This matter is at the pre-admission stage. Bath the learned counsels representing the parties are present. I have heard them at length. The petition is admitted to regular hearing. Since a short question of law is involved, with the consent of the learned counsel for both sides, I propose to decide the main petition, today.
2. Through this petition, the judgment and decree dated 17.4.2008 passed by the learned Family Judge, Pakpattan Sharif, which was affirmed in appeal, has been challenged.
3. The learned counsel for the petitioner has raised a preliminary legal issue, that a suit for maintenance and a suit for recovery of dowry articles could not have been filed together through one plaint. He submits that such joinder of causes of action could only be undertaken under special circumstances visualized in the second proviso to Section 7(2) of the Family Court Act, 1964.
He, therefore, submits that where the suit i,s not for dissolution of marriage multiple causes of action cannot be joined and separate suits should have been filed. Submits that although this objection was not taken at the trial stage, the same was taken before the appellate Court. However, the appellate Court did not advert to this objection nor a finding was given in this regard.
4. On merits, the learned counsel submits that the assertion in the plaint by the respondent that the petitioner's motithly income was Rs. 20,000/- per month was not supported by any cogent or credible evidence. On the contrary, the claim of the petitioner that he was earning Rs. 3000/- per month was supported by DW.2. and DW.3. Further points out that the onus to prove the petitioner's income was on the respondent. She failed to discharge the said onus. Both the lower Courts ignored the evidence produced by the petitioner and arrived at findings, which are not supported by the record.
5. The learned counsel for the petitioner further submits that the decree of the Family Court which was affirmed by the appellate Court, inasmuch as a sum of Rs. 2,50,000/- was awarded by way of price of dowry articles is untenable. While admitting that a detailed list of dowry articles was provided in the plaint and was repeated in the evidence of the respondent, which could not be shaken in cross examination, he submits that the receipts relied upon by both the lower Courts were not worthy of reliance. These, according to him, were not proved according to the provisions of the Qanoon-e-Shahadat Order, 1984. Adds that the perfection with which detail of each item and its price were given by the respondent in her evidence goes to establish that the list was not genuine and had been prepared specifically for the purposes of filing the suit and recovering a substantial amount in terms of return of dowry articles.
6. The learned counsel also points out that most of the receipts submitted by the respondent had been issued in the name of Ayyaz Ahmad brother of the respondent who was not produced as a witness. Also that the list of articles of dowry relied upon by both the Courts below contained perishable items and the learned lower Courts did not adequately account for depreciation on account of use of such articles.
7. The learned counsel appearing on behalf of the respondent refutes the aforesaid assertion and has supported the judgments and decrees of the lower Courts. He has relied upon PLD 1980 Karachi 477 and PLD 2005 SC 22 to assert that there is no prohibition in law that a suit for maintenance and return of dowry articles cannot be a part of suit of dissolution of marriage. He submits that even before promulgation of the amendment in Section 7 of the Family Courts Act, 1964 the Superior Courts had held that suits relating to dower, maintenance and dowry articles could be filed in the same Court through one plaint. Therefore even if the suit is not for dissolution of marriage, suit for maintenance and recovery of dowry articles can still be filed through one plaint.
8. The learned counsel for the respondent submits that the learned counsel for the petitioner has not pointed out any portion of the 'impugned judgment and decree to show that the learned lower Courts have ignored or' misread any evidence available on record. He further points out that the respondent was subjected to lengthy cross-examination in terms of dowry articles. However, 'despite such exercise, the evidence of the respondent and its credibility could not be shaken. It is further pointed out that the claim for delivery expenses was nowhere challenged. As a matter of fact, the petitioner in his own statement admitted that he was neither intimated about the birth of child nor his death. Therefore, an inference can safely be drawn that he did not pay any expenses to the respondent in this regard.
9. As far as the financial status of the respondent's family is concerned, the learned counsel has pointed out that the respondent belongs to well off family. Material is available on record to show that one of the brothers of the respondent is a cashier in a bank, another is a Major in the Pakistan Army and yet another is an Electrical. Engineer. There is no evidence in rebuttal of the said fact, which goes to prove the good financial standing of the respondent's family. The learned counsel further pointed out that the gifts given by the petitioner to the respondent are mentioned in the Nikah Nama and it is settled law that such gifts or their value cannot be recovered from the wife.
Reliance in this regard is placed on 2005 MLD 1069.
10.The provisions of the second proviso to Section 7 of West Pakistan Family Court Act, 1964 ("the Act" ) are in my opinion enabling and facilitating rather then having the effect of exclusion of jurisdiction of the Family Court. In case such exclusion was intended there was no bar on the legislature to include language to that effect in the statute. Further, the scheme of the Act suggests a clear intention to avoid multiplicity of suits arising out of a failed marriages and to save the woman from, the hassle and inconvenience of running from Court to Court in order to get her rights.
11. I am, therefore, of the opinion that the suit filed by the respondent for recovery of dowry articles and maintenance through one plaint had no legal or procedural defect. The objection in this regard is misconceived.
12.On perusal of the evidence produced by the parties and the judgments and decrees of the learned lower Courts, I find that the conclusions arrived at in relation to award of maintenance do not suffer from any illegality or infirmity. It is noticed that the claim for a sum of Rs. 3,69,000/- in terms of return of dowry articles was not awarded in its entirety. The respondent gave a detailed list of dowry articles in her plaint and repeated the same in her statement before the Court. She was subjected to lengthy cross-examination. Her credibility could not be shaken and the learned lower Courts were justified in relying upon the said statement. As far as credibility of receipts is concerned, these substantiated the oral evidence. Further, rules of evidence are not stricto sensu applicable to proceedings before Family Courts. However, the learned Family Court as well as the Appellate Court acted carefully and with circumspection in allowing the claim of the respondent only to the extent of Rs. 2,50,000/-. In arriving at their findings, I have noted the learned Courts below, kept in mind, the fact that the marriage lasted only two years there were perishable items in the dowry, the financial status of the respondent and absence of any evidence to show that the respondent did not belong to a reasonably well off family which could not afford to give dowry articles to the respondent as mentioned in the plaint.
13.The learned Courts below have acted in accordance with law and have exercised jurisdiction vested in them fairly and within the parameters prescribed by law. The learned counsel for the petitioner has not been able to persuade me to substitute my own findings with concurrent findings of fact arrived at by the learned lower Courts.
14.In this view of the matter, I do not find any merit in this petition. The same is accordingly dismissed.