Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Suit for recovery of maintenance allowance and dower by wife---Quantum of maintenance allowance---Scope---Entry in Nikahnama---Presumption of truth---Scope---Stipulation in Column No. 17 of Nikahnama; undertaking by husband to give residential house to the wife---Effect---Deferred dower---Scope---Petitioner/wife contended that Appellate Court had wrongly awarded her maintenance allowance lesser than the amount already incorporated in Column No.20 of the Nikahnama---Wife also claimed 5-marlas house as per stipulation in Column No. 17 of Nikahnama ---Husband contended that Appellate Court had rightly set aside decree in favour of wife regarding the house as only civil suit could be filed regarding such stipulation in the Nikahnama---Validity---Record revealed that both the parties with their consent, even prior to the accrual of dispute regarding quantum of maintenance, had settled maintenance allowance @ Rs. 5000/- per month---Courts below had not, while fixing maintenance allowance for the wife, taken into consideration said vital condition---Husband was bound by self-imposed condition---Neither any valid reason had been pleaded nor existed to depart from such condition---Observation of the Appellate Court regarding stipulation of house in the Nikahnama, was not in consonance with law as per entries against Column No. 17 of exhibited Nikahnama, husband had agreed to give 5-marla residential house to the wife and under the law, presumption of truth was attached to the entries of Nikahnama---Wife was entitled to recover said house from the husband as dower/gift, however, admittedly, the marriage between the parties still existed whereas said stipulation of Nikahnama was to be treated as deferred dower so the wife would be entitled to recover said house on dissolution of marriage either in case of death or divorce by the respondent/husband---High Court modified the impugned decrees and judgments and wife was held entitled to recover maintenance allowance @ Rs.5,000/- per month with 10% annual increase and she would also be entitled to recover 5-marla residential house as deferred dower in case of dissolution of marriage, on death or divorce---Constitutional petition was allowed accordingly. [Paras. 8, 10 & 11 of the judgment]
Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another 1991 CLC 1142; Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613; Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88; Liaqat Khan v. Bakht Bibi 2018 CLC 708 and Muhammad Aslam v. Mst. Suraya PLD 2000 Lah. 355 ref.
Shahida Parveen v. Nijabat Ali and 2 others 2009 MLD 671 distinguished.
Malik Muhammad Aslam Channar for Petitioner.
Mrs. Nusrat Jabeen for Respondent No.1.
Mst. SHEHNAZ MAI VS GHULAM ABBAS2018 C L C Note 104[Lahore (Bahawalpur Bench)]Before Mujahid Mustaqeem Ahmad, JMst. SHEHNAZ MAI---PetitionerVersusGHULAM ABBAS and 2 others---RespondentsW.P. No. 363 of 2013/BWP, decided on 06/04/2018.
ORDER
MUJAHID MUSTAQEEM AHMAD, J.---This constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question legality and propriety of the judgment and decree dated 13.12.2012 passed by learned Additional District Judge, Hasilpur, District Bahawalpur and judgment and decree dated 19.12.2011 (to the extent of awarding lesser maintenance) of the learned Judge Family Court, Hasilpur, District Bahawalpur.
2.Background of the family litigation culminating into present writ petition necessary for just and fair decision of it, is that the petitioner and Ghulam Abbas, respondent were married on 09.07.2009 vide Nikahnama (Exh.PA) against Haq-ul-Mehr Rs.1200/- and 05-marlas house specified against Colum No.17 of Nikahnama. There appeared some differences between the spouses and in May-2010, petitioner filed a family suit for composite relief i.e. past maintenance for six months as well as future maintenance @ Rs.5000/- per month, suit for recovery of dowry articles as per list (Mark-A) or in alternate its price Rs.2,46,732/- and recovery of dower i.e. house.
3.The respondent contested the suit maintaining that the petitioner was leading deserted life on her own. The dowry articles were not given to the petitioner as per list (Mark-A) rather the same, as mentioned in list Mark-B, were in his possession which he was ready to return even on special oath. He further pleaded that neither he was owner of the house nor he agreed to give it to the petitioner in her Haq-ul-Mehr.
4.To resolve the controversy between the parties, learned trial Court framed the following issues:--
i.Whether the plaintiff is entitled to recover the maintenance allowance to the tune of Rs.5000/- per month, previously for the last 06 months and also in future as prayed for from the defendant? OPP.
ii.Whether the plaintiff is entitled to recover the dowry articles according to list Mark-A or value Rs.246732/-? OPP.
iii.Whether the plaintiff is entitled to restore the house mentioned in column No.17 of the Nikahnama from the defendant? OPP.
iv.Whether the plaintiff is Ghayr abad without any cause and justification and is not performing the marital obligations, hence, she is not entitled to recover the maintenance allowance? OPD.
v.Relief.
