2026 PLP 328 (MLD)

Chaudhary Khalid Rasheed, J.

Foreword: The captioned appeals have been preferred against the judgment and decrees passed by learned Additional District Judge/Judge Family Court Muzaffarabad dated 19.11.2024, arise out of common judgment, hence were heard together and are decided through this single judgment. Precise facts necessary for disposal of instant appeals are, Meem Akhtar filed three separate suits one for payment of dower, second for recovery of maintenance allowance and third for returning of dowry articles against Asif Hussain Shah in the Court of Additional District Judge/Judge Family Court Muzaffarabad wherein it was stated that plaintiff was married to defendant on 30.12.2018 for the consideration of dower of Rs. 5,00,000/- which is still payable on the part of defendant. It was further pleaded that at the time of Rukhsati she was given dowry articles which are in possession of defendant. It was contended that after marriage the relations between the spouses remained pleasant for two months but thereafter the behaviour of the defendant stood changed started beating her and used to leave her in the house of her parents after physical torture. It was also contended that many Jirgaas/meetings were convened whereupon the plaintiff populated with the defendant on his assurance that he will neither torture nor ousted her from his home but after some days of the Jirgaas he pushed her out of his home and ultimately on 03.02.2022, ousted her from his home after levelling allegations of bad character against the plaintiff. He did not pay her maintenance during population period as well as after desertion. Defendant contested the suits by filing written statements wherein, the claim of the plaintiff was refuted and submitted that an agreement was executed by the plaintiff on 08.04.2019, whereby she admitted that she has received the dower and is not entitled to get maintenance, thus the suits are liable to show the doors. The trial Court consolidated all the suits, framed issues in the light of pleadings of the parties, provided them opportunity to lead evidence, heard pro and contra and at the conclusion of the proceedings, dismissed the suit filed for returning of dowry articles for want of proof, declared the plaintiff entitled to get the dower of Rs.2,00,000/-in shape of a house situated at Syedan Gojra, Rs.3,00,000/- in cash and she was also declared entitled to get the maintenance of Rs.10,000/- per month from 03.02.2022 till divorce on 18.04.2022 as well as for Iddat period vide its impugned judgment and decrees dated 19.11.2024, hence the captioned appeals. STANCE OF THE APPELLANT: The learned counsel for the defendant/appellant Asif Hussain Shah vehemently argued that an agreement was executed by the plaintiff on 08.04.2019 whereby it has been admitted that she has received the dower and is not ready to live with her husband, hence not entitled to receive any maintenance. He further argued that the agreement dated 08.04.2019 was proved but the Court below failed to appreciate the said relevant evidence in its true perspective and wrongly declared the plaintiff entitled to get the dower as well as maintenance allowance. He supported the impugned judgment to the extent of dismissal of the suit for returning of dowry articles by submitted that no dowry articles were given to the plaintiff at the time of Rukhsati. REFUTATION OF THE RESPONDENTS: The learned counsel for plaintiff/respondent averred with vehemence that it has been substantiated from the reliable evidence that defendant did not pay maintenance to the plaintiff since 2019, thus the suit for maintenance allowance was liable to be honoured since 2019 but the Court below failed to appreciate the relevant ticklish evidence in its true spirit and erroneously declared the plaintiff as entitled to get the maintenance from February 2022. He supported the impugned judgment to the extent of decree for payment of dower. I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution COURT OBSERVATIONS AND RELEVANT LAW: As per the prime claim taken by the plaintiff is, after two months of marriage the relations between the spouses became strained, the defendant started torturing her by levelling serious allegations of bad character and ultimately ousted her from his home after maltreatment on 03.02.2022. The defendant took a specific stance that an agreement was executed by the plaintiff on 08.04.2019, wherein it was admitted by the plaintiff that she has received the dower and is not entitled to get maintenance. A perusal of agreement dated 08.04.2019 reveals that plaintiff agreed that if the defendant divorces her she will not be entitled to any maintenance, dower and other dues, however the defendant did not act upon the agreement dated 08.04.2019 rather divorced plaintiff on 18.04.2022 after the lapse of about three years from the execution of agreement dated 08.04.2019 and two months after institution of suits by the plaintiff. In the said agreement the plaintiff did not admit that the dower has been paid to the plaintiff rather the agreement was conditional which has got no legal sanctity when the defendant himself did not perform in the light of the said agreement, so it is liable to be considered that whether the dower was paid to the plaintiff or not? As per Nikahnama of the spouses total Rs.5,00,000/- was fixed as dower out of which Rs.3,00,000/- was mentioned as deferred dower and in lieu of Rs.2,00,000/- a room with kitchen and bathroom was liable to be transferred to the