MEHMOOD MAQBOOL BAJWA, J. --- Legality and validity of judgment and decree dated 09.3.2011 drawn up by the learned Addl. District Judge, Sahiwal has been called in question by the petitioner whereby the learned Appellate Court while setting aside the judgment and decree dated 08.12.2010 of learned Family Court, Sahiwal to the extent of claim of petitioner past maintenance partly accepted the appeal preferred by respondent but maintained the findings of Trial Court to the extent of dismissal of suit for recovery of articles of dowry while rejecting appeal filed by petitioner which judgment and decree has also been assailed to this extent.
2. Necessary facts resulting in filing of present writ petition are that present petitioner instituted suit for recovery of maintenance allowance and articles of dowry against present respondent contending that he turned out the petitioner from his house after giving beating and there is a neglect on his part to maintain her who also has refused to handover articles of dowry given to her at the time of marriage. The suit was contested on legal well as, factual premises and after casting issues, recording evidence of the parties, learned Family Court vide judgment dated 08.12.2010 granted past maintenance allowances including-- period of Iddat but dismissed the suit to the extent of claim of articles of dowry. Aggrieved by said judgment and decree, the adversaries preferred separate appeals which were disposed of through consolidated judgement dated 09.03.2011, whereby appeal preferred by respondent was partly allowed, settings aside the claim of petitioner regarding past maintenance but maintained the findings to the extent of maintenance for Iddat period and also rejected the appeal of petitioner for recovery of articles of dowry
3. Heard The learned counsel for the petitioner while questioning the findings of first Appellate Court on issue No. 1 maintained that said findings are result of mis-reading and non-reading of evidence and there was ample evidence to suggest desertion of petitioner at the instance of respondent which evidence was properly appreciated by learned Family Court but the learned Appellate Court while setting aside said findings did not take into consideration this aspect. Canvassing arguments and assailing the concurrent findings .Of both the Courts below on issues Nos. 2 and 3, it was argued that petitioner proved the list and details of articles of dowry given to her at the time of marriage and respondent failed to substantiate his stance that articles were taken back.
Repelling the arguments, the learned counsel for the respondent while relying upon the evidence led by petitioner particularly the statement of the petitioner as PW. I submitted that petitioner failed to justify her desertion and as such learned Appellate Court rightly declined the claim of the petitioner. While supporting the concurrent findings dislodging the claim of the petitioner with reference to articles of dowry, it was maintained that the petitioner herself admitted that articles of dowry were taken back at her instance.
4. Simpliciter desertion of wife cannot entitle her to get maintenance from husband. The wife would only be entitled to get maintenance if she was deserted by the husband for any of his act or omission. Direct statement of the petitioner as PW.1 though discloses that she is living in her parents' house for last four years but she did not utter even a single word that she was turned out by respondent from his house. In the later part of cross-examination, there is a frank admission on her part suggesting that as she became ill, therefore, her father brought her to his house.
Confronted with this evidence, an attempt was made by learned counsel for the petitioner to justify desertion submitting that in para (3) of the plaint, there is a specific assertion on the part of petitioner that respondent turned out her from his house. Half-hearted attempt cannot advance plea of the petitioner to justify her desertion because "pleadings" cannot be said to be "substitute" of "evidence".
The learned Appellate Court while taking into consideration the evidence particularly statement of the petitioner rightly reached to the conclusion that since petitioner is living separately without any lawful justification and excuse, therefore, is not entitled to past-maintenance.
5. It is not disputed that present respondent in written statement admitted that certain articles of dowry were given to the petitioner but as per his version said articles were taken back in view of the dispute between parties as their marriage was in "exchange." Master Irshad, uncle of petitioner was married with sister of respondent who was divorced as admitted by petitioner (PW.1) in cross- examination.
It is an admitted fact that due to dispute, articles of dowry given to sister of respondent were also taken back. Though the petitioner (PW.1) denied that she also took articles of dowry but in cross- examination she admitted that her uncle Master Irshad got the articles back prior to pronouncing divorce to the sister of respondent. The respondent in his statement as DW.1 categorically added that when he got the dowry articles given to his sister, the petitioner also got back articles given to her. He further stated that said articles were taken back in the presence of Ghulam Farid and Muhammad Yousaf. Ghulam Farid while appearing as DW.2 supported the claim of respondent, whose credibility could not be shaken in cross-examination. It is interesting rather strange to note that at the instance of petitioner, suggestion was put to respondent in cross-examination which also substantiate his claim. It was suggested to the respondent that when articles of dowry were taken back at the instance of petitioner, no receipt was procured which suggestion was answered in affirmative by respondent adding that since he did not issue receipt to the petitioner's family while taking back the articles of dowry of his sister, therefore, no receipt was issued at the instance of petitioner. Evidence adduced by respondent is convincing and worthy of credit, finding support from the evidence led by petitioner and form of suggestions put.
6. Epitome of above discussion is that no exception can be taken to the findings of learned first Appellate Court on issue No. 1 and concurrent findings of both the Courts below on issues Nos. 2 and 3 and as such while endorsing the same, writ petition being devoid of force is hereby dismissed but without any order as to costs. .