2014 PLP 34 (YLR)

SARDAR MUHAMMAD SHAHZAD KHAN, J.

The above captioned appeal has been directed against the judgment and decree of Judge Family Court Kahuta-Haveli dated 6-8-2011, whereby, the suit filed by the appellant for recovery of dower was dismissed.

2. The brief facts forming the background of the instant appeal are that the appellant herein filed a suit for recovery of dower amounting to Rs.50,000 before Judge Family Court Kahuta-Haveli on 1-9-2010 and the second suit for recovery of maintenance to the tune of Rs.1000 pm on 28-9-2010. After filing of the suits, the respondent was summoned by the trial Court. In response to the notice of the Court, the respondent appeared before the trial Court and submitted his written statement wherein he refuted the claim of the respondent and also submitted that the appellant has no cause of action to file the suit. The trial Court in the light of pleadings of the parties framed the relevant issues. After framing of issues, the trial Court directed the parties to produce evidence in support of their respective claim. The appellant produced three witnesses namely Muhammad Shafique, Kh. Ghulam Muhammad, Muhammad Riaz and she also got recorded her statement as witness. She also produced Nikah-Nama Ex.PA as documentary evidence. On the other hand, the respondent produced two witnesses namely Sultan, Muhammad Ismail an recorded his statement as witness.

3. The trial Court after conclusion of the trial dismissed the suit for recovery of dower amounting to Rs.50,000 while decreed the suit for recovery of maintenance allowance vide its judgment and decrees dated 6-8-2011, hence the above titled appeal.

4. Sardar Nazar Muhammad Khan, the learned counsel for the appellant argued that the trial Court committed grave illegality while recording the impugned judgment and decree to the extent of dower. The learned counsel further contended that the appellant has proved her case by producing cogent and convincing evidence, but the trial Court failed to appreciate the same in its true perspective, as such the same is not tenable in the eye of law. According to the learned counsel the appellant remained with the respondent as wedded wife for the period of three and a half years and during this period the behavior of the respondent was very harsh towards the appellant and he used to beat her on a very small household matters. The learned counsel further submitted that during population, the respondent snatched away the gold ornaments (dower) and forced her to leave from his house. He further argued that one of the witnesses of the respondent namely Sultan categorically stated in his Court's statement that gold ornaments were snatched away by the respondent, but the trial Court failed to consider this important aspect of the case and recorded the impugned judgment and decree to the extent of dower in an illegal fashion. The learned counsel further submitted that the trial Court has rightly decreed the suit for maintenance allowance in favour of the appellant. Finally, the learned counsel prayed that by accepting the appeal, the impugned judgment and decrees may be set aside to the extent of dower and a decree for recovery of dower may also be passed in favour of appellant.

5. On the other hand, Sardar Iftikhar Ahmad, the learned counsel for the respondent while controverting the arguments raised by the learned counsel for the appellant submitted that the trial Court has rightly dismissed the suit for recovery of dower, as the appellant has failed to prove her claim through cogent and convincing evidence. The learned counsel further submitted that there was no mention of the date on which the respondent have snatched away the ornaments and this allegation has not been proved by the appellant through her witnesses, as such the judgment of the trial Court is quite in accordance with law to the extent of recovery of dower. According to the learned counsel the dower was fixed in shape of gold ornaments and has been paid at the time of Nikah and the same was in the custody of appellant. The learned counsel defended the impugned judgment and decree to the extent of dower.

6. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

7. A thorough perusal of the record reveals that the marriage took place between the spouses on 29-5-2006 in lieu of dower amounting to Rs.50,000 as prompt dower in shape of gold ornaments. It also reveals from the record that the spouses remained as husband and wife since the year 2009. On 15-12-2009, the appellant was deserted and thereafter she is living with her parents. It is also pertinent to note here that the appellant filed two suits, one for recovery of maintenance which was decreed and the second for recovery of dower which was dismissed. In her suit for recovery of dower, she claimed that the dower was fixed in shape of gold ornaments amounting to Rs.50,000 as prompt dower. She further claimed that the same was snatched away by the respondent when she was forced to leave the house of her husband.

8. To prove its case, the appellant produced as many as three witnesses. All the witnesses of the appellant have categorically supported the version taken by the plaintiff appellant and also stated that the dower (gold ornaments) was snatched away by the respondent. In rebuttal, the respondent produced two witnesses namely Sultan and Muhammad Ismail and they supported the version of the respondent. However, the witness Sultan stated in his statement that the dower (gold ornaments) was snatched away by the respondent. The relevant caption of his statement is usefully reproduced as under:-- The aforesaid caption of statement respondent's witness clearly shows that dower was snatched away by the respondent, the same is outstanding against the respondent, but the trial Court failed to consider this important aspect of the case and arrived at wrong conclusion. It is relevant to note here that this witness was not declared as hostile by the respondent, therefore it is an admission on the part of respondent. A careful consideration of statement of the respondent shows that he has not denied the allegation of snatching of gold ornaments in the whole of his statement, however, he himself admitted that he is not bound to return the gold ornaments. The relevant caption of his statement is usefully reproduced as under:-- Thus, in this view of the matter, it is crystal clear that the gold ornaments were snatched away by the respondent. It is by now settled principle of Islamic law that dower is the right of wife and husband is bound to pay her. In the light of what has been stated above, I accept this appeal by setting aside the impugned judgment and decree to the extent of dower and a decree for recovery of dower amounting to Rs.50,000 is issued in favour of the appellant. HBT/13/Sh.C. (AJ&K) Appeal accepted.