' MUSHTAQ AHMAD JANJUA, J.---The above titled appeal has been directed against the judgment passed by Civil Judge empowered as Judge Family Court, Muzaffarabad on 16-3-2015, whereby the suit filed by the appellant was dismissed for want of proof.
2. Brief facts forming background of the appeal are that respondent No,1 contracted marriage with the appellant, herein, on 6-4-2012 in lieu of dower Rs,3,25,000 (Three lac twenty five thousands).
According to agreement deed dated 3-4-2012, respondent No,1 was responsible to give two rooms, one kitchen and one Kanal land to Mst. Mazloom Bibi, appellant, in consideration of dower, while respondent No,2 was guarantor of the said agreement deed. After the 'Nikah' and 'Rukhsati', the appellant populated with respondent No,1 for few days in his house, who was on leave, but after availing leave when he went to rejoin his duty, the inmates of respondent No,1 ousted her from the house and sent to her parents. Later on during desertion, respondent No,1 divorced her through written 'Talaqnama'. The appellant further averred in the plaint that immovable property, which according to agreement deed, was to be given to her, as dower, is in possession of the respondents, therefore, she is entitled to receive the same.
3. The respondents herein contested the suit through written statement wherein they denied the allegations levelled against them and submitted that whole the dower was paid to her at the time of Nikah, therefore, the suit is not maintainable and liable to be dismissed.
3A. The learned Judge Family Court, after due process of law, framed three issues and after recording the evidence and hearing the arguments of the parties dismissed the suit for want of proof vide impugned judgment and decree, hence this appeal.
4. Muhammad Yaqoob Mughal, the learned counsel for the appellant vehemently argued that the Family Court while passing the impugned judgment failed to appreciate that the dower which was to be given to appellant according to agreement deed was neither paid to her during the period of population nor after the divorce. He further argued that the Family Court has not carefully examined the record, documentary as well as oral evidence and passed the impugned judgment and decree in a hasty manner, hence the same is not maintainable and is liable to be set aside, thus the appellant is entitled to receive the dower from the respondents according to agreement or in cash but the Family Court has drawn a wrong conclusion. The learned counsel further contended that the learned Judge Family Court passed the impugned judgment by misreading and non-reading of the evidence. Finally the learned counsel prayed for setting aside the impugned judgment and submitted that a decree for recovery of dower may be passed in favour of appellant.
5. On the contrary, Aurangzeb Abbasi, the learned counsel for respondents filed written arguments wherein while controverting the arguments raised by the learned counsel for the appellant, vehemently argued that the Family Court rightly appreciated the evidence in its true perspective and arrived at a correct decision. It was evident from the record that dower was paid at the time of Nikah and this fact was proved through 'Nikahnama', thus she is not entitled to any dower. The learned counsel further argued that she was divorced, thus she is not entitled to get any dower and in this regard the trial Court rightly appreciated the evidence and passed the decree in accordance with law and facts of the case. The impugned judgment being in accordance with law warrants no interference, therefore, the appeal filed by the appellant may be dismissed. In support of his arguments the learned counsel placed reliance on the following case-law:--
(1) 1991 SCM R 111
(2) 1998 SCMR page 474.
6. I have given my due consideration to the respective arguments of the learned counsel for the parties and also gone through the record made available.
7. The first point raised by the learned Counsel for the respondents that the appellant received whole dower as mentioned in 'Nikahnama' Exh.PA which is the basic point of respondents. From perusal of the record it reveals that on 3-4-2012 prior to the marriage an agreement deed Exh. PB was written wherein the respondents stated that 'Nikah' between the spouses shall be convened on 6-4-2012 in lieu of dower Rs,3,25,000 and in consideration of dower, a house consisting of two rooms along with kitchen, Bath and one Kanal land shall be given to her, while gold ornaments weighing three tolas shall be given to her as gift at the time of 'Nikah' ceremony whereas one tola gold ornaments shall also be given to her within 1-1/2 years. Respondent No,2 being guarantor gave guarantee in this respects and in the light of document Exh.PB, 'Nikah' ceremony was held on 6-4- 2012 just after two days. During proceedings in the Family Court, the respondents narrated different version on flimsy grounds and accepted the document Exh.PB as correct in their statements. It is pertinent to mention here that on the basis of document Exh.PB, which was written on 3-4-2012, the 'Nikah' ceremony was held on 6-4-2012 and on the basis of document Exh.PB, 'Nikahnama' Exh.PA was prepared on the same day in which dower was fixed Rs,3,25,000 as paid. In my considered view, the Family Court failed to ascertain the word paid ( by handing down the impugned judgment while overlooking the document Exh.PB which was admitted as correct by the respondents and a basic document for Nikah. The document Exh.PB was never objected by the respondents nor amended during preparation of 'Nikahnama' by inserting details regarding payment of dower, thus the Family Court failed to consider both the documents Exh.PA and Exh.PB in juxtaposition while passing the impugned judgment. The Exh.PA is a result of basic document Exh.PB. The respondents during examination deposed that they gave the amount of Rs,2,00,000 to appellant's father as loan for dowry of the appellant two days prior to the marriage and 1,25,000 were also paid at the time of 'Nikah', which is without any documentary proof or strong evidence.
