1. MAMOON RASHID SHEIKH, J.--- Through this petition the petitioners assail the judgment and decree dated 16-1-2012 of the learned Judge Family Court, Rawalpindi (respondent No.3) and the judgment and decree dated 20-4-2012 passed by the learned Additional District Judge, Rawalpindi (respondent No.2).
2. 2.The brief facts giving rise to this petition are to the effect that petitioner No.1 andrespondentNo.1weremarriedtoeachotheron11-10-2008. They have one son who has been arrayed as petitioner No.2 (the minor).
3. 3.The marital relationship between petitioner No.1 and respondent No.1, however, deteriorated culminating in the break up of their marital tie. Subsequent thereto the petitioners brought a suit against respondent No.1 with the following prayer:--- "In the light of above submissions, it is most respectfully prayed that a decree for recovery of maintenance allowance @ Rs.15000 with 15% annual increase for plaintiff No.2 since birth till majority and Rs.10,000 for plaintiff No.1 from the date of marriage till their existence.
4. It is further prayed that a decree for recovery of gold ornaments weighing 11 tolas.
5. It is further prayed that a decree for recovery of dowry articles as per list or alternate price.
6. It is further prayed that a decree for recovery of delivery expenses amounting to Rs.50,000.
7. May kindly be decreed in favour of the plaintiff and against the defendant.
8. Any other relief, which is necessary and proper, may also be granted to the plaintiff, in the interest of justice."
9. 4.The suit was contested by respondent No.1 and on the basis of the divergent pleadings of the parties the following issues wereframed:--- "ISSUES.
10. (1)WhethertheplaintiffNo.2isentitledformaintenance allowance at the rate of Rs.15000 per month since his birth? OPP.
11. (2)Whether the plaintiff No.1 is entitled for the maintenance allowance at the rate of Rs.10000 till the period of IDDAT? OPP.
12. (3)Whether the plaintiff No.1 is entitled for recovery of gold ornamentsweighing10tollasorcashpriceinalternative? OPP.
13. (4)Whether the plaintiff is entitled for recovery of dowry articles as per list attached with the plaint or Rs.8,45,688 as alternate cash price? OPP.
14. (5)Whether the plaintiff is entitled for delivery expenses of minor Rs.50,000? OPP.
15. (6)Whether the plaintiff has no cause of action? OPD.
16. (7)Whether the plaintiff is estopped by his words and conduct to file the suit? OPD.
17. (8)Whether the plaintiff No.1 has taken gold ornaments with him when she left the house of the defendant? OPD.
18. (9)Relief."
19. 5.The parties led their respective evidence for and against the issues, whereafter respondent No.3, through the impugned judgment and decree dated 16-1-2012 held that the minor was entitled for recovery of maintenance at the rate of Rs.3000 per month w.e.f. 28-8-2010 till attaining puberty with annual increment at the rate of 10% per annum. Petitioner No.l's claim for recovery of maintenance allowance was, however, turned down. Her claim for delivery expenses was accepted to the extent of Rs.30,000. Her claim for recovery of dowry/gold jewellery was partially decreed to the extent that she was held entitled to recover the articles of dowry mentioned at serials Nos.1 to 39 of Exh.PC or Rs.150,000 in lieu thereof.
20. 6.Feeling aggrieved the petitioners as well as respondent No.1 filed appeals against the judgment and decree dated 16-1-2012. Both appeals were partially accepted through the impugned consolidated judgment and decrees dated 20-4-2012 by respondent No.2. As a consequence, petitioner No.1 was held entitled to receive maintenance for the period of Iddat at the rate of Rs.3000 per month, however, the valuation of petitioner No.1 's dowry was reduced from Rs.150,000 to Rs.100,000.
21. 7.On the last date of hearing the parties were given time to explore the possibility of an out of Court settlement. Today the learned counsel for the parties submit that no out of Court settlement has been arrived at. The learned counsel for respondent No.1, however, submits, under instructions, that respondent No.1 does not contest the prayer of the minor to the effect that he may be allowed maintenance till he reaches the age of majority. The impugned decrees may, therefore, be varied to the effect that the minor is entitled to receive maintenance at the rate of Rs.3000 per month, w.e.f. 28-8-2010 till he attains the age of majority with 10% annual increment. Further submits that respondent No.1 also does not object if the valuation of the dowry as determined by respondents Nos.2 and 3 may be enhanced from Rs.100,000 to Rs.125,000.
22. 8.The learned counsel for the petitioners submits, under instructions, that petitioners accept respondent No.1's offer vis-a-vis the maintenance of the minor. Petitioner No.1, however, would like to contest the petition on merits in respect of the other grounds raised in the petition.
