PLJ 2023 Lahore (Note) 34
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----Ss. 8, 9 & 10--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage, recovery of maintenance allowance and dower and dowry articles--Decreed--Appeals--Dismissed--Consolidated judgment--Prompt dower and deffered dower--Modification in judgment--Portion of dower which was determined by trial Court was not incorporated in final judgment--Principle of depreciation--Challenge to--Two tola gold ornaments were given to respondent by petitioner at time of her marriage and being so, it was prompt dower--Judgments and decrees of Courts below are modified to extent that respondent shall surrender 25% of prompt dower and 50% of deferred account of dissolution of marriage on basis of khula be determined and actualized by Executing Court while making payment of 50% of deferred dower to respondent and respondent will be entitled to dowry articles as per list Exh.Pl excluding gold ornaments or a sum of Rs. 1,050,000/- as alternate price thereof. [Para 6 & 9] A & C
2017 SCMR 393 ref.
Constitution of Pakistan, 1973--
----Art. 199--Concurrent findings--Obligation to rectification of error—High Court is aware of fact that concurrent findings of Courts below should not ordinarily be disturbed but where guidance of superior Courts, particularly, Hon’ble Supreme Court is not followed by Courts below, this Court is not only empowered but obligated to rectify error. [Para 8] B
Mian Mehmood Ahmad Ansari, Advocate for Petitioner.
Ch. Muhammad Saeed Machra, Advocate for Respondent
No. 3.
Date of hearing: 27.9.2022.
PLJ 2023 Lahore (Note) 34
[Multan Bench, Multan]
Present: Anwaar Hussain, J.
Syed MUHAMMAD IMRAN SHAHZAD--Petitioner
versus
ADDITIONAL DISTRICT JUDGE etc.--Respondents
W.P. No. 2488 of 2022, heard on 27.9.2022.
Judgment
Through this single judgment, this Court intends to decide Writ Petition No. 2488/2022 filled by Syed Muhammad Imran Shahzad (“the petitioner”) and Writ Petition No. 4281/2022 filed by Syeda Mah Noor Bukhari (“the respondent”) as common questions of law and fact are involved therein and said petitions lay challenge to the same judgments of learned Courts below.
2. Brief facts of the case are that on 22.04.2020, the respondent instituted a suit for dissolution of marriage on the basis of khula, recovery of maintenance allowance, dower and dowry articles to the tune of Rs. 2,434,390/- contending that the parties entered in marital the on 02.07.2017, however, no issue was born and that the petitioner ousted her from his house on 12.09.2018 and since then, she is residing with her parents. The petitioner contested the suit by filing written statement. After failure in pre-trial reconciliation efforts, learned Family Court dissolved the marriage of the parties vide order dated 27.08.2020 and after framing of issues and recording of evidence adduced by the parties, decreed the suit of the respondent vide judgment and decree dated 15.07.2021 in the following terms:
“... the suit of the plaintiff for recovery of maintenance allowance is hereby decreed partially and she is held entitled to recover maintenance allowance @ Rs. 10,000/- per month from institution of suit till her iddat period. Suit of the plaintiff for recovery of dower is also partially decreed to the extent of cash Rs.2,00,000/- and to the extent of two tola gold ornaments is dismissed. Suit of the plaintiff for recovery of dowry articles is decreed in favour of the plaintiff and she is held entitled to get the dowry articles lying in the house of defendant except gold ornaments mentioned in list Ex.P.1 or price as Rs.7,00,000/- in alternate.”
Feeling aggrieved, both sides preferred appeals, which were dismissed by learned Appellate Court below through consolidated Judgment and decree dated 29.01.2022.
3. Learned counsel for the petitioner has confined his arguments to the extent of dower amount with the contention that on 27.08.2020, the suit for dissolution of marriage instituted by the respondent was decreed on the basis of khula and it was held by the learned Family Court that the respondent would surrender 25% of the prompt dower and 50% of the deferred dower, however, the said aspect has not been incorporated in the final judgment, therefore, the impugned judgments and decrees of learned Courts below to the said extent are not sustainable. Adds that maintenance allowance has already been paid to the respondent. Concludes that he does not lay challenge to the grant of dowry articles as according to him, the petitioner is ready to return the dowry articles or pay the alternate value determined by the learned Courts below to the respondent.
4. Learned counsel for the respondent acknowledges that the maintenance allowance has been paid to the respondent. He, however, submits that respondent’s claim for grant of dower to the extent of 2 tola gold ornaments duly recorded in column No. 15 of the nikahnama has been wrongly declined. As regards claim of dowry articles, learned counsel submits that evidentiary resume has not been properly appreciated and the value of gold ornaments has illegally been excluded while granting alternate price of the dowry articles. Concludes that depreciation of articles has also been done against settled principles without conducting any inquiry.
5. Arguments heard. Record perused.
6. Record reveals that learned Trial Court vide order dated 27.08.2020 itself held that respondent would surrender 25% of the admitted prompt dower and 50% of the deferred dower but as per contention of the petitioner side, this order was not incorporated in the final judgment and decree erroneously which finding was also upheld by learned Appellate Court below unlawfully. On the other hand, learned counsel for the respondent has taken plea that the said observation was given when neither issues were framed nor evidence was recorded and after framing of issues and recording of evidence, learned Family Court reached the conclusion otherwise.
