2017 PLP 1677 (MLD)

AZHAR SALEEM BABAR, J.

The above captioned appeals have been filed to call in question the validity of judgment and decree passed by learned Senior Civil Judge/Judge Family Court Muzaffarabad dated 22.09.2015.

2. Precise facts of the cases are that Syed Shoukat Gillani contracted Nikah with Mst. Ansar Gillani in accordance with Sharia on 27.11.2002 in lieu of dower worth Rs.1,25,000/-. Out of this wedlock, three children were born. Meanwhile, relationship between the spouses got strained due to which they were constrained to live apart. Resultantly, Mst. Ansar Gillani filed suit for dissolution of marriage, maintenance allowance for herself and children, articles of dowry and custody of minor children in the Court of Senior Civil Judge/Judge Family Court Muzaffarabad on 12.11.2013, whereas Syed Shoukat Gillani also filed his suit for restitution of conjugal rights in the same Court on 04.06.2014. Learned trial Court, after due process of law, decreed the suit for dissolution of marriage in favour of Mst. Ansar Gillani on the basis of khula and her suit for recovery of dowry was also decreed whereas her suit for maintenance allowance and application for guardianship of minors was dismissed for want of proof and being without merit. The suit filed by Syed Shoukat Gillani for conjugal rights was also dismissed for being infructuous. Hence, the instant appeals.

3. I have heard learned counsel' for the parties and perused the available record. Syed Shoukat Gillani, appellant, has challenged the impugned judgment and decree to the extent of dissolution of marriage on the basis of khula whereas Mst. Ansar Gillani has filed an appeal for her appointment as guardian of the minors.

4. It is the contention of Shoukat Gillani, appellant, that the Court below has not appreciated the evidence in its true perspective. It has been argued that the appellant/plaintiff proved the fact that he paid Rs.1,25,000/- in lieu of rooms of the house along with a kitchen in the shape of 8-1/2 tolas of gold ornaments but the Court below has wrongly concluded that payment of 8-1/2 tolas of gold ornaments has not been proved by the appellant/plaintiff. It has further been stressed that in case of decree for dissolution of marriage on the basis of khula, the appellant is entitled to 8-1/2 tolas of gold ornaments. Learned counsel for the appellant has emphasized that a decree for dissolution of marriage on the basis of khula has been issued in violation of the established law on the point.

5. In relation to payment of dower we have to rely on the deed of Nikah which is part of file of the trial Court as Ex. "PA". It transpires that amount of dower fixed between the spouses was Rs.1,25,000/-. It was promptly paid in shape of house. The prompt dower has been entered in the deed of Nikah as ( ) in the column of muajjal, whereas the column of ghair muajjal has been crossed. In presence of documentary evidence, no oral evidence can be given priority. It may be mentioned here that dower can either be prompt or deferred. A prompt dower is either paid at the time of Nikah or is payable at the demand of wife whereas deferred dower is payable when the marriage is dissolved between the spouses because of divorce or death of the husband. The deed of Nikah does not find mention of 8-1/2 tolas of gold ornaments and it is admitted fact that house fixed as prompt dower was never transferred in the name of Mst. Ansar Gillani, the wife. So far as payment of 8-1/2 tolas of gold ornaments is concerned, it does not stand proved from the evidence led by Syed Shoukat Gillani. Shoukat Gillani even could not produce a receipt of purchase of gold ornaments and could not disclose the name of the shop wherefrom the jewellery was purchased. Sher Muhammad, appearing as witness on behalf of Shoukat Gillani has stated that 8-1/2 tolas of gold jewellery was given to the respondent in lieu of dower because plot fixed in dower was not in the name of the appellant, but he did not depose that when the gold ornaments were given to the respondent and even date and time of such payment has not been mentioned by him. Ashiq Gillani as witness on behalf of the appellant has stated that dower between the parties was fixed as Rs.1,25,000/- which was paid in the shape of 8-1/2 tolas of gold ornaments. He has not even mentioned that some plot or house was fixed as dower. Shoukat Gillani, appellant, also appeared as witness before the Court below and stated that dower in the amount of Rs.1,25,000/- was fixed which was paid in shape of two rooms, kitchen and bathroom. He further stated that the house was not in his name so he gave 8-1/2 tolas gold ornaments in lieu of the house and alienated the house in the name of respondent thereafter. Shoukat Gillani further stated that Mst. Ansar Gillani took compensation of the house in question. So, according to Shoukat Gillani, he paid all the dower in the shape of house consisting of two rooms and a kitchen/bathroom and after that gave 8-1/2 tolas of gold jewellery to respondent as well. This fact has not been verified by any of the other witnesses appearing on his behalf. So the Court below has rightly concluded that payment of 8-1/2 tolas of gold jewellery could not be proved by Shoukat Gillani, appellant/plaintiff. As mentioned earlier documentary evidence has a priority over the oral evidence according to Qanun-e-Shahadat Order and we have to rely on the entries of deed of Nikah regarding the payment of dower. Shoukat Gillani, the appellant/plaintiff could not bring on record any document to establish that he alienated the house to Mst. Ansar Gillani as dower. In such circumstances, it can be safely concluded that house fixed as dower between the parties was not alienated/paid to the respondent/wife.

