1996 PLP 1622 (CLC)

S. Khurshid Ali for Petitioner. Qamar Zaman Tangi for Respondents.' . Date of hearing: 1st November, 1995. The facts giving rise to this writ petition may be highlighted at the outset. On 9‑9‑1992 a suit was filed by the petitioner Mst. Nihar Begum for recovery of dower amounting to Rs.10,000, golden ornaments weighing 4 tolas or price thereof to the tune of Rs.18,000 and past maintenance for a period of four months at the rate of Rs.600 per month and future maintenance allowance at the same rate from the date of institution of the suit onwards. The suit was prompted by the second marriage of the respondent without the petitioner's consent. The respondent admitted the factum of second marriage but contested the suit on the pleas that a sum of Rs.49 was fixed as the petitioner's dower which had been dully paid and that he had divorced the petitioner on 28‑5‑1992. The learned trial Court on coming to the conclusion that the divorce having not been pronounced in accordance with the procedure laid down by section 7 of the Muslim Family Laws Ordinance, 1961 was invalid, the petitioner was well within her right to recover dower amounting to Rs.10,000 and claim maintenance allowance at the rate of Rs.600 per month and the claim of recovery of golden ornaments was beyond the jurisdiction of the Family Court decreed the suit accordingly on 10‑5‑1994. The appeal filed by the respondent was partially accepted by the learned Additional District Judge, Mardan on 8‑11‑1994 and while the decree in respect of dower was set aside on the ground that the dower had been paid in the shape of golden ornaments the maintenance allowance was reduced to three months for the divorce set up by the respondent had become effective in view of the assail made in 1992 SCMR 1273 and 1994 SCMR 2095. Feeling aggrieved the petitioner has questioned the validity of the said judgment and decree through this writ petition. 2. The learned counsel of the petitioner did not assail the findings of the learned Appellate Court in regard to the dissolution of marriage of the parties on account of the second marriage of the petitioner. However, he vehemently, argued that the impugned judgment vis‑a‑vis the dower being the outcome of misreading of the evidence and, the written statement was without lawful authority and of no legal effect and the decree of the trial Court in respect thereof deserved restoration. Elucidating the argument he stated that in his written statement the respondent had taken the stance that a sum of Rs.49 was fixed as the petitioner's dower which had been paid but at the trial while tacitly admitting the amount of dower to be Rs.10,000 he had not stated that it had been paid in the shape of golden ornaments but had sought its adjustment from the golden ornaments allegedly given by hire to the petitioner at the time of Nikah. 3. The learned counsel for the respondent on the other hand contended that the value of the ornaments given by the respondent to the value of ornaments given by the respondent to the petitioner on the eve of their Nikah was more than Rs.10,000 therefore, it had been rightly held by the learned Appellate Court that the dower had been paid in the shape of golden ornaments. 4. After giving the arguments addressed at the Bar our anxious consideration, we have come to the conclusion that the impugned judgment and decree qua the dower is not sustainable for reasons that are not far to seek. The written statement of the respondent makes it manifest that the plea taken by him in respect of the dower was that a sum of Rs.49 had been fixed as the petitioner's dower which was paid. However, while recording his statement on the one hand and pleading adjustment of the golden ornaments against the dower on the other. Be that as it may, it is now here mentioned in his statement that he had given golden ornaments to the petitioner in lieu of her dower, .therefore, there is no escape from the conclusion that the evidence was misread by the learned Appellate Court. Besides, the learned Appellate Court has exercised its jurisdiction arbitrarily by holding that it was the case of the defendant that the dower was paid in the shape of golden ornaments, therefore, a case for interference is made out. For the foregoing reasons this writ petition is accepted. The impugned judgment and decree qua the recovery of dower being. without lawful authority and of no legal effect is set aside and the .judgment and decree of the trial Court in respect thereof is restored. Parties to bear their own costs. H. B.T./1969/P Petition accepted.