' IJAZ AHMAD, J.---This order will decide Writ Petition No.1571 of 2010 (instant) and Writ Petition No.20588 of 2009 as the same arise out of the same judgment and decree. Mst.Rozina Shaheen will be termed as petitioner and Abdur Rehman will be termed as respondent No.1 throughout.
2. The petitioner instituted a suit for dissolution of marriage, return of dowry articles according to the list Exh.P-1 estimated at Rs.31,50,000 and for the payment of maintenance allowance. Both the parties led evidence. The learned Judge Family Court, Jhang, vide decree dated 19-2-2009 decreed the suit for dissolution. Of marriage on the ground of Khula subject to the condition that she will not claim the prompt dower. The petitioner was held entitled to the payment of maintenance .Allowance at the rate of Rs.5,000 per month for 03 years prior to the institution of suit till the expiry of period of `Iddat'. The suit, however, to the extent of articles of dowry was dismissed.
Both the parties preferred appeals. The learned Additional District Judge, Jhang, vide decree dated 27-6-2009, dismissed both the appeals. '
3. It is contended by the learned counsel for the petitioner that in her plaint, the petitioner had averred and prayed for the dissolution of marriage on the ground of cruelty besides her entitlement of decree on the basis of Khula. Since she had proved that she was subjected to cruelty, the decree should have been passed on that ground and the petitioner should have not been held disentitled to claim her prompt dower and that the amount of maintenance allowance should be enhanced and that a decree for the return of articles of dowry as prayed may also be passed.
4. On the other hand, it is contended by learned counsel appearing on behalf of respondent No.1 that the petitioner could not prove the cruelty and she has not stated even a single word in her examination-in-chief , regarding her being subjected to cruelty; that the petitioner has been unable to prove the affluence of the family to enable them to give the petitioner such a big heap of articles of dowry at the time of marriage; that the list of articles of dowry has been prepared at the time of institution of the suit and even its scribe is unidentified. Lastly argues that the quantum of maintenance allowance fixed at Rs.5,000 per month is excessive and is not compatible with the income of the respondent, the same should be reduced. Respondent No. 1 in the writ petition filed by him seeks the setting aside of the decrees passed by both the Courts below.
5. I have heard the learned counsel for the parties and also gone through the record.
6. The petitioner could not prove that she was subjected to cruelty. She has rightly been declined the dissolution of marriage on that ground. A decree for dissolution of marriage on the basis of Khula subject to the condition that she will not claim the amount of dower has been passed in favour of the petitioner in accordance with law. The findings are not exceptional. However, the quantum of the prompt dower required to be returned in lieu of the decree for the dissolution of marriage needs to be re-determined. It is an admitted fact that the respondent boasts a previous wife in his "Harm" and has fathered two kids from her. This fact was concealed from the petitioner.
Column No.21 of the Nikahnama does not make the mention of the previous marriage. The concealment of this fact and its revelation later on would have created hatred and abhorrence in the petitioner against the respondent. In such a situation when the hatred justifying the dissolution of marriage on the ground of Khula is not volunteered on the part of the wife and its generation is contributed by the acts of the husband, the returnable amount of dower may be reduced. It is hereby reduced to 1/2. Reliance is placed on "PLD 2011 Karachi 196" titled Abdul Aleem Khan v.
Tabinda Naseer Qazi and another".
7.The maintenance has to be fixed keeping in view the needs of the wife and according to the financial position of the husband. Respondent No.1 is an immigrant in Spain according to P.W.1 where his income is 2 to 3 lac. She has not been cross-examined on this point by the respondent.
Her statement to this extent goes unrebutted. The DWs have not uttered a single word regarding the income of respondent No. 1 . Keeping in view the income of respondent No.1 and the needs of the petitioner, the quantum of maintenance allowance is enhanced to Rs.10,000 for the period as ordered by the Courts below.
8. The last and the most important question is regarding the mode and standard of proof of a fact in a Family Court regarding the giving of the articles of dowry. In Punjab we are confronted with two diverse situations. One, in which the parents are bounded by the cruel custom obliging them to give articles of dowry to their daughters beyond their financial capacity. From the day a 'girl takes birth, her mother reserves a box for her for depositing whatever the articles of dowry she can stealthily buy for this-prospective bride. No receipt regarding the purchase of these articles is prepared or kept. This exercise on the part of the mother goes on without its disclosure to any other member of the family. These articles are purchased by putting off and sometimes ruling out the current necessities of the family members altogether. This custom took birth by the womb of the propertied parents to deprive their daughters from their share due and to reserve the movable property for the sons only. They successfully ousted the daughter from their sharing the landed property by confining their right to the articles of dowry. The worst example of this abhorring episode is marrying the daughters with the "Holy Quran" in some parts of the Province. This practice however casts its real brunt on the poor parents. They have neither the property to give to their daughters and conserve it for their sons and nor have the money to give them the articles of dowry. The health care, the proper clothing, feeding and education of the children and other family member is sacrificed. The other is the case of the real wretched and downtrodden class of the people who could not think of preparing the articles of dowry for their daughters at any cost. They are too destitute to do it. The day of their daughters' marriage is to be a day of hope and jubilation when they can dream of wearing proper clothes and feeding themselves and their children properly for a couple of days. Definitely all the funds are to flow from the groom, a well-to-do and superannuated man, driving for his second or 3rd marriage. In both the cases, on the day of marriage, the groom and his companions, friends and relatives would come mounted on the vehicles, according to their financial condition, like the cavaliers and archers in the battlefield, firing in jubilation. The art of euphemism has made us to call this collection of people, the 'Bare. When the people had not learnt this art, this mob was called "Janait', the assemblage of 'Jins'. The question is, could a list of articles of dowry be prepared, presented and got signed by the groom or his father, captaining the hot blooded mob. The answer in all circumstances is, impossible. In 99% cases, the plaintiff/wife tells a lie that the list was prepared at the time of marriage. In 01% cases, she still insists that she is not telling a lie. Insistence upon production of the list that was prepared at the time of marriage so as to entitle a plaintiff for a decree for the return of articles of dowry would be pressuring her to tell more lies.
