PLJ 2016 Karachi 193
----Dower amount--Nikahnama--Payable on demand--Dower amount was debt and husband was under obligation to pay on demand--Validity--It is admitted position that payment of dower amount would arise subsequently when marriage stand dissolved between parties, as there is no such admission in evidence on record--Dower amount, being not proper and legal was set-aside and findings of Court, as to dower amount, is hereby restored. [P. 196] A
2003 CLC 702, ref.
----Staying away from husband--Not performing her part of marital obligation without any legal justification--Failed to prove maltreatment--Validity--Petitioner was not legally entitled for maintenance. [P. 196] B
NLR 2003 S.D. 350, PLD 1967 AJK 32 & PLD 1961 Pesh. 66, ref.
----Suit in respect of dowry article, decreed except gold ornaments--Challenge to--Receipt of dowry articles--Burden of taking away some of dowry articles including gold ornament--Validity--Courts had failed to appreciate that all dowry articles, including gold ornaments, were admittedly lying with husband, and bride in her examination-in-chief had deposed that petitioner’s dowry articles, including gold ornaments, were lying in house of bridegroom, and produced oral and documentary evidence in support thereof--Petitioner had discharged/shifted her burden over bridegroom, who in cross to bride had put a question that petitioner had taken away entire gold ornaments with her and bridegroom, in his examination-in-chief had admitted that petitioner had given dowry articles, which were lying in his house and Petitioner taken away some of dowry articles and further deposed that bridegroom can return dowry articles--So exclusion of gold ornaments from dowry articles of petitioner, in judgments and decrees by two Courts below, are based on mis-reading & non-reading of evidence as such same being not legal and proper are liable to interference for justice by High Court--Petitioner was entitled for recovery of entire dowry articles, including gold ornaments, and petitioner’s suit to extent of entire dowry articles alongwith gold ornaments stand also decreed.
[Pp. 196 & 197] C, D & E
Mr. Aghis-us-Salam Tahirzada, Advocate for Petitioner.
M/s. M. Imran Rajput & S.M. Nasir Ali Shah, Advocates for Respondents.
Date of hearing: 6.11.2015.
PLJ 2016 Karachi 193
[Circuit Court Hyderabad]
Present: Anwar Hussain, J.
versus
AZEEMUDDIN and others--Respondents
C.P. No. S-404 of 2014, decided on 30.11.2015.
Order
The Petitioner filed Family Suit for Recovery of Dower, Maintenance and Dowry Articles, against Respondent No. 1, before the Family Court, Hyderabad, and contended that she was married on 28.12.2008 to Respondent No. 1, against Deferred Dower, payable on demand, of Rs. 25,000/-and she was maltreated and ultimately on 9.3.2011, ousted by the Respondent No. 1, from his house in wearing clothes and since then Petitioner is living with her parents without any maintenance from the Respondent No. 1. The Respondent No. 1, is a Tailor Master having income of Rs. 50,000/- to Rs. 70.000/- per month, as such Petitioner prayed for Dower, Maintenance and recovery of Dowry Articles including Gold.
The Respondent No. 1, filed written statement denying the payment of Dower and stated that the Dower was paid by way of Gold Ornaments, to the petitioner, on the next day of marriage and as to the Dowry Articles the Respondent No. 1, contended that the house hold articles were used and due to wear and tear there is no existence of the same except Almirah and Bed. It is further pointed out that the petitioner herself left the house of Respondent No. 1, and while leaving petitioner she took away the Gold Ornaments, different gift items and previous clothes with her. The earning of the Respondent No. 1, is about 10,000/- per month and the petitioner is a disobedient wife and not performing marital obligations and as such is not entitled for maintenance and prayed for dismissal of the Suit.
The pre-trial proceedings failed; Issues framed in the matter and petitioner examined herself, who produced Nikah nama, Dowry Articles List & Receipt of Gold and examined her brother Noshad Ali and one Muhammad Arif as her witnesses, who were cross-examined by the Counsel for Respondent No. 1.
The Respondent No. 1, examined himself and produced his brother and sister as his witnesses, who were cross-examined by the petitioner’s counsel. Post-trial Proceedings also failed. The learned Family Judge/Respondent No. 3, vide Judgment dated 7.11.2013 partly decreed the Suit by allowing the Dower amount and Dowry Articles, except Gold Ornaments, to the petitioner and did not allow the Maintenance to the petitioner vide Decree dated 13.11.2013, wherein Dower Amount has not been incorporated.
Against the same, the petitioner preferred Family Appeal
No. 70 of 2013, before the learned District Judge, Hyderabad, and after hearing the parties through their learned Counsels, the learned 1st Additional District Judge, Hyderabad/Respondent No. 2, vide Judgment dated 19.4.2014, dismissed the said Appeal, but as to the findings for Dower the learned Appellate Judge observed that since admittedly the marriage has not been dissolved the payment of Dower Amount would arise subsequently at the time of dissolution of marriage and as such held the Decree of Family Judge should not contain Dower Amount.
Heard the arguments of the learned Counsels for the parties and gone through the evidence from the R & Ps of the Trial Court, as the copies of Depositions filed with this petition, are not accurately copied from the original.
The petitioner’s Counsel submits that the impugned judgment is not legal and proper and the learned Appellate Court has wrongly dis-allowed the Dower inspite of the findings of the learned Family Judge. Learned Counsel further submits that the findings of Maintenance are not proper and legal and similarly the passing of Dowry Articles, except Gold, is also not legal and proper and the same are based on misreading and non-reading of evidence and as such requires interference by this Court.
