2017 PLP 16 (CLCN)

KHALID MAHMOOD MALIK, J.

By this single order, I propose to decide the Writ Petition No.2673/2014 and W.P No.899/2014, as these have been arisen out of consolidated judgments and decrees dated 30.05.2013 and 23.12.2013 passed by learned Judge Family Court Bahawalpur and learned Additional District Judge, Bahawalpur in a suit for recovery of maintenance allowance along with dower, dowry articles and personal articles filed by Mst. Arooj and others (herein after called petitioners) against Muhammad Sadiq (herein after called respondent) and second suit for restitution of conjugal rights filed by respondent against petitioner No.1.

2. Precisely necessary facts for disposal of these writ petitions are that petitioner Arooj Malik filed a suit for recovery of maintenance allowance for herself and her minor daughter Ayesha Bibi, petitioner No.2 along with dower, dowry articles and personal articles against respondent Muhammad Sadiq. The respondent also filed a suit for restitution of conjugal rights against petitioner No.1. Both suits were contested by parties through filing written statements. After observing legal formalities, learned Judge Family Court consolidated both the suits and framed six relevant issues out of pleadings of parties. After doing needful under the law, learned Judge Family Court vide consolidated judgment dated 30.05.2013, decreed the suit of petitioners for maintenance allowance by holding that petitioner No.2 is entitled to receive her maintenance allowance @ Rs.3000/- per month with increase @ 10% annually from the institution of suit till her marriage while to the extent of petitioner No.1, suit was dismissed. The suit of petitioner No.1 for recovery of dower was decreed and she was entitled to get house measuring 04 Marlas situated in Ansar Colony from defendant as mentioned in Nikah-nama Ex:P2, while to the extent of 03 tolas gold ornaments, suit was dismissed. The suit of petitioner for recovery of dowry articles was also dismissed while the suit for restitution of conjugal rights was decreed in favour of respondent and petitioner No.1 was directed to re-settle in house of defendant and performed her matrimonial obligations.

3. Being aggrieved from the impugned consolidated judgments and decrees, both parties have preferred appeals and learned Appellate Court partially accepted both appeals vide impugned consolidated judgment and decree dated 23.12.2013.

4. Arguments heard.

5. There is no need to give details of facts, issues and evidence of parties as which have already described by learned below Courts in their impugned judgments.

6. After having heard learned counsel for parties and survey of record, it reflects that learned Additional District Judge has reversed the findings of learned Judge Family Court upon issue No.2 mainly on the ground that in Nikah-nama (Ex:P2), dower is not specified as prompt dower or otherwise deferred dower. As per section 290(2) of Mohammedan Law, where, it is not settled at the time of marriage whether the dower is to be prompt or deferred, then according to Sunni Law, the rule is to regard part as prompt and part as deferred. In consequence, learned Appellate Court held that Mst. Arooj Malik, petitioner No.1 is entitled to get a constructed house comprising of 02 marlas instead of 04 marlas, situated in Ansar Colony as described in the suit. The petitioner No.1 would be entitled to get rest of 02 marlas of said house from Muhammad Sadiq, respondent as a dower in eventuality of divorce or otherwise on death of appellant Muhammad Sadiq. While deciding issue No.2, learned Appellate Court over-looked the relevant provision of section 10 of Muslim Family Laws Ordinance, 1961 which is necessary to reproduce as under:- "Where no details about the mode of payment of the dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand."

7. From the plain reading of section 10, of ibid Ordinance, it becomes clear that if the mode of payment of dower is not specified, the entire amount of dower shall be presumed to be payable on demand. Nikah-nama (Ex:P2) is admitted document. As per respondent's version he has paid dower amount in shape of cash amount to petitioner No.1, but respondent has failed to prove the same through cogent evidence. In light of above facts, I am of the view that learned Judge Family Court on appraisal of evidence rightly decided issue No.2, therefore, finding upon issue No.2 is upheld.

8. With regard to issue No.1, which relates to entitlement of maintenance allowance as claimed by petitioners from respondent. The learned Family Judge held that respondent being father of petitioner No.2 is bound to pay her maintenance allowance while petitioner No.1 being disobedient wife is not entitled to get her maintenance allowance from respondent. The maintenance allowance of petitioner No.2 was fixed @ Rs.3000/- per month with increase of 10% annually from institution of this suit till her marriage.

9. Admittedly, petitioner No.1 is legally wedded wife of respondent while petitioner No.2 is child born from marriage and she has an inherent right to be maintained by her father according to his financial status. The Appellate Court after examining evidence considered the case of parties from different angle and came to conclusion that keeping in view of rising prices and inflation in vernacular currency 15% annually added instead of 10% per annum in the maintenance allowance of minor petitioner and keeping in view the findings as above cited, respondent has not paid the dower to petitioner No.1, therefore, she is also entitled to get maintenance allowance from respondent till subsistence of marriage. However on payment of prompt dower she would be entitled for the maintenance allowance subject to performance of matrimonial obligations on her part from him. Petitioner No.1 being legally wedded wife of respondent is entitled for maintenance allowance. In these days and age of rampant inflation and rising prices, maintenance allowance of Rs.3000/- with increase of 15% per annum for each petitioner is quite reasonable and there is no legal infirmity and jurisdictional error in the finding of learned Appellate Court. 13(sic.) The claim of dowry articles of petitioner No.1 was turned down by learned Judge Family Court with observation that petitioner has failed to prove the receipts of dowry articles through a person who issued the receipts.

14. It is a settled principle of law that purpose of enacting the special law regarding family disputes is to advance justice and to avoid technicalities, which are hindrance in providing ultimate justice to the parties. The West Pakistan Family Courts Act, 1964 was promulgated for the expeditious settlement and disposal of disputes relating to the marriages and other family affairs and special procedure was provided to achieve this object. The purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between parties in shortest possible time. The provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat Order, 1984 are not applicable in stricto sensu to the proceedings before the Family Court by virtue of section 17 of the Family Courts Act, 1964. Family Court has to regulate its own proceedings in accordance with the provisions of the Act, 1964 as the evidence adduced before the Family Court cannot be evaluated and appraised in the manner as it is appreciated in the cases presented under Civil Procedure Code, 1908. A mere fact that a party did not finally prove the receipts of dowry articles in evidence have no legal consequence. Reliance is placed on case law reported as "Mst. Shakeela Bibi v. Muhammad Israr and others" (2012 MLD 756).

15. It appears from record that it was arranged marriage between the parties. According to custom which are deeply rooted in our society, parents either rich or poor always give dowry articles to their daughters at the time of marriage as per their status and sometimes above their status. In this case, the list of dowry articles was annexed with plaint right from the institution of the suit and was exhibited as Ex:P1 by Family Court without objection.

16. As far as value of dowry articles is concerned, it is always difficult to determine with any degree of precision what was actually given to bride at the time of her marriage. The learned Appellate Court reversed the findings of Judge Family Court by cogent reasons which do not suffer from any illegality or irregularity or jurisdictional error. The findings and observations of learned below Courts on issues Nos.4 and 6 with regard to decree for recovery of personal articles of petitioner and decree for restitution of conjugal rights are in accordance with law and facts, need not to interfere in writ jurisdiction. There is no merits in both petitions, and dismissed accordingly. ZC/A-7/L Petitions dismissed.