-Both Guardian Judge and the Appellate Court concurrently dismissed application of mother of minors under S.25 of Guardians and Wards Act, 1890 for custody of minors-

2007 C L C 1612

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Both Guardian Judge and the Appellate Court concurrently dismissed application of mother of minors under S.25 of Guardians and Wards Act, 1890 for custody of minors---Courts had appointed respondent brother of deceased father of minors as their guardian---Petitioner had challenged the concurrent judgments of courts below---Petitioner, who was mother of minors had claimed that it was in the welfare of minors that minors should live with her---Case of respondent, who was brother of deceased father of minors, .was that petitioner was of bad character who along with others killed her husband and that she had no source of income---Petitioner had failed to produce any worthwhile evidence in support of her claim for custody of minors---Petitioner lady had no source of income, .whereas respondent (uncle) was a teacher and he was looking after the minors and they were getting education---Petitioner allegedly was living with corrupt persons---Respondent (uncle) had deposed that he could look after the minors in better manner and that minors did not want to meet petitioner who had no house---Trial Court had rightly observed that it was in the welfare of minors that they should remain with respondent (uncle)---Trial Court, in circumstances, had rightly dismissed application of petitioner for custody of minors and Appellate Court had rightly' upheld said judgment---In absence of any illegality or infirmity in the impugned judgment, same could not be interfered with in constitutional jurisdiction of High Court--Paramount consideration, in determining the question of custody of minor, being welfare of minor; it was in the welfare of minors that they should remain with their paternal-uncle/respondent.

Sardar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC 357 rel.

Tahir Mahmood Khokhar for Petitioner.

Muhammad Tariq Awan for Respondents.

Date of hearing: 26th June, 2007.

2007 C L C 1612
[Lahore]
Before Syed Sakhi Hussain Bokhari, J
Mst. MUNIRA BIBI----Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, SHEIKHUPURA and 2 others----Respondents
Writ Petition No.2400 of 2004, heard on 26th June, 2007.

JUDGMENT

SYED SAKHI HUSSAIN BOKHARI, J.--- In this constitutional petition, the petitioner has prayed for setting aside judgment dated 10-10-2003 passed by learned Additional District Judge, Sheikhupura and order, dated 24-7-2003 passed by learned Guardian Judge, Sheikhupura.

2. Relevant facts for the disposal of this writ petition are that Mst. Muniran Bibi, petitioner filed application udder section 25 of Guardians and Wards Act against Master Bashir Ahmad (respondent No.3) and stated that she was married to Nazir Ahmad and out of this wedlock two sons and two daughters (Usman Ali aged 10 years, Nasira Parveen aged 8 years, Iqra Bibi aged 5 years and Ehsan Ali aged 4 years) were born. She further stated that on the night between 1/2-9-2000 her husband was murdered anti case F.I.R. No.185 of 2000 was registered at Police Station Safdarabad against petitioner and others. She was arrested m the said case and sent to jail. The respondent took the minors with him and also rented out the house of her husband. She averred that she was acquitted on 9-2-2002 and she asked the respondent to give the minors to her but he refused, therefore, she was constrained to file application. The petitioner stated that it is in the welfare of minors that they should live with her. The respondent mentioned in reply that on 6-9-2001 the Guardian Judge, Sheikhupura had appointed him guardian of the minors and their property acid succession certificate was issued on 26-11-2001 and that Rs. 1,60,000 belonging to the deceased (Nazir Ahmad) have been transferred in the account of minors on the basis of order passed by Court. The respondent stated that petitioner is of bad character and she had illicit relations with one Liaqat Ali who was murdered and case F.I.R. No.34 of 1997 under sections 302, 34, P.P.C. was registered at Police Station Chowk Azam. She along with others (Sajida and Akram) had killed Nazir Ahmad on 2-9-2000 because her paramour, LiagatAli had been murdered. She had illicit relations with Muhammad. Akram and case F.I.R. No.185 of 2000 dated 2-9-2000 under section 302, P.P.C. was registered at Police Station Safdarabad District Sheikhupw~a and petitioner was challanecl. The petitioner was acquitted and he had filed appeal against her acquittal The respondent stated that it is dangerous for the minors to live with petitioner and it is in the welfare 'of the minors that they should remain with him. The petitioner has not challenged order of leagued Guardian Judge; dated 6-9-2001 whereby he had been appointed guardian of person and property of minors. The petitioner is living with her friends at different places aid she is not in a position to bring up the minors properly. Learned trial Court framed issues, recorded evidence and dismissed the application brought by petitioner vide order dated 24-7-2003. The petitioner filed appeal thereagainst, which was dismissed vide judgment, dated 10-10-2003 passed by learned Additional District Judge, Sheikhupura. Hence this writ petition.

