' SHEZADA MAZHAR, J.--- Through this Constitutional petition, the petitioner has challenged the judgment and decree dated 9-7-2007 passed by the learned Judge Family Court, Mandi Bahauddin whereby suit filed by respondent No,3 was decreed, against which an appeal was preferred by the petitioner, which was modified vide impugned judgments and decree dated 7-3- 2008 passed by the learned Additional District Judge, Mandi Bahauddin.
2. Briefly the facts giving rise to the filing of present writ petition are that respondent No,3 filed a suit for maintenance allowance and recovery of dowry articles against the petitioner, which was contested by filing written statement. Issues were framed and after recording evidence of both the parties, the learned trial court decreed the suit vide judgments an decree dated 9-7-2007 in the following terms:--- ' The suit of the plaintiff No,1 for recovery of dowry articles is hereby decreed in her favour and against the defendant to the effect that defendant is directed to return dowry articles as per list annexed with the plaint or pay its price Rs,5, 79,500 and suit of the plaintiffs for recovery of maintenance allowance is hereby decreed to the effect that plaintiff No,1 is entitled for maintenance for the period of Iddat at the rate of Rs,2000 per month and plaintiff No,2 is entitled for recovery of maintenance allowance at the rate of Es.1500 per month from the date of birth till the expiry of statutory period. Parties shall bear their own costs.
3. Being aggrieved of the said judgment and decree, the petitioner filed appeal and the learned first appellate court vide judgment and decree dated 7-3-2008 partially allowed and partially dismissed the appeal while modifying the impugned judgments and decree dated 9-7-2007 to the extent that respondent No,3 is entitled to recover the dowry articles or in the alternative its price Rs,3,31,000 and minor was held entitled to recover maintenance allowance from the petitioner at the rate of Rs,1200 per month since his birth i,e, 1-6-2004 till he attains the majority or if the custody is shifted whichever comes earlier, hence, this writ petition.
4. Learned counsel for the petitioner contends that findings of both the courts below are at variance and result of misreading and non-reading of the evidence and material brought by the parties to the suit on record. Contends that while decreeing the claim of respondent No,1 regarding dowry articles, both the courts below have relied upon list of dowry articles, which was admittedly prepared by the counsel for respondent No,3 and the evidence produced by the petitioner was ignored and that the impugned judgments and decrees have been passed only on the basis of assertions of respondent No,3 which cannot be relied upon being false, frivolous and vexatious.
5. On the other hand, learned counsel for the respondent No,3 has strongly opposed the contentions raised by learned counsel for the petitioner and defended the impugned judgments and decrees; contends that the petitioner has proved her case by adducing cogent, convincing and inspiring evidence proved and the learned courts below have already discussed each and every aspect of the case and therefore, this Court cannot interfere in the findings of both the courts below. Submits that the present writ petition merit dismissal.
6. Arguments heard. Record perused.
7. Record reveals that petitioner admits receipt of dowry articles but claimed that the same were returned to respondent No,3. In order to prove delivery of dowry articles, petitioner has produced number of witnesses who deposed that dowry articles were returned to respondent No,3 however, no evidence was produced to prove receipt of said dowry articles by respondent No,3 or any of her relatives. It is admitted that the relationship between the parties were strained due to the divorce given by the petitioner to respondent No,3 but despite of this fact no effort was A made to obtain any receipt of the delivery of dowry articles. Both the courts below have minutely discussed the evidence produced by the petitioner and have reached. To a right conclusion that the petitioner has failed to substantiate the delivery of the dowry articles to respondent No,3.
8. Learned counsel for The petitioner has also relied upon the provisions of Dowry and Bridal Gifts (Restriction) Act, 1976 (Act of 1976) to state that no court can pass decree for more than Rs,5000 on account of dowry articles.
9. In order to deal with the objection of the learned counsel for the petitioner, section.3 of the Act of 1976 is reproduced hereunder:-
3. Restriction on dowry, presents and bridal gifts.--- (1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the presents given to the bridegroom shall -exceed five thousand rupees.
(I-A) No person shall give or accept, or enter into an agreement or give or to accept dowry, bridal gifts or presents of a value exceeding the aggregate value specified in subsection (1)].
[(2) No dowry, bridal gifts or present may be given before six months or after one month of Nikah and, if rukhsati takes place some time after Nikah after one month of such rukhsati].
10. Under section 3(1) above there is a restriction on the parents not to give dowry or bridal gifts for more than Rs,5000. However, despite this bar, if the parents have given dowry for more than the amount the same will remain the property of the bride and the husband cannot usurp the same on the ground that the same has been given in violation of section 3(1) of the Act of 1976. This view also finds support of section 5 of the Act of 1976 which states:---
5. Vesting of dowry, etc., in the bride. All property given as dowry or bridal gifts and all property given to the bride as a present shall vest absolutely in the bride and her interest in property however, derived shall hereafter not be restrictive, conditional or limited.
