1986 PLP 2265 (CLC)

"Per facts and circumstances of the case, she is entitled to get back her dowry at least to the extent of Rs.5,000 since factum of dowry is admitted by him and in my view in our society a father, howsoever, poor he might be, can give dowry to his daughter at the time of her marriage at least to the extent of Rs.5,000, therefore, her claim to this extent was rightly decreed. Even otherwise, dowry or bridal gifts for more than 5,000 can neither be given to a bride at the time of her marriage nor, can, be claimed thereafter, in view of provisions of Act No XLII1 of 5 76 " (Emphasis supplied). Plaintiff has now come up to this Court on revision.

3. In the above-quoted observations, while speaking about the society generally, the Judge in the appeal below does not seem to have been able to express himself correctly and what he appears to have intended to say is perhaps simply this that in our society even a poor father endeavours to give to his daughter at the time of her marriage some dowry which may not be in excess of Rs.5,000, but the immediately following sentence therein, namely, "therefore, her claim to this extent was rightly decreed", cannot, on any discoverable logic, follow from the foregoing. Be, that as it may, what is really astonishing is that in spite of there being no conceivable similarity existing between the giving of dowry and the claim for its recovery, the Judges in the two Courts below have purported to give effect to the supposed intention of the Act of 1976 in arbitrarily withholding the relief with regard to recovery of dowry beyond the limit prescribed in an altogether different context, without referring to any provision of the Act itself.

4. Learned counsel for parties have taken me through the provisions of Act XLIII of 1976, which comprises of 11 sections only and 7 Rules have been framed thereunder in pursuance of the power conferred under section 10 thereof. I have not been able to discover any provision, either in the Act itself or in the Rules, which may either disentitle a lady from recovering her dowry articles of the value of more than Rs.5,000 or create a right in a husband to retain her property in excess thereof. Section 5 of the Act provides:- "

5. All property given as dowry or bridal gifts and all property given to the bride as a present shall vest absolutely in the bride and her interest in the property however derived, shall hereafter be not restrictive, conditional or limited." In section 2 thereof 'Bridal gift', 'dowry' and 'present' have been defined in its clauses (a), (b) and (e) respectively as under:- "(a) 'bridal gift' means any property given as a gift before, at or after the marriage, neither directly, by the bridegroom or his parents to the bride in connection with the marriage but, does not include Mehr." (b) 'dowry' means any property given before, at or after the marriage, either directly or indirectly, to the bride by her parents in connection with the marriage but it does not include property which the bride may inherit under the laws of inheritance and succession applicable to her." (c) 'present' means a gift of any property, not being bridal gift or dowry, given before, at or after the marriage, either directly or indirectly, to either party to a marriage in connection with the marriage or to the relatives of the bride or bridegroom but does not include Neundra and Salami."

5. The Act does not even remotely suggest that the dowry, bridal gifts 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 Baqara, 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 in 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. In its 5th section, in addition to declaring such property to vest in her absolutely, the Act also provides in unambiguous terms that her title thereto, regardless of the source of its acquisition, would thereafter, continue unabridged. This is in exact keeping with the Divine Commandments. It really surpasses imagination as to how have the Judges in the two Courts below come to think that she should be denied right in her property in excess of the value of Rs.5,

000. Judgments rendered by the two Courts below to refuse to give full relief to the petitioner in accordance with their own findings cannot be mere innocent mistakes. Whereas, in spite of adequate provision made in the Act about the consequences to follow upon disregard of its provisions, the trial Judge has purported to be a philanthropist for discouraging the grant of dowry in excess of the prescribed value and he believed his objective as being achieved by denying relief to the petitioner with regard to such excess; the Additional District Judge has gone a step further in making a positive declaration that it is not recoverable under the provisions of the Act. This is wrong. There is no such provision in the Act to make it irrecoverable from the husband. This can be only a fake reference either deliberately made or resulted from ignorance about the provisions of the Act. In either event.' Additional District Judge has failed to exercise the jurisdiction, vested in him by law to correct the error of the trial Court, on the basis of his incorrect assumption about law. His judgment is not sustainable and is liable to be set aside in exercise of revisional jurisdiction.

6. In view of the concurrent findings reached by those Courts themselves, to the effect that the plaintiff-petitioner's dowry was of the value of at least Rs.10,000, she is entitled to have her claim decreed accordingly but it has been unlawfully curtailed to Rs.5,

000. Hence, upon accepting this Civil Revision, the decree passed in favour of the petitioner is enhanced to be for Rs.10,000 which amount she will be entitled to thereunder recover from the respondent as the price of her dowry articles. Parties are, however, left to bearH their own costs hereof.

7. Before parting with this case, I am constrained, to place on record the unavoidable impression, created by the ignorance betrayed in this case by the two Judges below, to the effect that neither of them may have read this small Act comprising of just 11 sections. Whereas it is presumed that before attempting to enforce a law, a public functionary charged with a duty in that behalf would acquaint himself therewith, it is unthinkable that a judicial officer may set out to implement a law without even reading it. Call upon the two concerned Judges (Ch. Muharnmad Amjad Parvez, Civil Judge, now posted at Gujranwala and Mr. Muhammad Ajmai Khan, Additional District Judge, Lahore) through their learned District Judge to dispell the aforenoted impressions by justifying their judgments. Their respective explanations will be so secured as to be made available here before the onset of coming summer-vacation in their Courts. M . B . A . Order accordingly.