JUDGMENT YAHYA AFRIDI, J. Mst. Gulzara has, through the instant constitutional petition, challenged the judgments and decrees passed by the Judge, Family Court, Takht Bhai and the Additional District Judge-I, Takht Bhai dated 19-11-2008 and 20-3-2009, respectively.
2. The brief and essential facts leading to the present, petition are that the petitioner instituted a suit against respondent No.1 seeking:--
(i) Recovery of dower comprising of five tolas of gold and house constructed over ten marlas of land.
(ii) Allowance at the rate of 2,000 per month for the last eight months with future maintenance with enhanced rates.
(i.e) Recovery of dowry articles specifically stated therein.. The assertions made by the present petitioner were vehemently denied by the respondent No.1 in his written statement.
3. The contesting pleadings of the parties led the trial Court to frame fourteen issues. Thereafter, the evidence of the parties was recorded. Finally, the Judge, Family Court vide judgment and decree dated 19-11-2008 decided the case in favour of the petitioner and granted to her; dower of five tolas gold ornaments or its market value; separate house of five marlas; maintenance for five months at the rate of Rs.2,000 per month future maintenance at the rate- of Rs.3,000 per month, subject to the condition that the petitioner shall resume her marital obligations with respondent No.1. However, the dowry articles were declined to the present petitioner.
4. Aggrieved thereof, the present respondent No.1, impugned the same in appeal. The appellate Court vide impugned order dated 20-3-2009 accepted the appeal of respondent No.1 to the extent that the dower comprising of gold ornaments and the house were set aside, while the maintenance of past and future allowances were maintained. Even the conditionality of the future maintenance with the restitution of conjugal right. Was also upheld by the appellate Court. Hence, the present constitutional petition by the present petitioner, impugning the judgment of the appellate Court.
5. The learned counsel for the petitioner vehemently contended that the dower had been fixed through agreement dated 3-9-2006 (Exh.P.W.1/1) and the same did not require registration and thus was wrongly declined by the appellate Court.
6. The learned counsel for the respondent No.1 rigorously opposed the contention of the learned counsel for the petitioner and argued that the petitioner had earlier instituted a suit in the year 2006 against the present respondent No.1, which culminated in a compromise deed dated 3-9- 2006 (Exh.P.W.1/1), which was made the basis of dower claimed by the present petitioner; that the appellate Court was correct in deciding that the transaction inked vide agreement (Exh.P.W.1/1) could not be treated as a dower deed within the purview of the provisions of Family Court Act, 1964 ("Act") and thus the petitioner had to seek specific performance of the said agreement being a contract between two parties, outside the pale of the jurisdiction of the Judge, Family Court under the Act; and that the said compromise also incorporated and included the present petitioner to the restitution of conjugal rights of respondent No.1, which were not performed by the present petitioner, and thus the agreement was not enforceable by the petitioner against respondent No.1.
7. The Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
8. The record reveals that the marriage between the petitioner and respondent No.1 was solemnized in the year 2002; while the agreement dated 9-6-2006 (Exh.P.W.1/1) was inked four years later, being a settlement, on the intervention of the locals of the area. The appellate Court, it seems, has totally misconstrued the legal jurisdiction of Judge, Family Court as envisaged under section 5 read with Part-I of Schedule of the Act.
9. Section 5 of the Act provides for the jurisdiction of the Judge, Family Court, wherein it is clearly provided that matters enumerated in Part-I of the Schedule, would be within the jurisdiction of the Judge, Family Court to adjudicate upon. In this regard .Part-I of the Schedule of the Act provides the following; "(1) Dissolution of marriage including `Khula'.
(2) Dower.
(3) Maintenance.
(4) Restitution of conjugal rights
(9) Personal property and belongings of a were."
Item No:9 of Part-I of the Schedule of the Act has been inserted vide Ordinance No. LV of 2002 dated 1st October, 2002. This insertion in the Schedule has expanded the scope and jurisdiction of a Judge/ Family Court to adjudicate all the matters stated therein, including matters relating to the claim of a were over her personal property, which is other than her dower.
10. Thus the finding of the appellate Court, that the Judge, Family Court was barred to adjudicate upon the deed (Exh.P.W.1/1) was totally incorrect and contrary to the clear Provisions of the Schedule of the Act. This finding of the appellate Court goes to the very root of the impugned decision and thus exposes it to be contrary to law and thus warranting interference by this Court its constitutional jurisdiction.
10. Accordingly, for the reasons stated hereinabove, this Court accepts the present petition. The judgment and decree passed by the Additional District Judge-I, Takht Bhai dated 20-3-2009 is declared illegal and without lawful authority and is thus set aside,