Irfan Sarfraz vs Adj etc.

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

Judicial Department W.P.No.16924 of 2017

Irfan Sarfraz. Versus Addl. District Judge, etc.

JUDGMENT

Date of hearing: 06.06.2018

Petitioner by: Mr. Rasheed Ahmad Khan Chandia, Advocate in W.P.No. 16924 of 2017 and for respondent No.3 in W.P.No.

750 of 2018

Respondents No.3 by: Mr. Zafar Mehboob Langriyal, Advocate in W.P.No. 16924 of 2017 and for petitioner in W.P.No. 750 of

MUZAMIL AKHTAR SHABIR, J: Through this single

judgment, I intend to decide W.P.No. 16924 of 2017 and W.P.No. 750 of 2018 as both the petitions have arisen out of the same judgments and decrees.

2.Brief facts of the case are that the marriage of respondent No.3/plaintiff (‘respondent’) was solemnized with the petitioner on 26.12.2015 and they remained issueless. On 12.11.2016, the respondent filed a suit for recovery of past and future maintenance allowance, ‘haqqul Mehar’ of 05-tolas gold ornaments, 04 kanal agricultural land and a

constructed house measuring 05 marlas, and dowry articles in the court of Judge Family Court, Muzaffargarh. The petitioner contested the said suit by filing written statement, in which he controverted all the claims of the respondent and prayed for dismissal of the plaint. On failure of pre-trial reconciliation proceedings, as many as seven issues were framed. Both the parties led their respective evidence. After conclusion of the trial, the learned trial court decreed the suit of the respondent for recovery of future maintenance allowance @ Rs. 3000/- per month from the institution of the suit till her legal entitlement with 10% annual increase. The claim of the respondent to the extent of past maintenance allowance was declined. The respondent was also held entitled to recover alternate price of dowry articles @ Rs. 1,50,000/- and the claim of the respondent to the extent of gold ornaments weighing 05-toals and agricultural land measuring 04 kanals was dismissed, however, the respondent was held entitled to recover residential plot measuring 05 Marlas along with constructed house as mentioned in the Nikahnama. Both the parties went in appeal. The learned appellate court vide judgment and decree dated 21.11.2017 dismissed the appeal filed by the petitioner, whereas the appeal of the respondent was partly accepted to the extent that she was held entitled to get 04 kanal agricultural land and possession of 05 marlas constructed house on account of dower from the petitioner. The claim of the respondent with regard to past maintenance allowance was also accepted. The alternate price of dowry articles was enhanced from Rs. 1,50,000/- to Rs. 3,00,000/- and rest of the decree of the

trial court was maintained. Both the afore-referred judgments and decrees are under challenge through these connected constitutional petitions.

3.Learned counsel for the petitioner submits that both the judgments and decrees rendered by the courts below are liable to be set- aside as the same are outcome of non-reading and misreading of the evidence produced by the parties. Argues that the petitioner has already paid Rs. 400,000/- in lieu of 04 Kanal agricultural land to the respondent, therefore, the decree of the courts below to this extent is not sustainable in the eye of law. Further argues that the learned appellate court did not appreciate the evidence while decreeing the claim of the respondent to the extent of 05 marlas constructed house. Further the amount of maintenance allowance of the respondent is also not sustainable in the eye of law as the respondent is a disobedient wife and she is not entitled to recovery of the same from the petitioner and she is also not performing conjugal rights.

Further the evidence of the PWs is full of contradictions to the extent of recovery of dowry articles. During the course of arguments, learned counsel for the petitioner refers to F.I.R No. 352 of 2017, registered at the instance of the mother of the respondent at P.S. Civil Line, District Muzaffargarh for abduction of the respondent and pointed out the statement recorded under Section 164 Cr.P.C in which she disclosed that she remained with one, Kashif for two days. Further argues that both the courts below have badly failed to appreciate the evidence/material available on the record and relied

upon the presumptions, surmises and conjectures, which is not sustainable in the eye of law.

4.On the other hand, the counsel for the respondent states that the respondent has proved her case through cogent and reliable evidence.

Further argues that both the judgments and decrees passed by the courts below to the extent of dismissal of claim of the respondent regarding 05- toals gold ornaments is illegal and without sound reasoning, therefore, the decree to this extent is liable to be modified.

