Anwar Ali VS Mst. Naheed & others.

JUDGMENT SHEET

IN THE PESHAWARHIGH COURT,

MTNGORA BENCH (DAR-UL-QAZA), SWAT

(ludicial Department) W.P. No.385-M /2014

Anwar Ali V/S Mst. Nahid & others W.P. No. 488-Ml20l4

Mst. Nahid V/S Anwar Ali

CONSOLIDATED

JADGMENT

Date of hearing: 07.02.2018

Petitioner:-(Anwur Alil b v Muhammud Amin Khan, Advocate.

Respondents:- (Mst, Nuheed & others) bv Mr. Az.iz-ur-Rahman Swuti, Advocate.

MOHAMMAD IBRAHIM KHAN. J.- HeTe aTe these affrliated writ petitions, writ petition No.

385-M of 2014 titled as "Anwar Ali V/S Mst.

Nahid & others " with the prayer:- "It is, therefore, requested that the judgmenls of both the courts below may kindly be partially set aside ,/- and the suil of lhe {^ Plaintiff/Respondent No. I may kindly be dismissed and the apPlicalion submitted by the Petitioner for custody of minors/Respondenls No. 2 & 3 maY kindly be accepled as prayer for."

Nawab (S.B) llon'ble Ntr. Justicc llohammad Ibrahim Khan

And writ petition bearing No.488-M of 2014 titled as "Mst. Nahid V/S Anwar Ali" with the following perspective prayer:- " It is therefore respectfully prayed that this petition be grociously accepted, lhe order and judgment of the learned Izaji Zila Qazi/Additional District Judge (VI) Swat in appeal No, 4/FCA of 2014, appeal No. 3/FCA of 2014 & order judgment & decree of learned Civil Judge/Family Judge (1) Gul Kada dated 06.12.2013 to the extension of dower I tola gold, past muintenance of the Petitioner except for the lddat, dowry articles to the extension of furnitwe may kindly be sel aside and resultantly the suit frled by Petitioner/Plaintiff be decreed againsl Respondent No. 1 with cost throughout.

Any other relief though not speci/ically asked for and lhe Court deems Jit proper in the circumstances of the case may also be granted in favour of Pelitioner. "

V^

,r)- I Since both these connected writ petitions preferred by rival parties arising out of one and the same impugned judgments and decrees of the learned Courts Nawab (S.B) Hon'ble Mr. Justicc Mohamm^d Ibrahim Khan

J

below, therefore are disposed of through this singled-out judgment.

3 The relation between the parties back in the year 2005, they had entered into marital wedlock, it has been blot out due to strained relations from the very inception. The parties used to quarrel every now and then.

Anwar Ali the previous husband had now contracted a second marriage. There are two (2) suits, Mst. Naheed had advanced her prayer for the recovery of 8 tolas gold or its market rate, custody of the minors Muhammad Yaseen (son) and Tajala (daughter) since being bom of then union, recovery ofRs. 200,000/- on account of dowry articles as per list annexed with the plaint. As the parties have terminated their relation being husband and wife, therefore by no mean the said Anwar Ali shall call himself to be ,,) the husband of Mst. Nahid. The last prayer is for the recovery of Rs. 10,000/- per month on account of maintenance allowance from January 2Ol3 to 02.05 .2013 and for her lddat period.

Nawab (S.B) Hon'blc NIr. Justice Mohammad lb rahim xhen

4 After the written statement was submitted by the previous husband Anwar Ali raising various legal and factual objections. The learned Family Court tie up with this suit along with the petition of Anwar Ali against Mst.

Nahid submitted under section 10 of the Guardian & Wards Act for appointment of the Guardian of these minors. The learned Family Court then reduced the divergent pleadings of the parties into framing the following consolidated issues:-

CONSOLIDATED ISSUES:

l. l|thether Plainffi has got cause of action?

llhether suit of the Plaintiff bearing No. 157/FC is maintuinable in its presentform?

3.Whether Plaintiff/Mst Nahid is estopped to sue?

4.Whether this Court has got the jurisdiction to entertain the present suits?

I ,,/- t. Whether the dower of the Plaintiff was f, 08 tolas gold ornuments?

6.Whether the dower of the Plaintiff was 07 tolas gold ornaments?

7 llt'hether Plaintiff is entitled for recovery of her dower?

Na\rab (S.B) Ilon'ble \lr. Justice l\Iohamma d Ihrahim Khan

8.Whether Plaintiff is entitled for recovery of her dowry articles worth of Rs.

9.ll/hether Plqintiff is entitled for recovery of her maintenance allowance from January 2013 to 02.05.2013 andfor her Iddat period?

10.lltith whom the welfare of minors lie?

ll. Whether Plaintiff is entitled for custody of minors?

12.Whether Defendant is entitled to be appointed as guardian of the minor issues andfor their custody?

13.Whether Plaintiff is entitled for recovery of maintenance allowance of her minor issues after they have been handed over to the Plaintiff by the order dated 07.08.2013 of District & Sessions Jadge Swat?

14.Relief.