In order to prove her case, present petitioner appeared as PW.1 and also produced Noor Muhammad PW.2 to substantiate her claim whereas the respondent entered the witness box as DW.1 and produced Ijaz Hussain Shah as DW.2 in support of his version. After recording evidence of the parties, suit of the petitioner was decreed vide judgment and decree dated 19.12.2011 by learned Judge Family Court in the following terms:--
"Suit of the plaintiff is partially decreed to the extent that plaintiff is entitled to receive maintenance at the rate of Rs.1500/- per month from the institution of the suit till legal limitations with annual increase of 10 percent after every year and she is also entitled to recover her dowry articles as per list Mark-A or its price Rs.2,00,000/- (two lac) as, alternate one and plaintiff is also entitled to restore 5 Marla house agreed upon in column No.17 of the Nikahnama."
5.Both the parties dis-satisfied with the impugned judgment and decree assailed the same before the learned Additional District Judge, Hasilpur, District Bahawalpur, who vide judgment and decree dated 13.12.2012 partly allowed the appeal of the respondent and petitioner was held entitled to recover dowry articles as per list Mark-A excluding items mentioned at Serial Nos.15 and 16 (gold ornaments) or in alternate price of dowry articles mentioned in the list and it was further held that petitioner was not entitled to recover 5-marlas house in family suit, however, she was allowed to file suit for recovery of house before the competent forum. To the extent of remaining claims, appeals of both the parties were dismissed.
6.The petitioner still not feeling satisfied with the aforementioned judgments of the learned Courts below has approached this Court with instant constitutional petition mainly on the grounds that the same are against facts and law and as such petitioner has prayed for increase of her maintenance allowance @ Rs.5000/- as per term No.20 of Nikahnama and decree of her claim for recovery of house and dowry articles Rs.2,46,732/-.
7.Arguments heard. Record perused.
8.So far as claim of the petitioner for recovery of maintenance allowance is concerned, both the learned Courts below have found her entitled for maintenance. Respondent has also not challenged the said claim of the petitioner. However, petitioner has only challenged the quantum of maintenance allowance awarded by the Courts below. According to the petitioner's version, as per Stipulation No.20 of Nikahnama Ex.PA, respondent has agreed to pay her Rs.5000/- per month as maintenance allowance in case of desertion. This condition has not been disputed by the respondent. Both the parties with their consent even prior to accruing dispute regarding quantum of maintenance have settled maintenance allowance @ Rs.5000/- per month but while fixing maintenance allowance for the petitioner, learned Courts below have not taken into consideration this vital condition. The respondent is bound by said self-imposed condition. Neither any valid reason has been pleaded nor existed to depart from such special condition/stipulation. In case "Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another" (1991 CLC 1142), maintenance allowance was awarded on the basis of such stipulation. As such findings of the Courts below on the issue of maintenance allowance only to the extent of quantum of maintenance are not based on proper appreciation of evidence on record and thus, petitioner is entitled to recover maintenance allowance from the respondent @ Rs.5000/- per month with increase formula from the date specified by learned Judge Family Court.
9.Both the learned Courts below have believed the evidence of petitioner in respect of her claim for recovery of dowry articles. However, learned Additional District Judge, Hasilpur, District Bahawalpur, vide impugned judgment has excluded gold ornaments mentioned at Serial Nos. 15 and 16 of the list (Mark-A) from the decree observing that these ornaments were in the custody of present petitioner and she has failed to produce any evidence that these (ornaments) were snatched by respondent when she left his house. Learned Additional District Judge has assigned cogent and valid reasons for excluding these ornaments from the list of dowry articles and learned counsel for the petitioner has failed to substantiate his plea that findings of learned Additional District Judge on this issue are based on misreading or non-reading of evidence. The superior Courts have taken consistent view that womenfolk, as per custom and usage, always keep gold ornaments with them and are not ready to depart from them. Thus, to my view the conclusion drawn by learned Additional District Judge in this regard is based on fair and proper appreciation of evidence on record whereas the learned Judge Family Court has misread the evidence on this issue. As such, findings of learned Additional District Judge on issue of recovery of dowry articles based on proper appreciation of evidence do not warrant any modification or alteration by this Court.
