2008 PLP 1124 (YLR)

SARDAR MUHAMMAD NAWAZ KHAN, J.

This appeal arises out of the following facts: Mst. Shabnam Akhtar respondent herein brought 3 suits, 1 for recovery of her dower Rs.1,50,000, 2 for payment of price of her dowry Rs. 38,580 and 3 for maintenance allowance Rs.3,000 per month to her and her minor daughter in the Court of Judge Family Court. On the other hand, Shaukat Hayyat appellant herein filed a suit for restitution of conjugal rights in the same Court. All the suits by the respective parties were consolidated and tried together by the trial Court. After having done so, a consolidated judgment was pronounced through which the suits by the respondents were decreed to the extent of Rs.75,000 as dower, 14.35,000 as dowry and Rs.700 as maintenance allowance per month to each claimant. The appellant feeling aggrieved by the consolidated judgment recorded by the trial Court has filed this appeal challenging its validity. I have heard the learned counsel for the parties and the record has also been examined carefully. The learned counsel for the appellant assailed the judgment and decree by the learned trial Court on the following 2 grounds:- No.1. Under section 3 of "The Azad Jammu and Kashmir Dowry and Bridal Gifts (Restrictions) Act, 1976", no person shall give or accept or enter into an agreement to give or to accept dowry, Bridal Gifts or presents, of a value exceeding the aggregate value specified in subsection (1). Subsection (1) postulates that neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the presents given to the bridegroom shall exceed Rs.10,000 rupees. No.2. The trial Court has disallowed the suit for restitution of conjugal rights for no reasonable grounds especially so when there is no request for dissolution of marriage on the part of respondents. While replying the objections raised by the learned counsel for the appellant, the learned counsel representing the respondents submitted that the restrictions placed under "The Azad Jammu and Kashmir Dowry and Bridal Gifts (Restrictions) Act, 1976", have nothing to do with the recovery of amount of dowry and moreover, the marriage has been dis solved through a decree, dated 13-5-2005 which has attained finality. Even otherwise, according to the learned counsel, the respondent was living separately with a lawful cause because she was turned out of the house on account of maltreatment and from there-onwards the appellant failed to fulfil his marital obligations. In order to resolve the controversy raised in this case, it is felt expedient to reproduce the relevant provisions of "The Azad Jammu and Kashmir Dowry and Bridal Gifts (Restrictions) Act, 1976", (hereinafter to be referred as the Act). They are section 3 and section 10 of the said Act. Section 3 deals with restrictions on dowry, presents and bridal gifts whereas section 10 of the Act provides penalty and procedure. Section 3 of the Act reads as under:-- (3) Restriction on dowry, presents and bridal gifts.

(1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or' of the presents given to, the bridegroom shall exceed (1) (ten thousand) rupees. Explanation:--The ceiling of five thousand rupees specified in this subsection does not in any way imply that the dowry, bridal gifts and presents of a lesser amount may not be given. 2(1-A). No person shall give or accept, or enter into an agreement to give or to accept dowry, bridal gifts or presents of a value exceeding the aggregate value specified in subsection (1)). 3(2). No dowry, bridal gifts or presents may be given before six months or after one month of Nikah takes place some time after Nikah after one month of such Rukhsati. Section 10 - of the Act is as follows:-- (10) Penalty and procedure:

(1) Who-ever contravenes, or fails .to comply with, any provision of this Act or the rules made thereunder shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine (which shall not be less than the amount proved to have been spent in excess of the maximum limit laid down in this Act) or with both, and the dowry, bridal gifts or presents given or accepted in contravention of the provision of this act shall be forfeited to the Government to be utilized for the marriage of poor girls in such way as may be provided "by rules made under this Act: Provided that if both the parents of a party to the marriage contravene, or fail to comply with, any provision of this Act, or the rules made thereunder, action under this section shall be taken against the father: Provided further that if the, parent who contravenes, or fails to comply, with any provisions of this Act or the Rules made thereunder is a female, she shall be punishable with fine only. (2) Any offence punishable under this Act shall be triable only by a Magistrate first class. (3) No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by, or under the authority of, the Tehsil Qazi within 8 (three) months from the date of Nikah and if Rukhsati takes place some time after nikah from, the date of such Rukhsati. (4) While trying an offence punishable under this Act, Court shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of offences by Magistrates. After careful examination of the above stated sections of the Act, it becomes clear that a restriction has been placed upon giving and acceptance of dowry as available under subsection (2) of section (3) of the Act. According to subsection (2), no person shall give or accept or enter into an agreement to give or to accept dowry, bridal gifts or presents of a value exceeding the aggregate value specified in sub-section (1) of section

