Const. Petition No. S-
1753 of 2012.
Iqbal. . . . . . . . . . . . . . .
. . . . .. .Petitioner.
and others. . . . . . . . . . . . . . . . . . . . . . . .Respondents.
Date of hearing: 15th February, 2013.
Mr. Sohail Ahmed Khoso,
Advocate for the Petitioner.
Mr. Raham Ali Jatoi, Advocate
for respondent No.1.
Mr. Salahuddin Abro, State
Salahuddin Panhwar J., Petitioner has assailed the judgment dated 14th May,
2012 passed in Family Appeal No. 10 of 2011, by Additional District Judge,
Gambat, whereby, appeal filed by respondents was allowed with modification in
the judgment and decree, passed by the Family court.
facts of the case are that respondent’s marriage was solemnized with petitioner
on 18.12.2008, in accordance with the injunctions of Islam. Initially, the
couple elapsed their days with pleasures. Out of the said wedlock, one female
baby Aisha was born. With the passage of time, the relations became un-cordial,
therefore, petitioner dropped his wife and daughter in the house of her parents, therefore, hectic
efforts for re-conciliation were made but all, in vain, therefore, she filed
suit for maintenance and recovery of dowry articles.
admission of suit, written statement was filed by petitioner with complete
denial and it was further stated that respondent No.1 was characterless lady
and she made his life miserable, therefore, she by taking away all items of the
house of her husband went away. It was further averred that she used to talk on
mobile with strangers, but her husband left no stone unturned from pursuing her
for not talking with strangers but she did not listen to the due commands of
her husband. Petitioner further averred that he is maintaining both the
of the pleadings, trial court framed six relevant issues and both parties led
pro and contra evidence against each other and finally impugned judgment and
decree were drawn, wherein, prayer to the extent of decree of dowry articles
was declined and as maintenance, Rs. 1500/- per month for Iddat period was
awarded to her and for her baby Aisha Rs.1500/- from the date of filing suit
with 15% increase per year till she marries, was directed.
is further revealed that appellate court, while maintaining the judgment passed
by the trial court, modified the same and prayer of maintenance of baby Aisha was increased from
Rs 1500 to Rs 2000, and appellant/respondent was directed to return dowry items
No.1 to 29, as shown in the list at Exh.6, in case of failure, in returning the
dowry items, he was directed to pay Rs. 50,000/-.
counsel for the petitioner inter alia contended that appellate court has not
appreciated the evidence available on record; regarding dowry articles;
respondents failed to substantiate their claim with cogent and concrete
evidence, in spite of that Additional District Judge has accepted their appeal;
such exercise undertaken by the appellate court is without jurisdiction and is
not sustainable under law.
counsel for the respondent No.1, while refuting the claim of the petitioner,
argued that appellate court has rightly modified the judgment of the trial
court as there was enough evidence available to prove that the parents of respondent
No.1,at the time of marriage; with love and affection; handed over dowry
articles, same were not returned by the petitioner and she was expelled by the
petitioner, therefore, such articles remained in the house of petitioner.
careful examination of available record and consideration of contentions raised
by learned counsel of respective parties, it is suffice to say that Additional District
Judge, Gambat, while deciding the aforesaid appeal has categorically discussed the
evidence and documents exhibited and has drawn inference as under:-
the daughter and dowry items taken by the family of the groom, therefore , the
lady had rightly proved her case to the extent of giving dowry to her husband
in ex 6., therefore he/respondent is bound down to return the dowry items No. 1
to 29 to the appellant and in case of failure in returning the dowry items as
per list at Exh .6, then he has to pay Rs 50000/ to his Ex-wife. The other
documents could not be proved by the plaintiff No.1 because neither there is
any signature of respondents nor there is any sort of evidence showing that
these gold ornaments were got prepared from different jewelers and same were
handed over to respondents and such receipts were obtained from him. The
appellant No.1 filed the suit on 16.5.2011 and she was divorced on 29.4.2011. It
is also unbelievable that within days relations became un-cordial and within
shortest period the lady was divorced by her husband. Because in our society
the marriage and divorce take after passage of long time and finally respondent
in his own Talaknama at Exh.21/B had mentioned which is highlighted by me with
yellow color marker point which shows that she had left her house about six
months back which time period shows that about 6 to 7 months before filing of
family suit she was kicked out by respondent, therefore, her version is
directly supported and admitted by the Talaknama executed by respondent himself
on 29.4.2011, therefore, respondent No.1 is liable to pay the maintenance to
his wedded legal wife 7 months back from the filing of family suit on 16.5.2011 till the Iddat period at the rate
ofRs.3000/- per month because Rs. 100/- daily is valueless as dearness is
increasing day by day”.
From bare perusal of above finding
and evidence available on record, it is manifests that finding recorded in
appellate jurisdiction is according to evidence and it cannot be said that same
is without substance; moreover counsel for the petitioner has failed to point
out any illegality, irregularity or infirmity in the impugned judgment.
regard to the stance of husband’s side that bride while making claim of dowry
articles, is required to prove the case, in requirements of Qanun-e-Shahadat
Order 1984, as held by learned trial Court, not only misconceived, but besides
the mandate of law as envisaged in section 17(1) of the West Pakistan Family
Courts Act, 1964, which is a special law. For convenience Section 17 of Act
ibid is reproduced herein below:-
of Evidence Act and Code of Civil Procedure not to apply.-
Save as otherwise
expressly provided by or under this Act, the provisions of the
(Qaunu-e-Shahadat, 1984 (P.O No.10 of 1984) and the Code of Civil Procedure,
1908 (except section 10 and 11) shall not apply to proceedings before any
Family Court, [in respect of Part I of
Sections 8 to 11
of the Oaths Act, 1873, shall apply to all proceedings before the Family
Bare reading of above provision makes
it abundantly clear that provisions of Qanun-e-Shahadat Order, 1984 are
otherwise, in our, society, it is not possible for any bride/wife to keep the
record of purchase receipts, prepare the list of dowry articles, and obtain
signatures from bridegroom/husband side. In my observation, mothers start
collecting, purchase and preserving of articles for her daughter, when she
starts growing. It is also a tradition that in-laws, of any bride/wife are
extended esteem respect and it is considered an insult to prepare the dowry list
for the purposes of obtaining signature from them. I am also fortified, with
the ratio and wisdom of the Court of apex provided through cases Muhammad Habib
v. Mst.Safia Bibi and others reported as 2008 SCMR 1584 and Mirza Arshad Baig
v. ADJ reported as 2005 SCMR 1740.
is settled proposition of law that Courts below, in its original and appellate
jurisdiction are competent to draw inference, while delivering the judgment and
it is not open to interference in Constitutional jurisdiction, unless and until
miscarriage of justice is established by the party in the Constitutional
petition, thus, High court would not normally interfere in judgment and decree
passed by court of competent jurisdiction for the reason that it was within their
exclusive jurisdiction, to believe and disbelieve the evidence . It is worth to
add that no Constitutional petition lies when evidence in the case has been
properly appreciated and analyzed.
For the aforesaid reasons, finding no force in this writ petition, same was
dismissed by a short order dated 15th February, 2013.