5 On 06.12.2013, the learned Family Court Swat was pleased to deliver its findings under the disposal of both consolidated suits, thereby drawn the final outcome under relief which is reproduced as below:-

"As a nutshell of above, plaintiff/Mst. I,-)- Nahid has succeeded to establish her cause of action against the d.efendant in her suit No. 157/FC while defend.anl has failed to establish any of his claim against the plaintiff therefore, plainliff is entitled for recover! of % tola of dowry gold ornaments from lhe defendant Na}\ab (S.B) Hon'ble NIr, Jusfice Nlohammad lbrahim Khan

while her dower gold ornamenls has already been paid to her to which she is entitled to rctdin the same in lieu of divorce given by defendant to the plaintiff, Similarly, plaintiff is enlitled for the custody of the minor issues and is declared their legal guardian however defendant is allowed for visitalion righl of the minor issues once in a month and on accession like Eid etc. Likewise, plaintiff is also entitled for recovery of her dowry articles as per list annexed with the plaint except furnilure items and except serial No. 14 and 15 of her list of dowry articles. She is also entitled for recovery of her maintenance allowance of Rs. 10,000/- for her iddat periocl. Plaintiff is also entitled for recovery of maintenance allowance for the minor issues @ Rs. 3000/- per month for each with l0% annual increase from 07.08.2013 (the date on which the minor issues were handed over to the pldintiff lhrough courl orders) and onwards till majority of lhe male minor issue and lill marriage of female minor issue while petition Jiled by defendant/Anwar Ali with case bearing suit No. 225/FC stands dismissed. No order as lo costs. Case Jile be consigned to record room after ,tecessary completion antl compilation. "

I

Both the parties were dissatisfied

L L4/

f with the findings of learned Judge Family Court Swat, therefore, Anwar Ali the previous husband preferred Family Appeal No. 03/FCA of the year 2014 against Mst. Nahid. Likewise, Mst. Nahid filed Family Appeal No. 04/FCA of Na$ab (S.B) Hon'ble Ilr. Juslice lllohammad Ibrehim Khan

the year 2014 against her previous husband.

Both these appeals were again consolidated for passing of a judgment dated 31.05.2014. The learned appellate Court under Para No.10 of the judgment passed the following verdict:-

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7.Having heard arguments of learned

counsel for the parties, the available record delved deep into with their valuable assistance.

8 It is absolutely an unflinching fact that the relationship in between the parties by remaining as husband and wife is admitted to c'' a have been ended by pronouncement of'Talaq' as is evident from the affidavit furnished by DW-l Anwar Ali himself. This factum of divorce has further been supported by the statements of DW-2 Muhammad Nisar, DW-3

Na$ab (S.B) Hon'ble i\lr. lustict llohamm ad lbrahim Khan

Akram Khan, DW-4 Faiz Ali, DW-5 Irshad Hussain and the last witness in defence DW-6 Malak Riaz Ahmad Khan. Therefore, it is absolutely clear that the parties have since then annihilated their relations. Searching for the evidence with regard to fixation of the dower of 8 tolas golden ornaments for which prayer 'Alif' has been prayed for. Whether it was 8 tolas golden ornaments or the dower was fixed 7 tolas golden ornaments for which two (2) separate issues No. 5 & 6 have been framed and issue No. 7 pertains to whether Mst. Nahid is entitled to the recovery of her dower. At all statement of Mst. Nahid though may be with certain exaggerations yet when the said Anwar Ali himself admitted that the dower was fixed as 7 tolas golden ornaments besides other witnesses of defence then there is no need further to be f, u)- fixed in the controversy whether it is 8 tolas golden ornaments or 7 tolas golden ornaments.

Whether this dower has ever been paid to Mst.

Nahid at the time of I'{ikah, though Anwar Ali states that at the time of leaving of his house she Nrweb (S.B) Hon'ble Mr. Justice )lohammrd lbrahim Khan

had taken away the golden ornaments weighing 7 tolas. But according to the statement of Mst.

Nahid recorded as PW-1 she has come with a truthful statement that she was minor of the age of 9 years and her Nikah was performed in her absence in the presence of her parents,, at that time the 7 tolas golden ornaments were never given to her. However, her voluntarily statement aimed for that those ornaments which were given to her were taken away by the sister of Anwar Ali on the next day as she stated that the golden omaments belong to her. Therefore, while such statements are recorded, there is no proof given by Anwar Ali that Mst. Nahid has taken the 7 tolas golden ornaments along with her while leaving his house, rather in this context the woman who has been given in Nikah when she was too minor is more d-pluurrAle to believe that on the next day of marriage the sister of Anwar Ali might have taken the golden ornaments from her as the same have been temporarily arranged at the time of marriage by the sister of Anwar Ali, \alrrb (S.B) Hon'ble llr. Justice )lohammsd lbrahim Khen

who demanded its return just after the marriage was solemnized.

9 Coming to the prayer for the

recovery of the dowry articles, besides there is an admission by DW-1 Anwar Ali that Mst.