6. Now, the question comes that whether a decree on the basis of khula could be issued? A perusal of statement of Mst. Ansar Gillani as witness before the trial Court shows that dispute between the spouses arose when respondent, Mst. Ansar Gillani, demanded maintenance allowance from the plaintiff. It has been stated by Mst. Ansar Gillani that her husband was not working hand and never paid maintenance to her or children. It has further been stated that her husband very often received phone calls from girls and when she inquired about that, the husband abused her. It has also been deposed by Mst. Ansar Gillani that her husband used to come home late and did not return home most of the times. She categorically stated that her husband came home late on 24.08.2012 and she viewed messages on his cell phone. When she inquired about that, he quarreled with her and directed her to leave his house. She was compelled to leave the house and spent a night at Domail. She proceeded to Golra Sharif Darbar and thereafter approached Deputy Commissioner Islamabad for a siege in Dar-ul-Aman. Shoukat Gillani accused her of fleeing away with some of her paramour and lodged an FIR against her. She has deposed in her statement that she is not ready to live with Shoukat Gillani at any cost. This statement has been repeated during cross examination when she deposed as under:--

7. The concept of marriage in Islamic Fiqh is to commence a marital life within the limits ordained by Allah. Obviously, it requires mutual trust and understanding between the spouses. If a partner has lost trust in her counterpart, spouses cannot live within the limits fixed by Sharia. Relationship between the parties got strained because of different reasons and ultimately resulted into an FIR lodged by Shoukat Gillani against his wife. Shoukat Gillani lodged FIR No.124/212 with Police Station City Muzaffarabad on 01.09.2012 wherein he accused Basharat S/o Ashiq Shah and others for having abducted Mst. Ansar Gillani for the purpose of Zina and re-marriage. He further accused his wife of stealing Rs.2,00,000/- in cash and ornaments worth Rs.2,50,000/-. This FIR was later on withdrawn by Shoukat Gillani. Strained relationship between spouses reached at climax when the husband lodged an FIR against his wife. So, in my view there was no chance of rehabilitation between the parties as spouses after such a grave incident. It is wroth mentioning here that initially Mst. Ansar Gillani filed her suit for dissolution of marriage on the basis of non-payment of maintenance and cruelty etc but later on laid her claim before the Court for dissolution of marriage on the basis of khula. The Court below was left with no option but to dissolve the marriage on the basis of khula in the circumstances of the case. Learned counsel for Mst. Ansar Gillani, respondent, has referred to PLD 2007 SC (AJK) 56, wherein it has been laid down that "where it was apprehended that spouses could not keep themselves together within the limits ordained by God, then the marriage had to be dissolved after directing the wife who claimed dissolution of marriage to return the benefit whatever she had derived from the husband". In such a situation, decree for dissolution of marriage on the basis of khula has rightly been issued by the Court below. It needs not to reiterate that dower in shape of house was never handed over to Mst. Ansar Gillani, so, it has rightly been concluded by the Court below that Mst. Ansar Gillani is entitled to dissolution of marriage on the basis of khula in lieu of the house fixed as dower.