3. I have heard the arguments and perused the record.

4. As mentioned above Mst. Muniran Bibi, petitioner had filed application under section 25 of Guardians and Wards Act for custody of minors (Unman Ali aged 10 years, Nasira Parveen aged 8 years, Iqra Bibi aged 5 years and Ehsan Ali aged 4 years). The petitioner is mother of minors. As mentioned earlier at the tone of institution of application, the minors were aged about 10, 8, 5 and 4 years but now they are aged about 14, 12, 9 and 8 years. The case of petitioner is that, it is in the welfare of the minors that they should live with her. However, the case of respondent is that petitioner is of bad character. Also that she along with others killed her husband and that she has no source of income, therefore, she is not in a position to look after the minors, hence it is in the welfare of the minors that they should remain with him. Admittedly Master Bashir Ahmad, respondent No.3 is brother of Nazir Ahmad (father of minors) and .he is bringing up the minors since the death of their father. The case of petitioner is that it is in the welfare of the minors that they should live with her. However, she has failed to produce any worthwhile evidence in support of her case. She has no source of income. The respondent is a teacher and as mentioned earlier he is looking after the minors. He appeared as R.W.2 and stated that minors are getting education. He further stated that petitioner is living with corrupt persons. He deposed that he could look after the minors in better manner and that minors do not want to meet the petitioner. The petitioner has no house. He also examined R.W.1, Bashir Ahmad in support of his case. The statements of R.W.1 and R.W.2 are convincing and confidence-inspiring and there is nothing on record to disbelieve the same. As mentioned above petitioner has failed to produce any worthwhile evidence in support of her case. The order dated 24-7-2003 shows that learned trial Court observed that it is in the welfare of the minors that they should remain with Master Bashir Ahmad. So in the circumstances of the case, I find that learned trial Court has rightly dismissed the application brought by petitioner. The judgment dated 10-10-2003 shows that learned Additional District Judge has decided the appeal brought by petitioner after appraisal of entire material available on record. Para.7 of the said judgment reads as under:--

"Onus to prove this issue was on applicant. Applicant herself appeared as A.W.1 and produced one Mehmood Ahmed as A.W.2. She also produced photocopy of judgment dated 9-2-2002 passed by learned Additional Sessions Judge as Mark "A". During cross-examination-she admitted that she is working as a Maid Servant. All of emphasis of her cross-examination was that she is a lady of bad character and was having illicit relations with some persons. Due to her immoral life she managed murder of her husband. A.W.2 is employer of appellant. He was also providing livelihood to appellant. On the other hand respondent produced oral as well as documentary evidence regarding study of minors. While scrutinizing evidence produced by both the parties it is established that applicant is having no proper source of income to look after or bring up minors. She is also not having any shelter to live therein. Although she is having share in estate of her deceased husband being his legal heir but in absence of any proper source of income is not in a position to bring up minors in a better atmosphere and to provide them education and livelihood. Welfare of the minors is paramount consideration to be looked into at the time of decision of entitlement for custody of minors. So, appellant remained failed to prove this issue in her favour which is decided against her."

