2018 PLP 1988 (MLD)

MUZAMIL AKHTAR SHABIR, J.

Through this constitutional petition, the petitioner has challenged the vires of judgments and decrees dated 18.11.2014 and 08.03.2014 passed by learned Addl. Judge, Sahiwal and Judge Family Court, Sahiwal, respectively, whereby the claim of the plaintiffs/respondents had partially been decreed and appeal filed by the petitioner had been dismissed.

2. Brief facts of the case are that marriage between the parties was solemnized on 01.09.1996 in lieu of haqqul mehar Rs. 100/- and from the said wedlock, five children were born, two minors are in custody of the petitioner whereas three minors are under care and custody of the respondent No. 1-a ('respondent'). The respondent claimed that at the time of her marriage, the petitioner gifted three tolas gold ornaments to her, and two tolas gold ornaments were given by parents of the respondent to her. Moreover, dowry articles were also given on the wedding occasion. Thereafter, the petitioner levelled false allegations on the character of the respondent and ousted her from her house and since then the respondent and minors are in pitiable conditions. Maintained that the petitioner did not bother to maintain the respondents-plaintiffs and also did not return dowry articles valuing Rs. 3,67,300/- or its alternate price of Rs.3,67,300/-. The respondent filed suit for recovery of maintenance allowance and return of dowry articles and gold ornaments on 07.09.2011, which was dismissed to the extent of (i), maintenance allowance of the respondent/plaintiff No.1, (ii), previous maintenance of the plaintiffs-respondents Nos. 2 to 4 and (iii), gold ornaments. The suit to the extent of maintenance allowance of minor plaintiffs Nos.2 to 4 respondents, was decreed and they were held entitled to receive maintenance allowance @ Rs. 1500/- each per month from the date of institution of the suit till their legal entitlement with 06% annual increase. The respondent was held entitled to recover Rs. 70,000/- as alternate price of dowry articles from the petitioner. The petitioner preferred appeal against the judgment and decree dated 08.03.2014 passed by the Judge Family Court, which was dismissed by the learned Addl. District Judge, Sahiwal vide judgment and decree dated 18.11.2014. Both the afore-referred judgments and decrees are under challenge through this constitutional petition.

3. Learned counsel for the petitioner has argued that learned courts below have erred in law while partially decreeing the suit filed by the plaintiffs-respondents. Further contends that maintenance allowance of Rs. 1500/- per month for each minor is excessive and beyond the paying capacity of the petitioner as monthly income of the petitioner is of Rs. 1500/(sic) Moreover, the petitioner is ready to perform his conjugal rights with the respondent and the list of dowry articles is bogus and has been prepared after-thought, in fact the respondent had brought nothing with her. Further respondents Nos. 2 to 4 are not studying in any school, therefore, no study expenses are borne by the respondent/plaintiff. Both the judgments and decrees passed by the courts below suffer from misreading and non-reading of the relevant record, therefore, are liable to be set-aside.

4. On the other hand, the counsel for the respondents argues that both the courts below have concurrently decreed the suit filed by the respondents after consulting the record and evidence produced by the parties. Moreover, the petitioner is a cultivator and owner of two acres of land and plots and he has also taken 15-acres of land on lease. Besides, he also deals in the business of cattle and he can easily pay Rs.3,000/- per month to each of the plaintiffs/respondents. Even otherwise, the petitioner being father of the minors is legally under obligation to maintain their children. Moreover, the respondent has proved her claim with respect to dowry articles by leading oral as well as documentary evidence, therefore, there is no illegality in the impugned judgments and decrees. Finally prays that the instant constitutional petition is liable to be dismissed.

5. Heard. Record perused.

6. The marriage between the parties and birth of five children from the wedlock is an admitted fact. As per available record, the said marriage is still intact. The respondent filed a suit for recovery of past and future maintenance allowance of the plaintiffs, recovery of dowry articles and gold ornaments on 19.03.2014. The petitioner filed written statement and contested the claim of the respondent. Pre-trial reconciliation proceedings failed on 27.03.2013. Thereafter, issues were framed and evidence of the parties was recorded.

7. As far as the claim of the respondents with regard to recovery of past maintenance allowance of respondents/minors, future maintenance allowance of respondent No.1.a and gold ornaments is concerned, the learned trial court has declined the same, which judgment has not been further assailed by the respondent, therefore, the same has attained finality.

