' Instant Constitutional petition prayed judgments/decrees dated 25-9-2003 and 26-11-2004 passed by respondent Nos.l and 2 to be declared illegal, void and of no legal consequence, whereby suits of the respondents Nos.3 and 4 were decreed, and appeal of the petitioners was dismissed, respectively.
2. Succinctly, relevant facts are that Mst. Nadia Maqbool (respondent No.3) was married with petitioner No.1 on 28-4-1996 according to Muslim rites through registered Nikahnama. This wedlock gave birth to a daughter on 1-3-1997 who was named as Mst. Hafiza (respondent No.4). Relations between the spouses did not remain cordial and ultimately ended in divorce. Respondent No.3 filed three different suits, one for recovery of dower amount, the other for recovery of maintenance allowance for herself and for the minor daughter and the third for the recovery of dowry articles. All the three suits were consolidated by the learned Judge Family Court and consolidated issues were framed out of controversial pleadings of the parties.
3. The cases were fixed for 19-7-2003 for cross-examination of the witnesses of the respondent No.3 and 4 but the learned counsel for the petitioners did not appear resulting in initiation of ex parte proceedings against them and the case was adjourned for ex parte arguments to 25-7-2003.
4. On 2-9-2003 the petitioners filed an application for setting aside the ex parte proceedings, which was contested by respondents Nos.3 and 4 and was ultimately dismissed vide order dated 17-9- 2003. The learned Judge Family Court who was cognizant of the matter after hearing the ex parte arguments, decreed all the three suits filed by respondents Nos.3 and 4 vide ex parte judgment/decree dated 25-9-2003. Respondent No.4 was granted maintenance allowance at the rate of Rs.2000 per month from the date of institution of the suit till her marriage. Respondent No.3 was granted maintenance allowance from April, 1998 till the expiry of her Iddat period. Similarly, the respondent No.3 was granted decree for an amount of Rs.25,000 as outstanding dower amount and her suit for recovery of dowry articles was decreed as per list "Mark-B" or an equal amount in lieu thereof.
5. Petitioner aggrieved of the decision of the respondent No.2 (the learned Judge Family Court), filed an appeal before the learned Additional District Judge (respondent No.2) but remained unsuccessful as the same was dismissed on 26-11-2004. Thereafter the instant Constitutional petition was filed wherein respondents Nos.3 and 4 appeared in response to notice by this Court and are represented through their counsel.
6. The learned counsel for the petitioner submitted that the petitioner's counsel on 19-7-2003 was busy before another Court when in his absence respondent No.1 hurriedly proceeded to initiate the ex parte proceedings against the petitioner No.1 and adjourned the case in his absence.. According to him, an associate of the counsel for the petitioner noted the next date as 2-9-2003 but the same was interpolated/forged by converting the same as 25-7-2003. It was further submitted that the petitioner's counsel when appeared on 2-9-2003, came to know about the ex parte proceedings hence application for setting aside the same. It was moved with sufficient cause/explanation for non-appearance on 19-7-2003 but the same was incorrectly dismissed. It was further argued that all the three suits by respondents Nos.3 and 4 were incorrectly decreed on the basis of ex parte evidence, which did not prove their entitlement to the decrees passed. It was further submitted that the trial Court erroneously disallowed the counsel for the petitioners for the right of cross- examination of the witnesses produced by respondents Nos.3 and 4, hence, the judgment/decrees thus, passed deserved to be declared as prayed. It was also contended on behalf of the petitioner that respondent No.3 could not prove her list of dowry articles handing over of articles mentioned therein or price of those articles by producing the receipts etc., hence, her suit for dowry articles deserved dismissal. It was, further emphasized on behalf of the petitioner that respondent No.3 brought nothing on the file to prove her right of maintenance from April, 1998. It was further argued that respondent No.3 remained arrogant during the subsistence of marriage, thus, was not entitled to maintenance allowance.
