' RAUF AHMAD SHEIKH, J.--- The petitioner has assailed the judgment and decree dated 21-9-2010 passed by learned Judge, Family Court, Sahiwal, whereby he was held liable to pay maintenance at the enhanced rate of Rs,2,500/- per month per head to respondents Nos.2 and 3 and he was directed to return articles of dowry worth Rs . 70 , 000/- .
2. Respondents Nos.2 and 3 were born out of wedlock between the petitioner and respondent No,1.
They filed a suit for maintenance in the. Family Court, Kabirwala, which was decreed on 6-3-2004 and the petitioner was directed to pay them maintenance at the rate of Rs,500/- per month.
Respondents Nos.1 to 3 contended that respondent No,2 is student of 6th class and respondent No,3 is student of 3rd class so a sum of Rs,5,000/- is required for their food, clothing and education.
It was contended that the petitioner/defendant is owner of agricultural land and cultivates it along with the land got on lease and also carries on the business of cattle so earns a sum of Rs,40,000/- per month and can easily pay Rs,5,000/- per month per head to respondents Nos.2 and 3. It was also asserted by respondent No,1 that dower comprising of gold ornaments weighing three tolas was fixed at the time of 'Nikah' but the same was not paid. She asserted that her parents are well to do persons and her brothers are running their own business so they gave her articles of dowry worth Rs,2,45,040/- as mentioned in para-8 of the plaint, which is in possession of the defendant/petitioner, who is under obligation to return the same.
3. The defendant/petitioner contested the suit. It was contended that a decree for maintenance at the rate of Rs,500/- has already been passed in favour of the minors and he is making the payment before the Executing Court; that the dower was paid and that no dowry was given to the plaintiff/respondent No,1 at the time of her marriage. The learned trial Court framed the following issues:---
(1) Whether the plaintiffs are entitled to get the decree for recovery of additional maintenance allowance, if so, at what rate and for which period? OPP.
(2) Whether the plaintiff No,1 is entitled to get the decree for three tolas gold ornaments as dower?
OPP-1
(3) Whether the plaintiff No,1 is entitled to get the decree for recovery of dowry articles as mentioned in paragraph No,8 of the plaint or in alternate value thereof worth Rs,2,45,040/-? OPP-1
(4) Whether the plaintiffs have got no cause of action and the suit is not maintainable in its present form? OPD
(5) Relief.
4. After recording the evidence and hearing the arguments, the learned trial Court proceeded on to pass a decree for maintenance and recovery of articles of dowry as mentioned above but both the parties assailed the judgment and decree through separate appeals, which were dismissed on 21- 3-2011.
5. Learned counsel for the petitioner has contended that the rate of maintenance determined by the learned trial Court is very excessive; that after passing of the decree for maintenance by the learned Judge, Family Court, Kabirwala, the new suit for maintenance was not maintainable as section 11, C.P.C. Is applicable on the proceedings before Judge, Family Court, under section 17 of the Family Courts. Act, 1964 and that respondent No,1 had failed to establish that any dowry was given to her because no documentary evidence was led by her in support of the claim. #TBS -;- #TBE
6. I have carefully perused the record. Though in the written statement, the defendant/petitioner had given an evasive reply to the contention of the plaintiffs/respondents regarding his ownership of landed property but in the witness box he stated that he owns land measuring 2 Acres. He did not mention his income in the written statement. The rate of maintenance fixed in the year 2004 is insufficient due to acceleration of prices and growing needs of the minors. Now they are school- going children and according to the marker prices prevailing now-a-days, a sum of Rs,2,500/- p.m.
Per head fixed by the learned trial Court and upheld by the learned Additional District Judge is very reasonable. It is true that section 11, C.P.C. Is applicable on the proceeding before the Judge, Family Court, but it is an established law that under the changed circumstances with passage of time, the petition or suit for enhancement of maintenance is maintainable and the prayer in this respect may be accepted if the necessity for .Increase is made out. Section 11, C.P.C. Is not applicable on the suit/petition for enhancement in the rate of maintenance. In the present case, the rate of maintenance fixed in 2004 appears to be nominal in 2011. The learned trial Court and learned Additional District Judge both properly appreciated the evidence and arrived at just conclusion.
7. The defendant/petitioner has contended that no dowry was given to respondent No,1/plaintiff. He has stated on oath that the agreement deed (Ex.P.1) was not executed by him and the same does not bear his signatures but DW-2 has admitted in the cross-examination that the defendant/petitioner had executed the agreement deed (Exh.P.1). The evidence of PWs-1 and 2 in this respect is corroborated by the statement of DW-2. It is, thus, obvious that the petitioner/defendant has told a lie on oath in the witness-box. In this document, he categorically admitted that he had sold the ornaments of the plaintiff/respondent. No,1 and would get the same prepared again for her. If the ornaments were given to the plaintiff/ respondent No,1 then other articles of dowry must have also been given. It is true that the receipts are not produced but the provisions of the Qanun-e-Shahadat Order, 1984, are not applicable on the proceedings before the Family Court in view of section 17 of the Family Courts Act, 1964. The intent of the legislation clearly was to simplify the procedure and the Law Makers were aware of the fact that in such cases the lists are seldom prepared and receipts are very rarely kept intact as every one makes the arrangements of the marriage of one's daughter with the hope and prayers that she would lead a happy married life. PWs-1 and 2 have categorically stated that the petitioner was given the articles of dowry as per list. The denial of defendant/petitioner cannot be accepted as correct as I have already held that he is not a truthful person. The concurrent findings of two courts below on the question of fact, which are based on proper appraisal of evidence do not call for any interference in exercise of writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8. For the reasons supra, the writ petition is without merits and the same is hereby dismissed in limine.