SYED MUHAMMAD KAZIM RAZA SHAMSI, J. --- This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against judgment and decree dated 19.10.2010 passed by the learned Addl. District Judge, Lahore, whereby the appeal filed by respondent No. 3 was partially allowed by enhancing the value of dowry articles from Rs. 180,000/- to Rs. 350,000/.
2. Brief facts of the case are that Mst. Sadia, respondent No. 3, filed two suits for recovery of her return of dowry articles valuing Rs. 740,500/- mentioning that her marriage was solemnized with the defendant on 05.01.2008 and at the time of her marriage dowry articles valuing Rs. 740,500/- were given to her by .Her parents, which were in possession of the defendant, who refused to return the same as well as refused to pay the maintenance allowance. The suit was contested by the defendant with the assertion that the Nikah between the parties was solemnized in the house of the plaintiff where the petitioner stayed for two days and then returned to his job at Rawalpindi. He further alleged that no 'Rukhsati' had ever taken place therefore, the question of delivery of the dowry articles did not arise at all. It is the stance of the defendant that he had divorced the plaintiff of the case on 22.3.2008, thus prayed for the dismissal of both suits.
3. Learned Judge Family Court after framing of issues and recording the evidence of the parties held the defendant responsible to pay maintenance allowance to respondent No. 3 at the rate of Rs. 2000/- per month till 'Iddat' period and decreed the suit for return of dowry articles to the tune of Rs. 180,000/-.
4. Both the parties preferred appeals against the judgment and decree granted by the Family Court where the appeal of the petitioner was dismissed while the appeal of respondent No. 3 was partially allowed and the quantum of value of dowry articles was enhanced to the tune of Rs.
350,000/-.
5. Learned counsel for the petitioner while opening the arguments submitted that the Courts below have misread the documentary evidence available on the record as well as the record was not properly appreciated to reach at a conclusion that the dowry articles were delivered to the petitioner. It is added that the documentary evidence indicates that no 'Rukhsati' of respondent No. 3 had taken place as the Nikah of the petitioner was solemnized in the house of respondent No. 3 on 05.01.2008, where-after the petitioner resided in that he use for one day and there-after left for his job at Rawalpindi. It is maintained that the Courts below have not noticed the documents Ex.D.3 & Ex.D.4, which specifically prove that the petitioner had attended his office w.e.f. 07.01.2008 onward.
It is further contended that the respondent failed to establish her dowry list as she was not able to produce any receipt regarding the purchase of the dowry articles thus concluded that in the absence of proof of purchase of dowry articles the delivery of those articles to the petitioner shrouded in mystery. Learned counsel has also referred to various pieces of evidence of the parties to establish that at the time of Nikah only the petitioner was present and none from his family members had joined Nikah ceremony as it was a love marriage and Nikah was arranged in the house of the respondent. Learned counsel in this backdrop prayed for the acceptance of this petition and dismissal of the suit filed by respondent No. 3 for recovery of her dowry articles.
6. Learned counsel for respondent No. 3 has argued that there is overwhelming evidence available on the record proving that the dowry articles were duly delivered in the home village of the petitioner, which evidence the petitioner could not rebut convincingly and this fact was duly appreciated by the Courts below while granting decree of return of dowry articles. In this connection learned counsel has referred to the Nikahnama for showing that the family members of the petitioner had participated in Nikah ceremony. He also discussed statements of DW.1 and DW.2 in this regard. He also maintained that the petitioner himself established the delivery of. Dowry articles by putting suggestions to the respondent's witnesses, therefore, he is now estopped to allege that no dowry article was given to the respondent by her parents at the time of her marriage.
He prayed for the dismissal of the petition.
7. Parties heard and record perused.
8. The examination of the oral as well as documentary evidence led by the parties on the record depicts that the petitioner has raised an objection that the marriage between the parties was of love marriage and the Nikah was solemnized in the house of respondent and that the petitioner after solemnization of his Nikah returned to his job at Rawalpindi after two days of her marriage. It was also the stance of the petitioner that no dowry articles were delivered to the petitioner. The petitioner in order to establish his plea of Nikah at the home of respondent has relied upon Nikahnama. When this document has been examined, it shows that no one attended the marriage from the side of the petitioner nor any name of the witness is mentioned in column Nos. 9 & 10 regarding the appointment of the Vakeer on behalf of the petitioner. This document clearly indicates that at the time of Nikah the petitioner was present all alone and none of his family members had participated in the proceedings. It further goes to prove the plea of the petitioner that his marriage with the respondent was a love marriage. To rebut this piece of evidence the respondent C.L.R. could not place on record any evidence establishing that the family members of the petitioner had participated in the Nikah ceremony. Further the plea of the petitioner that after Nikah, he returned to his job is evident from the documents Ex.D.3, which is the Attendance Registrar, which shows that the petitioner was present at his place of duty on 01.01.2008 till 04.01.2008 and from 07.01.2008 till 31.01.2008 where he performed his duties. Only two days have been left in this period including the date of 05.01.2008 on which date the Nikah between the parties was solemnized, which fact has not been denied by either of the parties. This document further shows that after staying with his wife in her house the petitioner joined his duties on 07.01.2008. The respondent could not produce any evidence to rebut this strong piece of evidence. The objection of the learned counsel that this document was not provided to the respondent during the trial proceedings cannot be heard at this stage as the respondent has never raised objection regarding non-supply of the document. This document was exhibited by the Court on the statement of the learned counsel under objection but details of the objections were not mentioned by the respondent as to why this document could not be exhibited. When it is so that the petitioner after solemnization of his Nikah went back to his duties at Rawalpindi then the question of delivery of dowry articles to the petitioner does not arise in any manner. This fact of non-delivery of dowry articles is further strengthened from another fact that the respondent could not produce any receipt regarding purchase of dowry articles, listed in Ex.PB. The case of Mst. Allah Rakhi v. Tanvir Iqbal and others (2004 SCM R 1739) provides guidance in this respect. It is the duty of the respondent at-least to produce the receipts so regarding purchase of valuable articles mentioned in her list but she could not place documentary evidence in this respect on the record. There is another factor available on the record; which proves non-delivery of dowry articles which is that after two months of marriage the respondent was divorced and till that time he did not return to his wife. This fact is evident from certificate Ex.D.4 and the petitioner did not avail any casual leave or leave on any other ground except gazetted holidays. The Courts below while decreeing the claim of the respondent did not examine this documentary evidence available on the record thus the findings recorded on the relevant issues are based upon misreading and non-reading of evidence. In this backdrop it would not wrong to set aside the findings of the Courts below.
9. For the foregoing reasons, this petition is allowed and the judgments and decrees handed down by the Courts below are declared of no legal effect. The judgments of the learned Family Court as well as of Appellate Court are accordingly set aside resulting into dismissal of the suit for recovery of dowry articles filed by respondent No. 3. No order as to costs. .