5.I have heard the learned counsel for the parties pro and contra at length and perused the available record appended with these petitions.

6.The marriage between the parties is an admitted fact. On 12.11.2016, the respondent instituted a family suit in which she claimed to recover past and future maintenance allowance, 04 kanal agricultural land, 5-marlas constructed house along with boundary wall, 5 tola gold ornaments as dower and recovery of dowry articles worth Rs. 800,000/-. In order to prove her claim, the respondent appeared herself as PW-1 and examined Manzoor Hussain as PW-2. In documentary evidence, she produced Exh.P1 to P4 and Mark. PA to PF 13. The petitioner-defendant appeared in the witness box as DW-1 and produced Sarfraz Ahmad as DW-2 and Nazeer Ahmad as DW-3. He also produced Exh.D-1 to Exh.D-7 in documentary evidence. The learned trial court partially decreed the claim of the respondent as mentioned above, however, in appeal the claim of the respondent to the extent of enhancement of alternate price of dowry articles

was allowed and she was held entitled to recover Rs. 300,000/- from the petitioner, and also decreed the claim of the respondent for dower to the extent of 4 Kanal agricultural land and past maintenance allowance, whereas the rest of the claim of the respondent qua recovery of 5 tola gold ornaments was dismissed. The appeal of the petitioner qua setting-aside the judgment and decree of the learned trial court was dismissed.

7.The first question which boils down for determination of this Court is to whether the decree of the learned courts below to the extent of Rs. 3000/- per month as future maintenance allowance of the respondent is sustainable in the eye of law? It is observed that when a man marries with a woman, he owes duty to maintain her. Statedly, the respondent is still legally wedded wife of the petitioner and she is entitled to receive maintenance allowance. Moreover, as per Section 14 (2)(c) of the Family Courts Act, 1964, the decree for maintenance allowance to the tune of Rs. 5000/- per month or less is not appealable. Further the maintenance allowance allowed in favour of the respondent is hardly enough to meet the expenses of the respondent keeping in view the inflation and her needs. The claim of the petitioner is that the respondent is a disobedient wife but the fact remains that a wife may refuse to perform her matrimonial obligations if her dower is not paid and till payment she may live separately from her husband. In the present case, the petitioner has not paid the dower to the respondent and challenged the same through the instant writ petition. In view of the foregoing discussion, the findings of the courts below to the extent of

fixation of maintenance allowance do not call for interference and consequently are upheld.

8.The next question arises whether the respondent is entitled to get recovered 04 Kanal agricultural land, 05-marlas constructed house with boundary walls and 5 tola gold ornaments from the petitioner as dower.

Nikahnama entered into between the parties is available on the file. Column No.15 of the said Nikahnama shows that 05-tola gold ornaments were fixed as dower, which have been paid. The courts below have declined the claim of the respondent while relying upon the said entry. The findings of the courts below to this extent are very well justified. No exception can be taken to the same and the same are upheld. Moreover, Column No.16 of the Nikahnama clearly depicts that 04 Kanal agricultural land is to be paid by the bridegroom as well as 5 marla land along with constructed house and a pump installed therein. The respondent admitted in her evidence that the petitioner has transferred 5 marlas land along with constructed house to her vide mutation No. 3942 but possession of the same has not been given to the respondent. The petitioner is duty bound to pay the said dower to the respondent as agreed between the parties at the time of entry of the Nikahnama. It has come in the evidence of DW-1 that he has paid Rs.

400,000/- to the respondent as value of 4-kanal agricultural land. In support of his claim, he also produced DW-2. It is established indirectly that 04 kanal agricultural land was fixed as dower. As regard the payment of price of 04 kanals agricultural land by the petitioner is concerned, he

deposed that the said amount was paid by his father to the respondent in presence of two witnesses Manzoor Hussain and Nazir Ahmed, but none of them has been produced in the witness box. It does not appeal to the prudent mind that the petitioner has delivered such a huge amount of Rs. 400,000/- to the respondent without receipt or prove. The onus to prove the payment of alternate price of 04 kanal agricultural land was upon the petitioner which he was unable to discharge. Hence, the findings of the appellate court to this extent, whereby it held that the respondent would entitle to get 04 kanal agricultural land as dower are upheld. As far as the claim of the respondent to the extent of 05 tolas gold ornaments is concerned, Nikahnama entered into between the parties specifically mentions that 05 toal gold ornaments were paid at the time of performance of Nikah. In the plaint, the respondent alleged that fictitious entries were made in the Nikahnama by the petitioner, but she did not file any application to the relevant authority for correction or initiating criminal proceedings against the petitioner. The findings of the courts below to that extent are well reasoned, called for no interference and resultantly are upheld.

