' FAROOQ ALI CHANNA, J.---Brief history of the case giving rise to file this Const. Petition is that on 09-02-2005 Mst. Qurat-ul-Ain, the respondent No.1 had married with the petitioner Asif Rafiq, out of the said wedlock two children namely Ameer Hamza and Huzaifa Asif were born, later on the relations between the spouse became strain resulting in dissolution of marriage. The petitioner by the Divorce Deed dated 7-4-2010 divorced the respondent No. 1 .
2. After the dissolution of marriage the respondent No.1 filed Suit No.509/2010 for self and on behalf of her minor sons Ameer Hamza and Huzaifa Asif, being their natural guardian, for recovery of dower amount, maternity expenses, maintenance and dowry articles amounting to Rs.10,25,000 and future maintenance of both the children.
3. Pursuant to the notice the petitioner appeared before learned XVIth Civil and Family Judge, Karachi South (hereinafter referred to as trial Court), filed the written statement denying the plaintiff's claim. The trial Court from the pleadings framed the issues, recorded the evidence led by both the parties and after affording an opportunity to the counsel for both the parties decreed the suit vide judgment and decree dated 16-11-2011, in the following terms:--
(1) Mst. Qurat-ul-Ain the respondent No.1 is entitled to dower amount of Rs.200,000.
(2) Mst. Qurat-ul-Ain is also entitled for maintenance at Rs.10,000 per month from 28-12-2009 till 7- 4-2010 and for Iddat period thereafter.
(3) Both the minors Ameer Hamza and Huzaifa Asif are entitled to monthly maintenance at Rs.10,000 each with 5% increase per annum from 28-12-2009 till they attain the age of 18 years.
(4) Mst. Qurat-ul-Ain is also entitled to dowry articles i.e. Fridge, TV, microwave oven, electronic items, dinner set, kitchenware cloths and Rs .3,50,000 given to the defendant (petitioner herein) for purchasing Mehran car.
4. The petitioner being aggrieved and dis-satisfied with the judgment and decree passed by the trial Court preferred Family Appeal No.79/2011. Learned Additional District Judge-VII Karachi South (hereinafter referred to as Appellate Court) by maintaining the judgment and decree dismissed the Family appeal vide judgment dated 19-07-2012 which is impugned in this Const. Petition.
5. Learned counsel for the petitioner in his arguments before this Court has not disputed the claim of Mst. Qurat-ul-Ain regarding dower amount of Rs.200,000, he has also not disputed her maintenance at Rs.10,000 per month from 28-12-2009 till 7-4-2010 and for Iddat period thereafter.
Learned counsel has also admitted the petitioner's responsibility to maintain both the children namely Ameer Hamza and Huzaifa Asif, however he has contended that the trial Court so also the Appellate Court while determining the monthly maintenance allowance of both the children have not considered the monthly income of petitioner who being Army Officer depends upon his salary.
Per learned counsel, till December, 2009 the petitioner was drawing salary at Rs.25,000 to Rs.30,000 per month, however in the month of January, 2010 his salary was increased by 100% in these circumstances learned counsel has suggested that monthly maintenance allowance for each child at Rs.7,500 totaling to Rs.15,000 would be appropriate.
6. Conversely learned counsel for the respondents has contended that after increase in salary the petitioner is drawing Rs.70,000 per month, the trial Court so also the Appellate Court keeping in view the monthly income Of the petitioner have correctly fixed the monthly maintenance allowance for each child at Rs.10,000 which is bearable to the petitioner. Learned counsel has further argued that the findings of both the courts below in this respect are neither perverse nor suffering from any infirmity hence the same does not require interference by this Court.
7. I have considered the arguments of both the learned counsel and perused the record. The trial Court while granting maintenance allowance to both the children has observed that Mst. Qurat-ul- Ain, the respondent No.1 in her evidence has claimed the salary of petitioner at Rs.70,000, her evidence to that extent remained unchallenged and unrebutted as learned counsel for the petitioner during cross-examination has put no question to the respondent No.1 rebutting her claim. The trial court has relied upon the above evidence of respondent No.1 and has held that the petitioner's monthly salary is Rs.70,000 and fixed the maintenance allowance for each child at Rs.10,000 per month without considering the petitioner's evidence wherein he has denied that his salary was Rs.70,000 he has. Claimed that till 2009 his net salary was Rs.25,000 to Rs .30,000.
8. The trial Court while deciding the question of petitioner's salary has given preference to the respondent's oral evidence over petitioner's documentary evidence i.e. Pay slips produced by him in his evidence though documentary evidence would carry presumption of truth, a very strong and exceptional evidence is needed to rebut the same. Furthermore where, in proof of a fact, oral words of one party are against the oral words of other party, the Court would rely upon documentary and other circumstantial evidence to find as to which party is speaking truth. In view of the above proposition, the last pay slip for the month of October, 2009 available on record indicates the net pay drawn by the petitioner was Rs.32,983 would have been considered for determining the petitioner's monthly income. However the petitioner during cross-examination has admitted that after increase in his salary in the year 2010 he is drawing Rs.47,000 per month. On query learned counsel for the petitioner has also admitted that after the fiscal year 2010 the government has further increased his salary. Keeping in view the petitioner's monthly salary till the year 2009 and subsequent increase herein, I modify the monthly maintenance allowance granted by the trial Court for each child at Rs.10,000 to Rs.7,500/- per month with 5% increase per annum from 28-12- 2009 till the trial Court passed the judgment and decree dated 16-11-2011 and the rafter Rs.10,000 for each child with 5% increase per annum till they attain the age of 18 years.
