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W.P No.2673-2014/BWP

Form No.HCJD/C-121
ORDER SHEET

IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH

BAHAWALPUR
JUDICIAL DEPARTMENT

1. W.P. No. 2673 of 2014/BWP

Mst. Arooj Malik Vs. Addl: District Judge etc.

2. W.P No. 899 of 2014/BWP

Muhammad Sadiq Vs. Addl: District Judge etc.

S.No. of order/ Date of order/ Order with signature of Judge and that of parties or counsel,
Proceeding Proceeding where necessary

18.12.2014 Mr. Muhammad Naveed Farhan & Mr. M. Karim

Joyia Advocates for petitioners.
Syed Ghulam Mustafa Advocate for respondent.

By this single order, I propose to decide the

writ petition No.2673/2014 & W.P No. 899/2014, as

these have been arisen out of consolidated

judgments and decrees dated 30.05.2013 &

23.12.2013 passed by learned Judge Family Court

Bahawalpur and learned Addl: District Judge,

Bahawalpur in a suit for recovery of maintenance

allowance alongwith dower, dowry articles and

personal articles filed by Mst. Arooj and others

(herein after called petitioners) against Muhammad

Sadiq(herein after called respondent) and second

suit for restitution of conjugal of rights filed by

respondent against petitioner No.1.

2. Precisely necessary facts for disposal of these

writ petitions are that petitioner Arooj Malik filed a

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suit for recovery of maintenance allowance for

herself and her minor daughter Ayesha Bibi,

petitioner No.2 alongwith dower, dowry articles and

personal articles against respondent Muhammad

Sadiq. The respondent also filed a suit for restitution

of conjugal rights against petitioner No.1. Both suits

were contested by parties through filing written

statements. After observing legal formalities,

learned Judge Family Court consolidated both the

suits and framed six relevant issues out of pleadings

of parties. After doing needful under the law,

learned Judge Family Court vide consolidated

judgment dated 30.05.2013, decreed the suit of

petitioners for maintenance allowance by holding

that petitioner No.2 is entitled to receive her

maintenance allowance @ Rs.3000/- per month with

increase @ 10% annually from the institution of suit

till her marriage while to the extent of petitioner

No.1, suit was dismissed. The suit of petitioner No.1

for recovery of dower was decreed and she was

entitled to get house measuring 04 Marlas situated

in Ansar Colony from defendant as mentioned in

Nikah-nama Ex:P2, while to the extent of 03 tolas

gold ornaments, suit was dismissed. The suit of

petitioner for recovery of dowry articles was also

dismissed while the suit for restitution of conjugal

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rights was decreed in favour of respondent and

petitioner No.1 was directed to re-settle in house of

defendant and performed her matrimonial

obligations.

3. Being aggrieved from the impugned

consolidated judgments and decrees, both parties

have preferred appeals and learned Appellate Court

partially accepted both appeals vide impugned

consolidated judgment and decree dated

23.12.2013.

4. Arguments heard.

5. There is no need to give details of facts, issues

and evidence of parties as which have already

described by learned below Courts in their impugned

judgments.

6. After having heard learned counsel for parties

and survey of record, it reflects that learned Addl:

District Judge has reversed the findings of learned

Judge Family Court upon issue No.2 mainly on the

ground that in Nikah-nama(Ex:P2), dower is not

specified as prompt dower or otherwise deferred

dower. As per Section 290(2) of Mohammedan

Law, where, it is not settled at the time of marriage

whether the dower is to be prompt or deferred, then

according to Sunni Law, the rule is to regard part as

prompt and part as deferred. In consequence,

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learned Appellate Court held that Mst. Arooj Malik,

petitioner No.1 is entitled to get a constructed house

comprising of 02 marlas instead of 04 marlas,

situated in Ansar Colony as described in the suit.

The petitioner No.1 would be entitled to get rest of

02 marlas of said house from Muhammad Sadiq,

respondent as a dower in eventuality of divorce or

otherwise on death of appellant Muhammad Sadiq.

While deciding issue No.2, learned Appellate Court

over-looked the relevant provision of Section 10 of

Muslim Family Law Ordinance 1961 which is

necessary to reproduce as under:-

Where no details about the mode of

payment of the dower are specified in

the nikahnama or the marriage contract,

the entire amount of the dower shall be

presumed to be payable on demand.

