2016 PLP 1 (YLRN)

MUHAMMAD YOUNIS THAHEEM J.

Mst. Kausar Begum, respondent No.1 herein, filed Family Suit No.43/FC/2012 on 22-09-2012 against Zahid Janan petitioner for recovery of maintenance allowance at the rate of Rs. 5000/- per month from February, 2012 and onwards, recovery of 05 tolas gold ornaments along with dowry articles and recovery of dower in the shape of gold ornaments weighing 0.5 tolas and Rs.40,000/- in cash. It was alleged that marriage between the spouses solemnized in May, 2011; that at the time of marriage father of the petitioner had prepared 05 tolas gold ornaments along with dowry articles; that at the time of Nikah 05 tolas gold ornaments along with Rs.40,000/-- was fixed as deferred dower; that after rukhsati' respondent No.1/plaintiff used to perform her marital obligation; that for few months relation between the parties remained-cordial, however, during the passage of time respondent No.l came to know that the petitioner lived with immoral life; that the petitioner-defendant was asked time and again to mend his bad habits but all efforts became abortive and that after a few months of marriage, relations between the spouses got deteriorated to such an extent that on 25.02.2012 the petitioner/ defendant snatched from respondent No.1/ plaintiff gold ornaments and turned her out of his house, in consequence of which she took shelter in her parents' house and since then the petitioner/defendant did not provide her any maintenance; that petitioner/defendant was asked to admit claim of the respondent No.1/plaintiff but all efforts became fruitless and hence, the instant suit.

2. The petitioner-defendant, when summoned, put appearance and submitted his written statement. The learned trial Court, after recording pro and contra evidence and hearing arguments of the learned counsel for the parties, held the plaintiff entitled to the recovery of maintenance allowance from February, 2012 to February, 2013 at the rate of Rs.3,000/- per month along with Iddat allowance at the rate of Rs.3000/- per month whereas the prayer for recovery of gold ornaments along with dowry articles and recovery of dower in the shape of gold ornaments weighing 05 Tolas along with Rs.40,000/- in cash was dismissed vide judgment and decree dated 05-03-2013.

3. Feeling aggrieved from the said judgment and decree of the learned trial Court, the respondent No.1/plaintiff filed an appeal bearing FCA No.07/XIII of 2013 on 18-03.2013, while the petitioner/ defendant also filed an appeal bearing FCA No.13/XIII of 2013 on 02-04-2013 before the learned appellate Court which through a common judgment and decree dated 11-07-2013. accepted the appeal of respondent No.1/plaintiff and her suit was decreed as prayed for whereas the appeal of petitioner/defendant was dismissed.

4. Dis-satisfied with the judgments and decrees of the learned Courts below, the petitioner has filed this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 praying therein that the impugned judgments and decrees dated 12-07-2013 and 05-03-2013 be set aside, suit of respondent No.1/plaintiff be dismissed and the instant writ petition be allowed with costs.

5. The judgment and decree of the learned appellate Court was assailed on the grounds that it had failed to appreciate the admitted fact of respondent No.1, who, while appearing as PW.1, in her cross-examination clearly conceded that she had no receipts of dowry articles and even in this respect she failed to produce any shopkeeper before the Court; that Momin Khan father of respondent No.1, when examined as PW-2, could not produce any evidence which could prove that he had prepared 05 tolas gold ornaments and dowry articles for respondent No. 1; that respondent No.1 failed to produce Nikah Nama before the Court which could establish that a sum. of Rs.40,000/- along with 05 tolas gold ornaments was fixed as dower; and that Mir Ahmad, marginal witness of the Nikah, appeared as PW-3, who admitted that it was decided between the parties that the dower in the shape of 05 tolas gold ornaments and Rs.40,000/- would be paid before the 'Rukhsati' and hence, the learned appellate Court arrived at a wrong conclusion while deciding issue No.6 owing to misreading and non-reading of evidence on record.

6. On the contrary, the learned counsel appearing on behalf of respondent No.1 contended that the learned lower appellate Court had rightly dealt with the case. As such, no illegality or material irregularity has been committed by the learned lower appellate Court warranting interferernce by this Court in exercise of its constitutional jurisdiction.

7. We have considered the submissions advanced by the learned counsel for the parties and gone through the record of the case.

8. Perusal or the record would show that the petitioner had failed to fulfil the marital obligations and the respondent No.1 was not responsible for desertion. She took refuge in the house of her parents and was rightly held by the learned lower appellate Court that respondent No.1 was entitled to dower fixed as 05 tolas gold ornaments and a sum of Rs.40,000/- in cash. The record further reveals that dowry articles and bridal gifts as well as 05 tolas gold and the said articles amounting to Rs.2,03,100/- were snatched on 25-02-2012 and since then the petitioner-defendant did not provide any maintenance to respondent No.l. Although respondent No.1 when appeared as PW-1, was subjected to lengthy cross-examination, still the petitioner-defendant failed to discard her claim and her statement remained unrebutted. However, the argument advanced by the learned counsel for the petitioner that respondent No.1 has not proved dowry articles by producing their receipts is not tenable as neither the people in villages asked for receipts of shoppings nor the shopkeepers were willing to stand witnesses for their customers. In this respect reliance is placed on the case reported as Mst. Saeed Bibi and another v. Additional District Judge, Jampur, District Rajanpur and 2 others (2010 CLC 1938 wherein it has been held as under:-- "The plaintiff-petitioner while appearing as PW.1 in her statement has made a mention of the dowry articles given to her by her parents at the time of marriage. Further/ during her cross-examination she denied the suggestion put to her by the opposite learned counsel that she had taken the dowry articles with her to her parents house while leaving the house of her husband, which fact also proves her claim of dowry articles. Therefore, if receipts were not produced, it is not of well significance. Further, it is observed that usually in villages people do not care to have receipts from shopkeepers for the purchase of items nor the shopkeepers usually come forward merely on the asking of their customers to make their statement as witness in law Courts."

9. Keeping in view the facts and circumstances of the case, we are of the firm view that the learned lower appellate Court has rightly passed the impugned judgment and decree after proper appreciation of evidence, which cannot be interfered with by this Court in exercise of constitutional jurisdiction.

10. Consequently, the instant writ petition, being without any substance, is hereby dismissed. SL/352/P Petition dismissed.