2010 PLP 585 (MLD)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this writ petition, petitioner has assailed the judgment and decree, dated 6-3-2009 passed by the learned Additional District Judge, Muzaffargarh and the judgment and decree, dated 21-7-2008 passed by the learned Judge Family Court, Muzaffargarh whereby suit of the plaintiff of recovery of dower is decreed in favour of the plaintiff and against the defendant to the extent of ten tolas gold ornaments, house with three rooms, situated in Mouza Qasba Qala worth Rs.3,00,000 (three lac) and all the gratuity of the defendant. Suit of the plaintiff for recovery of maintenance allowance was decreed in favour of the plaintiff and against the defendant at the rate of Rs.2000 per month since institution of the suit till her legal entitlement. Suit of the plaintiff for recovery of dowry articles is hereby dismissed. Suit of the defendant for jactitation of marriage is dismissed.

2. Brief facts of the case are that Sayyeda Robina Shahab Naqvi was married with respondent No.1 on 4-10-2005 in accordance with Islamic Sharia. In the beginning the relations between the spouses remained cordial, later on, relations became strained. As consequent allegedly petitioner was expelled by her husband from his house. She filed composite suit claiming therein dower, maintenance allowance and dowry articles while husband respondent No.1 filed suit for jactitation of marriage against the petitioner. Learned Judge Family Court framed following consolidated issues:-- (1) Whether the plaintiff is legally wedded wife of the defendant Syed Safdar Hussain Shah? OPP (2) Whether the plaintiff is entitled to recover her dower, maintenance allowance and dowry articles as fully detailed in the head-note of the plaint subject to answering of issue No.2 supra in affective? OPP. (3) Whether the defendant is entitled to get a decree for jactitation of marriage as prayed for? OPD (4) Relief. In order to prove her case, plaintiff herself appeared as P.W.4. and examined, Azhar Abbas son of Allah Bukhsh, Secretary Union Council as P.W.1, Riaz Hussain son of Muhammad Khan Nikah Khawan as P.W.2, Syed Mahar Hussain son of Mureed Hussain as P.W.3 and tender Nikah Nama as Exh.P.1.

3. Recorded evidence of petitioner/plaintiff and respondent/ defendant where after petitioner's consolidated suit was decreed vide judgment and decree, dated 21-7-2008 while suit filed by the respondent/ defendant for jactitation of marriage was dismissed.

4. Respondent/defendant filed an appeal before the District Judge, Muzaffargarh, assailing judgment and decree, dated 21-7-2008 passed by the learned Judge Family Court, Muzaffargarh. Learned Additional Sessions Judge, Muzaffargarh allowed appeal vide judgment, dated 6-3-2009.

5. Learned counsel for the petitioner contends that judgment and decree of learned trial Court is based on convincing and cogent reasons while judgment of the learned lower appellate Court is based on misreading and non-reading of evidence; learned lower appellate Court has committed material illegality decreeing the suit of the respondent for jactitation of marriage while the lower appellate Court illegally dismissed the suit of the plaintiff/petitioner for dower, dowry articles and maintenance.

6. I have heard the learned counsel for the parties and perused the record.

7. The evidence brought on record by the petitioner/plaintiff is full of material contradictions and discrepancies in the statement of P.Ws. regarding venue where Nikah ceremony was solemnized, participants of marriage ceremony and other material facts; it is hard fact that actual Nikah Registrar was Nadeem Shah, who was not present at the time of marriage ceremony this facts casts doubt about the truthfulness of respondent's version. One Mazhar Hussain acted role as Nikah Registrar, who had no authority to do so. Mazhar Hussain had admitted in his statement that he is not fully confident about the fact that all the four pert of Nikah were filled up in his presence or not. He further stated that only 15/20 persons participated in Nikah Ceremony and he also admitted that all the conditions of dower were settled by Zulifqar brother of Mst. Robina. He while answering a question stated as follows: -- P. W.3. made divergent statement to that of P.W.2. and he categorically stated as under:-- He further stated as follows:-- All these portion of testimonies stated above clearly speaks that no terms and conditions regarding fixation of dower were settled between the parties at the time of Nikah. Mst. Robina was not able to tell the particulars of family members of her husband. She stated that Nikah ceremony was solemnized of about 3 p.m. noon time, whereas, P.W.2 stated that he recited the Nikah of spouses after Maghreb prayer. It is also pertinent to mention here that groom totally denied the execution of Nikah Nama tendered by bride but the counsel of respondent during the proceeding of said suit never asked the Court to take specimen/sample of signature of appellant for its comparison from Finger Print Expert in order to show its truthfulness. These all facts cast doubt about the credibility of petitioner/plaintiff's version. The plaintiff/petitioner badly failed to prove the valid execution of Nikah of spouses as alleged by her. However, Nikah Khawan did not deliver the copy of Nikah to respondent/defendant, which was the requirement of law, which also cast doubt about the credibility of Nikah proceedings. Nikah Nama Ex.P1 reveals that Syed Mazhar Hussain Shah and Sajjad Hussain were cited as witness of Nikah but only Syed Mazhar Hussain appeared as scriber of Nikah Nama while second witness was not appeared in the witness box. It is my considered view that the appraisal of evidence made by the learned lower appellate Court is more convincing and believable as compared to the appraisal of evidence recorded by the learned trial Court. Learned lower appellate Court rightly decreed the suit of the respondent/plaintiff for jactitation of marriage and rightly dismissed the suit of the petitioner/plaintiff for dower, dowry articles and maintenance allowance as she badly failed to prove valid Nikah with the respondent/defendant.

8. Resultantly, this writ petition having no force is hereby dismissed. M.H./R-2/L Petition dismissed.