FIDA HUSSAIN VS JUDGE

FAMILY COURT,
MUZAFFARGARH
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PakCaselaw.com
 2018 Y L R 616

[Lahore (Multan Bench)]

Before Habib Ullah Amir, J

FIDA HUSSAIN---Petitioner

Versus

JUDGE FAMILY COURT, MUZAFFARGARH and 2 others---Respondents

Writ Petition No.8446 of 2014, heard on 22/02/2017.

Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Suit for recovery of dower, dowry articles and maintenance allowance---Entries in
Nikahnama---Scope---Defendant claimed that Rukhsati had not taken place---Petitioner/husband contended that he had
already paid cash and gold ornaments to the plaintiff in lieu of dower and property mentioned in nikahnama was not part of
dower rather petitioner paid amount to previous owner of property and had got transferred in the name of plaintiff/wife---Wife
contended that Rukhsati took place and she performed her matrimonial obligation so she was entitled for benefits mentioned in
Nikahnama in lieu of dower---Validity---Record showed that wife appeared as witness and categorically stated that Rukhsati
had taken place and got recorded details of the ceremony , she also produced marriage registration certificate and photograph
of the spouses---Plaintiff also produced a witness who concurred the version of the plaintiff, both witnesses were thoroughly
cross-examinated, however, they remained consistent---On the contrary, defendant though claimed that Rukhsati did not take
place but he failed to produce any evidence on record rather his own witness conceded that neither he had any knowledge of
family life of the defendant nor Rukhsati, thus, it was established that after Nikah, Rukhsati had taken place---Brother of the
plaintiff appeared and deposed that he along with his mother purchased dowry articles and plaintiff also produced receipts of
purchase in documentary evidence, thus, Family Court rightly decreed the dowry articles in favour of plaintiff---Plaintiff had
appeared herself as a witness to support her claim---Defendant had not denied that plot was fixed in lieu of dower, however, he
had deposed that land/house fixed in lieu of dower had been transferred in favour of plaintiff along with cash and gold
ornaments---Record revealed that record keeper was produced as a court witness who deposed that respondent/plaintiff
purchased the property in question and that petitioner/ defendant never approached him--- Held, cash, gold ornaments and
property as per contents of Nikahnama were fixed in consideration for marriage---No illegality having been noticed in the
judgments of the two Courts below, constitutional petition was dismissed accordingly.

Mst. Shakeela Bibi v. Muhammad Israr and others 2012 MLD 756; Muhammad Iqbal v. Mst. Zahida and 2 others 2013 MLD
800; Muhammad Islam v. Mst. Rashidah Sultana and 4 others 2013 CLC 698; Muhammad Habib v. Mst. Safia Bibi and others
2008 SCMR 1584 and Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 ref.

Muhammad Ramzan Khalid Joiya for Petitioner.

Abdul Rehman Khan Laskani for Respondents.

Date of hearing: 22nd February, 2017.

JUDGMENT

HABIB ULLAH AMIR, J.---Through this petition, petitioner has assailed judgments and decrees dated 30.4.2013 passed by
learned Judge Family Court, Muzaffargarh and dated 30.5.2014 passed by learned Additional District Judge, Muzaffargarh
whereby he dismissed the appeal filed by petitioner.

2. The facts, in brief, of this case are that Mst. Farhat Saleem instituted suit for recovery of dower worth Rs.200,000/-, Five Tola
gold ornaments, 07 Marla land with constructed house valuing Rs.10,00,000/-, dowry articles and maintenance allowance of six
months before institution of suit at the rate of Rs.9000/- per month. Suit was contested by defendant/petitioner. After framing of
issues and recording of evidence, learned Judge Family Court, Muzaffargarh decreed the suit. Feeling aggrieved, petitioner
preferred appeal which met the fate of dismissal vide judgment and decree dated 30.5.2014 passed by learned Additional
District Judge, Muzaffargarh, hence this petition.

3.Learned counsel for petitioner contends that both learned courts below have not appreciated entries of Nikahnama (Exh.P.3).
According to which, dower was fixed at Rs.1000/- whereas Rs.200,000/- was fixed as deferred dower. Moreover, Five Tola gold
ornaments were given by petitioner to respondent No.3/plaintiff at the time of Nikah; that it has failed to be appreciated that
respondent No.3 was not entitled to receive Rs.200,000/- which was fixed as deferred dower in Nikahnama; that it has been
mentioned in Nikahnama that plot measuring 07 Marla land has been got registered in the name of respondent No.3, thereafter
petitioner got constructed four walls. After Rukhsati, petitioner would have no concern with the said plot. It was mentioned in
Nikahnama that petitioner would construct 03 rooms, veranda and kitchen after Rukhsati of respondent No.3 and both the
courts below have failed to appreciate that house is not part of dower. It has failed to be appreciated by learned courts below
that it was petitioner who paid amount to original owner of plot and got transferred in the name of respondent No.3; that learned
courts below have illegally exercised jurisdiction vested with them.