10.The petitioner has claimed 5-marlas house as per stipulation in Column No.17 of Nikahnama (Exh.PA) and learned Judge Family Court on the basis of the same, has decreed the claim of present petitioner whereas in appeal, learned Additional District Judge has concluded that in view of case "Shahida Parveen v. Nijabat Ali and 2 others" (2009 MLD 671), only civil suit can be filed regarding such stipulation but this observation of learned Additional District Judge is not in consonance with law. In case "Yasmeen Bibi v. Muhammad Ghazanfar Khan and others" (PLD 2016 Supreme Court 613), it was held as under:-
"Undertaking given in the "Nikah Nama" that certain property/land shall be transferred in the name of the wife and she would be exclusive owner of the same. Such an undertaking could be construed as a part of dower or a gift to wife in consideration of marriage, therefore, it would fall within the exclusive domain of the Family Court to pass a decree in relation to such property/land."
No doubt, respondent has tried to wriggle out from bonds of such undertaking by claiming that neither he agreed to give the house nor he was owner of any such house and as such, petitioner was entitled to recover 05-marlas house from him but this contention of respondent is devoid of any legal force. As per entries against Column No.17 of Nikahnama (Ex.PA), respondent has agreed to give 05-marlas residential house and under the law, presumption of truth is attached to the entries of Nikahnama. Reliance is placed on the case of Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others (PLD 2015 Lahore 88), Liaqat Khan v. Bakht Bibi (2018 CLC 708) and Muhammad Aslam v. Mst. Suraya (PLD 2000 Lahore 355). As such, petitioner is entitled to recover this house from the respondent as dower/gift. However, it is admitted fact that still marital tie exists inter se the parties whereas said stipulation of Nikahnama in view of case Sadia Usman v. Muhammad Usman Iqbal Jadoon (PLD 2009 Supreme Court 1458) is to be treated as "deferred" dower, so the petitioner would be entitled to recover this house on dissolution of marriage either in case of death or divorce by respondent.
11.As sequel to the above discussion, instant writ petition is partly allowed, while modifying the judgments and decrees assailed herein, the petitioner is held entitled to recover maintenance allowance @ Rs.5,000/- per month with 10% formula of annual increase for the period specified in the impugned judgments. Petitioner would be also entitled to recovery of residential house measuring 05-marlas as deferred dower in case of dissolution of marriage, on death or divorce, as the case may be. Consequently, the suit of the petitioner for maintenance and recovery of dower also stands decreed in the above terms.
12.The writ petition to the extent of remaining prayers stands dismissed.
MQ/S-32/L Order accordingly.
Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Suit for recovery of maintenance allowance and dower by wife---Quantum of maintenance allowance---Scope---Entry in Nikahnama---Presumption of truth---Scope---Stipulation in Column No. 17 of Nikahnama; undertaking by husband to give residential house to the wife---Effect---Deferred dower---Scope---Petitioner/wife contended that Appellate Court had wrongly awarded her maintenance allowance lesser than the amount already incorporated in Column No.20 of the Nikahnama---Wife also claimed 5-marlas house as per stipulation in Column No. 17 of Nikahnama ---Husband contended that Appellate Court had rightly set aside decree in favour of wife regarding the house as only civil suit could be filed regarding such stipulation in the Nikahnama---Validity---Record revealed that both the parties with their consent, even prior to the accrual of dispute regarding quantum of maintenance, had settled maintenance allowance @ Rs. 5000/- per month---Courts below had not, while fixing maintenance allowance for the wife, taken into consideration said vital condition---Husband was bound by self-imposed condition---Neither any valid reason had been pleaded nor existed to depart from such condition---Observation of the Appellate Court regarding stipulation of house in the Nikahnama, was not in consonance with law as per entries against Column No. 17 of exhibited Nikahnama, husband had agreed to give 5-marla residential house to the wife and under the law, presumption of truth was attached to the entries of Nikahnama---Wife was entitled to recover said house from the husband as dower/gift, however, admittedly, the marriage between the parties still existed whereas said stipulation of Nikahnama was to be treated as deferred dower so the wife would be entitled to recover said house on dissolution of marriage either in case of death or divorce by the respondent/husband---High Court modified the impugned decrees and judgments and wife was held entitled to recover maintenance allowance @ Rs.5,000/- per month with 10% annual increase and she would also be entitled to recover 5-marla residential house as deferred dower in case of dissolution of marriage, on death or divorce---Constitutional petition was allowed accordingly. [Paras. 8, 10 & 11 of the judgment]
Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another 1991 CLC 1142; Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613; Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88; Liaqat Khan v. Bakht Bibi 2018 CLC 708 and Muhammad Aslam v. Mst. Suraya PLD 2000 Lah. 355 ref.
