2013 PLP 601 (CLC)

IBAD-UR-REHMAN LODHI, J.

Through this common judgment, I intend to dispose of Writ Petitions Nos.3806 and 2841 of 2009 as both are in between the same parties and arising out of the consolidated judgments of the courts below.

2. In Writ Petition No.3806 of 2009, the petitioner Shaukat Hayat Khan has challenged the findings of the learned courts below, whereby towards the claim of dowry of Manzoor Fatima, respondent No.3 for Rs.4,80,000/-, the courts below granted a decree to the extent of Rs.1,46,200/- and also the dismissal of his petition under section 25 of the Guardians and Wards Act, 1890 seeking custody of his son, who is presently 11 years of age and continuously has been in the custody of his mother Mst. Manzoor Fatima. Whereas Mst. Manzoor Fatima in other writ petition has called in question the findings of the learned courts below, whereby a relief of Rs.5,00,000/- was refused, which she claimed on the strength of a document dated 12-9-2006 through which reportedly Shaukat Hayat Khan committed to pay Rs.5,00,000/- as compensation in case of certain violations. The decree in toto for Rs.4,80,000/- against dowry is also claimed.

3. As noted above against the claim of dowry of Rs.4,80,000/-, the learned courts below partially decreed the suit by granting a decree of Rs.1,46,200/- in this regard, whereas, the amount of Rs.5,00,000/-, which was granted by the learned trial Court was refused in appeal. The petition under section 25 of the Guardians and Wards Act, 1890 moved by Shaukat Hayat Khan was concurrently dismissed by the courts below.

4. I have heard the learned counsel for the parties and perused the record.

5. With regard to the claim of dowry, the courts of facts reached to the conclusion that the plaintiff Mst. Manzoor Fatima has miserably failed to establish on record her claim as is contained in her list Exh.P.1 showing 28-articles valuing Rs.4,80,000/- but on a stated admission on the part of Shaukat Hayat Khan, the claim of plaintiff was partially decreed to the extent of Rs.1,46,200/-. After complete scrutiny of the record, I have not been able to find out any admission on the part of defendant Shaukat Hayat Khan with regard to the claim of dowry rather otherwise in the written statement, it has specifically been denied that at the time of filing of suit for recovery of dowry, any article of dowry was left with Shaukat Hayat Khan. When the defendant Shaukat Hayat Khan appeared in witness box as DW.1, he was cross-examined and during his cross-examination, the plaintiff Manzoor Fatima put her case to such witness to which he replied as under:

urdu Similarly, DW.2 Muhammad Liaqat Hayat was cross-examined and he was asked the detail of articles of dowry which the plaintiff Manzoor Fatima shifted to her house to which this witness replied as under:

urdu The plaintiff in the suit has not placed on record any receipt of any article of the dowry and no witness in order to establish the purchase of any article, at the relevant time, was produced. The original claim of Rs.4,80,000/- was denied by both the learned courts below and when her such version has been disbelieved with regard to which Exh.P.1 was produced only then on the basis of surmises and presumptions, the decree to the extent of Rs.1,46,200/- was granted, which has no basis and foundation, thus the suit of Manzoor Fatima for her dowry claim is dismissed.

6. The basis of claim for recovery of Rs.5,00,000/- is a document titled "Iqrar Nama" dated 12-9-2006 and learned Judge Family Court has granted the relief on the basis of such document, which has although been refused in appeal but Manzoor Fatima has again agitated her such claim through Constitutional petition.

7. The learned counsel for Manzoor Fatima has argued that this document was entertained in evidence as Exh.P.2 to which the defendant never objected to and thus in his view, the said document has been proved. Learned counsel must keep in consideration a fact that production of a document and proof thereof are too distinct incidents. A document, which is exhibited in evidence, must not be a proved document. The question of jurisdiction, as to the admissibility of claim and nature of document is also to be seen. A Family Court is competent to exercise its exclusive jurisdiction to entertain, hear and adjudicate upon the matter specified in Part-I of the Schedule. The Part-I of the schedule provides the under mentioned matters:

(1) Dissolution of Marriage ["including Khula"]. (2) Dower. (3) Maintenance. (4) Restitution of Conjugal Rights. (5) Custody of Children ["and the visitation rights of parents to meet them"]. (6) Guardianship. (7) [Jactitation of Marriage]. (8) Dowry. (9) Personal Property and belongings of a wife. When the learned counsel for Manzoor Fatima was asked as to in what part of the Schedule, her case falls, the answer was that it is against Item No.9 which provides the jurisdiction to the Judge Family Court to adjudicate upon the matter of personal property and belongings of a wife.

8. The perusal of Exh.P.2 reveals that it was written by Shaukat Hayat Khan committing himself to pay an amount of Rs.5,00,000/- in case of certain commissions or omissions. Such commitment or undertaking cannot attain the status of personal belongings or property of a wife and thus adjudication on the basis of such document would fall outside the scope of the jurisdiction of a Family Court. Even otherwise the document Exh.P.2 was never proved in accordance with law and no reliance can be placed upon such document. The learned Additional District Judge, Mianwali was therefore, right in refusing the claim of Rs.5,00,000/- on the basis of Exh.P.2. The findings of learned Additional District Judge are therefore, affirmed.

9. With regard to custody of minor, admittedly the father of minor Shaukat Hayat Khan has entered into second marriage and there are other issues from the second marriage. The mother Manzoor Fatima has not entered into second marriage rather she has devoted her remaining life for her son and after taking the custody of minor from her real mother, the same cannot be handed over to the step-mother. Admittedly, since birth the minor is with the mother Manzoor Fatima and now at this point of time, when he is 11 years of age, the change of custody would naturally damage the personality of the minor psychologically and this jerk would not, at all, be considered in his welfare, as "lap of mother is lap of the God". The learned courts below have rightly declined the custody of minor to Shaukat Hayat Khan. The right to have custody has been urged only on the ground that Shaukat Hayat Khan has been providing maintenance to minor son. This is no ground for claiming custody of a minor, for, it is the absolute duty of a father to maintain his child, wherever child lives and poverty of a mother would not deprive her from the custody of her real child. The findings in this regard arrived at by the learned courts below are, therefore, affirmed.

10. The writ petitions stand disposed of in the manner as noted above. KMZ/S-114/L Order accordingly.