2013 Isb. 11) (4) Mst. Allah Rakhi v. Tanvir Iqbal (2004 SCMR 1739)

6. I have heard both the learned counsel at considerable length and have perusedthe record, the law and the decisions relied upon.

7. The first issue taken by the learned counsel for the respondent was with regard to the maintainability of the petition as according to him the same has been filed after a delay of considerable time. It is seen from the record that this Court vide order dated 14-6-2010 had already recorded in detail the issue of latches and thereafter observed that since a legal issue has crept up therefore the matter requires detailed deliberation. Hence the ground of maintainability and latches apparently has already been answered by this Court, as mentioned above. Hence this petition is found to be maintainable. The stance taken by the learned counsel for the respondent, so far as this issue is concerned, is hereby repelled.

8. The counsel for the petitioner has raised an issue that whether in the instant case provisions of section 17 of West Pakistan Family Court Act 1964 and the provisions of Order II Rule 2 C.P.C. would be applicable or not. It is stated that purpose of enactment of West Pakistan Family Act 1964 was to establish a Special Court to dispose of the matters concerning to the families and by this special law the provisions of C.P.C., Evidence Act :and Qanun-e-Shahadat Ordinance were ousted, as family Court is a special Court which shall regulate its own procedure. Though, the provisions of C.P.C. and Qanun-e-Shahadat Ordinance are not applicable to the family matters in stricto-sense but the family Court is always competent to grant relief keeping in view the circumstances of the each case. Hence the family Court is competent to grant such relief, though not claimed, which in its view is just and proper for the disposal of the case. I was able to lay my hands on a decision given by a Single Bench of Lahore High Court in the case of Malik Zafar Iqbal v. Judge Family Court, Shakar Garh Narowal reported in 2009 CLC 835 wherein the learned Single Judge observed as under:-- "Although the provisions of C.P.C. stricto sensu did not apply in family matters except sections 10 and 11 thereof yet a Court was always competent to mould the relief keeping in view the circumstances of each case. In other words, a Court is always-competent to grant relief as might be thought just and proper to the same extent, as if it had been asked for." The above decision in my view is the complete answer to the issue raised by the learned counsel.

9. The learned counsel has further raised an objection that the respondent No.1 was not justified in filing another case for recovery of dowry articles, as according to him, she should have made the claim, if any, in the earlier suit for khulla filed by her and in view of Order II Rule 2 C.P.C. she was barred from claiming the dowry articles in the subsequent case. Here also I tend to disagree with the submission made by the learned counsel as provisions of West Pakistan Family Court Act specifically provide consolidation of suits meaning thereby that a number of suits could be filed if such situation arises. Had this not been the intention of law makers, the words `consolidation of suits' would have not been used. Hence this issue raised by the learned counsel is also found to be devoid of any merit and is hereby rejected.

10. The learned counsel for the petitioner has also raised an objection that the parameters of section 3 and Rule 4 of Dowry and Bridal Gift (Restriction) Act 1976 and Rules 76 have not been fulfilled, hence the respondent No.1 is not entitled for the recovery of the dowry articles. He states that since a legal issue going to the roots of the case has now been raised, he may be permitted to address the Court on this issue. Firstly it is noted that this issue was also raised before the lower authorities and was properly replied. However, it is noted that though in the said Act a restriction has been imposed that bridal gifts should not exceed Rs.5000 but this restriction is only restrictive and not prohibitive. The said bar was only meant to control the said restriction but does not impose a complete ban and similar is the position of furnishing different forms with the concerned authorities as non-compliance of this provision, in my view, is only a technical lapse which would not disentitle a genuine claim if a claimant was able to prove that dowry articles exceeding Rs.5000 have been usurped and are in illegal occupation of a person. The decisions relied upon by the learned counsel in this behalf are quite distinguishable. In the decision given in the case of Musarat Zaman Begum v. Ali Hassan (1986 CLC 2265) the learned Judge has observed as under:-- "

