2020 CLC 910(a) Family Courts Act (XXXV of 1964)---
----S. 5, Sched---Suit for recovery of dower---Entries in nikahnama alleged to be forged---Scope---Husband had alleged the nikahnama to be forged for the reasons that entries made in columns Nos. 15, 16, 17 & 21 were filled later on and that the alleged nikahnama was registered much earlier than the solemnization of nikah---Validity---Written statement filed by husband did not contain a single word about nikahnama having been forged rather it was admitted, however, its contents were attacked---Evidence showed that nikahnama was registered after solemnization of nikah---Husband himself had admitted nikahnama in his examination-in-chief, so it was required to be taken as a whole and not as per his whims and wishes---Husband could not be allowed to admit a portion of nikahnama as correct and the other as incorrect---Constitutional petition was dismissed.
(b) Family Courts Act (XXXV of 1964)---
----S. 5, Sched---Suit for recovery of dower---Scope---Husband assailed the findings of courts below whereby wife's claim of 5-1/2 tolas gold as outstanding dower was decreed---Validity---Husband himself had admitted outstanding dower as 5-1/2 tolas against him while cross-examining the Nikah Registrar---Appellate Court had rightly held that the wife was entitled to the outstanding dower of 5-1/2 tolas of gold---Constitutional petition was dismissed.
(c) Family Courts Act (XXXV of 1964)---
----S. 5, Sched---Suit for recovery of dower---Failure to cross-examine on specific issue---Effect---Husband assailed the findings of courts below whereby wife's claim of four marla plot as dower was decreed---Husband had admitted the nikahnama in his examination-in-chief--- Wife, through her attorney, had categorically stated that it was agreed between the parties that four marla plot would be given to her as dower---Husband, during cross-examination, had not specifically questioned about the plot nor had he put any suggestion to her, as such the unchallenged/uncrossed portion of the statement had to be considered as admission of the husband---Constitutional petition, being devoid of merit, was dismissed.
Javed Khan v. Mst.Fozia Azam PLD 2005 Pesh. 89 rel.
(d) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Suit for recovery of maintenance allowance---Failure to cross-examine on specific issue---Scope---Husband challenged the decrees passed by courts below whereby wife's claim of maintenance was allowed---Contention of husband was that wife herself had deserted him---Validity---Wife, through her attorney, had stated in explicit terms that she was ousted by the husband and such statement was not cross-examined---Husband had contracted second marriage and when the wife was questioned she had showed her willingness to live with the husband but the husband had straightaway refused to live with her---Husband was legally bound to maintain his wife in order to meet daily needs like food, clothes, medicines, etc, which was his duty to bear from the date when she was ousted till she was in his nikah---Constitutional petition, being without merit, was dismissed.
(e) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Suit for recovery of dower---Cross-examination---Double-edged weapon---Scope---Fundamental purpose of cross-examination is to sort out the truth by disclosing or clarifying the matter, for such purpose no mathematical procedure is prescribed and it is not necessary that witness should only reply question according to the whims of counsel who is cross-examining, as it is a double-edged weapon and a witness while replying the question can explain the matter for clarifying the question of dispute.
(f) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Qanun-e-Shahadat (10 of 1984), Art.133(2)---Suit for recovery of dower---Cross-examination---Failure to cross-examine on specific issue---Scope---Portion of statement which remains unchallenged in cross-examination is deemed to be admitted.
(g) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction---Scope---Jurisdictional defect---Effect---High Court, in exercise of its extraordinary constitutional jurisdiction can neither substitute findings of the facts recorded by the appellate court nor can give its opinion regarding adequacy and quality of evidence as the assessment and appraisal of the evidence is the function of lower court, which is vested with exclusive jurisdiction in this regard---Petitioner is required to show any illegality or jurisdictional defect committed by the lower courts in order to make his case entertainable by High Court, while exercising constitutional jurisdiction.
Muhammad Arif Khan for Petitioner.
Muslim Khan for Respondent.
Date of hearing: 7th October, 2019.
2020 CLC 910[Peshawar]Before Muhammad Naeem Anwar, JUSMAN KHAN----PetitionerVersusMst. SHEHLA GUL and 2 others----RespondentsW.P. No.1639-P of 2019, decided on 7th October, 2019.