9. As far recovery of dowry articles is concerned, the onus to prove the claim lies upon the respondent No.1, she in support of her claim has produced only two receipts, which the learned counsel for the petitioner has not disputed, he has also admitted that the TV and Fridge brought by the respondent No.1 are lying with the petitioner which he is prepared to hand over when and where she desires. The respondent No.1 in order to prove her claim regarding rest of the dowry articles has not examined any witness nor produced receipts thereof. The sole evidence of the respondent No.1 controverted by the petitioner in his evidence was not sufficient to prove the claim.
However, since the petitioner has not disputed the two receipts of dowry articles produced by the respondent No.1 therefore she is entitled for return of dowry articles mentioned in both the receipts or in lieu thereof an amount mentioned in the receipts for each article.
10. The next prayer of the respondent No.1 is for the return of Rs.3,50,000 given to the petitioner by her father for purchasing Mehran car to be used by them. Learned counsel for the petitioner has contended that the said amount was not the part of dowry articles, it was a loan which the petitioner has already refunded to the father of respondent No.1. Per learned counsel, the respondent No.1 in her evidence has admitted that she had obtained Rs .3,50,000/- from her father for the petitioner to purchase Mehran car, this admission affirmed the said amount to be a loan and not the part of dowry articles, therefore the Family court was not competent to pass decree in that respect.
11. Learned for the respondent No.1 has contended that although the said amount was not given at the time of marriage, however in order to satisfy the demand of petitioner, the father of respondent No.1 gave Rs.3,50,000/- to him for purchasing the car to be used by the spouse, therefore it comes within the ambit of dowry articles.
12. I have considered the arguments and perused the record. The respondent No.1 in her plaint so also affidavit in evidence has stated that her father had given Rs .3,61,000/- to the petitioner by pay order dated 11-6-2001 for purchasing the car, the date of pay order indicates that the said amount was paid four years prior to the marriage. She has further stated that the petitioner had purchased the car on 30-8-2006 meaning thereby about one year after the marriage. In cross-examination she has also admitted that Mehran car was registered in the name of her father, which he had given to the petitioner. The above admissions manifest the claim of respondent No.1 of three versions. i.e. (i) she had obtained Rs.3,50,000/- from her father and had given to petitioner for purchasing Mehran Car, (ii) her father had given Rs.3,61,000/- to the petitioner through pay order and (iii) her father had given a Mehran car registered in his name to the petitioner. The above evidence containing three versions discover a dispute between the petitioner and the father of respondent No.1 over the payment of Rs.3,50,000/- such payment cannot be termed as dowry article therefore the Family Court had no justification to pass decree in this respect. The jurisdiction of a Family court in terms of section 5 of West Pakistan Family Courts Act, 1964 is confined to entertain, hear and adjudicate upon matters specified in Part-I of the Schedule.
13. Therefore is no cavil to the propositions of law that the High Court in matrimonial matters can exercise its constitutional jurisdiction in rare circumstances, unless the High Court comes to a conclusion that the findings of the Courts below are arbitrary and suffering from the vice of mis- reading and non-reading of evidence, as appears in this case. Besides, the Courts below while granting the decree in respect of amount not being the part of dower or dowry articles, have exercised the jurisdiction not vested in them, such circumstances inspire this Court to exercise its constitutional jurisdiction conferred upon it under Article 199 of the Constitution, 1973.
14. For the reasons discussed above, I hereby modify the judgment and decree passed by both the Courts below in the following terms:--
(1) Mst. Qurat-ul-Ain the respondent No.1 is entitled to dower amount of Rs.200,000.
(2) Mst. Qurat-ul-Ain is also entitled for maintenance at Rs.10,000/- per month from 28-12-2009 till 7-4-2010 and for Iddat period thereafter.
(3) Both the minors Ameer Hamza and Huzaifa Asif are entitled to monthly maintenance at Rs.7,500 each totaling Rs.15,000 with 5% increase per annum from 28-12-2009 till the trial Court passed the judgment and decree dated 16-11-2011 and thereafter Rs.10,000/- for each child totaling to Rs.20,000 per month with 5% increase per annum till they attain the age of 18 years.
(4) Mst., Qurat-ul-Ain.Is also entitled to dowry articles mentioned in the receipts produced by her in her evidence before the trial Court or in lieu thereof, an amount shown in receipts for each article.
(5) As I have observed in Para No.12 that the amount of Rs.3,50,000/- for purchasing the car was not the part of dowry articles therefore the judgment and decree to that extent is set-aside.
15. In view of the above modifications in the judgment and decree dated 16-11-2011 the Const.
Petition is disposed of.