MUSHTAQ AHMAD TARAR, J.- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Sheraz Hussain petitioner has assailed the judgment and decree dated 11.02.2012 passed by the learned Judge Family Court, Mian Channu and the judgment and decree dated 08.06.2013 passed by the learned Additional District Judge, Mian Channu passed in the suit for recovery of maintenance allowance, dower and gold ornaments filed by respondent No. 3 Fareeha Yousaf.
2. The facts leading to this writ petition succinctly are that respondent No. 3 filed a suit (i) for recovery of maintenance allowance at the rate of Rs. 8,000/- per month, (ii) recovery of dower amount of Rs. 2,00,000/- and (iii) for recovery of gold ornaments weighing 5-tolas against the petitioner with the averments that on 7.2.2008, she was married with the petitioner and at the time of Nikah an amount of Rs. 2,00,000/- was fixed as prompt dower and it was settled that the petitioner will hand over gold ornaments weighing 5-tolas to her; that it was also settled that the petitioner will pay Rs. 8,000/- per month as maintenance allowance; that she was tortured by the petitioner and his family on 10.05.2008 and she was turned out from the house of petitioner; that the petitioner has not paid any maintenance allowance to her; that the petitioner is running garments and general store in Bano Bazar Mian Channu and his monthly income is about Rs.
70,000/80,000/-. In the prayer she claimed previous maintenance allowance from February, 2008 to April, 2009 and the future maintenance allowance started from April, 2009 at the same rate of Rs. 8,000/- per month alongwith her other claims for the recovery of dower Rs. 2,00,000/- and gold ornaments weighing 5-tolas.
3. The petitioner contested the suit by filing written statement wherein he took nine preliminary objections and contended that only Shari dower was fixed which was paid at the time of marriage and later on fictitious entries have been made in the Nikah Nama. On merits also the petitioner controverted the averments of the plaint and prayed for dismissal of the suit. He also contended that respondent No. 3 left his house at her own without any reason on 23.3.2009; that he is not owner of shop and his father is owner of shop, whereas, his monthly income is not more than Rs.
10,000/12,000/-
4. Learned Judge Family Court, Mian Channu after recording evidence and hearing the arguments of the parties through the judgment dated 11.02.2012 decreed the suit of respondent No. 3 for recovery of dower Rs. 2,00,000/-, for recovery of 5-tolas gold ornaments and for recovery of maintenance allowance at the rate of Rs. 8,000/- per month since 23.3.2009 till the period respondent No. 3 remains wife of the petitioner.
5. Being aggrieved by the judgment and decree of learned Judge Family Court, Mian Channu, the petitioner filed Family Appeal No. 38-13F of 2012, which was dismissed by the learned Additional District Judge, Mian Channu District Khanewal, vide judgment and decree dated 8.6.2013. Through this writ petition the petitioner has challenged the judgment and decree dated 11.02.2012 passed by the learned Judge Family Court, Mian Channu and the judgment and decree dated 8.6.2013 passed by the learned Additional District Judge, Mian Channu.
6. Learned counsel for the petitioner contended that as the marriage of respondent No. 3 with the petitioner was intact at the time of filing of suit and passing of decree, therefore, the respondent No. 3 was not entitled to recover the alleged deferred dower from the petitioner. In this respect he has placed reliance upon judgment of Hon'ble Supreme Court of Pakistan reported as "Saadia Usman and another Vs. Muhammad Usman Iqbal Jadoon and another" (2009 SCMR 1458). He further contended that the entries regarding the dower amount of Rs. 2,00,000/- and 5-tolas gold ornaments were recorded in the Nikah Nama later on, whereas, no dower was fixed at the time of Nikah; that the suit of respondent No. 3 to the extent of recovery of 5-tolas gold ornaments mentioned in column No. 17 of the Nikah Nama was not competent before the learned Judge Family Court, Mian Channu. To substantiate his contention he has placed reliance upon "Muhammad Awais Vs. Mst. Zahida Parveen" (PLD 2012 Lahore 38); that respondent No. 3 left his house at her own and she was not entitled to recover any maintenance allowance; that the learned lower courts have fixed maintenance allowance of respondent No. 3 at very excessive rate against the law and facts of the case.
