(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--
‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional petition‑‑‑Suit for recovery of amount of maintenance, dowry articles and dower amount‑‑‑Plaintiff had produced sufficient material to substantiate her claim‑‑‑All the witnesses produced by plaintiff consistently supported her claim‑‑‑Said witnesses were cross examined at considerable length by defendant, but he failed to derive any advantage out of such exercise and their testimony remained unshaken‑‑ Both Courts had made extensive reference to evidence while dealing with issues regarding dowry and dower‑‑‑Appreciation, appraisal and interpretation of evidence on record made by Trial Court and affirmed by Appellate Court, were based on correct analysis thereof‑‑‑Nothing was in rebuttal to suggest that claim of plaintiff was satisfied in earlier round of litigation between the parties and that defendant was relieved of his obligation‑‑‑View so taken by two Courts, was absolutely justified from evidence on record and found support from the law applicable‑‑ Constitutional petition against concurrent judgments of two Courts, was dismissed, in circumstances.
(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--
‑‑‑‑S.5 & Sched‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.10‑‑‑Dower‑‑‑Meaning and importance of‑‑‑Dower was a debt and unless wife would waive the same, it would be payable to her‑‑‑Islamic Law ordained that there should always be a consideration made by the husband in favour of wife; it was a settlement in favour of wife made prior to completion of marriage contract and was a pre‑condition and pre‑requisite of a valid marriage‑‑‑Dower was indispensable, so much so that in its absence, relationship between husband and wife could not be legitimized and would be regarded as a sinful union.
(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑‑--
‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional jurisdiction‑‑‑Scope‑‑‑When Courts below had jurisdiction and lawful authority to decide the matter on merits, it was not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice was established by party in Constitutional petition‑‑‑High Court would not interfere in judgment and decree passed by Court of competent jurisdiction for the reason that it was within the exclusive jurisdiction of Judge Family Court to believe or disbelieve evidence and that the Judge had given reasons in support of his conclusion No Constitutional petition lay when evidence in case had been properly appreciated and analyzed.
Ghazanfar Abbas Sandeela for Petitioner.
MUSHTAQ AHMED VS Mst. KALSOOM BIBI2005 M L D 348[Peshawar]Before Tariq Parvez Khan and Ijaz‑ul‑Hassan Khan, JJMUSHTAQ AHMED ‑‑‑PetitionerVersusMst. KALSOOM BIBI and 2 others‑‑‑RespondentsWrit Petition No.80 of 2004, decided on /01/.th October, 2004.
(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--
‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional petition‑‑‑Suit for recovery of amount of maintenance, dowry articles and dower amount‑‑‑Plaintiff had produced sufficient material to substantiate her claim‑‑‑All the witnesses produced by plaintiff consistently supported her claim‑‑‑Said witnesses were cross examined at considerable length by defendant, but he failed to derive any advantage out of such exercise and their testimony remained unshaken‑‑ Both Courts had made extensive reference to evidence while dealing with issues regarding dowry and dower‑‑‑Appreciation, appraisal and interpretation of evidence on record made by Trial Court and affirmed by Appellate Court, were based on correct analysis thereof‑‑‑Nothing was in rebuttal to suggest that claim of plaintiff was satisfied in earlier round of litigation between the parties and that defendant was relieved of his obligation‑‑‑View so taken by two Courts, was absolutely justified from evidence on record and found support from the law applicable‑‑ Constitutional petition against concurrent judgments of two Courts, was dismissed, in circumstances.
(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--
‑‑‑‑S.5 & Sched‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.10‑‑‑Dower‑‑‑Meaning and importance of‑‑‑Dower was a debt and unless wife would waive the same, it would be payable to her‑‑‑Islamic Law ordained that there should always be a consideration made by the husband in favour of wife; it was a settlement in favour of wife made prior to completion of marriage contract and was a pre‑condition and pre‑requisite of a valid marriage‑‑‑Dower was indispensable, so much so that in its absence, relationship between husband and wife could not be legitimized and would be regarded as a sinful union.
(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑‑--
‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional jurisdiction‑‑‑Scope‑‑‑When Courts below had jurisdiction and lawful authority to decide the matter on merits, it was not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice was established by party in Constitutional petition‑‑‑High Court would not interfere in judgment and decree passed by Court of competent jurisdiction for the reason that it was within the exclusive jurisdiction of Judge Family Court to believe or disbelieve evidence and that the Judge had given reasons in support of his conclusion No Constitutional petition lay when evidence in case had been properly appreciated and analyzed.
