2024 PLP 1445 (MLD)

Jawad Hassan, J.

This constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") calls in question the vires of judgment and decree dated 11.05.2022, whereby Additional District Judge, Rawalpindi, while partially accepting appeal of the Respondent No.1 filed against judgment and decree dated 22.03.2022 of Judge Family Court, Fateh Jang (Attock), held her entitled to receive 10-tola gold ornaments as dower and maintenance allowance @ Rs.10,000/- per month for her iddat period only.

2. Precisely the facts necessary for adjudication of instant petition are that the Respondent No.1 instituted a suit for recovery of maintenance allowance, gold ornaments as well as net cash amount Rs.5,00,000/- in case of desertion before the Judge Family Court, Fateh Jang (Attock) wherein the Petitioners were arrayed as defendants. The Petitioners contested the suit by filing a written statement, wherein they controverted the assertions contained in the plaint. From the divergent pleadings of the parties, the learned Judge Family Court, Fateh Jang (Attock) framed the necessary issues to the following effect: ISSUES

1. Whether the plaintiffs are entitled to recover maintenance allowance from the defendant, if so, at what rate and for which period? OPP

2. Whether plaintiff No.1 is entitled to recover 22-tolas gold ornaments or its alternate present market value from the defendant? OPP

3. Whether the plaintiff No.1 is entitled to recover dower in shape of 10-tolas gold or in alternate its present market value from the defendant? OPP

4. Whether the plaintiff No.1 is entitled to recover Rs.5,00,000/- from the defendant as per column No.17 of the Nikahnama? OPP

5. Whether the defendant is entitled for decree for restitution of conjugal rights? OPD

6. Relief.

3. After framing of issues and recording of oral and documentary evidence adduced by both the parties, suit was partially decreed by the Judge Family Court, Fateh Jang (Attock) vide judgment dated 26.03.2022 holding the Respondent No.1 entitled to recover past maintenance allowance @ Rs.10,000/- per month from the month of January 2019 to January 2020, whereas her remaining claims with regard to 22-tola gold ornaments as well as recovery of 10-tola gold ornaments as dower and recovery of cash amount were declined. Moreover, the Respondent No.2 was held entitled to recover maintenance allowance @ Rs.10,000/- per month from the month of January, 2019 till her legal entitlement with 10% annual increase. The parties, feeling dissatisfied from the said judgment and decree, preferred their respective appeals before the Additional District Judge, Fateh Jang (Attock). The appeal of the Respondent No.1 was partially accepted holding her entitled to receive 10-tola gold ornaments as dower and maintenance allowance @ Rs.10,000/- per month for her iddat period also, but the appeal of the Petitioners was dismissed vide consolidated judgment and decree dated 11.05.2022.

4. Learned counsel for the Petitioners inter alia contends that impugned judgment and decree is the result of mis-reading and non-reading of material available on record; that the Courts below have awarded maintenance allowance to the Respondents at exorbitant rate by ignoring financial status of the Petitioner No.1, which he is unable to pay; that the Judge Family Court rightly dismissed Respondent No.l's claim regarding 10-tola gold ornaments as dower but the Additional District Judge, has awarded the same without adverting to material piece of evidence and as such impugned judgments and decrees to this extent are not tenable under the law.

5. Conversely, learned counsel for Respondents Nos.1 and 2 contends that the impugned judgments have been passed after taking into consideration all aspects of the matter in dispute and, as such, do not suffer from any error or material irregularity.

6. I have heard the arguments of learned counsel for the parties and perused the record.

7. Though Additional District Judge, Fateh Jang (Attock), while partially allowing the appeal of the Respondent No.1, maintained the findings of Judge Family Court, Fateh Jang (Attock) regarding the claims encapsulated under issues Nos.1, 2 and 4, yet reversed the findings under issue No.3 (10-tola gold ornaments in shape of dower) and modified the judgment to this extent. From the perusal of impugned judgment, it reveals that Additional District Judge Fateh Jang (Attock) maintained the findings of Family Judge, Fateh Jang (Attock) to the extent of issue No.1, 2 and 4, after carefully appreciating the evidence on record. No convincing arguments were advanced by the learned counsel for the Petitioners to show that the Court below has committed any illegality while maintaining the findings to aforementioned claims which are maintained.