5. The Act does not even remotely suggest that the dowry, bridal gills and presents given to a bride in excess of the value fixed therein may become irrecoverable for her at any stage. Actually, it has been declared in the Holy Quran itself in Sura Badara, as under: 229 It is not lawful for you, (Men), to take back Any of your gifts (from your wives)," So is also re-affirmed oin Sura Nisaa with added emphasis. It is therein commanded: - "

20. But if ye decide to take One wife in place of another, Even if ye had given the latter A whole treasure for dower, Take not the least bit of it back: Would ye take it by slander And a manifest wrong?" Act XLIII of 1976 does not contemplate to make any provision to the contrary. The restrictions about the value of dowry, bridal gifts and presents contained in section 3 of the Act apply only to the time of their being given to the bride and have no relevance in the context either of her right and title to the property in excess of that value or of her right to recover the same." Reference may also be made to a decision given in the case of Masud Sarwar v. Farah Deeba (1988 CLC 1546) wherein the learned Judge has observed as under:-- "It is correct that under section 3 of the said Act, there is a restriction that dowry or Wari exceeding Rs.5,000 could not be given to a bride by her parents or by the parents of the bridegroom. However, there is no complete bar to give a dowry or Wari in excess of the said amount. The title of the law in itself shows that it is a restrictive law and not a prohibitory law. Similarly in the preamble of the said law it has been provided that a law is necessary for restrictions on dowry and bridal gifts'. This so shows that there was no intention of the framer of the law or the legislature to impose a complete ban on the giving of dowry and Wail in excess of the said amount. Therefore, if dowry or Wart or Moth exceed the value of Rs.5,000 each that will not mean that it is such an illegal act that it should entail the confiscation of such property of the bride. Section 5 of the said And provides that all property given as dowry 'or' bridal gift to a brie shall vest absolutely in her and that her interest in the said property, however derived, shall not be restrictive, conditional or limited. I am the said section there is no limitation of Rs.5,000 either for dowry or for Wari. On the other hand, it has been provided therein the such property shall be owned by her absolutely and to the exclusion of the bridegroom without caring for the source through which it has come and without limitation of any amount. Therefore, it is quite clear that even in spite of the restriction imposed in section 3 ibid bride is the owner of the dowry and Wari articles irrespective their value and she is entitled to retain it for ever and to claim it return or the value thereof if the same is kept bock by her husband or any other pelion. In the nut shell the said law does not give a right to the husband to usurp the property in excess of Rs.5,

000. Similarly the law does not mean that the property in excess of Rs.5,000 shall escheat either to the Government or to the husband. Therefore, in spite of the restrictive provisions contained in the said Act a bride is entitled to retain and get all the dowry and Wari articles irrespective of their value.

4. Act XLIII of 1976, was enacted for the benefit of the women to be married and their parents so that they may not remain unmarried for lack of dowry of heavy value. It was not enacted to deprive the wives of the ownership of their dowry and Wari. As a matter of fact, the said Act is a paper law and has seldom been acted upon. The said law has been used only against the women and wives and efforts have been made by the husbands to deprive the wives of their such property on the basis of the said law. In other words, the said law instead of being beneficial to women and wives is detrimental to their rights and interests.