It is well-reasoned judgment. There is no illegality or infirmity in the impugned judgment. It is clear from the evidence on the record that it is in the welfare of the minors that they should remain with respondent. As mentioned earlier, minors are aged about 14, 12, 9 and 8 years. Today they arc present in Court and they are not willing to live with their mother (petitioner) rather they want to live with their paternal-uncle (Master Bashir Ahmad, respondent No.3). Even otherwise in determining the question of custody of minor the paramount consideration is the welfare of the minor. Reliance can be placed on the case of Sardar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC 357. As such it is in the welfare of the minors that they should remain with their paternal-uncle (Master Bashir Ahmad, respondent No.3). So impugned judgments are just and proper and there is no justification to warrant interference by this Court.

5. The upshot of the above discussion is that this writ petition has no force and the same is accordingly dismissed. No order as to costs.

H.B.T./M-405/L Petition dismissed.

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Firstly a male above eighteen years of age who contracts child marriage, secondly person who performs, conducts or directs any child marriage and thirdly where a minor contracts a child marriage,

2021 LHC 3143

 Matter in issue hinges upon the import and impact of the provisions contained in Act, 1929. In order to put a restraint on the solemnization of child marriages, Act, 1929 was promulgated as Act No.XIX on 01st October, 1929. The Act, 1929 categorizes three kinds of persons as offenders. Firstly a male above eighteen years of age who contracts child marriage, secondly person who performs, conducts or directs any child marriage and thirdly where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity lawful or unlawful who does any act to promote the marriage or permit it to be solemnized or negligently fails to prevent it from being solemnized.

Writ Petition-106-19

MST. SHAHIDA PARVEEN ETC VS UNION COUNCIL JASWAL ETC

Mr. Justice Mirza Viqas Rauf

02-07-2021

2021 LHC 3143

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CLOSING OF RIGHT OF WRITTEN STATEMENT BY FAMILY COURT

1. Right of Written Statement or Defence can be struck down by the Family Court in spite of Specific Provision in this regard in Family Courts Act because the Family Court cannot remain helpless if the defendant fails to file written statement within the time provided by the court.

[2017 CLCN 22]

2. Right of cross examine to a defendant who failed in filing written statement can not be denied.

[2012 CLC 1361]

3. Family court cannot sit as spectator if the defendant fails to file written statement. The family court can exercise its exclusive jurisdiction under the law in such eventuality.

[2010 CLC 797]

4. The act of the petitioner was contemptuous who did not file the written statement in spite of the fact that ex parte proceedings was set aside against him. Writ Petition was dismissed.

[2006 MLD 1128]

5. No appeal against interlocutory order of Family Court

[2005 CLD 1049]

6. The order of closing of right of written statement by a Family court in a suit for recovery of maintenance or dowry articles cannot be challenged in a writ petition being interlocutory order. The petitioner can file appeal against the final judgment because appeal has wider scope than writ jurisdiction.

[2007 YLR 1550], [2009 MLD 1042]

7. Family court can regularize its proceedings on the general principles of law.

[2017 YLR 622]

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Petitioner (mother ) was entitled to get 100% Special Family pension benefits---Constitutional petition was allowed in circumstances.

 2017 P L C (C.S.) 703

Pension Regulations, 2010---

----R. 100(a)(2) & (b) (4)---Constitution of Pakistan, Art.9---Special Family Pension---Petitioner's son during service in Army embraced Shahadat---After the widow of Shaheed soldier got married, petitioner (mother of Sahaheed son) claimed to be entitled to 100% Special Family Pension benefits---Validity---Special Family Pension claim of petitioner (mother) was refused wrongly mala fidely and without any valid basis, in violation of Pension Rules and she had been discriminated and not equally treated under law by the authorities---Such Rules were framed for prompt and adequate pensionary benefits to the families of martyred army personnel non-commissioned officers to acknowledge service of bold/courageous "Jawans" embracing `Shahadat' for motherland, to boost morale of members of Armed Forces to combat against all internal and external enemies and terrorism of all sorts, to share their grieves, compensate their legal heirs / dependents to enable them to live dignified/independent life---High Court declared the order passed by authorities without lawful authority and of no legal effect as right of mother of "Shaheed" to live a respectable life (guaranteed under Art.9 of the Constitution) was blatantly refused---Petitioner (mother) was entitled to get 100% Special Family Pension benefits---Constitutional petition was allowed in circumstances.

