2010 PLP 1626 (YLR)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this constitutional petition, the petitioner Muhammad Sharif son of Abdul Rashid challenged the legality of the judgments and decrees of both the Courts below dated 31-3-2009 passed by learned Judge Family Court, Muzaffargarh and second judgment and decree dated 16-7-2009 passed by the learned Additional District Judge, Muzaffargarh in appeal filed by the petitioner against the judgment and decree of the learned Judge Family Court.

2. Precise facts of the instant petition are that respondent No.3 plaintiff filed a suit against the petitioner/respondent for the recovery of maintenance allowance, dowry contending that her marriage was solemnized with the petitioner/defendant on 29-2-2007 according to Islamic rights. She joined the petitioner/defendant and performed marital obligations and at the time of marriage three Tolas gold ornaments and eight Kanals property was fixed as dower. She further alleged that the petitioner/defendant ousted her out from his house whereafter the petitioner/defendant neither paid her the dower nor the maintenance allowance. She claimed Rs.5000 p.m. as maintenance allowance. The learned Judge Family Court vide judgment and decree dated 31-3-2009 awarded maintenance allowance at the rate of Rs.1000 p.m. from the date of institution of suit and also decreed the claim of the respondent for dower. The petitioner filed an appeal before the learned District Judge, Muzaffargarh against the judgment and decree dated 31-3-2009. The learned Additional District Judge, Muzaffargarh vide judgment and decree dated 16-7-2009 up held the judgment and decree of the learned Judge Family Court to the extent of land measuring 8 Kanals and set aside the findings qua the price.

3. Learned counsel contended that the `Rukhsti' never took place. No consummation took place. The petitioner is abroad. Learned counsel for the petitioner submitted that petitioner is ready to pay half of the dower amount decreed by the learned trial Court as consummation did not take place between the spouses. The respondent is entitled half of the dower fixed in the Nikah according to verse of the Holy Quran and Sunnah. Learned counsel further submitted that in the Nikahnama age of respondent No.3 is mentioned 16 years at the time of marriage. She was minor and did not join the petitioner not entitled to any dower; that the learned trial Court on the ground that Nikahnama is not disputed accepted the entry made in Column No.15 on the basis of which suit for dower was decreed when the learned trial Court should have believe the entry about the age of the respondent also. Further contends that no sufficient material was available on record to decree the suit of respondent No.3 for dower.

4. In the written statement the petitioner/defendant admitted his marriage with the respondent/plaintiff. He contended that at the time of Nikah fixed dower in shape of gold ornaments to respondent / defendant and Rukhsati is yet to be effected. Lastly he prayed that the suits of the respondent/plaintiff are liable to be dismissed with compensatory costs. The suits were consolidated on 9-9-2008. After failure of pre-trial reconciliation between the parties following consolidated issues were framed by the learned Judge Family Court. Issues. (1) Whether the plaintiff is entitled to recover the maintenance allowance from the defendant? If so, at what rate and for what period? OPP (2) Whether the plaintiff is entitled to recover dower fully detailed in the head note of plaint? OPP (3) Whether defendant is entitled to get a decree for restitution of conjugal rights as prayed for? OPD. (4) Relief. Both the parties led evidence in support of their respective contentions. In evidence of the plaintiff, Mst. Farzana Bibi plaintiff herself appeared as P.W. 1 and she also produced Muhammad Rafique, Khuda Bakhsh and Mushtaq Ahmed as P.W.2, P.W.3 and P.W.4, who furnished their affidavits as Exh. P-1, Exh.P-2 and Exh.P-3 respectively. Learned counsel for the plaintiffs produced attested copy of Mutation No.3876 as Exh.P-5 and closed the plaintiff evidence. The petitioner/ defendant appeared as DW-1 whereas Muhammad Nazir appeared as DW-2. On the other hand respondent/plaintiff appeared in the witness box as P.W. 1 and produced list of dowry articles Exh.P-1 and closed her evidence. In evidence of the defendant, Muhammad Hanif defendant's brother appeared as DW-1 and he also produced Rasheed Ahmed ad DW.2, who furnished his affidavit as Exh.D-2. Learned counsel for the defendant closed his evidence on 2-3-2009.

5. The judgments of the two Courts below are based on cogent reasons, on correct appraisal of evidence the learned Judge Family Court has discussed the evidence of both the parties at length and has given findings on each and every issues. The learned Additional District Judge rightly upheld the findings of the learned Judge Family Court in his judgment dated 16-7-2009. The learned counsel for the petitioner badly failed to point out any jurisdictional error in the findings of the two Courts below. There are concurrent findings against the petitioner which cannot be disturbed sitting in writ jurisdiction as the appraisal of evidence is not permissible unless some misreading and non-reading of evidence is pointed out in the judgments passed by the two courts below. The writ petition having no merit is dismissed with no order as to costs. M.U.Y./M-137/L Petition dismissed.