' MUHAMMAD MUZAMMAL KHAN, J.---Instant constitutional petition challenged the judgments/,:..Crees dated 2-12-2003 and 13-9-2004 passed by the learned Judge Family Court and the learned Additional District Judge, to be declared illegal, void and of no legal consequence whereby, petitioner was not only refused maintenance allowance but was also awarded meagre amount in lieu of her dowry articles.
2. Succinctly, relevant facts are that respondent No,1 entered into a tie of marriage with the petitioner on 25-4-1998 according to Muslims rites through a registered Nikahnama. Spouses lived as husband and wife but no child was born out of this wedlock. Later on relations between the spouses did not remain cordial and ultimately resulted in separation. During her desertion, respondent No,1 filed three suits, one for dissolution of marriage, other for recovery of maintenance allowance and the third for recovery of dowry articles. Respondent also filed a suit for restitution of conjugal rights. The parties contested all these suits by filing their respective written statements.
The learned Judge Family Court who was seized of these matters after consolidation of those framed consolidated issues in the suit by the petitioner, as the same was filed prior in time.
Evidence of the parties was recorded and thereafter, the learned Judge Family Court decreed the suit of the petitioner for dissolution of her marriage and she was also awarded the decree for dowry articles or in the alternative its price of Rs,3,27,221 and she was awarded maintenance allowance at the rate of Rs,1,000 per month from three months prior of institution of suit till her "Iddat" period. Suit by respondent No,1 for restitution of conjugal rights was dismissed, vide judgment and decree dated 2-12-2003.
3. Parties aggrieved of decision of the learned Judge Family Court filed their respective appeals before the learned Additional District Judge, who accepted the appeal of respondent No,1 and dismissed the suit of the petitioner for recovery of maintenance allowance and also reduced the value of the dowry articles to Rs,1,54,700 by excluding certain articles from the list of dowry articles.
The appeal of the petitioner was dismissed vide appellate judgment/decree dated 13-9-2004. The petitioh,:r, thereafter, filed instant constitutional petition with the relief noted above. Respondent No,1 in response to notice by this Court appeared and represented though his counsel.
4. I have heard the learned counsel for the parties and have examined the record, appended herewith. The learned counsel for the parties, agreed that the petitioner may be awarded maintenance allowance at the rate of Rs,1,000 per month for her "Iddat" period but they contested her claim to decree for recovery of dowry articles as per list Exh.P.1. It is not dispute between the parties that the dowry articles given to the petitioner at the time of marriage were to remain her own property, as per entry in Column No,19 of the Nikahnama (Exh.P.2). The petitioner while appearing as P.W.1 rendered material. Support to her claim regarding dowry articles and deposed that respondent No,1 is a big landlord who owned one square of land. According to her deposition, income of respondent No,1 was not less than Rs,7,000 per month. She though detailed the major items of her dowry articles as per list Exh.P.1 but could not substantiate the prices mentioned in the list Exh.P.1 while in the witness-box, by producing receipts thereof. It is usual in our society that normally people do not keep the receipts of purchase of dowry articles and no list is prepared at the time of handing over of those articles at the time of marriage. Respondent No,1 had not denied in his written statement that parents of the petitioner gave her dowry which as a matter of fact was acknowledged in the Nikahnama by making entry in Column No,19 that the entire dowry. Will be ownership of the petitioner. Entry in Column No,19 of the "Nikahnama" is unnecessary but it goes to a long way to prove that petitioner was given Dowry by her parents, at the time of "Nikah".
Respondent No,1 himself negated his written statement wherein it was pleaded that these articles were taken away to the house of the parents of the petitioner,' without mentioning its time, day or place of transmission when he suggested to the petitioner, during the cross-examination that she happily went to see her parents but did not return to perform her marital obligations. File is absolutely thirsty of the proof that dowry articles given to the petitioner at that the time of marriage were ever returned or taken to the house of the parents of the petitioner.
5. Appellate Court contrary to the evidence on the file incorrectly proceeded to pick and choose dowry articles out of list Exh. P.1 to exclude those from the claim of the petitioner by saying that those were gifted to respondent No,1 or those being in possession of the petitioner cannot be allowed to be recovered again.
6. Respondent No,1 having admitted that petitioner was given dowry at the time of marriage, was bound under law to return of those but miserably failed to prove its return, as per his claim in his written statement, as he could not produce any evidence to this effect. Judgment of the appellate Court proceeds on mere conjunctures/surmises and with the assumption that the dowry articles stood restored to the petitioner and were lying in the house of her parents. This assumption is not only misplaced but was also contrary to the canons known for administration of justice because, respondent No,1 once having admitted giving of dowry to the petitioner by her parents, was under legal obligations to prove its return but could not succeed as observed in the foregoing lines.
' Scan of evidence on the file revealed that the petitioner was un necessarily deprived of her right to dowry articles as determined by the learned Judge Family Court.
7. For the reasons noted above, appellate judgment by respondent No,3 dated 13-9-2004 is illegal, void and of no legal consequence being contrary to evidence on the file and being opposed to law applicable. This petition is accepted accordingly, with the result that the judgment decree dated 2- 12-2003, passed by respondent No, 2 stands revived except for maintenance allowance which stands reduced to her "Iddat" period of three months at the rate of Rs,1,000 per month. There will be no order as to costs.