23. 9.Submits that the amount and the period for which maintenance has been awarded to petitioner No.1 has been erroneously arrived at by respondents Nos.2 and 3. They failed to appreciate that at the time of divorce between the parties petitioner No.1 was pregnant with the minor, therefore, petitioner No.1 should have been allowed maintenance even after Iddat till such time she breastfed the minor. Relies on the judgment reported as "Muhammad Aslam v.Muhammad Usman and others" (2004 CLC 473) to contend that a, "Mother is entitled to maintenance for breastfeeding the suckling baby for two years even after the period of Iddat for breastfeeding the babe of the man who was a man of sufficient means".
24. 10.In respect of the dowry submits that in coming to the conclusion that petitioner No.1 is only entitled to receive Rs.150,000 in lieu of dowry, respondent No.3 erred in calculating the value of the dowry as given in the list of dowry Exh.PC. Contends that respondent No.2 compounded the error by not considering the fact that the list consists of more than one page and the total value of the dowry given in the list is Rs.324,400 and not Rs.167800 as determined by respondent No.2. The rate of depreciation of the articles of dowry have been wrongly arrived at by both respondents Nos.2 and 3.
25. 11.As to the gold jewellery submits that respondents Nos.2 and 3 failed to appreciate the evidence brought on the record in this respect. Petitioner No.1 is entitled to receive back her jewellery or its value in lieu thereof as at the time of actual payment.
26. 12.The learned counsel for respondent No.1 whilst defending the impugned judgments and decrees to the extent of the claims of petitioner No.1 submits that petitioner No.1 failed to prove her case. The list of dowry (Exh.PC) was not exhibited in accordance with the law. In fact it was tendered into evidence in the statement of the learned counsel for the petitioners, therefore, the list has not been formally proved. Respondent No.1 raised an objection to this effect at the relevant time. Even otherwise, no receipts in respect of the dowry or the gold jewellery have been brought on the record. Further submits that no evidence as to the snatching of the gold jewellery from petitioner No.1 by respondent No.1 was ever brought on the record.
27. 13.So far as the contention of the learned counsel for the petitioners that petitioner No.1 is entitled to receive maintenance at an enhanced rate and beyond the period of Iddat till such time the minor remained a suckling baby is concerned, contends that there is nothing on the record to prove that petitioner No.1 breastfed the minor nor was this point raised earlier by petitioner No.1. In absence of any such assertion or evidence the maintenance cannot be awarded. Moreover, the rate of maintenance for the period of Iddat has been correctly arrived at by respondents Nos.2 and 3.
28. 14.Arguments heard. Record perused.
29. 15.The learned counsel for the petitioners has been unable to establish any misreading or non- reading of the evidence except that respondent No.2 whilst assessing the value of the articles of dowry reduced their value from Rs.150,000 (as determined by respondent No.3) to Rs.100,000 by coming to the conclusion that the depreciation of dowry should be at a higher rate than as calculated by respondent No.3. In this respect the learned counsel for the petitioners has contended that Exh.PC consists of 3 pages whereas respondents Nos.2 and 3 have only taken into account the first page of Exh.PC, therefore, the erroneous valuation of the dowry. I do not find force in the contention of the learned counsel for the petitioners for the reason that although the list of dowry tendered into evidence as Exh.PC consists of 3 pages, however, page No.2 of the list is endorsed as Exh.P3 but the said endorsement does not bear the signature of respondent No.3.
30. Moreover, as contended by the learned counsel for respondent No.1 the list of dowry was not formally proved in that it was tendered into evidence through the statement of the learned counsel for the petitioners and an objection to this effect was raised by the learned counsel for respondent No.1. In view of the above circumstances no reliance can be placed on the said additional pages.
31. However, the learned counsel for respondent No.1 has made a concessional statement, under instructions, and has offered on respondent No.1's behalf that the valuation of the dowry articles made by respondent No.2 may be increased from Rs.100,000 to Rs.125,000. In the given situation, therefore, I find that the offer is reasonable. The decrees to the extent of dowry are accordingly varied to the effect that petitioner No.1 is entitled to receive back the articles of dowry mentioned in Exh.PC at serials Nos.1 to 39 or Rs.125,000 in lieu thereof.