Shahida Parveen v. Nijabat Ali and 2 others 2009 MLD 671 distinguished.
Malik Muhammad Aslam Channar for Petitioner.
Mrs. Nusrat Jabeen for Respondent No.1.
ORDER
MUJAHID MUSTAQEEM AHMAD, J.---This constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question legality and propriety of the judgment and decree dated 13.12.2012 passed by learned Additional District Judge, Hasilpur, District Bahawalpur and judgment and decree dated 19.12.2011 (to the extent of awarding lesser maintenance) of the learned Judge Family Court, Hasilpur, District Bahawalpur.
2.Background of the family litigation culminating into present writ petition necessary for just and fair decision of it, is that the petitioner and Ghulam Abbas, respondent were married on 09.07.2009 vide Nikahnama (Exh.PA) against Haq-ul-Mehr Rs.1200/- and 05-marlas house specified against Colum No.17 of Nikahnama. There appeared some differences between the spouses and in May-2010, petitioner filed a family suit for composite relief i.e. past maintenance for six months as well as future maintenance @ Rs.5000/- per month, suit for recovery of dowry articles as per list (Mark-A) or in alternate its price Rs.2,46,732/- and recovery of dower i.e. house.
3.The respondent contested the suit maintaining that the petitioner was leading deserted life on her own. The dowry articles were not given to the petitioner as per list (Mark-A) rather the same, as mentioned in list Mark-B, were in his possession which he was ready to return even on special oath. He further pleaded that neither he was owner of the house nor he agreed to give it to the petitioner in her Haq-ul-Mehr.
4.To resolve the controversy between the parties, learned trial Court framed the following issues:--
i.Whether the plaintiff is entitled to recover the maintenance allowance to the tune of Rs.5000/- per month, previously for the last 06 months and also in future as prayed for from the defendant? OPP.
ii.Whether the plaintiff is entitled to recover the dowry articles according to list Mark-A or value Rs.246732/-? OPP.
iii.Whether the plaintiff is entitled to restore the house mentioned in column No.17 of the Nikahnama from the defendant? OPP.
iv.Whether the plaintiff is Ghayr abad without any cause and justification and is not performing the marital obligations, hence, she is not entitled to recover the maintenance allowance? OPD.
v.Relief.
In order to prove her case, present petitioner appeared as PW.1 and also produced Noor Muhammad PW.2 to substantiate her claim whereas the respondent entered the witness box as DW.1 and produced Ijaz Hussain Shah as DW.2 in support of his version. After recording evidence of the parties, suit of the petitioner was decreed vide judgment and decree dated 19.12.2011 by learned Judge Family Court in the following terms:--
"Suit of the plaintiff is partially decreed to the extent that plaintiff is entitled to receive maintenance at the rate of Rs.1500/- per month from the institution of the suit till legal limitations with annual increase of 10 percent after every year and she is also entitled to recover her dowry articles as per list Mark-A or its price Rs.2,00,000/- (two lac) as, alternate one and plaintiff is also entitled to restore 5 Marla house agreed upon in column No.17 of the Nikahnama."
5.Both the parties dis-satisfied with the impugned judgment and decree assailed the same before the learned Additional District Judge, Hasilpur, District Bahawalpur, who vide judgment and decree dated 13.12.2012 partly allowed the appeal of the respondent and petitioner was held entitled to recover dowry articles as per list Mark-A excluding items mentioned at Serial Nos.15 and 16 (gold ornaments) or in alternate price of dowry articles mentioned in the list and it was further held that petitioner was not entitled to recover 5-marlas house in family suit, however, she was allowed to file suit for recovery of house before the competent forum. To the extent of remaining claims, appeals of both the parties were dismissed.
6.The petitioner still not feeling satisfied with the aforementioned judgments of the learned Courts below has approached this Court with instant constitutional petition mainly on the grounds that the same are against facts and law and as such petitioner has prayed for increase of her maintenance allowance @ Rs.5000/- as per term No.20 of Nikahnama and decree of her claim for recovery of house and dowry articles Rs.2,46,732/-.
7.Arguments heard. Record perused.