8. Mst. Ansar Gillani has challenged the impugned judgment and decree whereby application for guardianship of minor children has been refused. If the oral and documentary evidence on record is examined in view of this dispute, the facts arising out of the pleadings are that marriage between the parties was contracted on 27.11.2002. Out of the wedlock, as many as three children were born, out of whom two are minor daughters and a minor son. Mst. Ansar Gillani is an educated lady who is serving as a primary teachress in Govt. School. She is a graduate whereas Shoukat Gillani is hardly middle pass. Obviously, Mst. Ansar Gillani is a better educated lady. Learned counsel for Mst. Ansar Gillani has filed some documents which show that all the minor children are under education in Al Habib Science College Muzaffarabad. Learned Counsel has provided copies of result sheets of the minor children which show that the minor children had a better performance in school when they were living with their mother. The documents show that Hub-e-Ali, the minor son, has decreased his performance down to 62% in Class I whereas Adeen Gillani and Anish Gillani daughters could secure 53% and 52% marks respectively in the recent examination. Another certificate issued by principal Al Habib Science College Muzaffarabad shows that monthly fee for Hub-e-Ali minor son is Rs. 600/- whereas Adeen Gillani minor daughter is being charged Rs.1000/- and Anish Gillani Rs.1200/- as monthly fee. Previous result cards show that Adeen Gillani, minor daughter, obtained 87% marks in Class II and 80% in Class I. Likewise, Hub-e-Ali obtained 95% marks in Nursery Class and 81% in prep class. These documents are sufficient to establish that the minors were better performing under the supervision of their mother. A mother is natural guardian of minor children and has to be given preference between the parents. Learned counsel for Mst. Ansar Gillani, appellant, has referred to 2008 CLC 1146 Karachi, which concludes as under:-- "Mother is also the natural guardian of minor. Regarding custody of the minor, the paramount consideration for the Court is the welfare of the minor. The mother, who has also been given right of Hizanat under the provisions of Guardians and Wards Act, 1890, is considered the best guardian of her children in comparison to the father of the children, because the mother can keep the minors with all love and affection and maintain them nicely and properly and for said purpose even emotional attachment of the minors towards the father can be ignored by the Court. For the purpose of awarding custody of the minor, the Court is also not required to go into technicalities of law and welfare of the minor is to be kept in mind by the Court." In a case reported as 2010 MLD 1313 Lahore, mother was an educated lady and father had married thrice whereas the mother had not remarried. It was concluded that welfare of the minor children lies with the guardianship of mother. In another case 2010 CLC 1281 Lahore the father contended that custody of minor was given to him at the time of divorce as a result of an agreement executed by her own choice. Mother contended that father had contracted second marriage, therefore, grant of custody of minors to him was tantamount to leave the minors to the mercy of step-mother. Lahore High Court concluded that father had contracted second marriage while mother had not done so, therefore, she was devoting all the attention and affection to the upbringing of the minors who could not be left to the mercy of step-mother. Overriding and paramount consideration of handing over the interim custody of minor was the welfare of the minor. 2008 CLC 654 Karachi is a case wherein it was held that consent of minors to reside with father, was of not much significance while determining the fact of their welfare, consent of minor was only to be considered, if the minor was old enough to form his preference, but in the present case age of minor girls was not more than 10 years whereas minor boy was not more than 8 years so both were not old enough so as to give any preference to their consent. In the instant case, minor son Hub-e-Ali is hardly 5 years old whereas the minor daughters are 12 and 9 years of age. It is an admitted fact that father of the minors has remarried whereas Mst. Ansar Gillani/ mother has not done so. In these circumstances, minor children cannot be left to the mercy of step mother, particularly in the absence of their real mother. In view of cited judgments, consent of minors is not to be given much significance because they are not old enough to make a better preference for their welfare. It needs not to reiterate that prime consideration in the guardianship cases, is welfare of the minors. Circumstances of the case in the light of documentary and oral evidence draw a clear picture that welfare of the minors lies with the guardianship of their mother.

8. As a result of above discussion, judgment of the Court below regarding guardianship of the minor children cannot be maintained. Mst. Ansar Gillani, mother, is entitled to guardianship of minor children. However the minor son Hub-e-Ali shall remain under guardianship of his mother until he attains the age of 7 years and minor daughters shall remain in the guardianship of Mst. Ansar Gillani until they are married. After deciding the matter of guardianship, it looks necessary to ascertain monthly maintenance allowance of the minors as well. The minor children are school going. They have to consume expenditures for their tuition fee and uniforms etc. Under law, it is the responsibility of a father to maintain his minor children. It is, therefore, directed that the minor children are entitled to Rs. 2000/- each, as monthly maintenance charges. Shoukat Gillani, respondent/father, is therefore, directed to pay the monthly allowance to the minor children every month from today onwards. Upshot of the above discussion is that appeal filed by Syed Shoukat, Gillani is dismissed whereas the other appeal filed by Mst. Ansar Gillani is accepted in the afore-discussed manner. Raja Aftab Ahmed for Syed Shaukat Gillani. Mst. Ansar Gillani, appellant in person. ORDER AZHAR SALEEM BABAR, J.

Raja Aftab Ahmed, Advocate filed Wakalatnama on behalf of Shaukat Gillani, respondent. Judgment has been announced in the open court, whereby decree for dissolution of marriage between the spouses on the basis of khullah has been upheld. Mst. Ansar Gilani, mother of the minor children has been appointed as guardian of the minor children and the minor children have been held entitled to Rs. 2,000/- each as monthly allowance from their father. However, after pronouncement of judgment, Syed Shakhi Hussain Shah, grandfather of the minor children appeared before the court and stated that Shaukat Gillani is not in a position to pay the maintenance charges, whereupon Mst. Ansar Gillani deposed that she would not claim monthly charges from Shaukat Gillani. Raja Aftab Ahmed, Advocate also agreed to the proposal. Statement of Ansar Gillani and Raja Aftab Ahmed, Advocate appearing on behalf of Shaukat Gillani has been recorded, whereby Ansar Gillani has foregone the right of maintenance allowance. In these circumstances, judgment already announced shall be deemed to have been amended to the extent of payment of monthly allowance. Minor children are handed over to mother in the open court. ZC/19/Sh.C.(AJ&K) Order accordingly.