8. Learned counsel for the petitioner contends the maintenance allowance awarded by the learned trial court is beyond the paying capacity of the petitioner as the monthly income of the petitioner is of Rs. 1500/- and he has no other means, whereas the respondent claims that the respondent is owner of two acres land besides having plots and business of cattle and he has also taken 15-acres of land on lease and cultivating the same and his monthly income about 40/50 thousand rupees and he can easily manage to pay Rs. 3000/- per month for each minor. To substantiate her claim, she tendered her affidavit in evidence in which she reiterated the same stance as stated in her plaint. She also produced Liaqat Ali son of Ahmad as PW-2 and Ghulam Farid son of Muhammad Sadiq as PW-3 in support of her claim. She in her cross-examination stated that the petitioner is a cultivator and is owner of two acre agricultural land and taken 15-acre land on lease. She deposed in her cross-examination that the petitioner earns Rs. 60,000/- per month. Further the petitioner deals in cattle business. She further deposed that minor Khizar Fareed is a class two student in a government school and his monthly fee is Rs. 100/- and he used to go to school on rikshaw, whose monthly fare is Rs. 500/- and minor Shahida Parveen is a Class-I student, who studies in a private school and her monthly fee is 200/300 per month awl she goes to school via rikshaw and monthly fare of which is Rs. 500/-. PW-2 and 3 in cross-examination also reiterated the same stance as stated by respondent in her statement with regard to study of the minor respondents. On the other hand, the petitioner himself appeared in the witness box as DW-1 and admitted that he is owner of land measuring 10 Kanal and also cultivating the same. Muhammad Akram (DW-2) in his evidence deposed that the respondent owns 10 kanal land. In cross-examination, he deposed that the monthly income of the petitioner is Rs.10/12 thousand and he also deals in cattle business. Muhammad Ishaque (DW-3) in his evidence deposed that the monthly income of the petitioner is Rs. 1000/2000/- and the petitioner owns 10 kanal land.

9. On perusal of the afore-referred evidence produced by the parties, it is proved that the petitioner is owner of 10 kanal land and also cultivating the same and earns his livelihood. DW-2 in his evidence deposed that the monthly income of the petitioner is almost Rs.10,000/12,000 per month besides business of cattle. In view of the matter, it cannot be stated that the petitioner earns Rs.1000/1200 or 1500 per month. Besides, the petitioner being father of the respondents Nos. 2 to 4 is under legal obligation to maintain them in order to meet their day-to-day expenses. He cannot exonerate himself from his moral and legal duty. In my considered view, the findings of the learned trial court as well as the appellate court are well-reasoned with respect to maintenance allowance of the respondents Nos. 2 to 4 No exception can be taken to the same and the same are upheld.

10. As regard the alternate price of dowry articles i.e., Rs. 70,000/-as decreed by the trial court and upheld by the appellate court is concerned, it is evident from the record the respondent has failed to produce any documentary proof with regard to purchase of such dowry articles as mentioned by her in her plaint. However, it is noticed that it is the custom of our society that the parents give dowry articles to their daughters as per their financial status. The marriage between the parties was solemnized in the year 1996 and the marriage between the parties is still intact and during the subsistence of marriage, these articles may have been deteriorated due to its use and perishable items. In my considered view the learned courts below were quite justified in decreeing the claim of the respondent to the extent of Rs. 70,000/- as alternate price of dowry articles. No exception can be taken to the same.

11. Besides, the fixation of the afore-referred amount is a finding of fact and the High Court in its writ jurisdiction can neither reappraise the evidence and substitute findings of facts recorded by Family Court, nor can give opinion regarding quality or adequacy of the evidence. The assessment and appraisal of evidence is the function of the lower court, which is vested with its exclusively jurisdiction in this regard. Reliance in this regard is placed on the case reported as PLD 1981 SC 522 (Abdul Rehman Bajwa v. Sultan and 9 others), 2003 YLR 3097 (Parveen Umar and 3 others v. Sardar Hussain and 5 others), 2003 CLC 702 (Aqal Zaman v. Mst. Azad Bibi and others). The petitioner was required to show some jurisdictional defect committed by the courts below in order to make his case entertainable by this Court while exercising constitutional jurisdiction but no such defect has been shown in the impugned judgments and decrees passed by the courts below.

12. For what has been discussed above, this petition being devoid of any merit stands dismissed. MQ/M-114/L Petition dismissed.