Tanveer Salamat Vs ADJ Kamalia etc

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

LAHORE

JUDICIAL DEPARTMENT

W.P.No. 945 of 2019

Tanveer Salamat. Vs. Learned Addl. District Judge, etc. Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 10.01.2019. Rai Aamir Rehman Kharal, Advocate for petitioner. Through this constitutional petition, the petitioner has called in question the judgment and decree dated 10.10.2018 passed by learned Addl. District Judge, Kamalia and judgment and decree dated 16.05.2018 passed by learned Judge Family Court, Kamalia, whereby the courts below have partially allowed the family suit filed by respondent No. 3.

2.Briefly stated facts of the case are that the respondents filed a suit for recovery of maintenance allowance Rs. 10,000/- per month and dowry articles as per list attached valuing Rs. 5,60,900/- as well as dissolution of marriage in the learned trial court, which was contested by the petitioner by filing written statement and leading his evidence. On conclusion of the trial, the learned Judge Family court partially allowed the claim of the respondent qua maintenance allowance for Rs. 3000/- per month in case of ‘Abadi’ unless she remains faithful to her husband after rehabilitation and perform her marital obligation and also entitled to recover dowry articles as per list attached with plaint excluding articles at Sr. No. 38 to 43 or its alternate price of Rs. 1,10,000/-. Feeling dissatisfied, both the parties preferred appeals. The appeal to the extent of the petitioner-defendant was dismissed, whereas the appeal of the plaintiff-

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respondent was accepted with the modification that she would recover maintenance allowance from the petitioner at the rate of Rs. 3000/- per month since the institution of the suit without any condition till she is in the ‘Nikah’ of the petitioner. Hence, this petition.

3.Learned counsel for the petitioner has argued that the impugned judgments and decrees are based on conjectures and surmises. The respondent No.3 is not ready to settle with the petitioner and her conduct is like a disobedient wife and she is not entitled to receive any maintenance allowance. Further the dowry articles as decreed by the courts below is beyond the paying capacity of the respondent’s family as the father of the respondent is a beggar and they do not own their own land and they did not provide her any dowry articles at the time of marriage. Finally prays that the impugned judgment and decree be set-aside.

4.Heard. Record perused.

5.During the course of arguments, learned counsel for the petitioner has relied upon para 8 of the petition filed before the learned trial court whereby the plaintiff stated that she has developed hate for the petitioner and is not willing to settle with him and prayed for dissolution of marriage to argue that the plaintiff herself is not willing to rehabilitate with the petitioner, therefore, the findings recorded by the courts below regarding maintenance allowance of the plaintiff are not in accordance with law, and the evidence furnished by the parties. Admittedly, the respondent No.3 is legally wedded wife of the petitioner. The petitioner’s claim that the respondent is a disobedient wife, not entitled to receive maintenance allowance was required to be proved through some confidence inspiring evidence. It is noticed that the petitioner did

W.P.No.945 of 2019

not make any attempt to rehabilitate the respondent in his house by filing a suit for restitution of conjugal rights and the respondent claims that the maintenance allowance has also not been paid for quite some time, therefore, it could not be concluded that the respondent is a disobedient wife and not entitled to maintenance allowance. Consequently, being husband the petitioner is under obligation to maintain her. As far as the quantum of maintenance allowance is concerned, the petitioner claims that he is a labourer and he earns Rs. 5/6 thousand per month and on the other hand, the respondent asserts that the petitioner earns one lac rupees per month from his cattle, agricultural sector and art of ‘Qawal’. It was the duty of the petitioner to prove that what was his financial status and earning capacity, which onus he has not discharged and the burden of proving the same cannot be shifted on the stranded wife, therefore, the learned appellate court was justified to decide the matter on the basis of evidence available on the record, whereby she was held entitled to recover maintenance allowance at the rate of Rs. 3000/- per month from the petitioner since the institution of the suit till she is in the Nikah of the petitioner. No exception can be taken to the same.

6.As far as alternate price of dowry articles and alternate price thereof as decreed by the courts below is concerned, the petitioner claims to have received no dowry articles at his home at the time of marriage whereas the respondent in her plaint as well as by leading her oral evidence has claimed dowry articles worth Rs. 5,60,900/-. The list Exh. P.1 attached with the plaint reflects that most of the items are of daily use, some of which may have been destroyed or lost their face value with the efflux of time. It is the custom of our

W.P.No.945 of 2019

society that parents give dowry articles to their daughter even beyond their financial capacity. It cannot be assumed that the parent of the respondent have given no dowry articles to their daughter. Therefore, the courts below were justified in decreeing the claim of the respondent qua recovery of dowry articles for an amount of Rs. 1,10,000/- by keeping in view the wear and tear factor and period of the parties resided together.

7.Learned counsel for the petitioner has failed to point out any misreading, non-reading or illegality in the impugned judgment. The assessment and appraisal of evidence is the function of the Family 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, nor can give its opinion regarding quality or adequacy of the evidence 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 said findings of fact.

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

(Muzamil Akhtar Shabir) Judge Zeeshan Khan