Lieutenant Colonel Abdul Ghaffar Khan Babar and Lieutenant Colonel Khalid Mehmood Abbasi v. Federation of Pakistan C.Ps.Nos.1231 and 1232 of 2010; C.As. Nos.173 of 2012 and 323 to 335 of 2014, decided on 07.12.2015 ref.

Muhammad Akram for Petitioner.

Mrs. Kanz-us-Saadat Siddique, Standing Counsel for Respondents.

Date of hearing: 13th December, 2016.

 2017 P L C (C.S.) 703
[Lahore High Court]
Before Mujahid Mustaqeem Ahmed, J
Mst. YASMEEN AKHTAR
Versus
FEDERATION OF PAKISTAN through Secretary Ministry of Defence
Writ Petition No.2163 of 2012, heard on 13th December, 2016.

JUDGMENT

MUJAHID MUSTAQEEM AHMED, J.--- Petitioner's son Istehzar Hussain a `Shaheed' of Pakistan Army, embraced "Shahadat" during 'operation Janbaz', on 11th October, 2009, at G.H.Q., Rawalpindi and his widow Mst. Khalida Nasreen was allowed 'Special Family Pension' benefits under Rule 100(a)(2) of Pension Regulations Vol-1 2010. Later on, she married with brother of Istehzar Hussain, so petitioner being mother of the deceased was allowed 40% 'Special Family Pension' benefits as per Rule 100(b)(4) ibid. The petitioner through her counsel submitted representation for grant of 100% Special Family Pension benefits but her request was not acceded to. Through this writ petition, the petitioner has challenged the letter No.4635/54/PPA-8-VXX99 dated 02 May, 2012, by which her claim for grant of 100% 'Special Family Pension' benefit has been declined, mainly on the ground that she has been discriminated in case of grant of 'Special Family Pension' benefits and another similar placed lady mother of Daffadar Faisal Nadeem (Shaheed) has been granted full pension benefits, vide letter Annexure-D. Prayer has been made for allowing the writ petition and declaring her entitled to full `Special Family Pension' benefits.

2. The respondent in parawise comments has denied the claim of the petitioner maintaining that as per rule 100(b)(1) ibid after disqualification of widow, parents and children are eligible for second life Dependent pension @ 40% of the actual pension benefit under Rule 100(b)(4) ibid. The respondent deliberately has not commented about grant of such pension benefits to mother of Daffadar-Faisal Nadeem (Shaheed) vide Annexure-D.

3. Heard.

4. Learned standing counsel for respondent has maintained that under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, (The Constitution), this Court is not competent to hear the writ petition as the matter being agitated before the Court is arising out of the service matter of Army personnel and relates to the terms and conditions of the service. In support of her contention, she has relied on unreported precedent "Lieutenant Colonel Abdul Ghaffar Khan Babar and Lieutenant Colonel Khalid Mehmood Abbasi v. Federation of Pakistan" C.Ps.Nos.1231 and 1232 of 2010.

5. On the other hand, learned counsel for the petitioner has maintained that this contention is misconceived one. The widow of army personal has approached this Court for establishment of her own pensionary rights and as such this writ petition is competent. Reliance has been placed on unreported judgment of August Supreme Court of Pakistan in C.As. Nos.173 of 2012 and 323 to 335 of 2014, decided on 07.12.2015, wherein it was held in para No.7 as under:-

"This Court in its various pronouncements has consistently and conclusively held with regard to person subject to the Pakistan Army Act, 1952 or any other law relating to Armed Forces of Pakistan that the bar of jurisdiction contained in sub-Articles (3) and (5) of Article 199 of the Constitution is not absolute and the Court always has the jurisdiction to examine whether the Order challenged suffers from mala fides including malice in law or is without jurisdiction or coram-non-judice…."