7. The learned counsel for the respondents No.3 and 4 refuted the arguments of the petitioner' supported the concurrent judgments of respondents No.1 and 2 and urged that the petitioners intentionally remained absent on 19-7-2003 and deliberately did not come forwarded to cross- examine the witnesses of the respondents Nos.3 and 4. Further contended that the petitioners were afforded an opportunity for cross-examination but they failed, leaving no option with the learned Trial Judge except to proceed ex parte against them. Allegations of interpolation/change of date from 2-9-2003 to 25-7-2003 was specifically denied by the learned counsel for the respondents, by referring to the daily dairy of the learned counsel for the petitioners, wherein, the cases filed by the respondents No.3 and 4 were mentioned on 25-7-2003. It was also assertively argued that the respondents had proved their right to the decrees passed by respondent No.1, which were passed according to the evidence, produced by them.
8. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Interim order of the learned Judge Family Court revealed that the petitioners were allowed 5 opportunities to cross-examine the witnesses of respondents Nos.3 and 4 but on each occasion, the needful was not done. On one occasion adjournment was granted subject to payment of Rs.1500 as costs. Even on 19-7-2003 in spite of specifying time i.e. 11-00 a.m. For taking up the case none had appeared on behalf of the petitioners whereafter there was no other option with the trial Judge except to proceed ex parte.
Petitioners thereafter did not approach the Court till 2-9-2003 when an application was moved for setting aside the ex parte proceedings with the plea that they were given next date as 2-9-2003 but in the interim order this date was changed to 25-7-2003. No explanation whatsoever for absence of the petitioners or their counsel on 29-7-2003 was given in the application. In absence of any sufficient cause for non-appearance of the petitioners or anybody else on their behalf on 19-7-2003, ex parte proceedings could not have been set aside. Assertions of the petitioners regarding change of date from 2-9-2003 to 25-7-2003 is not made out from the record and is belied from the daily diary of his counsel wherein these cases were noted to be fixed for hearing on 25-7-2003. Above all explanation of the petitioners now furnished for absence of his counsel is that he was busy before another Court but was not mentioned in the application for setting aside the ex parte proceedings. In para. 3 of the application it was clearly mentioned that on 19-7-2003 clerk of the counsel appeared before the Court and Reader conveyed him the next date as 2-9-2003. The petitioners did not produce any affidavit of the counsel regarding his professional pre-occupation before some other Court or that of his clerk about the fact that he noted the next date of hearing as 2-9-2003. This brings me to hold that stance taken by the petitioners for their absence was after thought and they brought nothing on file to rebut presumption of correctness attached to interim orders inscribed by the learned Judge Family Court on his file. I am not ready to accept on the basis of vague averments that the next date as mentioned in the order dated 19-7-2003 was changed or interpolation.
9. Respondents Nos.3 and 4 produced ex parte evidence in support of their claim in the plaint and they proved their entitlement to maintenance allowance, outstanding dower amount and of dowry articles lying with petitioner No.l. The petitioners did not deny in their written statement that respondent No.3 was not given any dowery article at the time of marriage. Petitioner No.1 evaluated the articles at Rs.10,000 to Rs.15,000 only besides urging that respondent No.3 took along with her valuable articles jewellery etc. Tenor of the written statement proved that respondent No.3 was given dowry articles which was proved by her while appearing in the witness-box. Since, there was no rebuttal to the evidence of the respondent No.3, which included the documentary evidence in form of Nikahnama "Mark-A", list of dowry articles "Mark-8", receipt of jewellery articles "Mark-D" and other receipts about purchase of dowry articles "Mark-E", hence, all the three suits were correctly decreed. Petitioner No.1 who is living in France where he is employed, was under legal, social and religious obligation to pay outstanding dower of respondent No.3 besides paying maintenance allowance to her till Iddat period. Likewise the payment of maintenance allowance to respondent No.4 is his obligation from which he cannot resile. A school going child of the age of 8 years needs schooling which involved tuition fee, books, uniform etc. Besides feeding and medicine. In this age of inflation/dearness maintenance at the rate of 2000 per month is not excessive/exorbitant, for a person employed abroad. Examination of list of dowry articles "Mark-A" revealed that nothing unusual was mentioned therein and the price of those articles have been proved through receipts.
Respondent No.3 simply claimed a decree for recovery of dowry articles and in the alternative for an amount of Rs.2,00,000 as value of those, which cannot be held, to be excessive.
10. For the reasons noted above, none of the respondents Nos.1 and 2 committed any illegality and the judgments thus returned by them are not arbitrary/fanciful. Under law, a just decision taken by a competent Court within the ambit of conferred jurisdiction cannot be substituted on this petition which being devoid of any force is accordingly dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.