5. It may be added that there is no Islamic sanction behind the said law. In a way the said law offends against the Injunctions of Islam as set out in the Holy Qur'an and Sunnah. Iry Aya No.20 of Sura A 1-Nisa of the Holy Qur'an, it has been ordained that in case a husband marries another woman he should not take back any of the Property given to her. In Aya No.21 thereof it has been further ordained that a husband cannot take back the same after the marriage has been consummated. The said Ayas have been interpreted by all the translators and Mufassareen to mean and include the property of any value, however, great it may be. Some of them have given it the meaning of a treasure, This means that there is no limit on the value of bridal gifts which may be given to her by her parents or by the husband or his parents". In another judgment of Anisur Rehman and another v. Mst. Shehla Fatima 1988 CLC 1808 wherein Justice Naimuddin (as he then was) has observed as under:-- "Now, since no articles of dowry were given to the applicants and the same were given to respondent, therefore, the applicants, who unauthorisedly came into possession thereof were bound to return the same or pay value thereof to the respondent. The applicants could not have deprived the respondent of the articles. Even though the same were given to her in contravention of the provisions of section 3 of the Dowry and Bridal Gifts (Restrict) Act, 1976. If there was any breach of the law by the parents of the respondent the applicant cannot take any advantage of the same or deprive the respondent of her property. Further, no such plea was taken in the written statement and nor was any issue framed thereon. The respondent had no opportunity to meet the same. The decree against the applicants was, therefore, properly passed. I, therefore, find no merits in the revision application and dismiss it in limine ". In view of the above referred decisions, the submission made by the learned counsel that since the parameter of section 3 and Rule 4 of the said Act and Rules have not been fulfilled, hence, the respondent is not entitled for return of the dowry articles, is found to be wholly misconceived and is hereby rejected.

11. The perusal of the order of the trial Court dated 13-2-2007 reveals that the said court while passing the order has considered all the relevant material and has examined the petitioner, respondent and other witnesses. Objections raised were also considered regarding non-submission of forms to the concerned authorities and thereafter the said Court found that the respondent was able to bring home her case against the petitioner. The said Court further observed that the dowry articles given to the respondent were in the custody of the petitioner and petitioner is liable to return the same. Before the trial Court receipts of the dowry articles were also produced by the respondent. The trial Court has also observed that when the statement was given by the respondent No.1 that she was ousted from the house of the petitioner in three clothes the petitioner kept silent on the said statement and did not challenge the same. The trial Court then came to the conclusion that this statement is fully corroborated with her version. The trial Court also observed that the petitioner has failed to cross-examine himself specially on the issue of value of the dowry articles lying at his house or that the respondent took away the same with her, but his only stance was that no list of the said dowry articles was delivered to him or to his parents. The petitioner in cross-examination has also admitted that the gold ornaments were given to her by her parents at the time of marriage. It was also admitted that the said dowry articles were worth lacs of rupees. The trial court further observed that it was no where proved by the petitioner that the dowry articles were not given to the respondent at the time of marriage or at the time of leaving the house she had taken away the gold ornaments with her. The trial Court has further observed that simply on the ground that a restriction has been imposed in Bridal Dowry Restriction Act, it would disentitle the respondent to claim if the amount had exceeded the amount of Rs.5000. The Court has in this behalf placed reliance on the decision given in the case of Musarat Zaman. The trial Court also observed that the plaintiff can file a suit for khulla and can file a separate suit for other relief which aspect has also been answered by the Appellate Court while dismissing the case filed by the petitioner. The trial Court then decided the matter in favour of the respondent (plaintiff).

12. The Appellate Court also observed that the dowry articles and gold ornaments worth lacs rupees were given to the respondent by her parents. The Appellate Court also observed that the petitioner has admitted that the furniture of the respondent is lying at his home. The plea of restriction imposed by the Bridal and Dowry Articles Act was also raised before the Appellate Court which was rejected. Thereafter considering all the material facts the Appellate Court also came to the conclusion that the respondent is entitled to recover the dowry articles as claimed by her and thereafter passed the judgment in her favour.

13. In view of the explicit observations made by the two courts below, I do not find any misreading and non-reading of evidence in the detailed orders passed by the two Courts below. The learned counsel appearing on behalf of the petitioner, apart from raising same legal issues, has failed to point out any misreading and non-reading of evidence from the orders passed by the two authorities below. In view of the perspicuous observations of the two Courts below, no case of interference is made out, this constitution petition thus is found to be devoid of any merits and is hereby dismissed alongwith the pending application. KMZ/M-116/Sindh Petition dismissed.