4.On the other hand, learned counsel for respondents has vehemently controverted this writ petition.

5.I have heard learned counsel for parties and perused the file with their assistance.

6.Mst. Farhat Saleem, plaintiff/ respondent No.3 in her suit has averred that she was married to defendant/petitioner on
16.8.2009 in lieu of dower of Rs.200,000/- five Tola gold ornaments, 07 Marla land along with constructed house situated
Muzaffargarh valuing Rs.10,00,000/-. After marriage she performed marital obligations and prior to her marriage with Fida
Hussain petitioner, he was married twice and this fact was concealed and he failed to pay dower and maintenance allowance
while at the time of marriage, she was given dowry articles according to the detail given in suit. Moreover, it was also agreed by
defendant that he would be bound to pay Rs.5000/- per month as maintenance allowance. Defendant was a man of means and
owned a house and property in other cities, also owns a 2-D car. Suit was controverted by defendant on different grounds
including that plaintiff refused Rukhsati, therefore, she was not entitled to receive dower and otherwise she has been
transferred 09 Marla plot fixed in lieu of dower. Defendant also averred that plaintiff received gold ornaments and cash fixed in
lieu of dower. In order to prove her claim, plaintiff herself appeared in the witness box as P.W.1 and deposed that she was
married to petitioner/defendant and Nikah was performed in her house and defendant was accompanied with five/seven
persons while Nikah was recited by Hafiz Muhammad Iqbal and she has categorically denied that Rukhsati has not taken place
and learned Judge Family Court also allowed plaintiff to produce marriage registration certificate along with photograph of the
spouses. In order to substantiate that Rukhsati has taken place, she has produced Shahzad Saleem as P.W.2 who also
deposed that Rukhsati of plaintiff has taken place after Nikah. They both have thoroughly been cross-examined, however, they
remained consistent and affirm on this point. Though it is claim of defendant that no Rukhsati had taken place but no evidence
has been brought on record from his side to prove his version rather his own witness Mazhar Hussain who appeared in witness
box as D.W.2 conceded that he has no knowledge about family life of defendant and has also conceded that he has no
knowledge of Rukhsati of plaintiff with defendant. Thus, it is established that after Nikah, Rukhsati had taken place.

7.Plaintiff has also averred in suit that at the time of marriage, she was given dowry articles valuing Rs.700,000/-, the detail of
which has been given in suit. While appearing as P.W.1, she has produced sworn affidavit and stated that at the time of
marriage, she was given dowry articles valuing Rs.7,00,000/- and by taking advantage of statement of P.W.1 that no receipts of
purchase were annexed with suit, learned counsel for petitioner has argued that respondent No.3 could not prove that she was
given dowry articles and except plaintiff no one else had appeared in her support except her real brother Shahzad Saleem.
However, Shahzad Saleem has categorically deposed that he along with his mother purchased the dowry articles and they had
got the purchase receipts. In evidence, plaintiff has also produced receipts of purchase of gold ornaments and Refrigerator etc.
In this regard, it has been laid down in the case reported as "Mst. Shakeela Bibi v. Muhammad Israr and others"(2012 MLD
756) as under:-

"Solitary statement of wife was sufficient to prove the claim of dowry articles---Contention of husband that wife, while making
claim for dowry articles, was required to prove the case in terms of the requirements of Qanun-e-Shahadat Order, 1984 was not
only misconceived but was also besides the mandate of law as envisaged in S. 17(1) of the West Pakistan Family Courts Act,
1964----Section 17 of the West Pakistan Family Courts Act, 1964 was a special law and provisions of Qanun-e-Shahadat
Order, 1984 were excluded through said section ---- Was not possible for any bride/ wife in the society to keep the record of
purchase receipts, prepare the list of dowry articles and obtain signatures from the husband's side---Mothers start collecting,
purchasing, and preserving articles for their daughters from when they start growing up and there was a tradition that the
in-laws of any wife were extended esteem and respect and it was considered an insult to prepare the dowry list for the
purposes of obtaining signatures from them.---Constitutional petition allowed, in circumstances."

8. A similar view has also been expressed in the case reported as "Muhammad Iqbal v. Mst. Zahida and 2 others"(2013 MLD
800), that provisions of Qanun-e-Shahadat Order, 1984 and Civil Procedure Code would not apply to prove the claim of dowry
articles-----Section 17 of West Pakistan Family Courts Act, 1964 made it abundantly clear that provisions of Qanun-e-Shahadat
Order, 1984 were excluded. It has been laid down in the case reported as "Muhammad Islam v. Mst. Rashidah Sultana and 4
others"(2013 CLC 698) that intent of the legislature was clearly to simplify the procedure and the law-makers were aware of the
fact that in cases relating to dower, the lists were seldom prepared and receipts were very rarely kept intact as everyone made
arrangements for marriage of one's daughter with the hope and prayer that she would lead a happily married life. In the case
reported as "Muhammad Habib v. Mst. Safia Bibi and others"(2008 SCMR 1584), it has been observed by apex court as
under:-