8.So far as claim of the petitioner for recovery of maintenance allowance is concerned, both the learned Courts below have found her entitled for maintenance. Respondent has also not challenged the said claim of the petitioner. However, petitioner has only challenged the quantum of maintenance allowance awarded by the Courts below. According to the petitioner's version, as per Stipulation No.20 of Nikahnama Ex.PA, respondent has agreed to pay her Rs.5000/- per month as maintenance allowance in case of desertion. This condition has not been disputed by the respondent. Both the parties with their consent even prior to accruing dispute regarding quantum of maintenance have settled maintenance allowance @ Rs.5000/- per month but while fixing maintenance allowance for the petitioner, learned Courts below have not taken into consideration this vital condition. The respondent is bound by said self-imposed condition. Neither any valid reason has been pleaded nor existed to depart from such special condition/stipulation. In case "Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another" (1991 CLC 1142), maintenance allowance was awarded on the basis of such stipulation. As such findings of the Courts below on the issue of maintenance allowance only to the extent of quantum of maintenance are not based on proper appreciation of evidence on record and thus, petitioner is entitled to recover maintenance allowance from the respondent @ Rs.5000/- per month with increase formula from the date specified by learned Judge Family Court.
9.Both the learned Courts below have believed the evidence of petitioner in respect of her claim for recovery of dowry articles. However, learned Additional District Judge, Hasilpur, District Bahawalpur, vide impugned judgment has excluded gold ornaments mentioned at Serial Nos. 15 and 16 of the list (Mark-A) from the decree observing that these ornaments were in the custody of present petitioner and she has failed to produce any evidence that these (ornaments) were snatched by respondent when she left his house. Learned Additional District Judge has assigned cogent and valid reasons for excluding these ornaments from the list of dowry articles and learned counsel for the petitioner has failed to substantiate his plea that findings of learned Additional District Judge on this issue are based on misreading or non-reading of evidence. The superior Courts have taken consistent view that womenfolk, as per custom and usage, always keep gold ornaments with them and are not ready to depart from them. Thus, to my view the conclusion drawn by learned Additional District Judge in this regard is based on fair and proper appreciation of evidence on record whereas the learned Judge Family Court has misread the evidence on this issue. As such, findings of learned Additional District Judge on issue of recovery of dowry articles based on proper appreciation of evidence do not warrant any modification or alteration by this Court.
10.The petitioner has claimed 5-marlas house as per stipulation in Column No.17 of Nikahnama (Exh.PA) and learned Judge Family Court on the basis of the same, has decreed the claim of present petitioner whereas in appeal, learned Additional District Judge has concluded that in view of case "Shahida Parveen v. Nijabat Ali and 2 others" (2009 MLD 671), only civil suit can be filed regarding such stipulation but this observation of learned Additional District Judge is not in consonance with law. In case "Yasmeen Bibi v. Muhammad Ghazanfar Khan and others" (PLD 2016 Supreme Court 613), it was held as under:-
"Undertaking given in the "Nikah Nama" that certain property/land shall be transferred in the name of the wife and she would be exclusive owner of the same. Such an undertaking could be construed as a part of dower or a gift to wife in consideration of marriage, therefore, it would fall within the exclusive domain of the Family Court to pass a decree in relation to such property/land."
No doubt, respondent has tried to wriggle out from bonds of such undertaking by claiming that neither he agreed to give the house nor he was owner of any such house and as such, petitioner was entitled to recover 05-marlas house from him but this contention of respondent is devoid of any legal force. As per entries against Column No.17 of Nikahnama (Ex.PA), respondent has agreed to give 05-marlas residential house and under the law, presumption of truth is attached to the entries of Nikahnama. Reliance is placed on the case of Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others (PLD 2015 Lahore 88), Liaqat Khan v. Bakht Bibi (2018 CLC 708) and Muhammad Aslam v. Mst. Suraya (PLD 2000 Lahore 355). As such, petitioner is entitled to recover this house from the respondent as dower/gift. However, it is admitted fact that still marital tie exists inter se the parties whereas said stipulation of Nikahnama in view of case Sadia Usman v. Muhammad Usman Iqbal Jadoon (PLD 2009 Supreme Court 1458) is to be treated as "deferred" dower, so the petitioner would be entitled to recover this house on dissolution of marriage either in case of death or divorce by respondent.
11.As sequel to the above discussion, instant writ petition is partly allowed, while modifying the judgments and decrees assailed herein, the petitioner is held entitled to recover maintenance allowance @ Rs.5,000/- per month with 10% formula of annual increase for the period specified in the impugned judgments. Petitioner would be also entitled to recovery of residential house measuring 05-marlas as deferred dower in case of dissolution of marriage, on death or divorce, as the case may be. Consequently, the suit of the petitioner for maintenance and recovery of dower also stands decreed in the above terms.
12.The writ petition to the extent of remaining prayers stands dismissed.
MQ/S-32/L Order accordingly.
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