This shows that material contradictions were found in the deposition of the respondent's which makes crystal clear that dower was never paid in shape of land or cash to appellant herein, thus the contention of learned counsel for the respondents has no force regarding payment of dower.
The document Exh. PB dated 3-4-2012 was neither executed in favour of appellant, nor it was proved by cogent evidence that cash payment of dower was made to the appellant; therefore, the dower is still unpaid to the appellant and she has proved her claim.
8. The next point raised in the written arguments by respondents is that a fraud was played with them during marriage ceremony. During cross-examination, respondents deposed that the younger sister of the appellant, whose name was Azra, was engaged with respondent No,1 but she was not handed over to him when the 'Rukhsati' was taken place. This contention was totally negated from the documentary as well as oral evidence and circumstances of the case because a minute perusal of agreement deed Exh.PB reveals that the name of Mst. Mazloom Bibi was written therein in the presence of respondents, which was also 'signed by them, its means they were aware of the name of appellant, Mst. Mazloom Bibi, prior to the marriage ceremony. Moreover, it is important to mention here that at the time of performing 'Nikah' ceremony the name of appellant (bride) was repeatedly called by 'NikahKhawan' and incorporated in the 'Nikahnama', which was also signed by them in presence of the parties, and after performing the 'Nikah' ceremony, according to the local custom, before returning of 'Barat', the female members of the respondents and appellant held function of 'Doodh-Pilai' ({{URDU TEXT}} jitaol) ) at the occasion of 'Rukhsati', in which bridegroom, respondent No,1, was treated as chief guest, who sit with his newly wedded life partner, and thereafter on reaching back at the residence of bridegroom, all of the inmates of respondent No,1 and other people of the area were present over there, but none of them raised objection on this issue. The aforementioned facts clearly indicate that respondents knew the appellant very well from all sources; therefore, the allegation of substitution of bride, appellant, is an act of beating the bushes and nothing else. The Family Court failed to appreciate this important aspect of the case and also failed to determine the conduct of the respondents regarding the changing of views on different stages.
9. Now the point of consummation of marriage is taken into consideration. The record reveals that respondent No,1 accepted her as wife, who lived with him for about 8 to 10 days and during this period he consummated marriage, and it is settled principles of Islamic law that a husband is bound to pay full dower to his wife in case of consummation of marriage and if he does not consummate the marriage, then half of the dower is the right of bride. In such state of affairs, respondent No,1 is responsible to pay full dower to the appellant, as he consummated marriage.
10. The next question relates to fictitious ornaments and when I take into juxtaposition, the document Exh.PB and evidence of respondents on the point of ornaments, the situation becomes clear because respondent No,1 and his father during cross-examination accepted that they prepared document Exh.PB just for the execution of marriage, without having own land.
Furthermore, they also accepted in their statements that they delivered role gold instead of original gold. So they deceived the appellant by executing document Exh.PB and later on Exh.PA and by presenting of role gold. On being pointed out these frauds, they leveled baseless allegation and lastly divorced the appellant which is fault on the part of respondents and they are held responsible for that, thus I am of the considered view that the respondents played fraud with appellant for dower and other ornaments, therefore, they are responsible to pay dower to the appellant. This is an unfortunate tactics in our society, which is managed to solemnize marriage by violating the Sharia law and later on its result badly effects the relations of two families and destroys the lives of young girls; therefore, suck like tactics cannot be overlooked and should be dealt with strictly to save the lives of innocent girls. Thus, keeping in view the overall facts and circumstances of the case, the impugned judgment and decree are not maintainable.
The crux of above discussion is that the learned Judge Family Court has not arrived at the correct conclusion and wrongly dismissed the suit of appellant vide its judgment dated 16-3-2015; therefore, by accepting the appeal, the impugned judgment and decree are set-aside and a decree for recovery of dower Rs,3,25,000 is passed in favour of Mst. Mazloom Bibi, appellant. No order as to the costs.