Thus, keeping in view the facts of this petition and the above latest case law referred by the learned counsel for the petitioner, this Court is of the view that the bar of jurisdiction of this Court is not absolute and under the principle of judicial review, Court can examine the legality of the order dated 01.05.2012 by which petitioner has been deprived of Special Family Pension benefits and has been discriminated in similar placed person (Annexure-D). Thus, this contention of learned counsel for respondent is repelled.

6. I have examined the above referred pension rules. Under Rule 100, 'Special Family Pension' benefits have been allowed to Widow/ Parents/Children and Dependent Pension of HCOD/JCOs/Soldiers, etc w.e.f. 01.07.2005 and it is applicable to all causalities occurring on or after such date. Special Family Pension benefits under Rule 100(a)(1 and 2) have been allowed in case of death, in operational areas, field areas during counter insurgency or internal security duty etc. Under rule 100(b), a widow is first recipient of full Special family pension at the time of causality. Under rule 100(b)(2) ibid in case where the parents happened to be first recipients, they are entitled to family pension vide Rule 100(1) and (2). Under rule 100 sub-Rule 4(a), dependent pension is admissible to parents in case there is no wife, as specified under rule 100(1) and (2) ibid and other heirs/children are entitled to 40% pension. The respondent has refused 'Special Family Pension Benefits' to the petitioner on the basis of Rule 111 ibid. Suffice to observe that this rule relates to `Family Pension' only and it is not applicable to 'Special Family Pension' benefits admissible under rule 100 ibid. For that very reason, in this Rule, term 'Special Family Pension' benefits has been omitted. Rule 100 ibid has independently enumerated the persons who are entitled to 'Special Family Pension' benefits and the rate of pension. Thus, I am of the view that the petitioner is entitled under the above rules, 100% of 'Special Family Pension' benefits and refusal on part of respondent for such pensionary benefits is clear-cut violation of the above pension rules and is based on discrimination. The petitioner in the instant case has not been dealt with in accordance with law and her claim for full special family pension benefits has been refused in utter disregard of the rules. The similar placed mother of Dafadar-Faisal Nadim vide Annexure-D has been transferred 100% Special Family Pension, in lieu of share of widow. There is no denial of respondent in this regard. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, has guaranteed that each citizen will be treated in accordance with law and under Article 25 of the Constitution, all citizens are equal before law and entitled to equal protection of law and there shall be no discrimination amongst the citizens.

7. Learned Standing Counsel for Federation of Pakistan, further maintained that under Rule 13 of pension regulations Volume-2 of Armed Forces, 2010, it was open for the petitioner to submit an appeal before Pension Appeal Committee but she has not availed the alternate remedy and on this score also, the writ petition is not competent. In rule 15 ibid limited jurisdiction has been given to pension appeal committee, only in case of rejection of claim i.e. decision against entitlement on the ground that death and disability was not due to or aggravated by Military Service and assessing the degree of disability. The case of the petitioner does not fall within the purview of Rule 15 ibid, so this objection is also repelled.

8. Consequently, this Court has come to the conclusion that 'Special Family Pension' claim of the petitioner has been refused wrongly malafidely and without any valid basis, in violation of above pension rules and as such petitioner has been discriminated and not equally treated under law by respondent. These rules were framed for prompt and adequate pensionary benefits to the families of martyred army personnel/non-commissioned officers to acknowledge the services of bold/courageous "Jawans" embracing 'Shahadat' for the motherland, to boost the morale of members of armed forces to combat against all internal and external enemies, end Terrorism of all sorts, to share their grieves, compensate their legal heirs/dependants to enable them to live dignified /independent life. But in the case in hand, right of mother of "Shaheed" to live a respectable life (guaranteed under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973) has been blatantly refused, thus the impugned order is declared without lawful authority and having no legal effect. Petitioner will be entitled to get 100 % 'Special Family Pension' benefits. This writ petition is allowed in the above in the above terms.

MH/Y-1/L Petition allowed.

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Duty of State to protect Marriage.