7. From the plain reading of Section 10 of ibid

ordinance, it becomes clear that if the mode of

payment of dower is not specified, the entire amount

of dower shall be presumed to be payable on

demand. Nikah-nama (Ex:P2) is admitted

document. As per respondents version he has paid

dower amount in shape of cash amount to petitioner

No.1, but respondent has failed to prove the same

through cogent evidence. In light of above facts, I

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am of the view that learned Judge Family Court on

appraisal of evidence rightly decided issue No.2,

therefore, finding upon issue No.2 is upheld.

8. With regard to issue No.1, which relates to

entitlement of maintenance allowance as claimed by

petitioners from respondent. The learned Family

Judge held that respondent being father of petitioner

No.2 is bound to pay her maintenance allowance

while petitioner No.1 being disobedient wife is not

entitled to get her maintenance allowance from

respondent. The maintenance allowance of

petitioner No.2 was fixed @ Rs.3000/- per month

with increase of 10% annually from institution of this

suit till her marriage.

9. Admittedly, petitioner No.1 is legally wedded

wife of respondent while petitioner No.2 is child born

from marriage and she has an inherent right to be

maintained by her father according to his financial

status. The Appellate Court after examining

evidence considered the case of parties from

different angle and came to conclusion that keeping

in view of rising prices and inflation in vernacular

currency 15% annually added instead of 10% per

annum in the maintenance allowance of minor

petitioner and keeping in view the findings as above

cited, respondent has not paid the dower to

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petitioner No.1, therefore, she is also entitled to get

maintenance allowance from respondent till

subsistence of marriage. However on payment of

prompt dower she would be entitled for the

maintenance allowance subject to performance of

matrimonial obligations on her part from him.

Petitioner No.1 being legally wedded wife of

respondent is entitled for maintenance allowance. In

these days and age of rampant inflation and rising

prices, maintenance allowance of Rs.3000/- with

increase of 15% per annum for each petitioner is

quite reasonable and there is no legal infirmity and

jurisdictional error in the finding of learned Appellate

Court.

13. The claim of dowry articles of petitioner No.1

was turned down by learned Judge Family Court

with observation that petitioner has failed to prove

the receipts of dowry articles through a person who

issued the receipts.

14. It is a settled principle of law that purpose of

enacting the special law regarding family disputes is

to advance justice and to avoid technicalities, which

are hindrance in providing ultimate justice to the

parties. The West Pakistan Family Courts Act, 1964

was promulgated for the expeditious settlement and

disposal of disputes relating to the marriages and

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other family affairs and special procedure was

provided to achieve this object. The purpose of

enacting Family Courts Act, 1964 is to frustrate the

technicalities for the purpose of justice between

parties in shortest possible time. The provisions of

Civil Procedure Code, 1908 as well as Qanun-e-

Shahadat Order, 1984 are not applicable in stricto

senso to the proceedings before the Family Court by

virtue of Section 17 of the Family Courts Act, 1964.

Family Court has to regulate its own proceedings in

accordance with the provisions of the Act, 1964 as

the evidence adduced before the Family Court

cannot be evaluated and appraised in the manner as

it is appreciated in the cases presented under Civil

Procedure Code, 1908. A mere fact that a party did

not finally prove the receipts of dowry articles in

evidence have no legal consequence. Reliance is

placed on case law reported as Mst. Shakeela Bibi

Vs. Muhammad Israr and others(2012 MLD 756).

15. It appears from record that it was arranged

marriage between the parties. According to custom

which are deeply rooted in our society, parents

either rich or poor always give dowry articles to their

daughters at the time of marriage as per their status

and sometimes above their status. In this case, the

list of dowry articles was annexed with plaint right

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from the institution of the suit and was exhibited as

Ex:P1 by Family Court without objection.

16. As far as value of dowry articles is concerned,

it is always difficult to determine with any degree of

precision what was actually given to bride at the time

of her marriage. The learned Appellate Court

reversed the findings of Judge Family Court by

cogent reasons which do not suffer from any

illegality or irregularity or jurisdictional error. The

findings and observations of learned below Courts

on issue No.4 & 6 with regard to decree for recovery

of personal articles of petitioner and decree for

restitution of conjugal rights are in accordance with

law and facts, need not to interfere in writ

jurisdiction. There is no merits in both petitions, and

dismissed accordingly.

(KHALID MAHMOOD MALIK)

JUDGE
Siddique*

APPROVED FOR REPORTING.

JUDGE