JUDGMENT
MUHAMMAD NAEEM ANWAR, J.----This judgment in the instant petition shall also decide W.P. No.1651-P of 2019 not because parties in both the matters are the same but also these have been arisen out of common judgment dated 13.02.2019 of learned Additional District Judge-II, Takht Bhai.
2. Brief facts of the case are that respondent No.1 filed suit for dissolution of marriage, recovery of 5 1/2 tolas gold ornaments along with recovery of plot measuring 04 marlas (as dower), share of petitioner/defendant in joint property situated in Babu Khan Mohallah, Hathyan, recovery of amount of Rs.50,00,000/- and the amount of Rs.10,000/- per month as maintenance from 24.01.2015 till decision of the case and onward as well as recovery of dowry articles as per list or its market value worth Rs.2,95,870/-.
The suit was contested by petitioner/defendant by filing written statement. During pendency of suit, respondent/plaintiff preferred an application for withdrawal of her claim to the extent of dissolution of marriage. Said application was accepted and the learned trial court vide order dated 09.04.2018 dismissed the prayer of respondent/plaintiff for dissolution of marriage. After framing of issues and recording of evidence, the suit was partially decreed in favour of respondent/plaintiff vide judgment and decree dated 13.09.2018 rendered by learned Judge Family Court/Civil Judge-III, Takht Bhai. Dissatisfied therewith, the petitioner preferred appeal whereas the respondent/plaintiff filed objection petition. After hearing the parties, the learned Additional District Judge-II, Takht Bhai held that the finding of learned trial court on issues Nos.1 and 5 were well reasoned requiring no interference whereas those on issues Nos.2, 3 and 4 were modified to the extent that the respondent/plaintiff was held entitled for recovery of 5 1/2 tolas gold ornaments, plot measuring 04 marlas situated at Babu Khan Mohallah, Hathyan and the amount of Rs.10,000/- per month as her maintenance from past 10 months prior to institution of suit till now and onwards with an annual increase of 10% whereas cross objection filed by petitioner/defendant was dismissed being not maintainable, hence this and the connection petition.
3. Main focus of arguments of worthy counsel for petitioner was that "Nikahnama" regarding which he contended that nikahnama was forged, fabricated, manipulated, concocted and against the fact for two fold reasons; firstly, that Nikah of parties solemnized on 08.06.2014 while the nikahnama was registered on 06.11.2011, secondly, the entries of nikahnama to the extent of column Nos.15, 16, 17 and 21 were wrong, to have been filed later on, as such no reliance could be placed on nikahnama (Ex.PW1/1). He also added that (Ex.PW1/1) was not signed by petitioner. Moreover, the dower was fixed as 10 tolas gold, which was given to respondent No.1, now nothing was outstanding against petitioner. In addition to above, he maintained that as respondent No.1 was not entitled for maintenance being willful self deserted lady. He also termed the findings of both the learned lower courts as against the law.
4. Worthy counsel for respondent No.1, submitted that in constitutional jurisdiction reappraisal of evidence was not permissible, because the facts were properly determined by the learned Judge Family Court and learned appellate court. Moreover, the execution of nikahnama and its registration was admitted by the petitioner before lower forums, hence this petition deserves dismissal.