32. 16.In respect of the contentions of the learned counsel for the petitioners qua the gold jewellery of petitioner No.1 suffice it to say that the learned counsel has been unable to point out any misreading or non-reading of evidence. The learned counsel has similarly been unable to establish from the record any cogent evidence re-snatching of the gold jewellery from petitioner No.1 by respondent No.1. I, therefore, find forceinthecontentionofthelearnedcounselforrespondentNo.1 thatpetitionerNo.1wasunabletoprovehercasevis-a-visher jewellery.
33. 17.It has been urged by the learned counsel for the petitioner that the quantum as also the period for which maintenance has been awarded to petitioner No.1 is not in accordance with the law in view of the fact that at the time of dissolution of marriage petitioner No.1 was pregnant with the minor, therefore, on the strength of the decision in Muhammad Aslam's case (supra) petitioner No.1 is entitled to receive maintenance till such time she breastfed the minor.
34. 18.A perusal of the record reveals that this plea has been raised by petitioner No.1 for the first time.
35. The plaint filed by the petitioners is silent in this respect. The prayer clause as quoted in Para-3 hereinabove is also silent in this respect. Indeed, the heading of the plaint states that petitioner No.1 is seeking maintenance till her period of Iddat. Similarly no issue was framed on this question as is evident from the issues quoted in Para-4 hereinabove. This question has also not been raised by petitioner No.1 in her grounds of appeal before respondent No.2 nor indeed in the grounds raised in the instant petition.
36. 19.It may, however, be added that the only earlier reference in respect of this plea is contained in the affidavit (Exh.PA) filed by petitioner No.1 as her examination-in-chief. However, the said reference has been made in passing and is in the form of a prayer that petitioner No.1 may be allowed maintenance till such time the minor is a suckling baby but this prayer/assertion as said above, has not been made by petitioner No.1 in the plaint, therefore, it cannot be considered to have been raised as it is settled law that parties are bound by their pleadings and cannot be allowed to lead evidence beyond their pleadings. If any evidence is sought to be led by a party beyond its pleadings then the evidence is either not recorded by the trial Court or if it is so led then it is not to be considered. Reliance in this regard is placed on the judgments reported as "Muhammad Iqbal v. Ali Sher" (2008 SCM R 1682)and"IrshadBegumv.MuhammadRafique"(PLD2010 Lahore 649).
37. 20.Evenifitweretobeconsideredthatthispleawasearlier raised by virtue of the assertion/prayer in Exh.PA then it would be deemed to have been abandoned due to the fact that this plea was neither raised at the appellate stage nor indeed in the grounds of the instant petition.
38. 21.In any event this plea requires investigation of facts inasmuch as it has been contended by the learned counsel for the petitioner that respondent No.1 breastfed the minor whereas it is the case of respondent No.1 that petitioner No.1 did not breastfeed the minor. Similarly, there is nothing on the record to show that respondent No.1 had required petitioner No.1 to breastfeed the minor.
39. 22.Itissettledlawthatapartycannotbeallowedtoraisea new plea of which the opposite side had no notice. Similarly, a party cannot raise a new plea requiring a fresh investigation of facts. Moreover, ordinarily a person whilst invoking the constitutional jurisdiction of this Court cannot be allowed to raise a completely new point for the first time. Reliance in this regard is placed on the judgments reported as "PAKCOM Limited and others v. Federation of Pakistan and others" (PLD 2011 SC 44), "Mst.Roshan Akhtar v. Muhammad Boota and 4 others"(2000 SCM R 1845), "Messrs Bakhsh Textile Mills Ltd. v. Pakistan and others" (1982 SCM R 497) and "Mst. Murad Begum and others v. Muhammad Rafiq and others"(PLD 1974 SC 322).
40. 23.On this view of the matter petitioner No.1, cannot be allowed to raisethispleaforthefirsttimebeforethisCourtbywayofa verbalargumentandthattoowithoutleaveof theCourt.TheratioofMuhammadAslam'scase(Supra)citedatthebarbythe learnedcounselforthepetitioneris,therefore,notattractedtothefacts and circumstances of the case, I, therefore, decline to vary the impugned judgmentsanddecreesquathemaintenanceawardedtopetitioner No.1.
41. 24.Under the circumstances, the instant petition is partially accepted and the impugned decrees dated 16-1-2012 and 20-4-2012 are varied to the following effect:--- (i)The minor (petitioner No.2) shall be entitled to receive Rs.3000 per month as maintenance w.e.f.
42. 28-8-2010 till he attains the age of majority with 10% annual increase.
43. (ii)Petitioner No.1 is entitled to recover her dowry articles as mentioned at Serial Nos.1 to 39 of Exh.PC or Rs.125,000 in lieu thereof.
44. There is no order as to costs.