11. Further although the previsions of the Act of 1976 are still in vogue yet these provisions becomes redundant once the parents of the bride gave dowry articles for more than the amount mentioned in the section 3(1) of the Act of 1976.
12. Section 5 of the Act of 1976 clearly states that what articles given as dowry and bridal gifts to the bride shall remain the property of the bride. The Hon'ble Supreme Court has held in Muhammad Tazeeel v. Mst. Khair un Nisa (1995 SCM R 885) that the provisions of the Act of 1976 can be enforced only by the authority mentioned in the said Act of 1976.
13. Even otherwise, the husband cannot refuse to return the dowry articles on the ground that the dowry articles were given in violation of the Act of 1976. Especially when the husband has not made any complaint to the relevant authority in accordance with the provisions of section 8A of the Act of 1976. Section 8-A states as under:--- 80-A Complaints against violation of the Act.--- If any person attending a marriage ceremony is satisfied that the provisions of this Act or the rules made there under has been contravened in respect of such ceremony, he may submit a complaint, giving full particulars of the contravention, to the Deputy Commissioner.
14. Further in Masud Sarwar v. Farah Deeba (1988 CLC 1546) it was held that:- "It is correct that under Section 3 of the said Act, there is a restriction that dowry or Wari exceeding Rs,5,000 could not be given to a bride by her parents or by the parents of the bridegroom.
However, there is no complete bar to give a dowry or Wari in excess of the said amount. The title of the law in itself shows that it is a restrictive law and not a prohibitory law. Similarly in the preamble of the said law it has been provided that a law is necessary for restrictions on dowry and bridal gifts'. This also shows that there was no intention of the framer of the law or the legislature to impose a complete ban on the giving of dowry and Wari in excess of the said amount. Therefore, if dowry or Wari or both exceed the value of Rs,5,000 each that will not mean that it is such an illegal act that it should entail the confiscation of such property of the bride.
Section 5 of the said Act provides that all property given as dowry or bridal gift to a bride shall vest absolutely in her and that her interest in the said property, however derived, shall not be restrictive, conditional or limited. In the said section there is no limitation of Rs,5,000 either for dowry or for Wari. On the other hand, it has been provided therein that such property shall be owned by her absolutely and to the exclusion of the bridegroom without caring for, the source through which it has come and without limitation of any amount. Therefore, it is quite clear that even in spite of the restriction imposed in section 3 ibid bride is the owner of the dowry and Wari articles irrespective their value and she is entitled to retrain it for ever and to claim its return or the value thereof if the same is kept back by her husband or any other person. In the nut shell the said law does not give a right to the husband to usurp the properly in excess of Rs,5,000.
' Similarly the daw does not mean that the property in excess of Rs,5,000 shall escheat either to the Government or to the husband. Therefore, . In spite of the restrictive provisions contained in the said Act a bride is entitled to retrain and get all the dowry and Wari articles irrespective of their value.
' Act XLIII of 1976, was enacted for the benefit of the women to be, married and their parents so that they may not remain unmarried for lack of dowry of heavy value. It was not enacted to deprive the wives of the ownership of their dowry and Wari. As a matter of fact, the said Act is a paper law and has seldom been acted upon. The said law has been used only against the women and wives and efforts have been made by the husband to deprive the wives of their such property on the basis of the said law. In other words, the said law instead of being beneficial to women and wives is detrimental to their rights and interests.
5 . It may be added that there is no. Islamic sanction behind the said law. In .a way the said law offends against the Injunctions of Islam as set out in the Holy Qur'an and Sunnah. In Aya No,20 of Sur Al-Nisa of the Holy. Qur'an, it has been ordained that in case a husband marries another woman he should not take back any of the property given to her. In Aya No,21 thereof it has been further ordained that a husband cannot take back the same after the marriage has been consummated. The said Ayas have been interpreted by all the translators and Mufassareen to mean and include the property of any value, however, great it may be. Some of them have given it the meaning of a treasure. -This means that there is no limit on the value of bridal gifts which may be given to her by her parents or by the husband or his parents."
15. In the case in hand, petitioner had not made any complaint to the relevant authority under section 8A of the Act of 1976 at the relevant time. Further perusal of the statements of witnesses reveals that no objection was raised at the time of filing of the written statement by the petitioner.
Therefore, this is nothing but an afterthought of the petitioner.
16. In view of the above discussion, the judgments and decrees passed by the courts below are in accordance with the law and facts of the present case and do not require interference by this court, resultantly, the present writ petition stands dismissed.
17. Before parting with the present judgment, I would like to appreciate the valuable assistance provided by Mr. Mohsin Mumtaz, Research Officer of this Court.