2023 PLP 244 (CLC)

KAMRAN HAYAT MIANKHEL, J.

Petitioner, Mst. Safina Noor, has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the consolidated judgment and decree dated 07.02.2019 passed by Additional District Judge-III, Haripur, whereby, appeals filed by both the parties against the judgment and decree dated 25.01.2017 passed by Family Judge/Civil Judge-V, Haripur, were partially allowed.

2. Brief facts leading to the filing of this constitutional petition are that the petitioner instituted a suit against the respondent, seeking recovery of dowered property measuring 10 Marlas, dowered house, gold ornaments, maintenance for herself and for the minor daughter and recovery of dowry articles. The defendant was summoned, who appeared before the Family Court and contested the suit by way of filing his written statement and also prayed for restitution of conjugal rights. The learned Family Court framed the following issues out of the divergent pleadings of the parties: ISSUES

1. Whether the plaintiffs have got any cause of action?

2. Whether the plaintiffs are estopped to sue?

3. Whether the suit is bad in its present form?

4. Whether the plaintiff No.1 is entitled to dower weighing 04 tolas gold, 10 marlas plot and one constructed house at Kareem Abad, Haripur?

5. Whether the plaintiffs Nos.1 and 2 are entitled to maintenance since January 2012 as prayed for?

6. Whether plaintiff No.1 is a self-deserted lady?

7. Whether the defendant is entitled for the custody of minor daughter?

8. Whether the defendant is entitled for restitution of conjugal rights?

9. Whether the plaintiff No.1 is entitled to the dowry articles as prayed for?

10. Whether the plaintiff is entitled to decree as prayed for?

11. Relief? The parties produced pro and contra evidence in support of their respective contentions. The learned Family Court, after recording evidence and hearing learned counsel for the parties, decreed the suit of the petitioner vide judgment and decree dated 25.01.2017, in the following manner.

1. The plaintiff No.1 is entitled to Rs.4000/- per month maintenance allowance since 01.01.2012.

2. The plaintiff No.2 is entitled to Rs.3000/- per month maintenance allowance since 01.01.2012 along with future maintenance at the same rate along with 10% annual increase till her age of majority.

3. The prayer of 04 tolas gold, 10 marlas plot and a house stands dismissed.

4. The dowry articles as per list are decreed in favour of the plaintiff No.1 or its market price.

5. The defendant is entitled to the decree of restitution of conjugal rights and the plaintiff is only entitled to the maintenance allowance above in case of rehabilitation with the defendant/husband. Being aggrieved with the judgment and decree of the learned trial Court, both the parties filed separate appeals before the learned Additional District Judge-III, Haripur, who partially allowed both appeals filed by them, in the following manner: "Appeal bearing No.13/FA filed by appellant namely Muhammad Ayub is partially accepted and the judgment and decree of learned trial Court to the extent of past maintenance since January 2012 granted to the respondent/plaintiff No.1/ Safina Noor is hereby set-aside, however, she is entitled for future maintenance @ Rs.4000/- per month subject to performance of matrimonial obligations towards appellant/ Muhammad Ayub, keeping in view of his financial position. Rest of the Appeal No.13/FA filed by Muhammad Ayub/ appellant being devoid merits stands hereby dismissed. The appeal bearing No.6/FA filed by respondent/Safina Noor/ plaintiff is hereby partially allowed and the decree and judgment of the learned trial Court to the extent of Juzz Bay of the plaint in the shape of constructed house situated at Mohallah Kareem Abad, Haripur is hereby set aside and a decree to the extent of a constructed house consisting on one room situated at Karim Abad, Haripur as a dower for residence is hereby granted. Rest of the appeal being devoid of merits stands dismissed. Rest of the judgment and decree passed by the learned trial Court is hereby upheld, needs no interference. The parties shall bear their own costs." The petitioner has now filed this constitutional petition against the aforementioned judgment and decree before this Court.

3. Learned counsel for petitioner argued that both the courts below have erred in law and have also mislead the evidence produced by the parties by not decreeing the suit of petitioner as prayed for.

4. Learned counsel for respondent No.1 argued that both the courts below have not considered the fact that Nikahnama is not proved as per law of Qanun-e-Shahadat and only photocopy of Nikahnama was placed on file without any exhibition.

5. I have heard arguments of the learned counsel for the parties and perused the record.

6. Record depicts that petitioner brought a family suit for recovery of dower, dowry articles, maintenance of petitioner and her minor daughter. The suit was contested by respondent No.1 by filing his written statement, wherein counter claim of conjugal right was also asserted. On the contentious pleadings of the parties, the learned trial court framed issues and partially decreed the suit of petitioner to the extent of Rs. 4000/- per month maintenance allowance since 01.01.2012 and maintenance allowance for her minor daughter at the rate of Rs.3000/- per month since 01.01.2012 along with 10% annual increase. The prayer of petitioner of 04 tolas gold ornaments, 10 marlas plot and a house was dismissed. The learned trial court also decreed dowry articles of petitioner or its market price and a decree of restitution of conjugal right in favour of respondent No.1 was also passed. The petitioner as well as respondent No.1 challenged the above said judgment and decree of learned trial court through separate appeals, which were decided on 07.02.2019, whereby appeal filed by the petitioner was partially accepted and judgment and decree of the learned trial court modified to the extent of house and appeal of respondent No.1 was also partially accepted and petitioner was given future maintenance at the rate of Rs.4000/- per month subject to performance of matrimonial obligation.