9.As far as the claim of the respondent to the extent of 5 marlas residential plot is concerned, during the course of final arguments, copy of mutation No. 3942 Mauza Bhuttapur was placed on the record, from which it can be inferred that 05-marlas land has been alienated in favour of the respondent. Both the learned counsel have also admitted its correctness, however, delivery of possession of 5 marlas land is not proved, therefore, the

courts below were justified to decree the claim of the respondent to the extent of delivery of possession of 05 marlas alienated land along with constructed house keeping in view the provision of the Nikahnama.

10.As far as the claim of the respondent with regard to past maintenance allowance for four months @ Rs. 5000/- is concerned, the suit was filed on 10.11.2016 and the respondent was expelled from the house of the petitioner at the end of June, 2016. In the meantime, the marriage between the parties remained intact, therefore, the respondent cannot be denied her legal right of past maintenance allowance for the intervening period i.e. July 2016 to November, 2016, therefore, the courts below were justified in allowing the claim of the respondent to this extent.

11.The respondent has claimed dowry articles @ Rs. 800,000/- in accordance with the list Exh.P3. The said list specifically mentions 02 toals gold ornaments and gold finger-ring weighing 04 masha. Moreover, the Nikahnama states that the gold ornaments have been paid to the respondent.

The remaining articles include bridal dress, 50 pair silk and woolen sewn/unsewn clothes, which must have been used during the subsistence of marriage. It is usually observed that women carry gold ornaments with them so it cannot be said that she has left the gold ornaments at her husband’s home while leaving the house. It is the custom of our society that parents give dowry articles to their beloved daughters regardless of their financial status/capacity at the time of their marriages and even they borrow money for this purpose. It has also been noticed that the parents start collecting

dowry articles from the childhood of their daughters and even the mothers present their own gold ornaments to the daughters at their marriages as they want to see their daughter spending happy married life. They usually never keep receipts of dowry articles along with them after their marriages and never expect divorce and legal consequences. In this backdrop, it cannot be stated that the respondent has brought nothing along with her. There is no hard and fast rule to determine the exact value of the dowry articles, however, the courts are left with to apply judicious mind and have to keep into consideration the norms and customs of the society and tentative assessment of the alternate price of dowry articles. It is noticed that the value of the articles must have depreciated with the passage of time with their use, so the findings of the learned appellate court relating to recovery of dowry articles keeping in view the wear and tear, are upheld.

12.The respondent has also not been able to establish her claim for 5-tolas gold by proving that the same was retained by the petitioner, therefore, the findings to that extent cannot be set-aside to direct the petitioner to pay the same to the respondent besides no claim for enhancement of maintenance allowance is made out, hence, the findings of the courts below to that extent are upheld.

13.Besides, this Court in its extraordinary jurisdiction can neither reappraise the evidence and substitute findings of facts recorded by the courts below, nor can give its opinion regarding quality or adequacy of the evidence. The assessment and appraisal of evidence is the function of the

Family Court, which is vested with exclusive jurisdiction in this regard.

Reliance in this regard is placed on the case reported as PLD 1981 SC 522 (Abdul Rehman Bajwa vs. Sultan and 9 others), 2003 YLR 3097 (Parveen Umar and 3 others vs. Sardar Hussain and 5 others) and 2003 CLC 702 (Aqal Zaman vs. Mst. Azad Bibi and others). The petitioners in both these petitions were required to show some jurisdictional defect committed by the court below entertainable by this Court while exercising Constitutional jurisdiction. No such defect has been highlighted in the impugned judgments & decrees passed by the courts below, therefore, this constitutional petition cannot be used as a substitute of appeal to set-aside findings of facts recorded by courts below.

14.For what has been discussed above, this petition being devoid of any merit stands dismissed.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan

Announced in open Court on 13.07.2018.

Judge