Faiz Mustufa vs Jfc etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P.No.9649/2018 Faiz Mustafa versus Judge Family Court, etc. Sr. No. of order/ Date of order/ Order with signature of Judge, and that of Proceedings Proceeding Parties’ counsel, where necessary 26.06.2018 Rao Wali Ullah, Advocate for petitioner.

Through this constitutional petition, petitioner has called in question judgment and decree dated 30.05.2017 passed by Judge Family Court, Multan/respondent No.1 whereby the suit for recovery of dower, dowry articles and maintenance allowance filed by respondents No.2 and 3, was decreed against the petitioner.

2.The brief facts of the case are that respondents No.2 and 3 who are wife and son of petitioner filed a suit for recovery of dower i.e. three tolas gold ornaments and two marlas house, dowry articles valuing Rs.550,000/- and maintenance allowance, against petitioner by contending that marriage between petitioner and respondent No.2 was solemnized on 14.04.2012 and from the wed-lock, one male child (respondent No.3) was born. However, the relations between the spouses became hostile and petitioner ousted the respondent No.2 from his house, whereafter, she is living with her parents. Consequently, she filed the afore-referred suit which was after contest by the petitioner partially decreed in favour of respondents No.2 and 3 vide judgment and decree dated 30.05.2017 with the following terms:

“the suit of the plaintiff for recovery of maintenance allowance is decreed and plaintiff No.2 being son of defendant is entitled to get Rs.4000/- per month from the defendant from the date of institution of suit till attaining the age of majority with 10% annual increase and suit of plaintiff No.1 for recovery of dower is

decreed to the extent of 75% of 02-marla constructed house or its alternate value of Rs.1,00,000/- while the remaining claim for recovery of dower i.e. gold ornaments is hereby dismissed. However, the suit of the plaintiff for recovery of dowry articles is decreed and plaintiff is entitled to get dowry articles or its alternate value Rs.100,000/-.”

3.The afore-referred judgment and decree has been called in question by petitioner/defendant on the ground that respondent No.2/plaintiff had not brought any dowry articles with her at the time of marriage and even Haq Mehr decreed by the trial court is not due against the petitioner; besides, maintenance allowance fixed for the minor is exorbitant as the petitioner is a laborer and cannot afford to pay the said amount.

4.Heard, record perused.

5.In order to prove their respective claim, the parties produced the following evidence; Mst. Humera Ismail, respondent No.2 herself appeared as PW.1 and got examined her father Haji Muhammad Ismail as PW.2. In documentary evidence, she produced copy of Nikah Nama as Mark-A, list of dowry articles as Mark-B. On the other hand, petitioner Faiz Mustafa himself appeared as DW.1 and got examined Muhammad Iqbal as DW.2.

6.The respondent No.2, in support of her claim of maintenance allowance deposed that petitioner is running a business of poultry under the name and style of Mr.Chicks and also kept other animal and can easily earn Rs.40,000/- per month and as such he can pay Rs.7000/- per month as maintenance allowance; however, during her cross examination, respondent No.2 stated that petitioner was doing job in a factory. On the other hand, petitioner by submitting affidavit Ex.D-1 deposed that he has no permanent source of income and was working in a factory on daily wages at the rate of Rs.200/- per day. The trial

court concluded that income of petitioner would be Rs.14,000/- per month and fixed the maintenance allowance of minor at the rate of Rs.4000/- per month from the date of institution of the suit till the age of his majority with 10% annual increase. No evidence has been led by the parties to show that this amount is exorbitant, therefore, it is held that the trial court has rightly determined the quantum of maintenance allowance of the minor at the afore-referred rate. Even otherwise, the maintenance allowance of Rs.5000/- per month or less is not challengeable in appeal and Constitutional petition before this Court cannot be used as of alternate of appeal without proving any illegality or jurisdictional defect.

7.The respondent No.2 claimed dower of three Tolas gold ornaments and 2-marla house. From the Nikah Nama available on record it appears that in column No.13, one Tola gold ornament which is stated to have been paid has been mentioned, therefore, the trial court has rightly disallowed the said claim, however, 02-Marla house is mentioned in column No.16 of the Nikah Nama as payable. The trial court observed that as the marriage of the parties had been dissolved on the basis of Khula, therefore, under Section 10(5) of the West Pakistan Family Courts Act, 1964, it was held that respondent No.2 was entitled to receive 75% of dower i.e. 02-marla constructed house or its alternate value of Rs.100,000/- as mentioned in the Nikah Nama which comes to Rs.75,000/-. The petitioner has failed to show that the afore-referred dower had been paid to respondent No.2, therefore, to that extent, impugned decree has rightly been passed by the trial court against the petitioner.

8.As regard the dowry articles of Rs.550,000/- claimed by respondent No.2 is concerned, the trial court

decreed the suit only to the extent of Rs.100,000/- as its alternate price. The trial court has rightly concluded that the plaintiff/respondent No.2 is entitled to recovery dowry articles i.e. Furniture, Bed, Dressing Table, Utensils Almira, Sofa Set, Utensils Beddings, Pedestal Fan, etc. or its alternate value of Rs.100,000/- whereas the respondent No.2/ plaintiff deposed in her statement that the dowry articles were given to her at the time of her marriage with petitioner at the value of Rs.550,000/-. The court after evaluating the evidence has rightly fixed the alternate price of dowry articles equal to Rs.100,000/-. No exception can be taken to the same. Even otherwise, a decree for recovery of dowry articles amounting to Rs.100,000/- or less is not appealable and Constitutional petition cannot be used as alternate appeal unless some illegality, perversity or jurisdictional defect is pointed out which the petitioner has failed to point out in the finding of the court.

9.In view of what has been discussed above, this petition being devoid of merit is dismissed.

(MUZAMIL AKHTAR SHABIR)

JUDGE

*KMSubhani*