Ghazanfar Abbas Sandeela for Petitioner.
ORDER
IJAZ‑UL‑HASSAN KHAN, J.‑‑‑Marriage of Mushtaq Ahmad petitioner took place with Mst. Kulsoom Bibi, respondent on 27‑10‑1996 in consideration of dower. Both the parties remained together for some time, then relations between the parties became strained due to stated cruel acts/attitude of the petitioner and his sisters and then fell apart. The mater took an ugly shape when the petitioner pronounced 'Talaq' upon respondent on 13‑11‑2000 through a written deed. On 16‑12‑2000 Mst. Kulsoom Bibi filed suit against Mushtaq Ahmad petitioner, before Judge Family Court, D.I. Khan for recovery of Rs.4334 as maintenance for the period of 'Iddat' i.e. four months and ten days, recovery of dowry articles or in the alternative Rs.59650 as sale price of dowry articles, recovery of gold ornaments weighing 32 tolas or in the alternative Rs.205500 as sale price thereof and recovery of dower amount in shape of 9 tolas gold ornaments or in the alternative sale price of the same. The suit was resisted and the allegations of plaintiff‑wife were totally repudiated. In view of pleadings of the parties, the following issues were framed for trial:‑‑
1.Whether dowry articles mentioned in the plaint were actually given to plaintiff at the time of marriage, which are now in possession of defendant. If so, is plaintiff entitled to recover same?
2.Whether golden ornaments given as dowry by parents of plaintiff as well as dower in shape of golden ornaments is still outstanding and plaintiff is entitled, to recovery all these ornaments or price?
3.Whether the plaintiff has not come with clean hands and entire suit of plaintiff is false and based on mala fide, if so what are the actual facts?
4.Whether the plaintiff has already taken back entire dowry articles including ornaments as well as ornaments given by defendant at the time of marriage in addition thereto plaintiff has received price of portion of house transferred in her name, if so its effect?
5.Whether the suit of plaintiff is hit by doctrine of res judicata?
6.Relief.
2. Upon consideration of the evidence adduced by the parties in support of their respective contentions, learned Judge Family Court, D.I. Khan, through his judgment and decree dated 28‑7‑2003 partially allowed the suit of plaintiff‑wife to the extent of recovery of maintenance amount of Rs.4334, dowry articles to the extent of Rs.15,000 and recovery of gold ornaments of 32 totals or the price thereof. Rest of the claim was rejected.
3. Feeling aggrieved thereby, both the parties preferred appeals before learned District Judge, D.I. Khan which were entrusted to learned Additional District Judge, D. I. Khan for adjudication. Through judgment dated 29‑3‑2004 appeal of Mushtaq Ahmad was partially accepted with slight modification in the amount of maintenance for the period of 'Iddat'. Appeal of Mst. Kulsoom Bibi was also partially accepted and she was held entitled for recovery of entire dowry articles valuing Rs.59650. In respect of her claim for recovery of 9 tolas gold ornaments, she was directed to approach civil Court.
4. Feeling dissatisfied, Mushtaq Ahmad petitioner has filed instant writ petition under Article. 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking reversal of the impugned judgments and decrees of the Court below.
5. Mr. Ghazanfar Abbas Sandeela, Advocate for the petitioner has mainly contended that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted into miscarriage of justice. It is submitted that findings of fact, recorded by the learned trial Judge and affirmed in appeal, are based on conjectural presumptions and speculations having no nexus with the evidence which has come on record. Important aspects of the case have not been dilated upon by the Courts below with realistic approach nor the evidence is appraised with the precision. The learned counsel further argued that the claim of respondent‑wife was fully adjusted in the earlier round of litigation between the parties and nothing was outstanding against the petitioner‑husband and as such the learned lower forums had no justifiable reason to take a contrary view and accept the claim of the respondent‑wife.
