Mst. Ayesha Vs Muhammad Niaz Khan & 02 others

JT'DGEMENT SHEET

IN THE PESHAWARHIGH COURT,

BAIINUBENCH

(Judicial Departmentl

W.PNo. -B,12022

Mst. Ayesha.

Vs.

Muhammad Niaz Khan & 02 others

JUDGEMENT

Date of hearing: - 06.07.20t1

For petitioners: Mr. MuhammadAsif Khan Marwat, advocate.

For respondent No.l: Mr. Sardar Naeem Khan, Advocate.

E.AZAL SABIAN, T, This single judgment in the instant petition shall also decide W.P. No.450-B/2022 titled "Muhammod Nioz Vs Mst. Aisha & 02 others" as identical question of law & fact is involved and both these petitions are arising out of common judgment and order of learned Additional District Judge-II, Bannu in Family Court Appeal No. 06/FCA (Mst. Ayesha Vs Muhammad Niaz Khan) and Fomily Court appeal No.

08/FCA (Muhammad Niaz Khan Vs Mst. Ayesha) whereby appeals of both the parties were dismissed vide judgment dated 15.03.2021 arrd the judgment of leamed Judge, Family Court dated 18.12.2021 decreeing dower, maintenance, dowry articles and restitution of conjugal rights was maintained.

/l

2 The record transpires that the petitioner instituted a suit for recovery of her dower weighing 30 tolas gold ornaments, maintenance @ Rs.15000/- per month for the past ten months and onward at the same rate, with further prayer of her dowry articles.

3 After institution of the suit, the respondent was surnmoned who appeared before the court, filed his written statement and denied all the averments of the plaint and sought restitution of conjugal rights and recovery of 13 tola gold allegedly given to petitioner at the time of her marriage. Divergent pleadings of the parties gave birth to certain issues. In order to prove its case, both the parties availed the opporhmity of producing their desired evidence. After close ofevidence, the learned Judge, Family Court, vide its judgment dated 18.12.2021granted a decree for recovery of 17 tolas gold omaments in lieu of her remaining dower, recovery of past maintenance for l0 months prior to institution of suit till date of decision of the case @ Rs.3000/- per month along with future maintenance after the date of decision of the case at the same rate with 05%o arnual increase till she remains in the Nikah of the respondent, however, in case of payment of outstanding dower amount and maintenance to the petitioner then he can file an

execution petition for restitution of conjugal rights and in case of refusal of petitioner to abad with respondent then from that very date she will not be entitled for the future maintenance. The petitioner was also granted decree for recovery of undisputed dowry articles in the same used condition in which they are lying in the house of respondent or in altemate Rs.60,000/-as its value, however, decree for restitution of conjugal rights was passed h favour of respondent against the petitioner subject to payment of outstanding dower amount and maintenance allowance of the petitioner, while rest of her suit was dismissed.

4.Both the parties challenged the said judgment and decree through separate appeals and after attendance of the parties and hearing arguments of leamed counsel of both sides, the learned District Judge- II, Bannu, vide impugned consolidated judgment dated 15.03.2022 dismissed both the appeals. Aggrieved from the said judgments, the petitioner has come up with the instant writ petition.

5 Arguments of leamed counsel for the parties heard and record perused.

L 6 It needs no reiteration that the West Pakistan Family Courts Act, 1964 (Act), was promulgated with the aim and objective for establishment of Family Courts for expeditious settlement and disposal of matters relating to matrimonial affairs and the matters connected thereto, as described in the preamble of the Act. The Act, in section.3, provides for establishment of Family Courts, whereas, under section 5 of the Act, the jurisdiction of the Family Court has been prescribed to exclusively deal with the matter described in the Ist Schedule to the Act.

Similarly, u/s 14 of the Act, an aggrieved party may have recourse to the court mentioned in section la(lxa) and (b), as the case may be, and the judgment passed by the appellate court may be challenged through constitutional petition and to be considered, when an aggrieved party has been able to show that the judgment of the two courts below suffers from misreading or non-reading of evidence. High Court, therefore, cannot make reappraisal of evidence, if even finding of facts recorded by the oTariq Family Court is patenfly elroneous. In the case of Javed V Mst. Tahira Bibi and 02 others" (2006 MLDF Lahore 1956),it has been laid down that- '5. The petitioner is bound to maintain lhe minor, therefore, the maintendnce for the tninor has been rightly enhanced by the learned

Appellate Court from Rs.600 to Rs. 1000. This is in consonance with the evidence led by the parties and needs no interference. The enhancetnent to dowry articles was made by the lower Appellate Court keeping in view Exh. P.l. the list of dowry arlicles and also considering the A evidence led by the pmlies, the factum of giving a buffalo stands established from record, the learned lower Appellate Court has enhanced the decretal amount afier considering the evidence. A detailed inquiry cannot be held tnto factual asrycl of the matter. Likewise reappraisal of evidence cannot be undertaken in the constitutional jurisdiction of this Court. No unJawful or illegal exercise of jurisdiction has been pointed out by the learned counsel for lhe petitioner. Therefore, there is no infirmity or illegality in the impugned judgment, this petition has no merits, and is dismissed in limine.t'

7 A similar view was also expressed in the case of "Mst. Balqees Bibi V. Mumtaz Ali", reported, irr 2010 YLD Luhore 2313, altid PLD 2004 Peshowar l(M.

8 Having said so, the petitioner has challenged the impugned judgment, of the two courts below and after due consideration and evaluation ofthe evidence led by the parties the leamed Family Court has recorded its issue-wise findings and has discussed the thomy issues raised during trial. The question of scribing of lqrarnama dated 16.07.2018 is elaborately discussed and execution of the said deed was held to be proved through convincing evidence. Similarly, the findings of fact in

! respect of maintenance and dowry articles recorded by the Judge Family Court were made on cogent reasons, and the learned appellate court, after considering the record, has come to the conclusion that the findings of facts recorded by the Family Court were proper appreciation of evidence on record and accordingly dismissed the appeals of both the parties. At this juncture, the parties have failed to show any mis-reading, non- reading of evidence or wrong and illegal exercise of jurisdiction by the two courts below. This being so, I find no good reasons to interfere in the frndings of fact recorded by the Family Court and upheld by the leamed appellate court, hence, this petition as well as the connected W.P. No.450-812022 titled "Muhammad Niaz Ys MsL Akha & 02 others' being without any merits are dismissed.

Announced.

*Inranullah PS*

JIIDGE

(s.B) Hon'ble Mn Justice Faztl Subhan

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