The aforestated appeal has been preferred against a decision and decrees of learned Judge Family Court Muzaffarabad passed on 30.11.2010 whereby a decree for dower, in tune of Rs, 47025/- alongwith four golden bangles and a decree of maintenance allowance in tune of Rs, 2000/- per month was awarded in favour of Anas Altaf the minor, and a decree of maintenance allowance in favour of Mst. Rashada Bibi Respondent No, 1 was awarded in tune of Rs, 2000/- per month from 02.02.2007 till the period of Idat, whereas a cross case for restitution of conjugal rights was dismissed vide its decision dated 30.11.2010.
The necessary facts forming the background of the instant appeal are that Mst. Rashada Bibi filed two separate suits, one for recovery of dower amounting Rs, 1,25,000/- and other for recovery of maintenance allowance at the rate of Rs, 4000/- per month for herself and her minor son Anas Altaf, whereas Muhammad Altaf the appellant, herein also filed a cross suit for restitution of conjugal rights on 23.04.2008. The learned Judge Family Court consolidated all the three suits on 08.08.2008 and framed the following issues:--
1. Whether the plaintiff is entitled to a decree of dower amounting Rs, 1,25,000/- from defendant ?
OPP
2. Whether the defendants are entitled to a decree of maintenance at the rate of Rs, 4000/- per month if yes then how ? OPP
3. Whether the plaintiff Muhammad Altaf is entitled to a decree for restitution of conjugal rights?
OPP (Muhammad Altaf)
4. Relief.
The Respondent No, 1 was ordered to produce her evidence whereupon she appeared in the witness box and produced documents Exh. PA, PB, PC, PD, PE and PF. She also produced Farooq Ahmad, Muhammad Akbar Khan and Muhammad Bashir Khan as her witnesses.
On the other hand, Muhammad Altaf entered the witness box and produced documents Exh. DA, DB, DB/1, DB/2, DC, DD and DE. He also produced Muhammad Nazir Khan, Muhammad Sharif son of Faqir Ahmad and Muhammad Sharif son of Faqar Din as his witnesses.
After completion of the proceedings, the learned Judge Family Court passed a decree of dower in tune of Rs, 47025/- alongwith four golden bangles and a decree of maintenance allowance in favour of Respondent No, 1 at the rate of Rs, 2000/- per month from 02.02.2007 till the period of Idat and in favour of Respondent No, 2 at the rate of Rs, 2000/- w.e.f 02.02.2007 whereas the suit for restitution of conjugal rights was dismissed vide its decision dated 30.11.2010. It is the aforesaid decision and decrees, which have been assailed through the instant appeal.
Syed Asim Masood Gillani, the learned Counsel for the appellant zealously argued that the learned Judge Family Court fell in grave error while passing the impugned decision and decrees. However, the learned Counsel stated at the Bar that the appellant admits the right of the minor Anas Altaf and is prepared to pay maintenance allowance to his extent. Similarly, the appellant is also prepared to pay dower amounting Rs, 47,025/- only whereas the golden ornaments are not in his possession. The learned Counsel further contended that the learned Judge Family Court has failed to appreciate the evidence of the parties in a legal and appropriate manner. The learned Counsel pointed out that Muhammad Akbar a witness for agreement deed Exh.PA also failed to support its contents who testified that dower Rs, 1,25,110/- was fixed. Similarly, according to Muhammad Bashir another witness for the respondents, Respondent No, 1 remained populated with the appellant for six months whereas according to Para No, 5 of the plaint, she remained populated with the appellant for about 1 to 2 months. According to the learned Counsel for the appellant, the evidence of Farooq Ahmad another witness for Respondent No, 1 is also not reliable who appears to be her maternal uncle. The learned Counsel also agitated that Mst. Rashada left the house of her husband at her own therefore, she is not entitled to any alimony. The learned Counsel finally submitted that the Court below committed an illegality while passing a decree to the extent of four golden bangles and a decree of maintenance allowance in favour of Respondent No, 1 which may be set- aside.