Learned Counsel for the Respondent No. 1, contended that the impugned judgment and decree are legal and proper and there is no misreading and non-reading of the evidence and prayed for dismissal of this petition.
The Issues involved in this matter are as to Dower, Maintenance and recovery of Dowry Articles, which are now being discussed and adjudicated upon herein-below.
As to the Issue of Dower the learned Family Judge, has allowed the Dower on the basis of admission of Respondent No. 1, but the same was not incorporated in the Impugned Decree. The learned Appellate Judge, while answering the same in the impugned judgment has held that it is admitted fact that the marriage has not been dissolved and payment of dower amount will raise subsequently when the marriage stand dissolved between the parties. Therefore, the Appellate Judge has not agreed with the arguments of petitioner that Decree should contain the said dower amount in view of admission of Respondent No. 1, that necessity of the same would arise when the marriage would dissolve.
Since in view of the same, this Court has noticed that the Dower Amount of Rs. 25,000/- as per Nikahnama, is deferred one/payable on demand. The petitioner has deposed that the same has not been paid and the Respondent No. 1 in his deposition has admitted the same and shown willingness to pay, and the learned Civil Judge has observed that as per law Dower Amount is a debt and husband is under obligation to pay on demand. Reliance is placed on 2003 CLC 702(DB). As such the learned Family Judge has rightly answered the Issue of Dower Amount in favour of petitioner and the learned Appellate Judge is wrong in observing that it is admitted position that the payment of Dower Amount would arise subsequently when marriage stand dissolved between the parties, as there is no such admission in the evidence on record. Hence the finding of learned Appellate Judge as to Dower Amount, being not proper and legal is set-aside and the findings of learned Family Judge, as to Dower Amount, is hereby restored.
As to the issue of maintenance, the petitioner is staying away from the Respondent No. 1, and is not performing her part of marital obligation and that too without any legal justification inspite of the reconciliation efforts by the Respondent No. 1. Even otherwise, the petitioner has failed to prove the maltreatment against Respondent No. 1. Hence the petitioner is not legally entitled for Maintenance. Reliance is placed on NLR 2003 S.D. 350; PLD 1967 AJ&K 32 and PLD 1961 Pesh. 66.
So the findings of learned Appellate Judge and learned Family Judge as to the Maintenance are based on evidence and valid and legal reasons which requires no interference in this writ petition.
As to the Issue of Dowry Articles, the learned Family Judge has decreed the Suit in respect of Dowry Articles, which are admitted by the Respondent No. 1, except Gold Ornaments, and the Appellate Court has upheld the same. The petitioner has challenged such findings by way of this petition and submits that the Courts below have failed to appreciate that all the Dowry Articles, including the Gold Ornaments, are admittedly lying with the Respondent No. 1, and the petitioner in her Examination-in-Chief has deposed that petitioner’s Dowry Articles, including Gold Ornaments, are lying in the house of Respondent No. 1, and produced oral and documentary evidence in support thereof. In cross-examination to the petitioner the Respondent No. 1, has not challenged the same and only put suggestion to petitioner that she has taken away the entire Gold Ornaments, with her, which has been denied by the petitioner and as such petitioner has proved the Dowry Articles including Gold Ornaments; so the petitioner is entitled for recovery of the same. The Counsel for Respondent No. 1, submits as per Deposition of Respondent No. 1. while leaving the house of Respondent No. 1. the petitioner has taken away some of Dowry Articles i.e. Gold Ornaments, Iron and Gents Wrist Watch and Respondent No. 1, is ready to return all the Dowry Articles, which are lying with him.
The petitioner has deposed in her evidence that the Dowry Articles, including Gold, are with the Respondent No. 1, and her witness brother Muhammad Arif, has supported the petitioner; thereby petitioner has discharged/shifted her burden over the Respondent No. 1, who in cross to the petitioner has put a question that the petitioner has taken away the entire Gold Ornaments with her and the Respondent No. 1, in his Examination-in-chief has admitted that the petitioner was given Dowry Articles, which are lying in his house and the petitioner taken away some of the Dowry Articles i.e. Gold Ornaments with Iron and Gents Wrist Watch and while leaving the house she also took away the Respondent’s Gold Ornaments and further deposed that the Respondent No. 1, can return the Dowry Articles, which are lying with him.
Since the Respondent No. 1, has admitted the receipt of Dowry Articles, but taken a plea that the petitioner has taken away the same Dowry Articles including Gold etc, as stated above, so the burden of taking away some of the Dowry Articles, including Gold Ornaments, by the petitioner was on the Respondent No. 1, who on the other hand has admitted that the Dowry Articles, which are lying with Respondent No. 1 can be returned and has not proved that the petitioner has taken away the some Dowry Articles including all the Gold Ornaments, which has been denied by petitioner in Cross Examination to Respondent No. 1. Since the said admissions are in the evidence of Respondent No. 1, so the exclusion of Gold Ornaments from the Dowry Articles of petitioner, in the impugned judgments and Decrees by the two Courts below, are based on mis-reading & non-reading of evidence as such the same being not legal and proper are liable to interference for the justice by this Court. Hence, it is hereby
ruled that the petitioner is entitled for the recovery of entire Dowry Articles, including Gold Ornaments, and the petitioner’s Suit to the extent of entire Dowry Articles alongwith Gold Ornaments stand also decreed.
Hence, the learned Family Judge/Respondent No. 3, is directed to amend the Decree accordingly and in view of the above, this Constitutional Petition stands disposed of.
(R.A.) Petition disposed of
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