2021 LHC 3984

It is a settled law by now that an adult sui juris Muslim girl can marry a person of her choice without the consent of her Wali.

Under Islamic law both male and female have the right to contract marriage with their own free will and their matrimonial life is protected under Article 35 of the Constitution. It is common practice of our society that whenever a marriage is contracted without the approval of families, close relatives make every possible effort to break that wedlock. It is pertinent to mention that any of such attempts are violative of Article 9 & 35 of the Constitution. Under Articles 9 & 35 of the Constitution, it is bounden duty of State to protect the marriage, life and liberty of legally wedded couple. It was held by the Federal Shariat Court in Riaz Begum Alias Razia’s Case that Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973, safeguards, guarantees and protects the right of marriage as it is settled principle of law that Muslim adult female being sui juris can exercise her right to marry without the consent of Wali. Such a sacred relationship founded by way of religious contract, entered into by two individuals to establish a home and start a family life, which is fundamental and primary foundation of society, should not be interfered with. It is therefore incumbent upon all state functionaries to act strictly in accordance with law and not to transgress their lawful domain to disturb or disrupt the family life of a person without legal justification.

However, in order to prevent the abuse of such directions, the Court should be extra cautious and watchful while issuing such directions and should ensure the presence of wedded couple before the Court, especially the female petitioner in order to rule out that any such petition has been filed for some ulterior motive other than what is prayed for. It should also be ensured that a valid marriage exists and petition has been filed voluntarily without any pressure or undue influence on the female petitioner. In the present case petitioner and her husband, present before the Court, are legally wedded wife and husband as their Nikahnama has been placed on the record and they own it. The Court has ensured the identity of petitioner and her voluntariness to file this petition.

WO 11601-21
MST SAIMA MAI VS
DPO ETC
Mr. Justice Ali Zia Bajwa
29-07-2021
2021 LHC 3984

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Under section 5 of the West Pakistan Family Courts Act, 1964, read with its' Schedule, the family suits have been categorized as suits for

P L D 2011 Lahore 569

 (i) dissolution of marriage,

(ii) recovery of dower,

(iii) recovery of maintenance,

(iv) restitution of conjugal rights,

(v) custody of children

(vi) guardianship,

(vii) jactitation of marriage and

(viii) recovery of personal property and belongings of a wife.

Under Rule 6 of the West Pakistan Family Court Rules, 1965, any of the aforesaid family suits can be filed in a court within whose local limits the cause of action wholly and in part has arisen or the parties reside or have last resided together.

In the case of suits for dissolution of marriage and recovery of dower, the proviso to Rule 6 gives additional choice to a wife to file such suits within the local limits of the court where she ordinarily resides.

Obviously, the proviso to Rule 6 does not apply to suits other than those for the dissolution of marriage or for the recovery of dower.

There is no prohibition against the joinder of causes of action under the West Pakistan Family Courts Act, 1964. Resultantly, a wife can file an omni bus suit wherein she can combine her causes of action of dissolution of marriage, maintenance, recovery of dower, dowry and personal property and custody or guardianship of children. Likewise, a husband can, in the same suit, seek restitution of conjugal rights or jactitation of marriage along with custody and guardianship of the children.

In such an event, a Family Court cannot divide the plaint into causes of action that fall within its territorial jurisdiction and those which fall beyond it nor can the Family Court split the plaint to separate and return a part of the plaint for lack of territorial jurisdiction.

In case of lack of jurisdiction, a plaint can only be returned as whole. It is also so provided under Rule 5 of the West Pakistan Family Court Rules, 1965, which does not envisage any piecemeal or partial return of the plaint.