7. Record reflects that issue No.4 pertains to fixation of dower. The petitioner's claim that her marriage with respondent No.1 was solemnized on 20.02.2008 and her dower was fixed 04 tolas gold ornaments and 10 marlas plot of Khasra No.910 situated in Maira Gehar Khan and a constructed house. The burden of prove of this issue was on the petitioner. The petitioner failed to produce original Nikahnama. Neither she produced Nikah Khawan nor Nikah Registrar nor any witness of the Nikahnama to substantiate her claim. Copy of Nikahnama was never exhibited but was marked A because it was being a photocopy. The witnesses so produced by the petitioner i.e. PW-2 and PW-3 after recording their examination in chief absented themselves and were never cross examined due to this reason their evidence cannot be looked into. The petitioner never applied to produce secondary evidence in order to prove Nikahnama. The petitioner statement was recorded as PW-1, wherein in cross examination positive suggestion was given, which is reproduced as below:-

8. The respondent No.1 examined himself as DW-4, who in cross examination categorically stated that 04 tolas gold ornaments was fixed as dower and the same has been paid to petitioner and he also admitted that one house was also given to petitioner for residence. He stated that house was meant for residence purposely. The respondent No.1 further in his cross examination stated that he is ready to take her along with him as he loves the petitioner very much.

9. Keeping in view the above discussion, the petitioner has proved the dower in shape of house whereas failed to prove through cogent evidence about dower in the shape of 10 marlas land falling within Khasra No.910 situated in Maira Gehar Khan, Haripur.

10. The payment of 04 tolas gold ornaments of dower has not been disputed. The petitioner appeared as PW-1 and also in Para 4 of her plaint admitted the delivery of above said gold ornaments which she worn at the time of her marriage but failed to prove the snatching of the same. In her cross-examination she refused to accept the proposal of special Oath about snatching of gold ornaments. The petitioner failed to produce even a single witness who can testify about the snatching of gold ornaments and in her cross examination she categorically stated that there is no evidence regarding snatching of gold ornaments. So in the light of above discussion it become crystal clear that petitioner failed to prove the snatching of gold ornaments.

11. Issues Nos.5 and 6 pertains to maintenance of petitioner as well as her minor daughter since January, 2012 and for recovery of dowry articles as per list annexed with the plaint or its market value. The petitioner in Para 4 of her plaint averred that gold ornaments were snatched by respondent No.1 and she was ousted in her wearing apparel but she failed to substantiate her claim and also failed to produce any witness in this regard. In her cross examination she states that:- She further stated that:-

12. The petitioner failed to produce evidence regarding beating and ousting her from the house of respondent No.1. She also failed to prove the cruelty on behalf of respondent No.1 while respondent No.1 stated the date of leaving the house of respondent No.1 by petitioner as 07.10.2012.

13. The respondent No.1 himself appeared as DW-4 and produced three witnesses in support of his version. DW-1 Hayat Muhammad son of Noor Muhammad, who is paternal uncle of the parties, stated that he went to petitioner for the purpose of reconciliation / rehabilitation but she was not ready. DW-2 Muhammad Banaras Khan son of Faqeer Muhammad stated that for the purpose of rehabilitation he went to petitioner and respondent No.1 accepted all the conditions of petitioner in order to rehabilitate her but later on she refused to live with respondent No.1. DW-3 Muhammad Yousaf son of Fazal Din who is also neighbor of the petitioner stated that he was part of Jirga, which went to the house of petitioner for reconciliation. He stated that certain conditions came forward from petitioner's side, which were accepted by respondent No.1 but even then the petitioner was not ready to live her husband. All the three witnesses were cross examined at length but nothing came out from their mouth which favours the petitioner. The petitioner during her cross examination admitted sending of Jirga by respondent No.1. She also stated that Jirga sent by respondent No.1 was not accepted by her. The relevant portion of her cross examination is reproduced below:-

14. So in the given circumstances, the version of the respondent No.1 regarding self desertion of petitioner is proved to the hilt. It is trite law that husband is bound to maintain his wife as per his resource but with a rider that she must fulfill her obligation towards her husband.

15. Keeping in view the above discussion, it is very much elucidated that the petitioner is not willing to fulfill her obligation towards her husband / respondent No.1 without any lawful justification, so she is not entitled for past maintenance.

16. So far as question of minor daughter is concerned, the father is bound to maintain his daughter until she is married. The father is bound to maintain their progeny. In Surah Nisaa verse No. 11 much stress has been laid on the obligation of the parents towards their children. In such circumstances, the respondent No.1 is bound to maintain his minor daughter. So in this regard judgments and decrees of the learned trial court as well as learned appeal court need no interference.

17. So far as dowry articles are concerned, the petitioner produced list of dowry articles and respondent No.1 during his cross examination as DW-4 also admitted that dowry articles of petitioner were sealed in his house, so the conclusion reached by two courts below needs no modification.

18. So keeping in view the above discussion, this petition is devoid of any merit, is hereby dismissed. MHS/208/P Petition dismissed.