7. On the other side, learned counsel for respondent No. 3 argued that respondent No. 3 was subjected to torture and she was turned out by the petitioner from his house and the learned trial Court has rightly granted her maintenance allowance; that respondent No. 3 was fully entitled to recover the dower amount Rs. 2,00,000/- which was not paid to her by the petitioner; that the learned Family Court was competent to adjudicate upon the claim of respondent No. 3 regarding 5-tolas gold ornaments; that the learned trial Court as well as the learned appellate court have passed the judgments and decrees in favour of respondent No. 3 in accordance with law and the writ petition against concurrent findings of both the learned courts below is not competent. He has placed reliance on "Liapuat Ali Vs. Additional District Judge, Narowal and 2 others" (1997 SCMR 1122), "Mst. Razia Begum Vs. Jang Baz and 3 others" (2012 CLC 105), and "Mst. Ghulam Shaheena Vs. Judge, Family Court" (2010 CLC 87).
8. I have heard the arguments, perused the record, gone through the judgments referred by learned counsel for the parties.
9. As per record, respondent No. 3 did file a suit against the petitioner for the recovery of previous maintenance allowance at the rate of Rs. 8,000/- per month from February, 2008 to April, 2009 and at the same rate she claimed future maintenance allowance alleging that she was turned out after torture by the petitioner from his house on 10.5.2008. In the suit the respondent No. 3 also made claim for recovery of dower amount of Rs. 2,00,000/- and for the recovery of 5 tolas gold ornaments. Learned trial Court vide judgment and decree dated 11.02.2012 decreed the suit of respondent No. 3 while fixing her maintenance allowance at the rate of Rs. 8,000/- per month w.e.f.
23.3.2009 till the period she remains wife of the petitioner. The claim of respondent No. 3 for recovery of Rs. 2,00,000/- dower amount and recovery of 5-tolas gold ornaments was also decreed by the learned trial Court. The findings of learned trail Court regarding all the above mentioned reliefs of respondent No. 3 were upheld by the learned lower appellate court, resultantly, appeal of the petitioner was dismissed on 08.06.2013.
10. It has been contended on behalf of the petitioner that respondent No. 3 was not entitled to recover the alleged amount of deferred dower Rs. 2,00,000/- during the subsistence of marriage as deferred dower becomes payable on dissolution of marriage either by death or divorce and both the lower courts have committed illegality while granting the said relief in favour of respondent No.
3. He has placed reliance on the judgment of Hon'ble Supreme Court of Pakistan reported as "Saadia Usman and another Vs. Muhammad Usman Iqbal Jadoon and another" (2009 SCMR 1458), to contend that deferred dower becomes payable on dissolution of marriage either by death or divorce.
11. In the judgment referred above by the learned counsel for the petitioner, the Hon'ble Supreme Court of Pakistan has been pleased to hold that the amount of dower is usually split into two parts, one called "prompt" which is payable on demand, and the other called "deferred" which is payable on dissolution of marriage by death or divorce. It has been further held in the above referred judgment that prompt dower is payable on demand during the subsistence of the marriage tie whereas the deferred dower is payable on the time stipulated between the parties, but where no time is stipulated, it is payable on dissolution of marriage either by death or divorce. In the present case, the respondent No. 3 has tendered in evidence, certified copy of the Nikah Nama as (Ex. PI).
The column No. 13 of the Nikah Nama (Ex. PI) clearly shows that amount of Rs. 2,00,000/- was fixed as dower, whereas, next column No. 14 shows that whole amount of dower was fixed as prompt, payable on demand as words " " in Urdu are mentioned in column No. 14.
12. The petitioner as DW-1 during the cross-examination has admitted that his signatures are present on Nikah Nama (Ex. PI). He further admitted that his National Identity Card Number is also mentioned alongwith his name. Therefore, from the record and evidence available on the file, it is clearly established that amount of Rs. 2,00,000/- was fixed as prompt dower and not as deferred dower of respondent No. 3 and the same was payable on demand during the subsistence of marriage. Hence, the learned trial Court has rightly passed decree for the recovery of dower Rs.
2,00,000/- in favour of respondent No. 3. No misreading or non-reading of evidence has been committed by the learned courts below while deciding the claim of dower.
