ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Constitutional Petition No. S- 115 of 2020.

Date                            Order with signature of Hon’ble Judge

1.For orders on office objection as flag A.

2.For orders on M.A No. 497 of 2022.

3.For orders on maintainability of M.A No.259 of 2020.

4.For orders on maintainability of main case.

09.02.2023.

Mr. Asif Ali Kalhoro, advocate for the petitioner.

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            The petitioner has challenged judgment and decree dated 11.3.2020 passed by the learned 3^rd Additional District Judge (MCAC), Larkana/respondent No.2 in Family Appeal No.03 of 2020 whereby  the suit filed by the respondent No.1 for dower and maintenance  was decreed as prayed against the petitioner.

            Counsel for the respondent No.1 is called absent. Therefore, heard  the petitioner’s counsel and perused the record.

            The respondent No.1/plaintiff had prayed for Rs.50,000/= Haq Mahar    fixed in the nikahnama and maintenance Rs.50,000/=  per month.  The  defendant/petitioner  was debarred  from written statement as he failed to file the same despite opportunities. However, after recording evidence, learned Family Court was inclined to dismiss the suit on the ground that documentary evidence produced by the respondent No.1 was not credible. 

            On the other hand, apparently the respondent No.1 brought no evidence as to the  income of petitioner to support her case for maintenance of Rs.50,000/= per month.  As regards Haq Mahar, it is noted in the impugned judgment that the nikahnama was not legible and yet  the learned Appellate Court  believed  the version of the respondent No.1 as to the quantum of the Haq Mahar. Learned counsel or the petitioner states  that in fact the parties have been divorced;  that Haq Mahar was not agreed  at Rs.50,000/= as alleged;  and that the petitioner was  lowly paid employee serving at a Patrol Pump with salary of Rs.12,000/= per month. 

            In view of the foregoing, where the Appellate Court had simply relied upon the testimony of the respondent No.1 even after not believing  the terms of the nikahnama case is one of misreading of the evidence therefore, impugned judgment and decree dated 11.03.2020 passed by learned 3^rd Additional District Judge (MCAC), Larkana in  Family Appeal No.03 of 2020 is set aside. So also the impugned judgment and decree dated 04.01.2020 passed by the Family Court,  and the matter is remanded to the Family Court.  The petitioner is given three weeks’ time to file written statement, if he fails to do so, he shall stand debarred and Family Court shall thereafter record the evidence of the parties.

            Instant constitutional petition is disposed of in above terms.

JUDGE

shabir