2021 PLP 1453 (YLR)

MUHAMMAD TARIQ ABBASI, J.

This single judgment shall decide the above captioned writ petitions, being outcome of same judgment dated 06.10.2020 of the learned Additional District Judge, Gujar Khan, District Rawalpindi.

2. Mst. Salma Mumtaz, petitioner in Writ Petition No. 177 of 2021 (hereinafter referred to as the petitioner), through a suit, before the learned Family Court, Gujar Khan, had claimed the following rights, from Adnan Zulfiqar, petitioner in Writ Petition No. 3066/2020 (hereinafter referred to as the respondent):-- a. Dissolution of marriage. b. Recovery of dowry. c. Recovery of gold ornaments and garments. d. Recovery of dower, amounting to Rs.5,00,000/-. e. Compensation of Rs.25,00,000/-.

3. The respondent, through a written statement, had admitted dowry, being lying with him, whereas refused the other claims. Consequently, the learned Family Court had arranged reconciliation proceedings on 15.01.2019, during which, return of dowry by the respondent, to the petitioner was agreed. Resultantly, on 19.01.2019, the dowry had been received by the petitioner. Regarding compensation of Rs.25,00,000/-, the suit was withdrawn. As the reconciliation had failed, therefore, the suit, to the extent of dissolution of marriage, on the basis of 'Khula', was decreed, as provided under Section 10(5) of Family Courts Act, 1964. Regarding rest of the claims, the following issues were framed:- a) Whether plaintiff is entitled to recovery of all the dowry articles, gold ornaments and clothes mentioned in her list as prayed for? OPP b) Whether how much amount of defer dower has to be relinquished by the plaintiff on account of seeking decree for dissolution of marriage on the basis of Khula? OPP c) Relief.

4. Accordingly, evidence of both the sides was demanded, during which the petitioner as well as her father namely Mumtaz Ahmad Saleem, brother Iftikhar Ahmad and another namely Mehmood Sultan, by filing respective affidavits, as Ex.P2, Ex.P3, Ex.P4 and Ex.P5, had made statements, respectively as PW-1, PW-2, PW-3 and PW-4. During the above said evidence, the documents were also tendered in evidence as Ex.P6 and Mark-P1 to Mark-P

6. On the other hand, the respondent, in shape of an affidavit (Ex.D1), had entered in the witness box at DW-1. He had also got exhibited the documents as Ex.D2 and Ex.D3.

5. The learned Family Court, on completion of the above said proceedings, had decided the suit, in the following terms:- "Now, as the marriage of the parties was dissolved through decree of dissolution of marriage on the basis of khula, therefore, the plaintiff is liable to surrender up to 50% of her deferred dower in accordance with section 10(5) of Family Courts Act, 1964. Therefore, although this issue is decided in favour of plaintiff in terms of entitlement of plaintiff for her deferred dower payable on demand as per Exh.D2, but she has to relinquish 50% of her deferred dower payable on demand Rs.2,50,000/- on account of seeking decree for dissolution of marriage on the basis of khula and she is entitled to recover Rs.2,50,000/- (the rest of 50% of her deferred dower payable on demand) from the defendant as per column No. 15 of nikahnama. RELIEF To conclude, for what has been discussed above, i. The plaintiff is entitled to recover gold ornaments weighing 10 tolas given by defendant as per list Exh.P2. ii. The plaintiff has to relinquish 50% of her deferred dower payable on demand Rs.2,50,000/- on account of seeking decree for dissolution of marriage on the basis of khula and she is entitled to recover Rs.2,50,000/- (the rest of 50% of her deferred dower payable on demand) from the defendant as per column No. 15 of Nikahnama."

6. Feeling aggrieved, both the sides had gone in respective appeals and decided through judgment dated 06.10.2020, in the following manner:- "In view of my above mentioned findings the appeal of the respondent/defendant is accepted and resultantly the suit of the appellant/plaintiff to the extent of recovery of 10-tolas gold ornaments is hereby dismissed. The appeal of the appellant/ plaintiff is accepted to the extent of recovery of whole deferred dower by decreeing her claim for recovery of whole deferred dower amounting to Rs.5,00,000/- and the impugned judgment and decree are hereby modified accordingly. To the extent of remaining claims the appeal of appellant/plaintiff is hereby dismissed. Decree sheets be drawn accordingly. Record of leaned trial court be sent back forthwith along with copy of this judgment. File be consigned to record room after its due completion." Consequently, the parties, by way of the writ petitions in hand, are before this court.

7. The first controversy is whether under the attending facts and circumstances, whole of the settled dower should be paid to the petitioner or some portion of it, should be surrendered by her. In the Nikah Nama, between the parties, available on the record as Ex.D2, Column No. 13, 14 and 15, regarding amount of dower and its nature, contain the following entries:- Therefore, it is clear that the settled dower was Rs.5,05,000/- and its nature was , which means "prompt".

8. As stated above, the marriage between the parties has been dissolved on the basis of 'Khula' under section 10(5) of the Family Courts Act, 1964. In such a situation, the percentage of dower, which has to be surrendered by a wife, has been described in the provision, as under:- "10(5) In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband."

