2022 PLP 1929 (MLD)

QAISER RASHID KHAN, CJ.

The petitioner, through the instant writ petition, has called in question the judgments and decrees dated 28.02.2018 and 30.01.2019 of the learned Judge, Family Court, Charsadda and the learned Additional District Judge-II, Charsadda respectively, whereby she has been concurrently non-suited.

2. Brief but relevant facts of the case are that the petitioner-plaintiff namely, Shaheen Bibi filed a family suit before the learned Judge, Family Court, Charsadda against her in-laws i.e. the respondents-defendants, for the recovery of dower in the shape of three tolas gold ornaments and share in house at Wazir Bagh road new Kakshal Street No.1, Peshawar or its market value. The suit was contested by the respondents-defendants by filing their written statement. After framing of proper issues and recording pro and contra evidence, the suit of the petitioner-plaintiff was dismissed by the learned trial court vide judgment and decree dated 28.02.2018 and the appeal preferred thereagainst also met the same fate vide judgment and decree dated 30.01.2019 of the learned Additional District Judge-II, Charsadda. Hence, the present petition by the petitioner.

3. The gist of the arguments of the learned counsel for the petitioner-plaintiff is that the learned fora below have failed to appreciate the material available on record in its true perspective and while handing down the impugned findings, only minor discrepancies have been taken into account, which is a sheer example of misreading and non-reading of evidence, hence, liable to be interfered with.

4. The main thrust of the arguments of the learned counsel for the respondents-defendants is that not only the alleged Nikah Nama is bogus and fabricated one but the suit of the petitioner was hopelessly time barred being hit by section 292 of the Muhammadan Law read with Article 103 of the Limitation Act, 1908, which fact has rightly been taken into consideration by the learned courts below while non-suiting the petitioner.

5. Arguments heard and the available record perused.

6. The record depicts that the petitioner-plaintiff, in order to substantiate her claim, produced as many as four witnesses i.e. Haji Habib Khan, Nikah Registrar as PW-1, Habib-ur-Rahim, Nikah Khawan as PW-2, Saeed Ullah Khan, witness of the Nikah as PW-3 while petitioner herself appeared as PW-4. In rebuttal, the respondents-defendants produced as many as three witnesses i.e. Muhammad Shah, witness of the Nikah as DW-1, Naveed, a neighbour of the respondents as DW-2 while Jehanzaib-respondent No.1 for himself as well as rest of the respondents-defendants appeared as DW-3.

7. It is evident from the record that the first marriage of the petitioner-plaintiff was solemnized with Samin Gul on 24.10.2002 and out of the wedlock, two children were born. Despite dissolution of marriage through the death of Samin Gul on 02.08.2006, still the petitioner opted to live along with her children with her in-laws and stayed there for about four years i.e. 2010. Thereafter, she contracted a second marriage with one Khan Wali. As against staying / living at her husband's house or for that matter with her in-laws from 2002 to 2010, the petitioner filed her family suit on 08.10.2016. Neither during the lifetime of her first husband till 2006 nor after his death till 2010 during her stay with her in-laws, she voiced her grievance before any forum. The limitation for filing suit for the recovery of prompt dower is three years as per section 292 of the Muhammadan law from the date when the same is demanded and refused. In case of no such demand during continuance of the marriage till its dissolution either by death or divorce, is made, then Article 103 of the Limitation Act, 1908 would come into play, which also provides for three years limitation time. The petitioner claims that after being denied her right by the respondents, she opted to file the family suit. However, the record is completely silent with regard to such claim whether it was refused to her after the death of her husband in the year, 2006 or during her stay at her in-laws house till 2010 or thereafter. When the case of the petitioner is seen on the touchstone of the aforesaid provisions of law, her suit is hopelessly barred by time.

8. Now coming to the evidence of the petitioner. Whereas the claim of the petitioner is that her dower is in the illegal possession of the respondents-defendants, the latter have categorically denied such assertion and by questioning the veracity / authenticity of the alleged Nikah Nama Exh.PW-1/1, they have rather alleged that dower was fixed only in the shape of gold ornaments, which had already been paid to the petitioner and nothing is outstanding against them.

9. Even otherwise, the liability of the first husband of the petitioner regarding the payment of dower, if at all it was there, cannot be shifted to the shoulders of his brothers. The petitioner has failed to prove that the respondents stood surety or accepted the responsibility for the payment of the alleged dower by them upon the death of her first husband. The petitioner has also failed to prove that the house in question was the legacy of deceased Samin Gul so that his brothers, after his death, could be made liable for the same. Similarly, she failed to establish that the suit house was the ownership of deceased Samin Gul and the same was transferred to her by way of dower and forcibly retained by the respondents-defendants in their possession. During the course of arguments, the learned counsel for the respondents vehemently argued that the original owner of the suit house was the father of the respondents, who died after the death of deceased Samin Gul. That being the position, the petitioner cannot claim her inheritance from her first husband Samin Gul.

10. Another important aspect of the case is that, the alleged Nikah Nama, Exh. PW-1/1 reveals the date of marriage as 24.10.2002 while date of registration of the marriage is 21.10.2002. However, the Nikah Registrar while appearing as PW-1 stated in his examination-in-chief that he had registered the Nikah Nama on 31.10.2002. Moreover, he did not know when and where the Nikah Nama was scribed. During the course of arguments, when the learned counsel for the petitioner has been confronted with such glaring contradictions, all he could answer was that it was due to slip of tongue or for that matter typographical mistake. Such explanation leaves much to be desired. If at all there was indeed any typographical mistake, the petitioner could have safely moved an application for the correction of the same before the learned trial court but she failed to do so. As such she could not shift her burden to the shoulder of others. Though the petitioner while appearing as PW-4 asserted in her cross-examination that she herself handed over the gold ornaments to one Nizakat, the respondent No.6 (wife of her brother-in-law Jehanzaib) at the time of the marriage of respondent No.5 namely, Zafeer Gul but at the same time, she admitted that she had neither any proof in this regard nor she had lodged any report. The petitioner could thus at best have filed a recovery suit against the respondent No.6, if at all the latter was denying to return the gold ornaments to her. However, no family suit lies against the respondents having no concern with the alleged dower of the petitioner. Above apart, the petitioner opted to withhold the best evidence by not producing her brother Alamzaib, who happened to be the witness of the alleged Nikah ceremony as per Nikah Nama (Exh.PW-1 /1). Being so, both the learned courts below while non-suiting the petitioner through the impugned findings have committed no misreading or non-reading of evidence or for that matter jurisdictional error so as to in turn call for the interference of this court.

11. Such being the position, this writ petition being without any merit and substance stands dismissed with no order as to costs. MH/238/P Petition dismissed.