5. Arguments heard and record gone through.
6. Substantially, the main grievance of the petitioner was the execution of nikahnama and its registration. Thus, it requires proper consideration. Written statement filed by the petitioner/defendant did not contain a single word about forged nikahnama rather it was admitted, however, its contents at serial Nos.15, 16, 17 and 20 were attacked as to have been filled later on. Statement of Maulana Haneefullah, Nikah Registrar was recorded as PW1, in whose cross-examination by petitioner, it was brought on record that;
Petitioner produced Nikah Khwan Fawad Ali as DW1, who in his examination-in-chief deposed that;
Petitioner himself appeared as DW3 and in his examination-in-chief in respect of nikahnama he deposed that;
7. Scanning the evidence to the extent of first objection of learned counsel for petitioner, it can safely be held that undoubtedly, undeniably and admittedly the Nikah was solemnized on 08.11.2014, while nikahnama was registered on 06.11.2016. Second objection was to the decree of 5-1/2 tolas gold on the plea taken in written statement by petitioner/defendant that 10 tolas gold was fixed as dower and the same was paid, nothing was outstanding. Plaintiff/respondent No.1 produced PW1 Nikah Registrar in his cross-examination, it was placed on record by petitioner that;
8. Similarly, in the statement of PW2, petitioner/defendant had admitted the factum of 5-1/2 tola gold such as;
9. Petitioner himself admitted outstanding dower as 5 1/2 tola against him, while cross-examining the witness of respondent/plaintiff. Fundamental purpose of cross-examination was to sort out the truth by disclosing or clarifying the matter, for this no mathematical procedure was prescribed and it was not necessary that witness should only reply question according to the whims of counsel who is cross-examining, as it was a double edged weapon and a witness while replying question, could explain the matter for clarifying question of dispute. From the witness of opposite party in cross-examination, admission was brought against him, which was disputed earlier, so it was rightly held by the learned appellate court that respondent/plaintiff was entitled for recovery of 5-1/2 tola gold, against petitioner.
10. Third objection was of four marla plot as claimed by respondent/plaintiff on the basis of Nikahnama (Ex.PW1/1). As discussed above, the petitioner himself admitted nikahnama (Ex.PW1/1) in his examination-in-chief, so it should be taken as whole and not as per the whims and wishes of petitioner/defendant. Respondent/plaintiff when appeared as PW5 through attorney had categorically stated that it was agreed that 4 marla plot would be given to her as dower, when she was cross-examined, neither any specific question about plot was asked nor any suggestion was put to her, as such the unchallenged/uncrossed portion of the statement shall be considered as admission of petitioner. Reliance is placed on the case titled Javed Khan v. Mst.Fozia Azam (PLD 2005 Peshawar 89), wherein, it was held that;
"It transpired from the record that at the time of marriage, gold ornaments weighing four tolas were given by the petitioner-husband to respondent-wife in lieu of dower which were subsequently taken back by the petitioner-husband. The statement of respondent-wife in this respect has remained unchallenged".
11. As the portion of the statement of respondent/plaintiff for four marla plot remained un-crossed then on the basis of general principle to the effect that portion of statement of a witness, which remained unchallenged in cross-examination, was to be deemed to have been admitted. Petitioner was not allowed to admit a portion of nikahnama as correct and the other as incorrect/wrong. The learned appellate court considered the matter from all the angles and has reached to correct conclusion that respondent/wife was entitled for recovery of 04 marla property as dower.
12. Insofar as the factum of maintenance allowance of respondent / plaintiff (wife) is concerned, when the statement of plaintiff-wife was recorded through attorney, wherein, she has stated in explicit term that she was ousted from the house by petitioner some one and half year ago, this portion of the statement was not cross-examined, which tantamounts to an admission on the part of petitioner/husband, however, he himself admitted that he had never paid Rs.10,000/- per month as maintenance to his wife. Indeed the respondent/wife is still in the Nikah of petitioner, who had also contracted second marriage, respondent/wife when asked as to whether she could live with petitioner/defendant, showed her willingness, however, the petitioner/husband had refused straightaway despite the fact that wife had withdrawn her claim for dissolution of marriage. Thus, in accordance with the injunctions of Islam, the petitioner is legally duty bound to maintain respondent/wife in order to meet daily needs like food, clothes, medicine, etc, which was his duty to bear from the date when she was ousted till she is in his Nikah.
13. Learned counsel for petitioner/husband has failed to point out any misreading and non-reading of evidence available on record to set aside the judgment and decree of learned appellate court. Even, otherwise, High Court in its extra ordinary jurisdiction can neither substitute findings of the facts recorded by the learned appellate court nor can give its opinion regarding adequacy and quality of evidence as the assessment and appraisal of the evidence was the function of lower court, which was vested with exclusive jurisdiction in this regard. The petitioner was required to show any illegality or jurisdictional defect committed by the learned lower courts in order to make his case entertainable by this court, while exercising constitutional jurisdiction.
14. For the reasons mentioned above, this and the connected petition, being without any merit, are dismissed with no order as to cost.
SA/285/P
Petitions dismissed.
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