9. Therefore, when admittedly, the dower was prompt, then 25% of it, should have been surrendered. In this way, the findings of the learned appellate court, holding the petitioner, entitled for whole of the above mentioned settled dower, could not be termed as justified. Therefore, it is held that the petitioner shall surrender 25% of the dower and as such would be entitled for 75% of the dower amount, which becomes Rs.3,75,000/-.

10. The second issued was whether the petitioner was entitled to the gold ornaments i.e. 06 tolas, allegedly given by her parents and 10 tolas, gifted to her by the respondent. Regarding 06 tolas of gold ornaments, claimed by the petitioner, the learned appellate court had concluded as under:- "The appellant/plaintiff pleaded in her plaint that about 6-tolas gold ornaments were given to her by her father at the time of her Rukhsati but she did not mention any detail and description of the said gold ornaments in the plaint. However, the appellant/ plaintiff and her witnesses deposed about detail of description of said 6-tolas gold ornaments but she did not state the weight of each item. The appellant/plaintiff produced purchase receipt Mark-P1 dated 01.05.2017, Mark-P2 dated 02.8.2014 and Mark-P3 dated 29.6.2014 whereas 'Nikah' was performed on 25.2.2018 and Rukhsati took place in March 2018. The appellant/plaintiff and her father did not depose that the gold ornaments given to the appellant / plaintiff were purchased in the year 2014 and 2017. Moreover, admittedly said gold ornaments were not incorporated in Nikahnama. The appellant/plaintiff could not prove through any reliable evidence that how and when the said 6-tolas gold ornaments were snatched by the respondent/ defendant. As per evidence available on record the appellant/ plaintiff could not prove her claim for recovery of 6-tolas gold ornaments and the learned trial court has rightly not decreed the same without committing any misreading and non-reading of evidence. To the extent of claim for recovery of 6-tolas gold ornaments the appeal of the appellant/plaintiff is meritless."

11. Whereas, in respect of 10 tolas of gold ornaments, decreed, in favour of the petitioner, by the learned Judge Family Court, the observations and findings of the learned appellate court, were as follows:- "The claim of appellant/plaintiff for recovery of 10-tolas gold ornaments given to her as gift by the respondent/defendant has been decreed and the respondent/defendant has challenged the same in his appeal. Perusal of Nikahnama Ex.D2 shows that 10- tolas gold ornaments were given to the appellant/plaintiff as gift. The appellant/plaintiff in Para No. 4 of her plaint also pleaded that 10-tolas gold ornaments were given to her as gift. Likewise all the PWs including the appellant/plaintiff in their affidavits deposed that 10-tolas gold ornaments were given to the appellant/plaintiff. But in cross-examination the appellant/plaintiff contradicted the contents of her plaint as well as her affidavit Ex.P1 and the affidavit of the other PWs by denying that at the time of marriage/Rukhsati 10-tolas gold ornaments were handed over to her. She volunteer stated that the said gold ornaments were only shown to her and only the bangles were given. She admitted that the fact of mere showing 10-tolas gold ornaments without delivery has not been mentioned in her plaint and affidavit. Record shows that PW-2, who is the father of the appellant/ plaintiff, during his cross-examination contradicted the appellant/plaintiff by admitting that 10-tolas gold ornaments were worn by the appellant/ plaintiff on the day of Rukhsati. Moreover, the appellant/ plaintiff did not plead the day, date, time, occasion and even year of taking back 10-tolas gold ornaments by the respondent/ defendant. Like-wise all the PWs including the appellant/ plaintiff during their cross-examination admitted that the date, month and year of snatching of gold ornaments by the respondent/defendant have not been deposed by them in their affidavits. Thus regarding this claim the evidence of the appellant/plaintiff is full of contradictions. It is a matter of common knowledge that gold ornaments usually remain in the custody of a wife and as discussed above the appellant/ plaintiff has failed to prove the snatching/taking back of the same by the respondent/ defendant. The learned trial court has committed misreading and non reading of evidence while decreeing 10-tolas gold ornaments. Hence, the appeal of respondent/defendant is allowed and resultantly the suit of appellant/plaintiff to the extent of recovery of 10-tolas gold ornaments is hereby dismissed."

12. The learned counsel representing the petitioner, has failed to rebut or contradict the above mentioned reasonings, of the learned appellate court, towards refusing claim of the petitioner, for gold ornaments. In this way, the said findings can rightly be termed as correct appreciation and evaluation of the evidence on record and as such call of the day, hence not open to any exception.

13. Resultantly, the Writ Petition No. 177 of 2021, filed by the petitioner, having no force or merit, is dismissed. Whereas the other Writ Petition No. 3066 of 2020, preferred by the respondent, is partially allowed, whereby findings of the learned appellate court, for payment of whole of the dower amount to the petitioner, is set aside, with a direction that under the above mentioned provision of law, she would surrender 25% of the settled dower and as such would be entitled to the extent of Rs.3,75,000/-. SA/A-26/L Order accordingly.