2007 PLP 1053 (MLD)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition assailed judgment/decree, dated 24-1-2006 passed by the learned Additional District Judge, Mandi Bahauddin (respondent No.1) to be declared illegal, void and of no legal consequence, whereby appeal filed by respondent No.2 was accepted and judgment/decree, dated 14-11-2005 passed by the learned Judge Family Court was reversed and suit of petitioner No.1 for recovery of Rs.100,000 was dismissed.

2. Precisely, relevant facts are that petitioner No.1 was married with respondent No.2 on 27-6-1999, according to Muslim rites through a registered Nikahnama. This wedlock gave birth to a son and a daughter but relations between the spouses did not remain cordial and ultimately resulted in separation and then in divorce in the year, 2003. Petitioner No.1 filed two distinct suits, one for recovery of Rs.100,000 as mentioned in Column. No.17 of the Nikahnama, dated 27-6-1999 and maintenance allowance for her two minor children (petitioners No.2 and 3) and the other for recovery of dowry articles or in the alternative price thereof. The second suit was separately dealt by the learned Judge Family Court and was decided through an independent judgment and shall be dealt while deciding Writ Petition No.5071/2006. As far as earlier mentioned suit by petitioner No.1 for recovery of Rs.100,000 and maintenance allowance of the minors is concerned, it was opposed by respondent No.2 by filing his written statement wherein he refuting the narrations in the plaint, pleaded that petitioner No.1 left his house only two months earlier along with gold ornaments and other valuables and in this manner he denied his liability to pay the maintenance, asserting lack of monetary means. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Judge Family Court after doing the needful, decreed the suit of the petitioners and awarded petitioner No.1 a decree for an amount of Rs.100,000 and maintenance allowance for the minors (petitioners Nos. 2 and 3) at the rate of Rs.800 per months each, vide his judgment/decree, dated 14-11-2005.

3. Being dissatisfied with the decree of the trail Court, respondent No.2 filed an appeal before the learned Additional District Judge, Mandi Bahauddin, where he succeeded as his appeal was partly accepted and the decree of the trial Court to the extent of recovery of Rs.100,000 was set aside, whereas relating to the maintenance allowance of petitioners Nos. 2 and 3 was maintained on 24-1-2006. Petitioners have now filed instant constitutional petition with the relief noted above. Respondent No.2 in response to notice by this Court has appeared through his counsel.

4. I have heard the learned counsel for the parties and have examined the record. Petitioner No.1 was deprived of her right to recover Rs.100,000 mainly on the document in form of affidavit (Mark-B). This document is relinquishment of right of petitioner No.1 to recover Rs.100,000 mentioned in Column No.17 of the Nikahnama (Mark-A) which she had forgiven during the period she lived amicably with him. Petitioner No.1 is not only an educated but was a working lady and was employed as a Lady Health Visitor since before her marriage. The Court of appeal had compared her signatures on Mark-B with her admitted signatures on the plaint and concluded that the relinquishment was done by petitioner No.1 voluntarily. I have also compared her signatures on Mark-B and those not only resemble to her signatures on the plaint but also tally to each other with alike flow and stroke of pen. Besides it respondent No.2 had examined marginal witness of Mark-B Mazhar Hussain Shah as D.W.2., who proved its due execution without any coercion/duress. Another factor which made me to contribute to the appellate view of due execution of Mark-B is that since petitioner had denied her signatures on this document, she deliberately signed her power of attorney filed in the instant petition with different signatures, ignoring that her signatures could be compared with the signatures available on the plaint.

5. Though learned Additional District Judge has returned findings to the effect that the suit amount cannot be considered as part of dower amount which was Rs.500 as per entry in Column No.13 of the Nikahnama hence was not recoverable through the Family Court established under the Muslim Family Courts Act, 1964, yet these findings were given being oblivious of amendment introduced in the Schedule Part-I of he Act (ibid) conferring jurisdiction to the Family Court for recovery of personal property and belongings of a wife. This amendment was brought about by Family Courts (Amendment) Ordinance No.LV of 2002. The question of recovery of Rs.100,000 mentioned in Column No.17 of the Nikahnama could be resolved by the learned Judge Family Court, as per judgment in the case of Nasrullah v. District Judge, Mianwali and 2 others (PLD 2004 Lahore 588) but since he petitioner No.1 had herself relinquished it by voluntarily executing relinquishment Mark-B, her suit to this extent was not maintainable and the net result of appellate judgment is correct. Scan of record and impugned appellate judgment revealed that controversy was correctly put to rest and net result drawn was not tainted with any factual illegality/error.

6. For the reasons noted above, no case for interference in constitutional jurisdiction of this Court was made, out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs. F.B./N-22/L Petition dismissed.