Tahir Aziz Khan, the learned Counsel for the respondents controverted the arguments raised by the learned Counsel for the appellant and submitted that according to the document Exh.PA, the appellant is bound to pay maintenance allowance at the rate of Rs, 4000/- and its execution has been duly proved and also stands admitted by the appellant in Para No, 6 of his written statement instituted for recovery of the maintenance. The learned Counsel further contended that the factum of cruelty has also been proved and appellant further agreed to hand over four golden bangles and also to pay maintenance allowance to the respondent vide documents Exh. PA and PB and execution of above documents was also duly proved by the respondent. The learned Counsel pointed out that Muhammad Sharif son of Faqir Muhammad, father and a witness for the appellant also admitted the execution of documents Exh. PA, PB and PC. Similarly, the appellant has also admitted the execution of all aforesaid documents Exh.PA, and PC however, to the extent of document Exh.PB he deposed that he signed on a plan paper whereas his father has admitted the execution of documents Exh.PB, thus the respondent and her witnesses have amply proved her version by producing sufficient evidence. The learned Counsel further maintained that Respondent No, 1 is also entitled to the maintenance alongwith maintenance for the period of Idat till 16.04.2010.
The learned Counsel for the respondents defended the impugned decision and decree on all counts and relied upon the following authorities:-
2. 1999 CLC 678 Lahore.
3. 2004 YLR 1014.
4. 2005 MLD 731.
5. 2010 SCM R 810.
6. 2011 SCM R 80.
I have very carefully taken into consideration the points canvassed by the learned Counsel for the parties, after perusal of the record made available.
At the very outset, it will be relevant to point out that the learned Counsel for the appellant has frankly admitted the right of recovery of maintenance allowance to the extent of Anas Altaf, the minor. Similarly, the appellant has also agreed to pay dower amounting Rs, 47,025/- to Respondent No, 1, thus, the dispute between the parties remains to the extent of the recovery of remaining dower Rs, 53,000/-paid in shape of ornaments.
According to Respondent No, 1, the appellant after physically ill-treating and snatching away the ornaments ousted her from his house on 15.06.2006. After that in Punchayat the document Exh.PA was executed on 23.1.2007 and thereafter in another meeting of elderly people held on 26.5.2008 document Exh.PB was executed but both the documents were not acted upon by the appellant. In this regard, Farooq Ahmad maternal uncle and a witness for Respondent No, 1, deposed that after physically ill-treating Respondent No, 1, the appellant ousted the Respondent No, 1 from his house on 15.6.2006 thereupon according to decision of the Panchayat held on 23.1.2007 the appellant agreed to pay maintenance and other expenses to the Respondent No, 1 and again agreed on 26.05.2008 to pay the past maintenance and expenses but he did not act upon the above mentioned documents. According to Farooq Ahmad, in meeting of Panchayat held on 23.01.2007, it was also proved that ornaments of the Respondent No, 1 are in the possession of the appellant.
Muhammad Akbar Khan, another witness for the Respondent No, 1, did not state anything to prove the fact of the snatching away of the ornaments. He deposed about the convening of the meetings of the elderly people whereby document Exh.PA was executed.
On the contrary, Muhammad Nazir Khan, Muhammad Sharif Khan son of Faqir Muhammad and Muhammad Sharif Khan son of Faqir Din, father of the appellant, have admitted the execution of the documents Exh.PA, Exh.PB, Exh.PC, Exh.PD whereas the appellant has admitted the execution of document Exh.PA, Exh.PC, Exh.PD and Exh.PE however to the extent of document Exh.PB, he deposed that he was asked to sign a blank paper.
It is necessary to mention here that during recording the statement of Mst. Rashada Akbar Respondent No, 1, a suggestion was put to her whether only four bangles were remaining to be paid by the appellant whereupon she explained that all her ornaments were snatched away by the appellant. The suggestion was put to Respondent No, 1 in the following manner:-- {{URUD TEXT}} The above mentioned suggestion also shows that the appellant admits the fact that four gold bangles are still to be given to the Respondent No, 1 by him.
A close examination of document Exh.PB further proves that the appellant himself agreed to hand over four gold bangles to Respondent No,
1. The execution of aforesaid document has not only been duly proved by the Respondent No, 1 but also has been admitted by the appellant and his witnesses.
It will be pertinent to note here that a party is bound by the statement of his witness. In this regard reference can be made to Hussan Din and other's case 2010 SCM R 810.