6. We have considered the arguments of learned counsel for the petitioner and minutely perused the material available on the file. The submissions of the learned counsel carry no weight. The record shows that marriage of the couple was solemnized somewhere in 1996 in consideration of Rs.25,000 as dower, out of which, half portion of house was given to the wife vide a registered deed dated 14‑10‑1998 as a part of the dower of Rs.5,000 arid rest of Rs.20,000 was agreed to be paid in shape of gold ornaments weighing 9 tolas. According to respondent‑wife, she was given dowry article and gold ornaments weighing 32 tolas by her parents at the time of her marriage which were snatched and retained by the petitioner. The happy moments started percolating into hatred union and the parties eventually fell out. The petitioner pronounced 'Talaq' upon respondent on 13‑11‑2000 through written deed and relieved her of the marital bond. The respondent has produced sufficient material to substantiate her claim. All the witnesses have consistently adhered to the claim of the respondent. They were cross‑examined at a considerable length by the defence but miserably failed to derive any advantage out of the whole exercise. Their testimony remained unshaken. Both the Courts have made extensive reference to the evidence while dealing with Issues Nos.1, 2 and 4. The comparative examination of judgments of the Courts below persuade us to the view that appreciation, appraisal and A interpretation of the evidence on record made by the trial Court and affirmed by the Appellate Court is based on correct analysis thereof. On the contrary, there is nothing in rebuttal to suggest that claim of the respondent was satisfied in the earlier round of litigation between the parties and the petitioner is relieved of his obligation. The view so taken by the Courts is absolutely justified from the evidence on the record and indeed finds support from the law applicable.
7. It is well‑settled that dower is a debt and unless the wife waives the same, it is payable to the wife. In order to constitute a valid marriage, Islamic law ordains that there should always be a consideration made by the husband in favour of the wife. It is a settlement in favour of the wife made prior to the completion of the marriage contract and is a pre‑condition of a valid marriage. It is undoubtedly a pre condition and a pre‑requisite of a valid matrimonial contract. It is indispensable, so such so that in its absence, the relationship between husband and wife could not be legitimized and shall be regarded as a sinful union.
8. It is settled proposition of law that Courts below when they have the jurisdiction and lawful authority to decide the matter on merits, it is not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition.
9. High Court would not interfere in judgment and decree passed by Court of competent jurisdiction for the reason that it was within the exclusive jurisdiction of Judge Family Court to believe and disbelieve the evidence and that the Judge has given, reasons, in support of conclusion. No Constitutional petition lies when evidence in the case has been properly appreciated and analyzed.
10. For the aforestated reasons finding no force in this writ petition, we dismiss the same in limine.
H.B.T./279/PPetition dismissed.
IJAZ‑UL‑HASSAN KHAN, J.‑‑‑Marriage of Mushtaq Ahmad petitioner took place with Mst. Kulsoom Bibi, respondent on 27‑10‑1996 in consideration of dower. Both the parties remained together for some time, then relations between the parties became strained due to stated cruel acts/attitude of the petitioner and his sisters and then fell apart. The mater took an ugly shape when the petitioner pronounced 'Talaq' upon respondent on 13‑11‑2000 through a written deed. On 16‑12‑2000 Mst. Kulsoom Bibi filed suit against Mushtaq Ahmad petitioner, before Judge Family Court, D.I. Khan for recovery of Rs.4334 as maintenance for the period of 'Iddat' i.e. four months and ten days, recovery of dowry articles or in the alternative Rs.59650 as sale price of dowry articles, recovery of gold ornaments weighing 32 tolas or in the alternative Rs.205500 as sale price thereof and recovery of dower amount in shape of 9 tolas gold ornaments or in the alternative sale price of the same. The suit was resisted and the allegations of plaintiff‑wife were totally repudiated. In view of pleadings of the parties, the following issues were framed for trial:‑‑
1.Whether dowry articles mentioned in the plaint were actually given to plaintiff at the time of marriage, which are now in possession of defendant. If so, is plaintiff entitled to recover same?
2.Whether golden ornaments given as dowry by parents of plaintiff as well as dower in shape of golden ornaments is still outstanding and plaintiff is entitled, to recovery all these ornaments or price?
3.Whether the plaintiff has not come with clean hands and entire suit of plaintiff is false and based on mala fide, if so what are the actual facts?
4.Whether the plaintiff has already taken back entire dowry articles including ornaments as well as ornaments given by defendant at the time of marriage in addition thereto plaintiff has received price of portion of house transferred in her name, if so its effect?
5.Whether the suit of plaintiff is hit by doctrine of res judicata?
6.Relief.
