2016 PLP 765 (YLR)

ATIR MAHMOOD, J.

Brief facts of the case are that respondent-plaintiff No.1 filed a suit for recovery of maintenance allowance for herself as well as for her minor son namely Somair Tamoor along with dower against the petitioner-defendant. It is alleged that respondent No.1 married with the petitioner-defendant on 07.11.2010 against the dower amount of Rs. 1,49,000/- as deferred and gold ornaments worth Rs.1,49,000/- with 5 marlas plot was fixed as gift which is still unpaid; that out of the wedlock, one minor son was born; that due to illness of her mother, respondent No.1 left for her parents house on 05.10.2011 and the petitioner has not paid any maintenance allowance till that date; that the petitioner is a man of means and he can easily pay the maintenance to the respondents. Thereafter, the petitioner-defendant contested the suit by filing written statement. Issues were framed and evidence was recorded of both the parties. After hearing the arguments of both side, the learned trial court decreed the suit of the respondents vide impugned judgment and decree dated 27.06.2013 in the following terms:- i. Maintenance of minor is fixed @ Rs.2500/- per month with 10% annual increase from 05.10.2011 till he is legally entitled. Maintenance of plaintiff No.1 is fixed @ Rs. 1000/- per month from the institution of the suit till she is legally entitled. ii. Claim of plaintiff No.1 for recovery of 05 marlas plot is hereby decreed. iii. Claim of plaintiff No.1 for recovery of Rs. 1,49,000/- is dismissed."

2. Being aggrieved from the said judgment and decree both the parties preferred appeals before the learned Additional District Judge, Rawalpindi and the learned appellate court vide judgment and decree dated 12.11.2013 dismissed the appeal of the petitioner and partially allowed the appeal of the respondent modify the decree that maintenance allowance of plaintiff No.1 is increased from Rs. 1000/- per month to Rs. 2000/- per month from 05.10.2011 to 09/2012 till her legal entitlement. However, minor shall not be entitled to 10% annual increase in his maintenance allowance @ Rs. 2500/- per month from 05.10.2011 to 09/2012 till his legal entitlement. Hence this writ petition.

3. Learned counsel for the petitioner at the very outset submitted that he did not press this petition to the extent of maintenance of the minor/respondent No.2, however, asserted that respondent No.1 was divorced, therefore, she was not entitled for any maintenance. He further submitted that sending of notice of Talaq to the Chairman Arbitration Council and its effectiveness is not a legal requirement, as the provision of section 7 of Muslim Family Laws Ordinance, 1961 has been declared against the injunction of Islam vide judgment of Shariat Appellate Bench of the Supreme Court of Pakistan in a case titled Allah Dad v. Mukhtar and another (1992 SCMR 1273). He further argued that clause 16 of the nikahnama whereby respondent No.1 was given plot measuring 5 marlas could not be claimed by filing a suit before the family court and for this purpose the remedy available to the respondent No.1 was to file an independent suit before the civil court.

4. On the other hand, learned counsel for the respondent fully supported the impugned judgments and decrees by submitting that there are concurrent findings of fact which are immune from interference by this Court while exercising the constitutional jurisdiction. He argued that the alleged factum of Talaq could not be proved by the petitioner through any cogent evidence and that the alleged Talaqnama appended with this petition itself, is itself sufficient to contradict its contents according to which the petitioner was divorced on 15.10.2011, whereas the stamp paper was purchased on 18.11.2011.

5. Arguments heard. Record perused.

6. The questions which need determination by this Court are in two folds. Firstly as to whether the suit for recovery of dower i.e. a plot mentioned in column No. 16 of the nikahnama could lawfully be decreed by the family court or as to whether it was a matter pertaining to the civil court and secondly as to whether the respondent was divorced by the petitioner on 15.10.2011 and was not entitled for grant of maintenance thereafter.

7. To decide the first question qua the maintainability of suit for recovery of dower mentioned in column No.16 of the nikahnama, it is observed that column No.16 of the nikahnama speaks about the payment of Haqmehr and it is in continuation of column Nos. 13 to 15 it is not with regard to any subsequent obligation.

8. Perusal of entry in column No. 16 clearly depicts that plot measuring 5 marlas mentioned with the description of khasra numbers was given in the ownership of the petitioner as a gift. This entry has not been denied by the petitioner. According to Schedule [Part 1] of the West Pakistan Family Courts Act, 1964, a suit for recovery of dower as well as personal property and belongings of a wife comes within the domain of the family court. When the said plot was gifted to the respondent, then if at all it is not a dower then it becomes within the definition of personal property and belongings of a wife. The petitioner while appearing in the witness box as DW.1 admitted in his cross-examination that at the time of nikah, the plot measuring 5 marlas was given to respondent No.1 as a gift and was incorporated in column No.16. DW.2 Jamshaid Alam, father of the petitioner, admitted in his cross-examination that the plot in dispute was given to respondent No.1 as a gift. He also admitted that plot is physically present and in the nikahnama khasra numbers have also been written, however, he denied the suggestion that respondent No.1-plaintiff remained in the possession of the property as an owner till she remained with the petitioner-defendant. This statement of the petitioner as well as DW.2 is sufficient to negate the contention raised by the learned counsel for the petitioner that the family court was not competent to decree the suit. Both the learned courts below have rightly dealt with this aspect.

9. Now remains the entitlement of respondent No.1 to claim maintenance allowance. Scanning of record reflects that the petitioner while filing written statement did not mention the date of divorce but stated that she was divorced in the presence of witnesses during a meeting/Jirga which was called to resolve the controversy between the parties. Even the date of holding of meeting/Jirga was not mentioned in the written statement. During the course of evidence the petitioner while submitting his affidavit Exh.D1 also failed to mention the date of divorce and date of holding 'Jirga'. He did not utter a single word that any written Talaqnama was given to respondent No.1 or that any notice of Talaq was sent to the Arbitration Council. During the cross-examination, he admitted that he has sent a notice of Talaq during the course of litigation. He also admitted that Talaq has not become effective. None of the witnesses from 'Jirga' was produced in defence. Respondent No.1 while appearing as PW.1 admitted in cross-examination that the matter of divorce was went before "Mufti Sahib" and a "Fatwa" was given by him that divorce has taken place but still no suggestion was put to her that when the matter of Talaq was placed before "Mufti Sahib". This is sufficient to establish that Talaq has taken place in between the parties.

10. The contention of the learned counsel for the petitioner that no specific mode for announcement of Talaq has been prescribed under the Islamic Law, as well as, law of the land has weight. I have no doubt in my mind that Talaq can be announced orally and can be in a written form but when husband takes specific stance then it is his duty to prove the same, particularly when the oral pronouncement is not asserted upon the wife. The entire evidence of the petitioner is ambiguous and did not inspire any confidence regarding date of divorce. The factum of sending a notice of Talaq to the Chairman of the Arbitration Council could not be proved as well, therefore, it is held that the date of pronouncement of Talaq can at the most be taken as 10.3.2012 when the written statement was filed by the petitioner and respondent No.1 held entitled to maintenance allowance from the petitioner till the completion of 'Iddit' period.

11. There are concurrent findings of law and facts. No illegality, irregularity, mis-reading or non-reading of evidence could be pointed out by the petitioner.

12. With the above observations, this writ petition being devoid of any force is hereby dismissed. SL/T-15/L Petition dismissed.