ORDER
ALI AKBAR QURESHI, J.---This constitutional petition is directed against the judgment and decree, dated 26-5-2003 whereby the claim of the minor of maintenance from the date of birth was disallowed and the suit of the petitioner for recovery of dowry articles was also dismissed.
2. Shortly, the facts as stated in the petition are that the petitioner who was married to respondent No.1, because of the dispute arose between the husband and wife, had to file the suit for dissolution of marriage on the basis of "Khula", for recovery of maintenance allowance @ Rs.2,000 per month of the petitioner and @ Rs.1,000 per month of the minor including medical/delivery expenses amounting to Rs.8,129 incurred at the time of birth of the minor, for the recovery of dowry articles worth Rs.2 lac and for recovery of fixed dower amount Rs.5,000 The learned Judge, Family Court vide consolidated judgment, dated 5-5-2001 decreed the suit for dissolution of marriage on the basis of "Khula" and the same was upheld by the Appellate Court vide judgment and decree, dated 26-5-2003 maintenance allowance of the minor was granted @ Rs.1,000 per month from the date of institution of the suit whereas the maintenance allowance and delivery expenses claimed by petitioner No.1 were rejected. The claim of the petitioner for recovery of dowry articles amounting to Rs.2 lac was decreed by the learned trial Court but in appeal filed by the respondent, the suit was dismissed to this extent. The claim of the petitioner to recover the dower amount was decreed on the admission of respondent, hence, this constitutional petition.
3. Learned counsel for the petitioner contended that both the learned Courts below seriously erred in law by not granting the maintenance allowance to the daughter (minor) from the date of birth because it is established on record that the respondent No.1 did not pay even a single penny to the minor as the minor was born at the house of the parents of the petitioner. Reliance is placed on Abdul Ghafoor v. Mehmood Ahmad alias Asghar and others 2003 SCMR 764. The claim of the dowry articles as regard the decree of dowry articles of Rs.2 lac in favour of the petitioner, the learned Appellate Court without going through the findings given by the Family Court and the evidence available on record has dismissed the suit. It was next contended by the learned counsel for the petitioner that the learned Judge, Family Court after scanning and appreciating the evidence produced by the petitioner in support of her claim reached to a conclusion that the family of the petitioner because of his sound financial status was in a position to give the dowry articles to the petitioner. It was also argued by the learned counsel for the petitioner that the learned Appellate Court has erred in law by setting aside the well-reasoned judgment of the learned trial Court to the extent of granting the decree of dowry articles worth Rs.2 lac.
4. Conversely, the learned counsel for the respondent contended that the learned Appellate Court has rightly disentitled the petitioner to recover the dowry articles, as the petitioner could not prove the list of dowry articles and also failed to place on record any receipt thereof. Further contended that even the witnesses appeared in support of the petitioner have failed to substantiate the claim of the petitioner so the learned trial Court has rightly reached the conclusion anti set aside the findings of the learned Judge, Family Court to this extent. The learned counsel regarding the entitlement of the minor's maintenance allowance from the date of birth contended that there is no evidence available on the record that the minor was born at the house of the parents of the petitioner and even otherwise the learned Courts below have rightly awarded the maintenance to the minor from the date of institution. The learned counsel lastly supported the judgment of the learned Appellate Court.
5. I have heard the learned counsel for the parties and perused the record.
6. The evidence produced by both the parties is sufficient to prove that the minor was born at the house of the parents of the petitioner and the respondent No.1 also failed to place on record anything to prove the payment of the maintenance to the minor. The claim of the petitioner for the maintenance of the minor from the date of birth is also supported by the judgment (supra). Thus, it is held that the minor is entitled to recover the maintenance allowance from the date of her birth and the findings recorded by the learned Courts below to this effect are set aside.
7. The petitioner to prove her case regarding the recovery of dowry articles herself appeared in the witness-box and stated that the articles mentioned in the list were given to her at the time of marriage and are lying in the house of the respondent. The list of dowry articles submitted by the petitioner is on the file and got exhibited, whereas no serious objection was raised by the respondent at the relevant time while cross-examining upon the petitioner. No specific question or suggestion was put to the petitioner to rebut the claim of the petitioner. The only argument advanced by the learned counsel for the respondent that the petitioner could not place on record the receipt of dowry articles while appearing in the witness-box. In this regard, it is observed that in our society, normally it is very difficult to save or keep the receipts of dowry articles by the parents. The evidence produced by the petitioner and the findings recorded by the learned trial Court while deciding issue No.5 it was proved on record that the father of the petitioner is running a medical store one brother of petitioner is agency holder of a medicine company and other brother is medical surgeon so this is sufficient to prove that the family of the petitioner was well to do and it is not difficult for such-like family to give the dowry articles worth Rs.2 lac. The respondent could not rebut the aforesaid contention of the petitioner and the findings recorded by the learned Judge, Family Court. Normally, the dowry articles are handed over along with the list to the parents of the male spouse at the time of Rukhsati. No doubt the Courts are supposed to decide the cases in accordance with law, but in family cases, particularly, the normal traditions of the society cannot be ignored. In our society, it has now become imperative for all the parents irrespective of poor or rich to give dowry articles to their daughters at the time of marriage.
8. The petitioner has succeeded to prove her claim for the recovery of dowry articles by adducing confidence inspiring evidence and the learned Appellate Court without referring anything from the record, has set aside the judgment of the learned Judge, Family Court.
9. Resultantly, the impugned judgment and decree, dated 26-5-2003 passed by the learned 1st Appellate Court is set aside and this petition is allowed. No order as to costs.
H.B.T./K-44/L???????????????????????????????????????????????????????????????????????????????????? Petition allowed.
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