"Contention of the husband was that no such list of dowry articles was prepared at the time of marriage, same was fabricated
subsequently and in absence of valid receipts of purchase of said articles, suit could not have been decreed and that Appellate
Court was not legally justified to modify the decree passed by the Family Court and enhance the amount---Validity----List of
articles revealed that those were ordinarily given to a bride at the time of her marriage--No illegality or irregularity had been
pointed out in the concurrent findings of fact recorded by the two courts below and upheld by the High Court assigning cogent
and sound reasons calling for interference by Supreme Court---Impugned order did not suffer from any legal discrepancy nor
any substantial question of public importance was involved in the petition against such order---Leave to appeal was declined by
the Supreme Court."

9.In the instant case, plaintiff has proved that she was given dowry articles as detailed by her and learned courts below have
rightly held that plaintiff is entitled to receive Rs.100,000/- as alternate price of dowry articles. Plaintiff through her suit has also
sought for decree for maintenance allowance to the tune of Rs.5000/- per month and plaintiff while appearing as P.W.1 has
deposed that she has been deprived of maintenance allowance and dower etc. On the other hand, defendant as D.W.1 has
admitted that Nikahnama (Exh.P.1) was signed by him and he also acknowledged the contents of Nikahnama, a copy of which
has also been brought on record by plaintiff which shows that defendant agreed to pay Rs.5000/- per month as maintenance
allowance. It is also on record that defendant is a man of means and as such in the circumstances, plaintiff has been held
entitled to receive Rs.3000/- per month till subsistence of marriage and the quantum of maintenance has been fixed by learned
courts below according to financial status of defendant.

10.It is also claim of plaintiff that she was married with defendant on 16.8.2009 in lieu of dower of Rs.200,000/-, five Tola Gold
ornaments, 07 Marla land along with constructed house situated at Muzaffargarh. Plaintiff as P.W.1 has supported her version
while her witness P.W.2 also supported the stance of plaintiff. On the other hand, defendant has not denied that 07 Marla plot
was fixed in lieu of dower, however, he has deposed that land/house fixed in lieu of dower has been transferred in favour of
plaintiff along with Rs.200,000/- and five Tola gold ornaments. In this regard, P.Ws 1 and 2 have thoroughly been
cross-examined but they both have denied the receipt of dower as mentioned in Nikahnama and mode and manner in which
cross-examination was conducted on P.W.1, it reflects that defendant tried to raise plea that entries in Nikahnama were
fictitiously incorporated by collusion of plaintiff and Nikah Registrar. At one stage, he has taken a stand that dower was paid by
him to plaintiff as previously he managed to arrange money for construction of house and on the other hand, he has tried to
bring on record that all entries made in the Nikahnama are the result of fabrication but it is surprising that defendant has alleged
that he has managed to arrange for money for purchase of house for plaintiff but in this regard no evidence has been produced
by him and particular feature of this case is that as C.W.1 Hafiz Muhammad Saeed, Record-Keeper, Housing and Physical
Planning Office, Muzaffargarh who brought record of Plot No.13EY has categorically deposed that said property was purchased
by Mst. Farhat Saleem from Muhammad Shabir son of Imam Bakhsh herself and that Fida Hussain petitioner never
approached for purchase of plot. He has also negated that Fida Hussain had deposited consideration price of plot purchased by
plaintiff. It has been held by apex court in the case reported as "Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others"
(PLD 2016 SC 613) that undertaking given in the Nikahnama that certain property/land shall be transferred in the name of the
wife and she would be exclusive owner of the same----such an undertaking could be construed as a part of dower or a gift to
wife in consideration of marriage, therefore, it would fall within the exclusive domain of the Family Court to pass a decree in
relation to such property/land. In the instant case, as per contents of Nikahnama, it is clear that Rs.200,000/-, five Tola gold
ornaments and 07 Marla plot along with constructed house was fixed in consideration for marriage and defendant has failed to
bring on record any evidence establishing that he had provided funds for purchase of plot in favour of plaintiff. Similarly he has
also raised plea that plaintiff has been paid total dower but this version of defendant is also not supported with any piece of
evidence.

11.Learned courts below have rightly held that plaintiff is entitled to recover 07 Marla plot or its price Rs.10,00000/-,
Rs.200,000/- as dower and Rs.100,000/- in lieu of dowry articles and have rightly awarded Rs.3000/- per month as
maintenance allowance from the date of institution of suit till she is legally entitled. No case has been made out for interference
with the concurrent judgments and decrees of learned courts below and neither any illegality has been pointed out in impugned
judgments and decrees and it has also not been substantiated that how learned courts below have exercised jurisdiction not
vested with or committed illegality.

12.For the foregoing discussion, this petition fails, same stands dismissed with no order as to costs.

MQ/F-13/LPetition dismissed.