9. Section 17 of the West Pakistan Family Courts Act, 1964, provides that the provisions of the Qanun-e-Shahadat Order, 1984 shall not be applicable to the proceedings before a Family Court.
Will this provision of law divest a Court of the power to check the veracity of a statement or the genuineness of the, documents altogether, I would like to quote some judgments of the Superior Courts of this Country. In "2002 CLC 1396" titled Muhammad Javed Iqbal v. Mst. Tahira Naheed and others, it was held that where a list of articles of dowry annexed with the plaint was exhibited without any objection raised by the defendant, the same was the proof of the articles of dowry. In "2004 SCMR 1739" titled Mst.Allah Rakhi v. Tanvir lqbal and others", the whole evidence of the plaintiff/wife hinged on her solitary statement. She did not state that the list was prepared at the time of Rukhsti and she also did not know the details of the articles mentioned in the list. Their lordships in Supreme Court of Pakistan . Declined to favour the petitioner/plaintiff, it was said to be a case of no evidence. The petition was dismissed. In "2005 MLD 1069" titled M.Jaffar v. Additional District Judge and others, the interference in the findings of the learned appellate Court allowing the appeal and decreeing the suit of the wife for return of articles of dowry on the basis of the solitary statement of the plaintiff was declined. In the 'case "2008 SCMR 1584" titled Muhammad Habib v. Mst.Safia Bibi and others, their lordships in Supreme Court were seized with a civil petition for leave to appeal, wherein the list was not prepared at the time of marriage and was prepared subsequently. They were pleased to hold that no interference in the order passed by the Lahore, High Court, Lahore and the appellate Court who had relied on the list of dowry Articles prepared post to the marriage, was warranted. It was held that the list carried such articles that were ordinarily given to the bride at the time of marriage. The leave to appeal was declined.
10. In "2004 SCMR 1739" the leave to `appeal was not refused on the sole ground that the list of dowry articles was not prepared at the time of marriage and was prepared later on. In fact, in that case the petitioner failed completely to state what had been mentioned in the list. This failure on the part of the plaintiff obliged their lordships not to grant leave to appeal. "In "2008 SCMR 1584" titled Muhammad Habib v. Mst.Safia Bibi and others, which is later in time, their lordships in Supreme Court had relied upon a list which was not prepared at the time of marriage and contained such articles of dowry which are usually given at the time of the marriage. The presumption and surmises are not usually made the basis for adjudication by the Superior Courts of this Country, but in the cases falling within the jurisdiction of Family Court where the facts in issue have taken place in a close circuit not open to alien eyes, there is always a room for presumptions and reference to the custom or usual .Conduct of the people in the given circumstances. No list of articles of dowry is dared to be prepared by the bride or her family members and presented to the groom at the time of the marriage. This will never mean that whatever the hotchpotch, the statement of a plaintiff contains should be taken as a gospel truth because the provisions of Qanun-e-Shahadat Order, 1984, do not apply in the proceedings before a Family Court. The statement of the plaintiff has to be gauged and weighed on the yardstick of truth and consistency. The list of the articles prepared should also be carefully screened keeping in view the custom and the financial capability of the parents of bride. But the financial position of the parents of the bride is not the true indicative of the quantum of the articles of dowry that might be given by them to their daughters. The quantity and the value of the articles given, is always excessive, incompatible and incomparable with their financial condition. The exclusion of provisions of Qanun-e-Shahadat Order, 1984 only releases the Family Courts of the technicalities of the law of evidence in order .To ensure the speedy adjudication of the Family cases and precedence of the substantive justice to the technicalities of law. It does not absolve the Family Courts of their responsibility to weigh, gauge and ascertain the veracity and standard of the evidence.
11. The list Exh.P-1 contains the items like cash amounting to Rs.10,00,000, a car and other such items that are seldom given by the parents and are not bought by bride with her own income. The addition of such items takes away the veracity of the whole list. In her statement made as P.W.1 she has not given any account of the articles of dowry brought by her. She has also been unable to tell the registration number of the Car. Her statement is not trustworthy and cannot be attached any credence. Both the Courts have rightly declined to decree the petitioner's suit to the extent of articles of dowry. The findings of the Courts below on Issue No.3 do not suffer from misreading of the evidence or any other illegality. They do not invite any interference. This writ petition is partly allowed to the extent of reduction in the returnable amount of dower and increase in the maintenance allowance.
12. Writ Petition No. 20588 of 2009, seeking the setting aside of the findings of the Courts below on Issues Nos.1, 2 and 4 has no merit and is hereby dismissed.