2013 PLP 1118 (YLR)

CH. SHAHID SAEED, J.

Facts in brief are that the petitioners filed a suit for the recovery of dowry articles, dower, and fair maintenance allowance. Written statement was filed by the respondents. Issues were framed by the learned trial Court and the learned Judge Family Court, Liaqatpur vide judgment and decree dated 18-2-2010 decreed the suit of the plaintiff to the extent of dower one Begha agricultural land, five tolas gold and a house constructed over five marlas plot as mentioned in Columns Nos. 14 and 15 of the Nikahnama. In the said suit the petitioners claimed dowry articles valuing Rs.1,45,000 which was decreed to the extent of Rs.1,15,000 excluding the value of gold ornaments and the suit regarding maintenance allowance was also decreed, entitling the plaintiff No.1 to recover Rs.2,000 per month and Rs.1500 per month to the minor son from the date of institution of suit. The suit filed by the defendant for restitution of conjugal rights dismissed vide above mentioned judgment.

2. Two separate appeals were preferred and the learned appellate court vide consolidated judgment/decree dated 1-7-2010 modified the decree of trial court by reducing the amount of dowry articles from Rs.1,15,000 to Rs.85,000 and decree to the extent of dower was set aside by the appellate court on the ground that Nikahnama which was produced is not a public document and that has not been proved. Further the learned appellate court refused the maintenance allowance to the plaintiff from her husband however, the same to the extent of minor was maintained.

3. Learned counsel for the petitioners contends that Nikahnama is not a private document and it is not disputed that nikah was not solemnized. Argued that onus to prove issue No.4 was on the defendant that Entries Nos. 14 and 15 in the Nikahnama are fake and fabricated and those were entered afterwards in connivance with Nikah Khawan. Further denied that only Rs.1,000 was fixed as dower and the same was paid at the same moment at the time of marriage. Learned counsel argued that judgment and decree passed by the learned appellate court is against law and facts hence, not sustainable in law.

4. On the other hand, learned counsel for the respondents states that when the plaintiff did not produce affirmative evidence and even no witness of marriage was produced then there was no need to rebut the same as there was nothing for rebuttal and issue No.4 was not necessary to be proved and that the judgment passed by the learned appellate court is well reasoned based on evidence on record and the same should be maintained.

5. Heard. Record perused.

6. Perusal of the Nikahnama shows that the plaintiff has rightly claimed the dower as mentioned in Columns Nos. 14 and 15 of the Nikahnama. However, Column No. 13 which is meant for amount of dower is blank. It means that this argument of the learned counsel for the respondent that dower was fixed as Rs.1000 is totally unfounded and baseless because the entries made in the Columns Nos. 14 and 15 of the Nikahnama are mentioned specifically. The stance of the learned counsel for the respondents that some fabrication was made and Columns No. 14 and 15 were filled in after the solemnization of nikah that cannot be believed because no nikah can be performed without the dower. I have also observed the writing of Nikahnama which shows that the Columns Nos. 14 and 15 were filled in by one and the same person.

7. The next point raised by the learned counsel for the respondents that Nikahnama is not a public document is totally unfounded as held in case of "Wali Dad reported as 1999 CLC 163", that transfer of property in lieu of dower at the time of marriage by husband in favour of his wife was neither sale nor the same required any registered document for completion and entries in Nikahnama showing transfer of property in lieu of dower would be sufficient evidence of events and arrangements which had already been subscribed to by parties and the same being not sale did not require registration." In view of the above discussion there is no need to prove Nikahnama by producing the witnesses when nikah has already been admitted by the parties, therefore, this argument of the learned counsel having no force is repelled.

8. For the foregoing reasons, this writ petition is allowed to the extent of dower and the judgment of the learned appellate court declining the dower to the plaintiff is set aside. KMZ/N-80/L Order accordingly.