13. Now I advert to the legal objection raised by the learned counsel for the petitioner that the learned Judge Family Court was not competent to decide the claim of respondent No. 3 for recovery of 5-tolas gold ornaments mentioned in column No. 17 of the Nikah Nama. He has placed reliance on judgment of this Court reported as "Muhammad Awais Vs. Mst. Zahida Parveen" (PLD 2012 Lahore 38). In the referred judgment one Mst. Zahida Parveen instituted a suit for recovery of gold ornaments valuing Rs. 2,00,000/- in the Family Court at Okara against the defendant alleging therein that she is entitled to recover the same as per condition mentioned in column No. 17 of the Nikah Nama. Her suit was dismissed by the learned Judge Family Court with the observations that the matter was not triable by a Family Court. Thereafter, the appeal filed by Mst. Zahida Parveen was accepted by the learned Appellate Court and the case was remanded to the learned Judge Family Court for fresh trial. Muhammad Awais husband of Mst. Zahida Parveen filed W.P. No. 16081 of 2010 before this Court which was accepted by this Court in view of the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case titled as "Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others" (PLD 2011 Supreme Court 260), and resultantly, judgment of learned Additional District Judge was set aside and the judgment recorded by the learned Judge Family Court, Okara was restored whereby he had dismissed the suit of Mst. Zahida Parveen on the point of jurisdiction.
14. In the present case as per record 5-tolas gold ornaments are mentioned in column No. 17 of the Nikah Nama (Ex. PI) and in column No. 16 of the Nikah Nama it is clearly mentioned that no property was given in lieu of dower. Therefore, the alleged claim of respondent No. 3 that 5-tolas gold ornaments were mentioned in the Nikah Nama as consideration for dower remains unproved. It has been clearly held in the above referred precedent case that the learned Family Court has no jurisdiction to decide the claim of wife regarding any amount or property mentioned in column No. 17 of Nikah Nama as it falls out of ambit of Section 5 and Schedule of West Pakistan Family Courts Act, 1964. Therefore, in these circumstances, I am of the considered view that the learned trial Court as well as the learned appellate court have not considered this aspect of the matter and the suit of respondent No. 3 for the claim of 5-tolas gold ornaments has been illegally decreed by the learned courts below. The judgments referred by learned counsel for respondent No. 3 reported as (1) "Mst.
Razia Begum Vs. Jang Baz and 3 others" ( 2012 CLC 105), "Mst. Ghulam Shaheena Vs. Judge, Family Court" (2010 CLC 87), and "Liaquat Ali Vs. Additional District Judge, Narowal and 2 others (1997 SCMR 1122), are not applicable in this case as in the referred cases the property was given to the wife as dower, whereas, in the present case 5-tolas gold ornaments are mentioned in column No. 17 of the Nikah Nama and the same were not given to respondent No. 3 in lieu of dower. Hence, findings of learned trial Court as well as learned appellate court for passing the decrees regarding 5-tolas in favour of respondent No. 3 are not sustainable under the law. Resultantly, I reversed the findings of both the courts below on issue No. 1 and decide the same against respondent No. 3.
15. Now comes the issue of maintenance allowance of respondent No. 3. In the plaint and in evidence she has claimed maintenance allowance at the rate of Rs. 8,000/- per month alleging that monthly income of the petitioner is about Rs. 60,000/70,000/- per month. She further alleged that she was turned out by the petitioner on 10.5.2008, whereas, the petitioner took version in written statement that on 23.3.2009, respondent No. 3 left his house at her own. The learned trial Court vide impugned judgment and decree dated 11.2.2012 has fixed the maintenance allowance of respondent No. 3 at the rate of Rs. 8,000/- per month from 23.3.2009 till the period she remains wife of the petitioner. It is matter of record that in the Nikah Nama (Ex. PI) it is clearly mentioned that the petitioner will pay Rs. 8,000/- per month as maintenance allowance to respondent No. 3. After scanning the record and evidence, I am of the clear view that the learned trial Court as well as the learned appellate court has fixed the maintenance allowance of respondent No. 3 after perusal of whole evidence of the parties available on record and maintenance allowance has been granted since 23.3.2009, the date which has been mentioned by the petitioner in his written statement alleging that respondent No. 3 left her house on the said date and the learned courts below have fixed the quantum of maintenance of respondent No. 3 after perusal of whole evidence and keeping in view the social and financial status of the petitioner. The concurrent findings of both the courts below regarding period and quantum of maintenance allowance of respondent No. 3 do not suffer from any illegality or miscarriage of justice warranting interference of this Court in writ jurisdiction.
16. The upshot of the above discussion and observations is that I partially accept this writ petition and set aside the impugned judgments and decrees of both the courts below to the extent of recovery of 5-tolas gold ornaments and as a sequel the suit of respondent No. 3 to this extent is dismissed, whereas, to the extent of remaining claim of the petitioner regarding the decree of maintenance allowance and dower amount of Rs. 2,00,000/- in favour of respondent No. 3, this writ petition is dismissed.