Nahid had brought 2 Yz tolas golden ornaments given to her by her parents which he had sold afterwards. This admission in the cross- examination is likely:-

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,i' ,,tri ,;vt/!7,>,t: r-o: {-*;,i Ld, -t? tt, /-,,S,l{t 6,' L vt. 2',J 1

More so, there is list annexed with the plaint of all those dowry articles which were given by the parents to Mst. Nahid at the time of her marriage. Where there is a list of dowry articles which include household articles like all those articles given in the list, it is reasonably to ,r)-be believed. When a Muslim girl is married there is no feeling of separation and for that matter it is not possible for any bride or wife in Pakistan to keep the record of purchase of receipts for the list of dowry articles and obtain r.-awab (S.B) Hon'blr Ilr. Justice Nlohammad lbrrhim Khan

ll signatures from the bridegroom/husband side.

In support of non-production of receipts of dowry articles where similar cases have been decided by the Hon'ble Courts reported in 2016 YLR Note 43 "Zshid Junan V/S Mst Kausar Besum and 2 others" and 2012 MLD 756 " Mst. Shukeelu Bibi V/S Muhammad Isrsr and others". Thus, all the dowry articles as per list are either returnable or its value has been fixed of Rs. 200,000/-. In case the said Anwar Ali is unable to return dowry articles under the list,, he has to pay an amount of Rupees almost 70,0001- the approximate value of the used articles as by now these dowry articles might have become along in years to be an auction-able material.

10.Whereas in respect of maintenance allowance of Mst. Nahid, the findings of learned Family Court as well as the learned appellate (^ 'J Court cannot be disturbed as Anwar Ali is well-off person who is abroad in Gulf State where he must be earning plenty of money who can retain even his second wife easily, thereby for the previous period of 3 years before her \awab (S.B) Hon'ble lUr, Justicc lltohammad lbrxhim Khan

t2

divorce has taken place till the period of Iddat she is entitled to the maintenance allowance at the rate of Rs. 10,000/- which amount may be figured by mathematical calculation at the time ofexecution.

11.The last prayer IS with regard to custody of the minors. The Court has been informed that during the subsistence of this trial an application under section 491 was preferred before the Court of learned Sessions JudgelZila Qazi Swat and the said learned Court was pleased to accord the request and these children are now in the custody of their mother Mst.

Nahid. Whereas otherwise in view of the case law cited as PLD 1963 Kurachi 465 " Mst. Nazeer Besum and others V/S Abdul Sattar", in the matter of custody of minors especially infants preference will always be g- given to mother, wherein it has been held:-

(a)Muhammadan Law-Guardianship- Mother best entitled lo custotly of infants during and after dissolution of, connubial relalionship-Second marriage with stranger after divorce.

\a}}ah (S.B) IIon'ble ]lr. Justice )Iohan)mad Ibrrhim Khan

Does not deprive mother of her right of hizanat if welfare of infants demunds their remaining t'ith mother, Father foiling to claim persons of infants within reasonable time after hazina conlracls second mtrriage or from date of his knowledge lhereof,, Presumed to have abandoned his right to custody of infants-Malernal grand-mother next person entitled to custotly of female children v'ill their age of puberty on mother's contracting second maniage with stranger afler divorce."

Since children are minor, therefore mother is the best guardian and she can look-after her children. It would be otherwise very harsh to leave these children at the mercy of their step-mother who has herself a child bom of the wedlock between her and Anwar Ali and these days the said Anwar is residing abroad.

t2. Consequent to the findings under e-- $-e) the observations in view of the statements of the parties and after taking consideration of the arguments advanced before this Court, it is lawful and obvious to accept the connected writ petition bearing No. 488-M of 2014 of Nalvab (S.B) HoIl'ble Mr. Justice Slohammad Ibrahim Khan

Mst. Nahid for the prayers enumerated therein.

Thereby she is entitled to 7 tolas golden ornaments as dower, dowry articles 2 1/2 tolas golden ornaments, all the dowry articles as mentioned in her list or else if all these articles cannot be provided then the amount of 1/3rd of the total claim of Rs. 200,000/- i.e. amounting to Rs. 66,666l- shall be paid to her, the maintenance allowance of Mst. Nahid tcr be computed f,rgured by the learned executing Court. There is no payer for maintenance allowance of these minors. Yet each minor is entitled to the maintenance allowance at the rate of Rs. 3,000/- per month with l0% annual increase from 07.08.2013 (the date on which the minor issues were handed over to the Plaintiff Mst. Nahid through Court orders) and g- d_ onwards till majority of male minor issue (Muhammad Yaseen) and till marriage ot female minor issue (Tajala). While the present writ petition bearing No. 385-M of 2014 Newrb (S.B) Hon'ble Mr. Justice IIoh$mmad Ibrahim Khsn

prefeffed by Anwar Ali stands dismissed being shorn of merits.

g.-- ta Announced Dt: 07.02.2018 JUDGE

ft, LI ,\ \s \q 0

Nawsb (S.B) Hor'ble Mr Justice Mohammerl Ibrahim Khan