--Art. 199--Suit for recovery of maintenance allowance and dowry articles--Decreed--Admission regarding non-return of dowry articles by DW-4--Non execution of iqrarnama-

 PLJ 2021 Lahore 344

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of maintenance allowance and dowry articles--Decreed--Admission regarding non-return of dowry articles by DW-4--Non execution of iqrarnama--Petitioner failed to record documentary evidence--Deniel of possession of dowry articles by petitioner--Challenge to--Marginal witness of alleged agreement while appearing in witness box as DW4 admitted that neither at time of return of dowry, articles he was present at spot nor iqramama was written in his presence--He further admitted that he put his signature on Iqrarnama without reading its contents--Second witness of Iqrarnama naely also admitted that he was not present at time of writing of Iqrarnama and he put his signature at home--Alleged iqrarnama was neither executed in their presence nor they know about its contents--Furthermore, petitioner has failed to bring on record documentary evidence from which it could be inferred that he transferred land measuring 2K-5M in name of respondent as alleged in Iqrarnama, in absence thereof both Courts below were fully justified in disbelieving same and no exception can be drawn therefrom--It is an admitted fact that dowry articles were given to respondent at time of marriage, however, stance of petitioner was that same has been returned through agreement Ex.D3--It has been established that petitioner has failed to prove said document--Petitioner denied having possession of any dowry articles as such Judge Family Court keeping in view wear and tear during subsistence of marriage has rightly fixed Rs. 1,00,000/- as alternate value of dowry articles which in my considered view meets end of justice and needs no intervention by this Court in its Constitutional jurisdiction--Petition was dismissed.                                                                  

                                                                  [Pp. 346 & 347] A, B, C & D

Mr. Zabi Ullah Nagra, Advocate for Petitioner.

Syed Ali Raza Gillani, Advocate for Respondent No. 3.

Date of hearing: 14.2.2018.

 PLJ 2021 Lahore 344
Present: Muhammad Farrukh Irfan Khan, J.
MUHAMMAD SHEHBAZ NASIR--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, JHANG and 7 others--Respondents
W.P. No. 7902 of 2017, decided on 14.2.2018.

Order

Briefly the facts of the case are that the Respondent No. 3 filed a suit claiming her maintenance allowance as well as maintenance of her minor children and dowry articles against the petitioner who contested the same by filing written statement. Out of divergent pleadings of the parties, the learned Judge Family Court framed necessary issues, recorded evidence of the parties and decreed the suit of the respondent vide impugned judgment dated 08.11.2016 in the following terms:

          "The nutshell result of my discussion on above said issues, the minors Plaintiffs No. 2 to 6 are entitled to get the decree for the maintenance allowance at the rate of Rs. 2000/- per month pr head from the date of institution of this suit till today i.e. 08.11.2016 and in future they are entitled to get the decree for the maintenance allowance at the rate of Rs. 4000/- per month per head till their legal entitlement. Plaintiff No. 1 is entitled to get recover maintenance allowance at the rate of
Rs. 4,000/- per month from institution of this suit till Iddat period. Suit of plaintiff No. 1 for recovery of dowry articles is hereby decreed and plaintiff No. 1 is entitled to get amount
Rs. 100,000/- as alternate price of dowry articles."

2. Against the above decree the petitioner preferred appeal before the learned Appellate Court, who vide impugned judgment and decree dated 17.01.2017 dismissed his appeal. Being still dissatisfied the petitioner has filed the instant writ petition.

3. Learned counsel for the petitioner submits that the judgments and decrees of the learned Courts below are based on surmises and conjectures and result of mis-reading and non- reading of the evidence; that while awarding maintenance to the minors both the Courts below have failed to take into consideration financial status of the petitioner; that the petitioner is unable to pay maintenance to the minors at the rate fixed by the learned Courts below; that after receiving land measuring 2K-5M the respondent gave an undertaking that she would not claim maintenance of the minors and in this regard also executed Iqrarnama dated 21.08.2014; that in the said Iqrarnama the respondent also conceded that she received her dowry articles; that the petitioner proved this iqrarnama through its marginal witnesses but both the learned Courts below have failed to take into consideration this important aspect of the matter while rendering impugned judgments and decrees; that evidence in this case has not been properly appreciated and the conclusions drawn therefrom are liable to be set- aside.

4. On the converse, learned counsel for respondents submits that the impugned judgments and decrees are well reasoned; that the petitioner has failed to prove validity of the Iqrarnama as such both the Courts below have rightly not given any weightage to the said document; that the quantum of maintenance allowance is in accordance with the means of the petitioner and needs no modification.

4. I have heard the arguments of the learned counsel for the parties and gone through the record.

5. Muhammad Ismail, marginal witness of the alleged agreement dated 21.08.2013 Ex.D3 while appearing in the witness box as DW-4 admitted that neither at the time of return of dowry, articles he was present at the spot nor iqrarnama was written in his presence. He further admitted that he put his signature on Iqrarnama without reading its contents. The second witness of Iqrarnama namely Muhammad Waris also admitted that he was not present at the time of writing of Iqrarnama and he put his signature at home. In the light of these admissions, it can safely be concluded that alleged iqrarnama was neither executed in their presence nor they know about its contents. Furthermore, the petitioner has failed to bring on record documentary evidence from which it could be inferred that he transferred land measuring 2K-5M in the name of the respondent as alleged in the Iqrarnama, in the absence thereof both the Courts below were fully justified in disbelieving the same and no exception can be drawn therefrom.

6. Now coming to the quantum of maintenance allowance fixed for the minors. The petitioner in his written statement alleged that he is Driver in Anti Narcotics Force and his monthly salary is Rs. 12,000/- but in order to substantiate his version he did not produce his salary slip in the evidence. Before this Court he has placed on record salary slip according to which in the month of January, 2017 his take home salary was Rs. 28,619. Furthermore, the petitioner alleged to have alienated agricultural land in favour of the respondent which he could not prove, however, it leads to an inference that he also owns agricultural land. Keeping in view the above circumstances, quantum

of maintenance allowance fixed by the learned Judge Family Court and affirmed by the learned Appellate Court in no manner can be termed harsh and exorbitant or beyond the means of the petitioner as such this Court is not inclined to intervene with the same.

7. So far as the issue of dowry articles is concerned, by way of impugned judgment the learned Judge Family Court decreed the suit of the respondent to the tune of Rs. 1,00,000/-. According to sub-section (2)(b) of Section 14 of the Punjab Family Courts (Amendment) Act, 2015 no appeal shall lie against a decree of dowry articles upto
Rs. 1,00,000/-. As the legislature has specifically prohibited filing of appeal against such decree of the Family Court, therefore, if the Constitutional Petition is allowed to be filed it would amount to override the statutory provision which is beyond the scope of this Court. Therefore, this petition to the extent of dowry articles is liable to be dismissed on this score alone.

8. Even on merits the petitioner has no case. It is an admitted fact that dowry articles were given to the respondent at the time of marriage, however, the stance of the petitioner was that the same has been returned through agreement Ex.D3. In the light of my discussion in the preceding paras it has been established that the petitioner has failed to prove the said document. The petitioner denied having possession of any dowry articles as such the learned Judge Family Court keeping in view the wear and tear during subsistence of marriage has rightly fixed Rs. 1,00,000/- as the alternate value of the dowry articles which in my considered view meets the end. of justice and needs no intervention by this Court in its Constitutional jurisdiction.

9. Resultantly, this petition being without any substance is dismissed. No order as to costs.

(Y.A.)  Petition dismissed