7. Column No. 15 of the nikahnma reads as under:
"15۔ آیا مہر کا کچھ حصہ شادی کے موقع پر ادا کیا گیا اگر کیا گیا ہے تو کس قدر | 2 تولہ سونا طلائی زیورات |
Perusal of above clearly indicates that two tola gold ornaments were given to the respondent by the petitioner at the time of her marriage and being so, it was prompt dower. Mubashir Ali, who happened to be father of the respondent appeared as PW.2, and during cross- examination, he admitted as under:
"مدعیہ کو دو تولہ زیور ڈالا تھا۔"
This is categorical admission by father of the respondent that prompt dower in shape of gold ornaments was given to her which contradicts the assertion of the respondent that she did not receive her prompt dower in form of gold ornaments. Perusal of the plaint as well as affidavits of the respondent as well as her father Mubashir Ali (PW.2) reveals that it is nowhere mentioned that the said gold ornaments were ever snatched by the petitioner from her. Even otherwise, it is presumed that the gold ornaments remain in the possession of the ladies, as such, the claim of the respondent to this extent was rightly declined. Regarding surrender of some portion of the dower, learned Family Court, vide order dated 27.08.2020, while dissolving the marriage of the parties held as under:
“As pre-trial reconciliation proceedings ended in failure, Section 10(5) of The Punjab Muslim Family Laws (Amended) Act, 2015 describes the procedure to dissolve the marriage on basis of Khula. Thus, in attending circumstances, suit of plaintiff to the extent of dissolution of marriage under Section 10(5) of The Punjab Muslim Family Laws (Amended) Act, 2015 is hereby decreed on the basis of Khula. Plaintiff would surrender 25% of the admitted prompt dower and 50% of deferred dower in lieu of Khula.”
(Emphasis supplied)
Bare reading of above order makes it crystal clear that the learned Trial Court while dissolving marriage of the parties on the basis of khula categorically held that the respondent would surrender 25% of the prompt dower (i.e., out of 02 tola gold ornaments) and 50% of the deferred dower (i.e., Rs. 200,000/-) and this order should have been incorporated in the final judgment and decree. When confronted with, learned counsel for the petitioner could not refute and candidly conceded that the respondent while seeking dissolution of marriage on the basis of khula was bound to return some portion of the dower, * wnich has been determined by the learned Trial Court below but not incorporated in the final judgment. Therefore, this Court is inclined to modify the judgments and decrees of learned Courts below to the extent that the respondent shall surrerider 25% of the prompt dower and 50% of the deferred dower on account of dissolution of marriage on the basis of khula which will be determined and actualize by the learned Executing Court while executing the decree regarding payment of 50% of the deferred dower to the respondent.
8. As regards dowry articles, learned Courts below have only excluded the gold ornaments from the list of dowry articles. There is a plethora of judgments that the gold ornaments usually remain in the custody and possession of the ladies and keeping this in view, the respondent is not entitled to the same coupled with the fact that she has not alleged that the same were snatched from her. Reliance is placed on law laid down in case reported as “Mst. Saniya Iqbal Butt v. Rehan Zafar, etc” (2012 CLJ 218). Learned Trial Court has rightly excluded the value of gold ornaments, i.e., Rs. 1,130,000/- from total value of dowry articles, i.e., 2,434,390/- and then on the remaining articles have applied the principle of depreciation. If the said aspect is taken into account and value of gold ornaments (i.e., Rs. 1,130,000/-) is excluded from the total value of the dowry articles claimed, (i.e., 2,434,390/-), a sum of Rs. 1,304,390/- is left whereas only Rs.700,000/- as an alternate price of dowry articles has been granted by the learned Trial Court after applying the principle of depreciation and wear and tear by holding as under:
“24. To determine the value of the said articles it is quite normal that with the span of time the value of articles diminishes due to wear and tear. Therefore, plaintiff is held entitled to get the dowry articles lying in the house of defendant except gold ornaments or its price as Rs.7,00,000/- in alternate. This issue is decided in favour of plaintiff accordingly.”
It is unclear as to what rate of depreciation was applied by the learned Trial Court. Certainly, there is no yardstick for analyzing depreciation unless recourse to an evaluator is resorted which has not been done. However, percentage of annual depreciation of such articles has been settled by the Hon’ble Supreme Court of Pakistan in case titled “Shqfique Sultan v. Mst. Asma Firdous-and others (2017 SCMR 393), which has not been followed in the instant case. In case of Shafique Sultan supra, for determination of alternate value of the dowry articles, the period for which marriage subsisted was taken into account and in that particular case after subsistence of marriage for 6½ years, 65% of the value granted by learned Courts below was ratified by the Apex Court which brings out that 6% annual depreciation was applied. In the instant case, admittedly, the marriage subsisted for about three years and alternate price of dowry articles excluding gold ornaments has been awarded to the tune of Rs.7,00,000/- which means that only 55% of value of dowry articles has been awarded. In this view of the matter, there is some force in the argument of learned counsel for the respondent inasmuch the principle of depreciation was not properly dealt with. Though this Court is aware of the fact that concurrent findings of Courts below should not ordinarily be disturbed but where guidance of the superior Courts, particularly, the Hon’ble Supreme Court is not followed by the learned Courts below, this Court is not only empowered but obligated to rectify the error. Seeking guidance from the case of Shafique Sultan supra regarding quantification of depreciation on value of daily use articles, this Court is inclined to enhance the alternate value of dowry articles from Rs.700,000/- to Rs. 1,050,000/- which is the approximate value of the dowry articles by applying depreciation at the rate of 6% per-annum, i.e. the rate of depreciation upheld by the Apex Court.
9. For what has been discussed above, the judgments and decrees of learned Courts below are modified to the extent that the respondent shall surrender 25% of the prompt dower and 50% of the deferred dower on account of dissolution of marriage on the basis of khula which will be determined and actualized by the learned Executing Court while making payment of 50% of the deferred dower to the respondent and the respondent will be entitled to dowry articles as per list Exh.Pl excluding gold ornaments or a sum of Rs. 1,050,000/- as alternate price thereof.
10. Both the writ petitions in hand are disposed of in above terms.
(Y.A.) Petition disposed of
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