2. Upon consideration of the evidence adduced by the parties in support of their respective contentions, learned Judge Family Court, D.I. Khan, through his judgment and decree dated 28‑7‑2003 partially allowed the suit of plaintiff‑wife to the extent of recovery of maintenance amount of Rs.4334, dowry articles to the extent of Rs.15,000 and recovery of gold ornaments of 32 totals or the price thereof. Rest of the claim was rejected.
3. Feeling aggrieved thereby, both the parties preferred appeals before learned District Judge, D.I. Khan which were entrusted to learned Additional District Judge, D. I. Khan for adjudication. Through judgment dated 29‑3‑2004 appeal of Mushtaq Ahmad was partially accepted with slight modification in the amount of maintenance for the period of 'Iddat'. Appeal of Mst. Kulsoom Bibi was also partially accepted and she was held entitled for recovery of entire dowry articles valuing Rs.59650. In respect of her claim for recovery of 9 tolas gold ornaments, she was directed to approach civil Court.
4. Feeling dissatisfied, Mushtaq Ahmad petitioner has filed instant writ petition under Article. 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking reversal of the impugned judgments and decrees of the Court below.
5. Mr. Ghazanfar Abbas Sandeela, Advocate for the petitioner has mainly contended that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted into miscarriage of justice. It is submitted that findings of fact, recorded by the learned trial Judge and affirmed in appeal, are based on conjectural presumptions and speculations having no nexus with the evidence which has come on record. Important aspects of the case have not been dilated upon by the Courts below with realistic approach nor the evidence is appraised with the precision. The learned counsel further argued that the claim of respondent‑wife was fully adjusted in the earlier round of litigation between the parties and nothing was outstanding against the petitioner‑husband and as such the learned lower forums had no justifiable reason to take a contrary view and accept the claim of the respondent‑wife.
6. We have considered the arguments of learned counsel for the petitioner and minutely perused the material available on the file. The submissions of the learned counsel carry no weight. The record shows that marriage of the couple was solemnized somewhere in 1996 in consideration of Rs.25,000 as dower, out of which, half portion of house was given to the wife vide a registered deed dated 14‑10‑1998 as a part of the dower of Rs.5,000 arid rest of Rs.20,000 was agreed to be paid in shape of gold ornaments weighing 9 tolas. According to respondent‑wife, she was given dowry article and gold ornaments weighing 32 tolas by her parents at the time of her marriage which were snatched and retained by the petitioner. The happy moments started percolating into hatred union and the parties eventually fell out. The petitioner pronounced 'Talaq' upon respondent on 13‑11‑2000 through written deed and relieved her of the marital bond. The respondent has produced sufficient material to substantiate her claim. All the witnesses have consistently adhered to the claim of the respondent. They were cross‑examined at a considerable length by the defence but miserably failed to derive any advantage out of the whole exercise. Their testimony remained unshaken. Both the Courts have made extensive reference to the evidence while dealing with Issues Nos.1, 2 and 4. The comparative examination of judgments of the Courts below persuade us to the view that appreciation, appraisal and A interpretation of the evidence on record made by the trial Court and affirmed by the Appellate Court is based on correct analysis thereof. On the contrary, there is nothing in rebuttal to suggest that claim of the respondent was satisfied in the earlier round of litigation between the parties and the petitioner is relieved of his obligation. The view so taken by the Courts is absolutely justified from the evidence on the record and indeed finds support from the law applicable.
7. It is well‑settled that dower is a debt and unless the wife waives the same, it is payable to the wife. In order to constitute a valid marriage, Islamic law ordains that there should always be a consideration made by the husband in favour of the wife. It is a settlement in favour of the wife made prior to the completion of the marriage contract and is a pre‑condition of a valid marriage. It is undoubtedly a pre condition and a pre‑requisite of a valid matrimonial contract. It is indispensable, so such so that in its absence, the relationship between husband and wife could not be legitimized and shall be regarded as a sinful union.
8. It is settled proposition of law that Courts below when they have the jurisdiction and lawful authority to decide the matter on merits, it is not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition.
9. High Court would not interfere in judgment and decree passed by Court of competent jurisdiction for the reason that it was within the exclusive jurisdiction of Judge Family Court to believe and disbelieve the evidence and that the Judge has given, reasons, in support of conclusion. No Constitutional petition lies when evidence in the case has been properly appreciated and analyzed.
10. For the aforestated reasons finding no force in this writ petition, we dismiss the same in limine.
H.B.T./279/PPetition dismissed.