plaintiff. The witnesses produced by the plaintiff categorically deposed in their statements that the dower was not paid. Plaintiff also recorded her statement on 26.08.2023 wherein, it was stated that whole dower is payable on the part of defendant. The witnesses produced by the defendant namely Syed Nazir Hussain, Kala Khan Abbasi and Syed Yameen Hussain Shah also did not depose that the dower was paid to the plaintiff. Though Mazloom Shah son of Rehmat Shah deposed that defendant has paid deferred dower and defendant Asif Hussain Shah also deposed in his Court statement in the same manner but failed to establish that in whose presence the same was paid and even he failed to mention any date of payment or the person in whose presence he paid such amount to the plaintiff. The defendant though levelled the allegation of bad character against the plaintiff but he failed to prove the same rather such conduct of the defendant is a proof of the fact that his behaviour was cruel towards the plaintiff so if a wife left the house of her husband due to the allegations of bad character by the husband, her desertion cannot be declared as willful, thus the Court below rightly declared the plaintiff entitled to get the dower as well as maintenance allowance. Since the plaintiff herself pleaded in her plaint that after marriage she was re-settled with the defendant many times and lastly she was ousted from home on 03.02.2022, hence the Court below righty declared her entitled to get the maintenance from 03.02.2022. The quantum of maintenance fixed by the Court below is also justified because at the time of Nikkah an agreement was executed between the parties whereby, it was agreed that in case of desertion the defendant shall be bound to pay maintenance of Rs. 10,000/- per month. So the judgment recorded by the Court below to the extent of payment of maintenance allowance and dower is justified and liable to be sustained. As far as the suit filed for recovery of dowry articles is concerned, the plaintiff took the stance that she was given dowry articles amounting to Rs.5,00,000/- and also appended a list of dowry articles tendered in evidence as Exh.PB/1. The witnesses produced by the plaintiff deposed that the plaintiff was given dowry articles and the plaintiff is entitled to get a decree for the dowry articles. The plaintiff in her statement also deposed that she was given dowry articles amounting to Rs.5,00,000/- which are in custody of defendant. The Court below dismissed the suit filed for dowry articles mainly on the ground that the list of dowry articles was not signed by the plaintiff or her counsel and that the plaintiff could not prove a stable social status of her parents. The same like proposition came under consideration of the Honourable Supreme Court of Azad Jammu and Kashmir in a judgment reported as 2021 SCR 717 wherein it has been observed that the documenting of dowry articles, as required for dower is not necessary to be proved in stricto sensu according to the principle of Qanun-e-Shahadat Order, 1984. The relevant observations recorded at page 721 of the judgment are reproduced as under: "As far as the contention of the learned counsel for the appellant that list of dowry articles is fabricated one as being not signed by anyone and not proved at all, is concerned. There is no legal requirement of documenting of the dowry articles in Nikkahnama or in other document or list, like as required for the details of dower amount, prompt and dower. In our society, when the parents are making preparations of the marriages of their daughters, in normal course of life, they do not indulge in making lists or keep record of receipts of the dowry articles to prove the fact of purchasing the same or giving the same to daughters at the time of marriage, to prove in any Court of law, rather parents pray and are of desirous of sustenance of the marriage the daughters. There would be very few parents who in their otherwise normal routine, do not keep record of their financial accounts and receipt of the same, would document the dowry articles proposed to be given to their daughter. The plaintiff-respondent, herein, was not obliged to prove her case in stricto sensu according to the principles and provisions of the Qanun-e-Shahadat Order, 1984, as it is required under ordinary civil proceedings in civil Court or criminal proceedings in criminal Courts. The Family Courts Act, 1993 is a special law which has been enacted for adjudication of matrimonial disputes with expeditiously and without falling prey of technicalities. The legislature, being appreciative of this, specifically excluded the operation of the Qanun-e-Shahadat Order, 1984, from the proceedings of the Family Courts. Section 17 of the AJ&K Family Courts Act, 1993, postulates that provisions of Qanun-e-Shahadat Order, 1984 are not applicable to the proceedings before the Family Courts." Thus, it can safely be concluded that the plaintiff is entitled to receive dowry articles mentioned in the list or their depreciation price of Rs.2,00,000/- since the marriage of the spouses remained valid for four years and plaintiff also failed to mention the price of every item separately. DISPOSAL: The sum and substance of the above discussion is, the Appeals Nos.416/2024, 417/2024 and 420/2024 are hereby dropped while accepting Appeal No.419/2024, the plaintiff is hereby declared entitled to receive the dowry articles as per list Exh.PB/1 from the defendant and in alternative Rs.2,00,000/- as price of dowry articles. UN/54/AJK(H.C) ???