AMIN-UD-DIN KHAN, J. --- By this single judgment I intend to decide the above-captioned writ petitions, as the same are directed against the judgments and decrees dated 27.10.2010 and 27.07.2010 passed by the learned Addl. District Judge, Chishtian and learned Judge Family Court, Chishtian, respectively.
2. The petitioner (Mst. Shaheen Sadiq) has impugned the judgment and decree dated 27.07.2010 passed by the Judge Family Court, Chishtian, whereby the suit for recovery of dowry articles the value of which was claimed as Rs. 11,80,000/-, was decreed to the extent of Rs. 500000/-, whereas the suit for maintenance allowance claimed as Rs. 15000/- per month for the last seven months from the date of filing of suit till the expiry of 'Iddat' period, was decreed to the extent of Rs. 5000/- per month from 01.01.2009 to 18.03.2009 to 18.03.2009 and further also for the period of 'Iddat' on the same rate. The petitioner has also impugned the judgment and decrees dated 27.10.2010 passed by the A.D.J. Chishtian, whereby the appeal filed by her was dismissed and the appeal filed by the respondent-defendant was partially accepted and decree for dowry articles was reduced and was maintained to the extent of Rs. 200000/- and decree for maintenance allowance was also reduced and maintenance was fixed only for 'Iddat' period and that too at the rate of Rs. 2000/- per month.
3. Briefly, the facts are that on 28.04.2009 petitioner-plaintiff filed a composite suit for maintenance allowance and recovery of dowry articles. The defendant-respondent appeared and contested the suit by filing written statement. Out of the divergent pleadings of the parties learned Judge Family Court on 08.06.2009 framed the issues and invited the parties to produce their respective evidence.
Both the parties produced their oral as well as documentary evidence. After the close of trial, vide judgment and decree dated 27.07.2010 suit for recovery of dowry articles was decreed to the extent of Rs. 500000/- and suit for maintenance allowance was decreed to the extent of Rs. 5000/- per month from 01.01.2009 to 18.03.2009 and also for the period of 'Iddat' on the same rate. Feeling aggrieved by the said decrees, both the parties went in appeal before the learned first Appellate Court. Vide judgment and decrees dated 27.10.2010, the first Appellate Court dismissed the appeal filed by the petitioner-plaintiff, whereas partially accepted the appeal of respondent-defendant.
The decree of Trial Court was modified, by way of which, the decree for dowry articles was reduced and was maintained to the extent of Rs. 200000/-and decree for maintenance allowance was also reduced and maintenance was fixed only for 'Iddat' period at the rate or Rs. 2000/- per month.
Hence, both the writ petitions.
4. First of all, I take the matter of maintenance allowance. I have noticed that learned Judge Family Court has granted decree for maintenance allowance keeping in view the evidence and financial status of respondent. Defendant. The view taken by the first Appellate Court that as the parties have resolved their matter of divorce out of the Court, therefore, decree for maintenance allowance, period as well as rate was reduced. The reason given by the first Appellate Court is not legally justifiable, therefore, the findings recorded by the first Appellate Court on issue No. 1 are set aside and that of the learned Judge Family Court are maintained.
5. So far as, the matter of recovery of dowry articles is concerned, I have noticed that some things are admitted by the defendant in his written statement, through his trend of cross-examination upon plaintiff and her witnesses and further by his statement and statements of his witnesses.
6. It is an important factor that the Civil Procedure Code and Qanun-e-Shahadat are not stricto senso applicable on the proceedings under the Family Courts Act, 1964, therefore, very care and caution is required. It is also equally important that the decision of a matter relating to a civil nature must be based upon the preponderance of evidence available on the file. No doubt, the proceedings of the family suits are fully covered under the definition of civil nature, therefore, these cases especially for dowry articles are to be decided with full care, as at one side there is a hurdle that stricto senso the evidence cannot lie tightly scrutinized on the basis of provisions of the C.P.C.
And the Qanun-e-Shahadat Order, 1984, but it is also equally important that the evidence cannot be taken into consideration without any principle of admissibility and weight of evidence. In case in hand, the defendant has though stated that list annexed with the plaint is wrong but the articles of dowry in shape of clothes, furniture, electronics goods, crockery, cutlery and gold ornaments which are with the defendant and he is ready to return the same excluding the articles which were broken during the subsistence of marriage and clothes consumed during that period, as the parties lived together for a period of more than eight years.
There is a further hurdle that when matter relating to a family dispute reaches to this Court, there is no right of appeal available to the parties and through this Constitutional jurisdiction this Court has to see the legality or the illegality of judgments and decrees passed by the Courts below. The general scrutiny in detail of evidence of the parties in shape of oral or documentary is neither permissible nor the requirement of principles enunciated by the august Supreme Court of Pakistan while exercising Constitutional jurisdiction by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, once again a very narrow scope is available with this Court. It is equally important that technicalities cannot narrow the scope of exercise of jurisdiction of this Court to give justice to the parties.
I have observed that in appeal cases the Courts apply the rule of thumb while granting a decree in a suit for dowry articles. It is also a common trend in the society that the plaintiff in a suit for recovery of dowry articles tries to claim a decree for very huge amount. Therefore, in the above- narrated circumstances and difficulties, I am of the view that the exercise of proper jurisdiction especially in a suit for recovery of dowry articles for the Family Courts is not an easy task.
7. I have perused the findings of learned Judge Family Court on issue No. 2. He has minutely scrutinized the evidence led by the parties and has taken care of every bit of evidence available on the file and the findings are in accordance with that evidence. Whereas the learned first Appellate Court while discussing on issue No. 2 remained unable to give justifiable reasons for modifying the findings of Judge Family Court. Without any justifiable reasons the findings have been modified by the first Appellate Court. Therefore, the findings recorded by the Trial Court on issue No. 2 are restored and that of first Appellate Court are set aside.
8. In the light of what has been discussed above, writ petition No. 5947 of 2010 filed by the petitioner-plaintiff (Mst. Shaheen Sadiq) is allowed, whereas writ petition No. 100 of 2011 filed respondent-defendant (Akhtar A.I) is dismissed. The judgment and decree dated 27.10.2010 passed by the Addl. District Judge, Chishtian is modified and the judgment and decree dated 27.07.2010 passed by the learned Judge Family Court, Chishtian is maintained. .