P L D 2011 Lahore 569

Before Asad Munir, J

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-Art. 199--Muslim Family Law Ordinance, 1961, Ss. 9 & 10--Constitutional petition--Suit for recovery of dower amount, dower articals and maintenance allowance--Decreed--Appeal--Dismissed--

August 11, 2021
PLJ 2021 Quetta 126 (DB)

Constitution of Pakistan, 1973--

----Art. 199--Muslim Family Law Ordinance, 1961, Ss. 9 & 10--Constitutional petition--Suit for recovery of dower amount, dower articals and maintenance allowance--Decreed--Appeal--Dismissed--Concurrent findings--Modification in judgment--Entitlement of dower--Challenge to--It is settled principle of law of evidence that whosoever alleges existence of a particular fact must prove same--Petitioner produced representative of Assistant Commissioner before trial Court but representative did not produce any receipt in respect of return of dowry articles--Petitioner has failed to prove his plea--In our society it is not possible for bride/wife to keep record of purchased articles and to prepare list of dowry articles as well as to obtain signatures of husband and witnesses--It is well settled principle that where marriage has not been consummated, wife is entitled to only half of fixed dower and remaining half is to be returned/restored to husband, unless such right is waived by him voluntarily--Concurrent findings of Courts below to extent maintenance for iddat period and dower amount need no interference and same are hereby upheld--However dowry articles being daily use items depreciate day by day, therefore impugned judgments and decrees passed by Courts below to extent of cost of dowry articles is modified and amount of dowry article is reduced to that of Rs. 3,00,000--Petition disposed of.

[Pp. 129 & 130] A, B, C, D & E

2008 SCMR 1584 & PLD 2014 SC 693 ref.

Mr. Noor Muhammad Kakar, Advocate for Petitioner.
Mr. Muhammad Usman Yousafzai, Advocate for Respondents.
Date of hearing: 16.9.2019.
PLJ 2021 Quetta 126 (DB)
Present: Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ.
AZIZ-UR-REHMAN--Petitioner
versus
Mst. BIBI JAMEELA and 2 others--Respondents
C.P. No. 39 of 2019, decided on 23.9.2019.

Judgment

Abdul Hameed Baloch, J.--This order shall dispose of Constitution Petition No. 39 of 2019, which is directed against the judgment and decree dated 14.02.2018 (impugned judgment) passed by the learned Additional Family Judge-I, Quetta ("trial Court") and against the judgment dated 19.12.2018, passed by the learned Additional District Judge-V, Quetta ("appellate Court"), whereby the 'Suit for Recovery of Dowry Amount, Dowry Articles Maintenance allowance for Iddat Period and Past Maintenance' filed by the respondent/plaintiff was decreed by the trial Court and appeal filed thereon was dismissed by the appellate Court.

2. Brief facts of the case are that the Respondent No. 1 has filed a suit for recovery of dower amount Rs. 3,00,000/-, dowry articles worth of Rs. 472,800 and past maintenance allowance of Iddat period at the rate of Rs. 15,000/- p.m, and lastly prayed for decree of suit with the following terms:

i. Decree be passed in favour of plaintiff against the defendant. Directing the defendant to pay the Dower amount Rs. 300000/- to the plaintiff in lum sum.

ii. defendant be directed to pay the maintenance allowance from February 2014 till October 2014 and to pay the maintenance allowance for the Iddat Period at the rate of Rs. 15000/- per month.

iii. Defendant be directed to return the dowry articles detail mentioned in the Para No. 3 or to pay the market value

of the dowry articles to the plaintiff amounting to

Rs. 472,800/-

iv. Defendant be directed to return the original Educational document to the plaintiff.

v. any other relief which this Hon' able Court deem fit and proper in the circumstance of the case be awarded to plaintiff.

vi. All cost of suit.

3. The petitioner/defendant on receipt of notice filed a written statement while denying the claim of the plaintiff stating therein that the plaintiff has taken away all of her dowry articles which she had brought from her father house in the presence of the representative of Assistant Commissioner Karezat namely Shahab-ud-Din and prayed for dismissal of the suit.

4. Out of pleadings of the parties, the trial Court framed the following issues:--

1. Whether the parents of the plaintiff had gifted her with dowry articles according to the list annexed with the plaint?

2. Whether the dowry Articles of the plaintiff are in possession of the defendant? If yes, whether the plaintiff is entitled to the recovery of dowry articles of their value i.e. 4,72,800/-?