3. Subsection (1) provides the limit of dowry to be not more than 10 thousands. Section 10 of the Act postulates that whoever contravenes or fails to comply with any provision of this Act or the rules made thereunder shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine (which shall not be less than the amount proved to have been spent in excess or the maximum limit laid down in this Act) or with both, and the dowry, bridal gifts or presents given or accepted in contravention of the provision of this Act shall be forfeited to the Government to be utilized for the marriage of poor girls in such way 'as may be provided by rules made under this Act. This section further provides that in case of contravention by the parents of the spouses father shall be liable to the penalty provided .under the Act or in case of female she shall be punishable with fine only. It has also been provided in this section that the offences punishable under this Act shall be triable only by a Magistrate first class. No Court shall take cognizance of an offence punishable under .this Act except upon a complaint in writing made by, or under the authority of Tehsil Qazi within 3 months from the date of Nikah or from the date of Rukhsati. The procedure for trying such offence shall be the same as provided in Criminal Procedure Code. Here in this case, the learned trial Judge has allowed the suit for dowry to the extent of 35,

000. The question therefore, arises as to whether the law provided under the Act has anything to do with the case in hand. The answer is in negative. The reason being that section of the Act places restrictions on value of dowry etc. whereas section 10 of the Act provides a penal clause in case of contravention of any provision of this Act by the parents of spouses. If the parents of the spouses are found to have contravened any provision of the Act, a complaint in writing by or under the authority of Tehsil Qazi is required to be filed in the Court of Magistrate first class. The time limit provided for such complaint is 3 months from the date of Nikah or Rukhsati as the case may be. The Magistrate first class after having received such complaint may proceed against the person against whom the allegation for violation of any provision of the Act is levelled. After following the procedure laid down in Criminal Procedure Code, the Magistrate is competent to punish any parent and, after having done so, the dowry, bridal gifts or presents given or accepted in contravention of the provision of this Act shall be forfeited to the Government to be utilized for the marriage of poor girls in such a way as may be provided by rules made under this Act. This action, under law, is to be taken by the Court which is competent to try such offence and not otherwise. The question of forfeiture of dowry, bridal gifts or presents is also to be decided by the Court before whom the accused are facing charge against them. When no complaint has been made by the competent authority before competent forum neither any action has been taken, the question then arises who is entitled to receive the dowry proved to be in possession of the husband. It is the wife to whom the dowry was given and none else. Thus, Family Court was seized with jurisdiction to allow the suit for recovery of dowry. The evidence brought on record consists of the witnesses produced by the respondents only. The appellant despite sufficient time failed to produce any evidence in support of his claim in the Court. The respondent claims Rs.38,580 as amount of dowry whereas the learned trial Court allowed the suit to the extent- of Rs.35,000 only in view of evidence brought on record by the respondent. After careful examination of the Court-statements of the PWS, it transpires that they are unanimous on the point that the amount of dowry ranged from Rs.35,000 to Rs.40,

000. The trial Court did not allow more than Rs.35,

000. The respondent, as it appears from his written statement, did not specifically deny the fact of receiving the dowry articles. His claim is that the respondent is not entitled to the amount claimed by her because of used and damaged articles brought by her in the house of the appellant. It means that he admits to have received the dowry articles. As stated earlier, he produced no evidence therefore, even otherwise his claim cannot be considered because he failed to testify the same through any evidence. Thus, the objection No.1 raised by the learned counsel for the appellant is answered in the way that the dowry amount to the extent of Rs.35,000 has rightly been allowed by the trial Court and needs no interference by this Court. Reference may be had to 2004 YLR 1932. Coming to the second objection raised by- the learned counsel for the appellant, it may be observed that firstly the appellant, failed to substantiate his claim about the separate living of spouses. A wife can claim separate living for lawful excuse. Her claim is that she was meted-out with maltreatment and was compel to leave the house of her husband. She is living with her parents along with her minor daughter. The appellant failed to fulfil his marital obligations. This claim by the respondent is supported by the evidence whereas on the side of appellant there is no evidence to show that she was living separately without any lawful justification so that a decree for conjugal rights could be passed in favour of appellant. Secondly, the learned counsel for the respondent has placed a decree for dissolution of marriage, dated 13-5-2005 on record which goes un-rebutted by the other side. Thus, the second objection is also without merit and required no interference by this Court. With regard to decree for dower and maintenance allowance, the learned counsel for the appellant raised no objection thus, it needed no comments. The result therefore, is that the appeal having no force in it is hereby dismissed with costs. Appeal dismissed. S.A.K./25/SH.C.(AJ&K)