A careful analysis of the evidence of the parties reveals that the Respondent No, 1 has proved that she is entitled the recovery of her dower a cash Rs, 47,025/- alongwith four gold bangles given irk lieu of prompt dower.
As far as the question as to whether the Court below rightly ordered the appellant to hand over four gold bangles to the Respondent No, 1 instead the cash is concerned, as prayed by the Respondent No, 1, the impugned order is also sustainable to this extent. Suffice to note that according to changing circumstances of the case and in the light of the subsequent events appearing during the proceedings, the Court has ample powers to grant appropriate relief according to altered circumstances in order to do complete justice between the parties. My aforesaid view finds support from the following cases:--
1. Punjab Text Board Employees Association through President Vrs. Punjab Text Book Board through Chairman and 2 others 2004 YLR 1014.
2. Chairman BISE Gujranwala and other Vrs. Ayesha Maryam 2005 M LD 71.
3. Mudassar Qayyum Nahra Vrs. Ch. Bilal Ijaz and others 2011 SCM R 80.
The above mentioned view has also been approved by the Apex Court of AJK in Robeena Fazil's case (2005 SCR 37) wherein the following principle was enunciated:- "No doubt the provisions of C.P.0 and the Evidence Act are not applicable in the proceedings conducted under the provisions of Family Courts Act, 1993, however, the inherent powers are available to the Courts which are invoked when any situation is not covered by express provision of law and where the Courts feel that justice is to be done, then in such peculiar circumstances even though no procedure is prescribed for such occasion, the Courts in exercise of inherent powers in such exceptional circumstances allow the parties such relief which in their opinion would meet the ends of justice."
In my opinion the observations in the aforequoted judgments holds the view that the Court below was justified to order the appellant to give four bangles to the Respondent No, 1 thus, the Respondent No, 1 is entitled to receive dower amounting Rs, 47,025/- alongwith four gold bangles.
The next question which requires determination is whether the Respondent No, 1 is entitled to receive alimony from the appellant. As held earlier, it has been amply proved on the record that the appellant did not pay her dower including the prompt dower therefore, the Respondent No, 1 was justified to live apart and claim maintenance from him. In this regard I am fortified by Mst.
Raheelan's case PLD 1959(WP) Lah. 470 and Mst. Muhammadi's case PLD 1960 (WP) Karachi 663.
Even otherwise it has been abundantly proved on the record by producing cogent and reliable evidence that the appellant after physically ill-treating the Respondent No, 1 ousted her from his house. The sufficient material is available in shape of numerous documents mentioned above, executed by the appellant which prove the fact that the appellant did not act upon the decision of the meetings of the elderly people and treated the Respondent No, 1 with cruelty therefore the Court below did not commit any illegality while allowing maintenance allowance to the Respondent No, 1.
It will not be out of place to mention here that the learned Judge Family Court has not determined the date of divorce. In this regard the appellant has taken in-consistent stand. The Respondent No, 1 filed an application for amendment in suit for recovery of maintenance allowance on 28.04.2010 wherein she averred that the appellant has divorced her. and also sent a Photostat copy which was received by her on 16.04.2010 but the appellant refuted the above mentioned averment of the Respondent No, 1 while filing his objections on 06.05.2010 and contended that he has neither divorced the Respondent No, 1 nor any Photostat copy of divorce deed was sent to her whereas during his statement before learned Judge Family Court, he deposed in examination-in-chief that he wanted to populate Respondent No, 1 but at the stage of cross examination he testified that he had divorced Respondent No, 1 on 05.04.2009 and a copy of the same was also sent to her. Thus, the version of the appellant in this context can also not be relied upon. A Photostat copy of the divorce deed annexed with the suit filed for recovery of maintenance shows that it was got attested by a Notary public on 05.04.2010 under No, 944 and not on 05.04.2009 thus, it is held that the appellant divorced the Respondent No, 1 on 16.04.2010 when she received the Photostat copy of the divorce deed mentioned above, therefore, the Respondent No, 1 shall be entitled to receive maintenance allowance from 02.02.2007 to 16.04.2010 alongwith period of Ida. No legal or patent defect was found in the decision impugned, therefore, the findings of the Court below are maintained.
Pursuant to the above discussion, finding no force in this appeal, it is hereby dismissed. No order as to costs.