PLJ 2018
Muslim Family Law Ordinance, 1961 (VIII of 1961)--
----S. 9--Constitution of
2002 SCMR 1408, PLD 2015 Lah. 88 & 2016 MLD 925, Ref.
Mehr Abdul Ghafoor Arian, Advocate for Petitioner.
Mr. Mumtaz Hassan Awan, Advocate for Respondents.
Date of hearing: 19.10.2017.
PLJ 2018 Lahore 981
[Multan Bench Multan
Present: Mujahid Mustaqeem Ahmed, J.
versus
ADDL. DISTRICT JUDGE, MAILSI DISTRICT VEHARI and 2 others--Respondents
W.P. No. 2322 of 2016, heard on 19.10.2017.
Judgment
By filing this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the judgment and decree dated 11.01.2016, passed by learned Additional District Judge, Mailsi by which appeal of Muhammad Shoib-Respondent No. 3 (respondent) was partly allowed and suit of present petitioner to the extent of recovery of dower stood dismissed.
2. The pithy fetes of the family obligation culminating into this writ petition and necessary for its fair adjudication are that ‘Nikah’ and marriage of petitioner and respondent was solemnized on 02.12.2010 against ‘Haq-ul-Mehr’ Rs. 1000/- in cash and 4-Marla plot with boundry wall. In March, 2013 the respondent has divorced the petitioner. In June, 2013 the petitioner alongwith her minor son filed family suit for multiple reliefs including recovery of 4-Marla plot with boundry wall or in alternate its market price Rs. 10,00,000/- in terms of Column No. 16 of ‘Nikah Nama’ Exh.P1 (Haq-ul-Mehr is only subject matter of this writ petition). The respondent contested the suit and in preliminary objection No. 5 maintained that ‘Haq-ul-Mehr’ was fixed Rs. 1000/- only, which was paid at the time of solemnization of ‘Nikah’ and no terms and conditions for transfer of 4-Marla plot as ‘Haq-ul-Mehr’ were settled in between spouses. To resolve the controversy, learned Judge Family Court, Mailsi framed Issue No. 2, which is reproduced here under:
“ISSUE NO.2
Whether the plaintiff No. 1 is entitled to recover dower as Column No. 16 of Nikahnama from the defendant? OPP”
Both the parties led evidence in support of their respective versions and vide judgment and decree dated 17.02.2015, delivered by learned Judge Family Court, Mailsi the petitioner was held entitled to recover dower incorporated in Column No. 16 of ‘Nikah Nama’. The respondent dissatisfied with the impugned judgment assailed the same by filing family appeal before learned Additional District Judge, Mailsi, who vide impugned judgment and decree dated 11.01.2016 partly allowed the same and concluded that property mentioned in Column No. 16 cannot be treated as dower and thus dismissed the suit of petitioner. The petitioner being dissatisfied with the impugned judgment and decree passed by learned first appellate Court has assailed the same by filing the instant writ petition mainly on the grounds that the same is against facts, law, suffers from misreading and non-reading of evidence, which has resulted in miscarriage of justice.
3. Arguments heard. Record perused.
4. The petitioner as PW-1 deposed that at the time of solemnization of ‘Nikah’ and marriage respondent agreed to give 4-Marla residential plot valuing Rs. 10,00,000/- as Haq-ul-Mehr. During cross-examination she deposed that respondent owned 4 “bigga” land. No suggestion was put to her that entries against Column No. 16 were unauthorized one or that respondent had not agreed to give her 4 Marla residential plot. Muhammad Akram-PW2, father of petitioner, Haji Allah Wasaya-PW3 and Muhammad Aslam-PW4, maternal uncle of petitioner have also supported the version of petitioner that vide EX.Pl (Column No. 16), respondent agred to gave 4-Marla plot with boundry wall to the petitioner in her ‘Haq-ul-Mehr’ Whereas Muhammad Shoaib-respondent/DW1 deposed that at the time of ‘Nikah’ of the spouses, no terms and conditions in respect of entries in Column No. 16 were settled and these entries were made afterwards as a result of connivance of parents of petitioner with ‘Nikah Khawan’. During cross-examination he conceded that he has signed ‘Nikah Nama’ Exh.P 1 and has not challenged the entries of ‘Nikah Nama’ particularly with respect to condition mentioned in Column No. 16. Muhammad Ramzan-DW2 also deposed in the same fashion. During cross-examination he deposed that he was attesting witness of ‘Nikah Nama’ but copy of Nikah Nama Exh.P 1 negates version of this witness as such his testimony is not trust worthy.
5. It is well settled law that men can but documents cannot tell a lie. From the copy of ‘Nikah Nama’ Exh.P 1, claim of petitioner for recovery of 4-Marla land or in alternate its market price is fully established. Copy of ‘Nikah Nama’ is a public document and as such does not require any formal proof and strong presumption or truth is, attached to entries made in ‘Nikah Nama’. Reliance is made on case ‘Jan Muhammad versus Mst. Salamat Bibi and others’ (2002 SCMR 1408), ‘Mst. Nabeela Shaheen and others versus Zia Wazeer Bhatti and others’ (PLD 2015
others’ (2011 CLC 726
6. As a sequal to above discussion, to my view the findings of learned Additional District Judge, Mailsi are against law and as such not sustainable. Consequently, this writ petition is allowed and the impugned judgment and decree passed by learned Additional District Judge, Mailsi being without jurisdiction and having no legal effect is set aside and the judgment and decree passed by learned Judge Family Court, Mailsi is restored and petitioner would be entitled to recover ‘Haq-ul-Mehr’ mentioned in Column No. 16 of ‘Nikah Nama’ Exh.P 1.
(Y.A.) Petition allowed
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