3. Whether the plaintiff had brought her educational documents with her to the defendant's house? If yes, whether the same are in possession of the defendant?

4. Whether the dower amount of plaintiff was fixed as Rs. 300000/-? Whether the plaintiff is entitled to the recovery of the dower amount?

5. Whether the plaintiff is entitled to maintenance from February, 2014 till October, 2014 and Iddat period? If yes at what rate?

6. Relief?

5. The trial Court after recording the statement of the parties decreed the suit of the plaintiff in the following terms:

6. Being aggrieved of the impugned judgment passed by the trial Court the petitioner preferred an appeal before the appellate Court. The appellate Court upheld the judgment passed by the trial Court and dismissed the appeal. Hence this petition.

7. Learned counsel for the petitioner that the dowry articles has been given to the respondent by the representative of Assistant commissioner Karaizat Shahab-ud-Din with receipt; that the petitioner also filed an application before the trial Court for calling the Assistant Commissioner but it was not entertained. He therefore prayed for remand of the case to the trial Court with direction to summon the representative of the than Assistant Commissioner Karaizat Shahab-ud-Din for provision of the receipt of the dowry articles.

8. Learned counsel for the respondent/plaintiff vehemently opposed the contention of the learned counsel for the petitioner contended that the Courts below after proper appraisal of the evidence have rightly passed the impugned judgment and decree. He therefore urged for dismissal of the petition.

Description: A9. Heard. Record perused. It is an admitted fact that the marriage tie between the parties did not exist as the petitioner has pronounced divorce to Respondent No. 1. Both the parties had produced evidence in order to prove their contention. The petitioner in his written statement has taken specific plea that all the dowry article which had been brought by the Respondent No. 1 from her parents home, had been handed over to plaintiff in presence of the representative of the Assistant Commissioner and receipt whereof has also been obtained by the representative of the Assistant Commissioner. It is settled principle of law of evidence that whosoever alleges existence of a particular fact must prove the same.

Description: BIn order to prove the above plea, the petitioner produced representative of the Assistant Commissioner before the trial Court but the representative did not produce any receipt in respect of return of dowry articles. The petitioner has failed to prove his plea.

Description: C10. It is pertinent to mention here that in our society it is not possible for the bride/wife to keep the record of purchased articles and to prepare list of the dowry articles as well as to obtain signatures of the husband and witnesses. In this regard reliance is placed on the case of Muhammad Habib v. Safia Bibi 2008 SCMR 1584.

11. In the plaint respondent/plaintiff admitted that the petitioner has handed over seven suits, three pairs of shoes. The petitioner had voluntarily returned the clothes and shoes. Dowry articles comprising of daily use items depreciate/ lost their value. The solitary statement of wife is enough to prove dowry articles as held in the case of Shakeela Bibi v. Muhammad Israr 2012 MLD 756.

12. As far as the dower is concerned, the respondent through witnesses proved that the dower was fixed Rs. 3,00,000/-. The

petitioner has taken plea that consummation of marriage was not effected between spouses, which fact was also admitted by the plaintiff in cross-examination that:

یہ درست ہیکہ شادی کے بعد میری مدعا علیہ عزیز الرحمن سے ملاقات نہیں ہوئی۔

Description: D13. According to Islamic Law, it is well settled principle that where the marriage has not been consummated, the wife is entitled to only half of the fixed dower and the remaining half is to be returned/ restored to the husband, unless such right is waived by him voluntarily. Reliance is placed on the case of Muhammad Akbar v. Shazia Bibi PLD 2014 SC 693.

Description: EIn view of above discussion we are of the opinion that the concurrent findings of the Courts below to the extent maintenance for iddat period and dower amount need no interference and same are hereby upheld. However the dowry articles being daily use items depreciate day by day, therefore the impugned judgments and decrees passed by the Courts below to the extent of cost of dowry articles is modified and amount of dowry article worth of Rs. 4,72,800 is reduced to that of Rs. 3,00,000.

The petition is disposed of with the above modification.

(Y.A.) Petition disposed off

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