8. The controversy relating to recovery of 10-tola gold ornaments as dower was capsulated in issue No.3. Learned counsel for the Petitioners put much emphasis that 10-tola gold ornaments were given to the Respondent No.1 by the Petitioner No.1 through his maternal grandfather namely Sardar Muhammad (DW-2) and such handing over was also got recorded through photographs exhibited on record as Exh.D2 to Exh.D5, but these have not been taken into consideration. Whereas, the counsel for the Respondents argued that the Petitioner No.1 agreed to pay dower in shape of 10-tola gold ornaments as per Nikahnama, which has not been paid so far. It evinces from the impugned judgment and decree that Additional' District Judge, Fateh Jang (Attock) granted 10-tola gold ornaments to the Respondent No.1 merely on the basis that the Petitioner No.1 neither mentioned in affidavit (Exh.D1) the factum of delivery of 10- tola gold ornaments to Respondent No.1 on 24.02.2018 as per stance of DW-2 during cross-examination nor the snapshots (Exh.D2 to Exh.D5) were the sufficient conclusive proof in this regard. It was observed that "Respondent No.1 has mentioned in preliminary objection No.3 that 22-tolas gold ornaments were in possession of appellant No.1 but he did not record anywhere in written statement that 10-tolas gold ornaments were also in possession of appellant No.1". It is evident from para 8 of the written statement filed by the Petitioners wherein it was mentioned that: Affidavit of the Petitioner No.1 namely Hammad Ali Khan also states: Affidavit of Sardar Taj Muhammad Khan (DW-2) in his affidavit (Exh.D6) stated that: During cross-examination, above said DW-2 stated that:

9. Pertinently, it is an admitted fact that the marriage between the parties was solemnized on 23.02.2018 as is evident from Nikahnama (Exh.P2). The Petitioner No.1 agitated in Para No.8 of her plaint that her dower fixed in shape of 10-Tola gold ornaments is yet not paid by the Petitioner No.l. In reply thereto, the Respondent-No.1 assumed a specific defence in his written statement as preliminary objection No.3 that aforementioned dower in shape of 10-Tola gold ornaments were handed over by his maternal grandfather Sardar Muhammad Taj Khan to the Respondent No.1 in presence of her family members before her rukhsati. However, the Respondent No.1 did not bother to produce any of his family members to rebut said stance. Moreover, said defense of the Petitioner No.1 fetched support from statement of his maternal grandfather Sardar Muhammad Taj Khan deposing as DW-2, wherein he deposed absolutely in line with stance of the Petitioner No.1 set forth from word go in his written statement. Except formal suggestion, material aspects of statement of DW-2 were not cross-examined on behalf of the Respondent No.1. Grounds based by Additional District Judge in the impugned judgment are not justified as parameters of evidence otherwise taken in consideration in other cases as per law laid in the Qanun-e-Shahadat Order, 1984 do not apply to proceedings before a Family Court. Sufficient, reliable and unrebutted evidence is available on behalf of the Petitioner No.1 to prove discharge of his liability regarding payment of claimed dower in shape of 10-Tola gold ornaments.

10. Ordinarily, the High Court does not re-examine evidence or disturb findings of fact, however; it can interfere if the findings are based on non-reading or misreading of evidence, erroneous assumptions, misapplication of law, excess or abuse of jurisdiction, and arbitrary exercise of powers. Thus, this Court can correct such errors as this Court's constitutional jurisdiction is meant to supervise and serve justice, allowing it to correct any wrongs committed contrary to evidence and the law. Reliance in said regard may be placed upon pronouncement in case titled "Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa" (2001 SCMR 338). Moreover, it is held by Supreme Court of Pakistan in case "Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another" (2023 SCMR 246) that: "

8. The object of exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution') is to foster justice, preserve rights and to right the wrong. ... In constitutional jurisdiction when the .findings are based on mis-reading or non -reading of evidence, and in case the order of the lower fora is found to be arbitrary, perverse, or in violation of law or evidence, the High Court can exercise its jurisdiction as a corrective measure. If the error is so glaring and patent that it may not be acceptable, then in such an eventuality the High Court can interfere when the finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where an unreasonable view on evidence has been taken."

11. In view of above, this petition is allowed and the impugned judgment and decree is modified to the extent that the Respondent No.1 shall not be entitled to recover claimed dower 10-Tolas gold ornament. MQ/H-5/L Petition allowe