ABDUL LATIF KHAN, J:- Through instant Constitution petition, the petitioners have challenged the impugned judgment and decree dated 20.09.2010 passed by learned Additional District Judge-XIII, Peshawar whereby appeal filed by petitioners against judgment and decree dated 19.06.2010, passed by learned Judge, Family Court, was dismissed.
2. A perusal of record reveals that the respondents filed a suit for recovery of 80 Tolas gold ornaments as dower, possession through partition of 1/2 share of Bungalow No.6, 170-G-3, Phase-II, Hayat Abad, Peshawar and possession of the property measuring 130 Kanals situated at Moza Koza Behram Deri, Tehsil Tangi, District Charsadda and Rs.10,000/- as maintenance per month with effect from 25.8.2008 and dowry articles against Sohail husband and his mother Mst.Saima Saeed Khan. Both contested the suit by filing their written statements through Saeed Khan Attorney and after recording pro & contra evidence the Judge, Family Court decreed the suit to the extent of 80 Tolas gold, market value of 1/2 share in the Hayat Abad house, 130 Kanals of landed property and maintenance allowance at the rate of Rs.10,000/- per month w.e.f. 25.8.2008 till the time of dissolution of marriage and recovery of dowry articles as per list. The petitioners preferred appeal before District Judge which met the same fate and decree passed by Judge, Family Court was maintained.
3. Learned counsel for petitioners mainly focused the arguments on the statement of PW.9 (Plaintiff/respondent) and submitted that the statement was recorded in disregard of law, procedure besides. It is submitted that the statement was written by the counsel for respondent at her instruction as she deposed in her cross examination which was also posted as Ex.PW.9/1 and also filed an affidavit alongwith her statement which was posted as Ex.PW.9/2 and submitted that the statement was not signed by the Presiding Officer and as such cannot be termed as statement recorded in accordance with law. It was submitted that Ex.PW.9/1 bears the signature of Presiding Officer as Takmeelan which indicates that the statement was not recorded in the presence of Presiding Officer/ Judge Family Court.
4. Perusal of statement reveals that though the exhibition as Ex.PW.9/1 dated 21.10.2009 bears the signature of the Presiding Officer as Takmeelan however every page of the statement contains the signature of the Presiding Officer and last page of examination in chief bears signature alongwith statement to the effect that it was read over and exhibited by the maker of the statement.
5. It is pertinent to mention that the petitioner has never raised objection before lower forum as well as in memorandum of appeal. It was the obligatory duty of petitioners/defendants to question the procedural illegality, if any, committed by the Judge, Family Court at the time of evidence. No such serious effort has been made on the part of the petitioner and proceeded with the matter by making lengthy taxing and searching cross examination over the respondents which amounts to admission to the fact that the statement was recorded in accordance with law.
6. 80 Tolas of gold were given in lieu of dower apart from 130 Kanals of land and half share of the plot/ house as well as Rs.10,000/- per month as maintenance allowance. The petitioner took the plea that he was not present in the Nikah ceremony in person and as such he is not bound to pay the dower and maintenance amount which is misplaced for the simple reason that marriage has been admitted by the parties and they remained spouses together in the country as well as abroad for some time. The written statement reveals that Rukhsati has been admitted by the petitioners to have taken place on 4.1.2008 however questioned the execution of Nikah Nama which is not supported by any evidence as the solitary statement on behalf of petitioner has been recorded in the trial. The non-acceptance of Nikah Nama on behalf of petitioner is only meant to deny the payment of dower amount as well as maintenance allowance despite the fact that marriage has been accepted but no stance has been taken in the written statement regarding different amount of fixation of dower and maintenance allowance. The petitioners also failed to set up a case at variance to the respondents regarding these two items nor could produce any other document / Nikah Nama to show that infact the original Nikah Nama was not the one available on file and as such this plea does not stand to reason. The Family Court in terms of Section 5 of West Pakistan Family Court Act, 1964 has the exclusive jurisdiction to entertain and adjudicate upon the matter specified in Para 1 of the schedule to said act. Even the person stood surety for payment to dower could be sued before Family Court. Special procedure has been provided in West Pakistan Family Court Act, 1964, though not exhaustive however Judge, Family Court has the discretion to adopt the procedure by applying general principle of procedure to meet the situation.
In peculiar circumstances of the case, Court has inherit power to pass a decree and Muslim Family Laws Ordinance, 1961 would not put any restriction with respect to decree for past maintenance and had power to direct the husband to pay the past maintenance allowance to wife and also to the children. The plea that Family Court has got no jurisdiction to pass decree for maintenance is misplaced, as Family Court vests with the exclusive jurisdiction to decide the matter relating to maintenance and determine the amount in the light of facts and status of the parties. It is pertinent to mention that objection as to the jurisdiction of the Family Court, must be raised at the earlier possible opportunity and if not raised the same would be deemed to have been waived. The objection raised for the first time in Constitutional proceedings would be of no avail to the petitioner with special reference to the fact that the same has no legal force.
