Shahzad Akhtar vs Dj etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P.No. 15409 of 2019

Shehzad Akhtar. Vs. District Judge, Muzaffargarh, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 11.10.2019. Rana M. Nazir Khan Saeed, Advocate for petitioner.

Through this constitutional petition, the petitioner has called in question the judgment and decree dated 27.02.2019 passed by learned Judge Family Court, Muzaffargarh, whereby family suit filed by the respondents No. 3 and 4 has been partially decreed in the manner that plaintiff/respondent No.3 was held entitled to recover maintenance allowance @ Rs. 4000/- per month for ‘iddat’ period only and plaintiff/respondent No.4 was held entitled to recover Rs. 5000/- per month as maintenance allowance from institution of the suit till her legal entitlement with 10% annual increase. The respondent No.3 was also held entitled to recover Rs. 90,000/- as an alternate price of dowry articles excluding gold ornaments and clothes. The claim to the extent of past maintenance, birth expenses/medical treatment of respondent No.4 were declined, and has also called in question the judgment and decree dated 12.06.2019 passed by

W.P.No. 15409 of 2019

learned District Judge, Muzaffargarh, whereby appeal filed by the respondents has been partially accepted in the manner that alternate price of dowry articles was enhanced from Rs. 90,000/- to Rs. 1,50,000/-, delivery expenses and medical treatment charges were decreed @ Rs. 10,000/- each (total Rs. 20,000/-).

2.It has been argued on behalf of the petitioner that the judgments and decrees passed by both the courts below are against the facts of the case, evidence available on the record and law on the subject and, consequently, liable to be set-aside.

3.Heard. Record perused.

4.As far as recovery of maintenance

allowance of the plaintiff/respondent No.3 is concerned, the suit of the plaintiff for dissolution of marriage was decreed u/s. 10 (5) of West Pakistan Family Courts Act, 1964. The courts below have decreed the said claim to the extent of ‘Iddat’ period only @ Rs.4000/- per month, which is hardly sufficient to meet her needs. As far as maintenance of the minor plaintiff/respondent No.4 is concerned, it is the claim of respondent No.3 that the petitioner/ defendant earns Rs. 80/90 thousand whereas the petitioner denies the said factum and claims his income is only Rs. 8/9 thousand. The courts below

W.P.No. 15409 of 2019

while taking into consideration the factors of welfare of the minor, held her entitled to receive Rs. 5000/- per month with 10% annual increase, which is not shown from the evidence on record to be beyond the petitioner financial status and earning capacity and in the current age is hardly sufficient to meet day-to-day expenses of the minor, consequently, the said findings being well founded are upheld.

5.As far as decree to the extent of delivery expenses and medical treatment charges of the minor respondent is concerned, it has come in the evidence that the minor’s birth was normal, however, her foot was twisted and had to undergo treatment after her birth. The respondent has placed on record prescriptions Mark-J to Mark-Y reflecting the treatment of the minor from Nishtar Hospital and private hospital. The learned appellate court keeping in view the evidence available on the record, held the respondent entitled to recover Rs. 20,000/- as delivery and medical treatment charges by observing that even if normal delivery takes place, the same also incurs certain expenses besides minor needed further treatment after birth. No exception can be taken to the same.

W.P.No. 15409 of 2019

6.As far as the decree to the extent of recovery of dowry articles is concerned, it is noticed that respondent No.3 has claimed dowry articles to the tune of Rs. 5,11,650/-. Although the petitioner has deposed in cross-examination that dowry articles’ receipts are fake and fictitious but Rana Asif Nadeem (DW-2), who is real maternal nephew of the petitioner has deposed in cross-examination that dowry articles of respondent No.3 were brought on a pick-up. The learned appellate court has also noted the admission of the DWs that it is the custom of the Rajput family to provide their daughters with dowry articles.

Marriage between the parties subsisted only for 02- years and the courts below had declined the said claim of the respondent for recovery of gold ornaments. The learned appellate court while taking into consideration the period of subsistence of marriage, evidence available on the record, custom of the Rajput family and wear and tear factor, rightly held the respondent entitled to recover Rs. 150,000/- as an alternate price of dowry articles, which findings are upheld.

7.Learned counsel for the petitioner has failed to point out any misreading, non-reading or illegality in the impugned judgments. The assessment and appraisal of evidence is the function of the Family

W.P.No. 15409 of 2019

Court, which is vested with exclusive jurisdiction in this regard. This Court while exercising constitutional jurisdiction does not ordinarily reappraise the evidence produced before the courts below to substitute findings of facts recorded by the said courts unless any misreading, non-reading of record or any illegality is pointed out, which have not been established on the record, hence, there is no ground to set-aside the afore-said well-founded findings of fact reached by the courts below.

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

(Muzamil Akhtar Shabir) Judge Zeeshan Khan