7. So far as the non-presence of petitioner in the Nikah ceremony is concerned, that is immaterial as on his behalf his real paternal uncle was present as parties were on blood relation to each other.
All the witnesses are related to the parties. The evidence produced by petitioner comprising of nine
(09) PWs, have advanced their stance with clarity about execution of Nikah Nama and its contents have been proved through confidence inspiring evidence. It is pertinent to mention that the petitioner has not produced his paternal uncle who put his signature as Wakil on the Nikah Nama in order to fortify his stance about non-execution of Nikah Nama. The solitary statement recorded on behalf of petitioner is of his father Muhammad Saeed Khan who happens to be his attorney for deposition in the Court on his behalf, who has admitted the marriage solemnized on 4.1.2008 and deposed that after the marriage the spouses left for London. He stated that the gold ornaments lying with him in their locker, were demanded by respondent for the marriage of one of her relative.
He took the stance that 25 Tolas of gold were fixed and paid to the respondent in lieu of dower and nothing more was agreed to be paid to the respondent. It is pertinent to mention that he has not denied the execution of Nikah Nama nor uttered a single word about its fakeness. The petitioner has negated his stance by transfer of 130 Kanals of landed property in lieu of dower which shows that they on the one hand are complying with the contents of Nikah Nama and on the other hand denies the same as such their credibility becomes doubtful. Even otherwise, when in Nikah ceremony the real uncle or father of husband is present with peculiar circumstances that parties are known to all the witnesses the plea that the consent of husband/petitioner was not taken, is misplaced, and signature or presence of the father or paternal/maternal uncle of the husband would be considered the consent of husband. As such the petitioner could not deny the execution of document or convening of Nikah as the marriage and Rukhsati has been admitted by the petitioner and mere his non-presence would not be fatal to the case.
8. It is by now established that a party could not take benefit of any alleged lacuna by treating the matter too technically. Moreover, the father has not taken any step despite the knowledge that property owned by him in lieu of dower has been given by his son to his wife has accepted the liability impliedly and cannot take U-turn to refuse the payment of same when the relations of the spouses became strained. The Nikah Nama has not been questioned in any forum so far, nor admittedly any of the witnesses & Nikah Khwan & Nikah Registrar have been proceeded against before any forum which shows the conduct of the petitioner, amounts to admission & acceptance of Nikah Nama as valid document. The stipulation contained in Nikah Nama have been admitted by husband as well as father and Family Court has got ample power to entertain the suit even against the parents of the husband and adjudicate the matter for recovery of dower. U/s 5 of the West Pakistan Family Court Act, 1964 Family Court has exclusive jurisdiction to entertain and adjudicate upon the matter specified in Para 1 of the schedule as there is no bar in provision to the effect that the wife/plaintiff asking for the dower cannot implead the parents of the husband/ bridegroom in the suit. Similarly the decree granted in favour of wife for recovery of dower could not only executable in ordinary manner provided by Civil Procedure Code rather the penal provison of West Pakistan Land Revenue Act, 1967 could also be invoked as for all practical purpose the decree of Family Court has to be executed like any other decree. The legislator has intended with clarity to attract the provision of Order 21 CPC for execution of decree and to this effect no bar has been provided in any enactment in the way of execution of decree of Family Court.
9. The respondents have raised the objection about maintainability of Writ Petition on the ground that the petitioners were directed by this Court on 6.7.2014 in interim relief with the instant petition to pay maintenance allowance as decree by lower Court to respondent No.1 commencing from the month of June, 2014 within 7 days of this order and thereafter shall also pay maintenance allowance before 5th of each month. Learned counsel took us to the order sheet of trial Court and pointed out that though certain points are made but in disregard with the order of this Court which shows the conduct of petitioners as they have disobeyed the order of the Court and even today the maintenance allowance has not been paid as per direction made. The objection raised by learned counsel finds support from the record. The petitioners have not complied with the direction for deposit of maintenance allowance before 5th of each month which is clear negation of the order of the Court and on this score alone his petition is liable to be dismissed. The respondents also raised objection about filing of instant petition as Power of Attorney available on file reveals that no specific power has been bestowed upon the father of petitioner to file the Writ Petition. The Rule of construction of document through which the agent is attoned is to be construed strictly. The attorney can act on behalf of principal in pursuance of the documents wherein specifically attoned to act on behalf of principal and not beyond that. The contents of documents/ Power of Attorney are of vital importance and nothing could be added to it which has not been expressly provided therein.
10. The Courts below have decided the lis pending before them with conscious and application of independent mind & being unexceptionable does not call for any interference.
In the light of foregoing reasons, we see no merit in the instant petition as such the same is dismissed.