' MUHAMMAD SHERAZ KIANI, J.--- The captioned appeal has been directed against the judgment of Judge Family Court No,! Kotli dated 26.08.2014, whereby, the suit filed by the plaintiff-appellant for recovery of bridal gifts in shape of gold ornaments weighing 4 tolas 6 mashay and 2 ratti was dismissed.
2. Briefly stated facts forming backgrounds of the instant appeal are that the plaintiff- appellant filed a suit for the recovery of bridal gifts in shape of gold ornaments weighing 4 tolas 6 mashay and 2 ratti before Civil Judge, Kotli empowered as Judge Family Court on 04.09.2012. It is contented in the suit that marriage between the spouses was solemnized on 15.09.2006 and prior to that an engagement ceremony also took place on 10.04.2005 and that time appellant gave gold ornaments weighing 4 tolas 6 mashay and 2 ratti to the respondent. It is further averred that respondent remained living with the appellant and out of her wedlock a child was also born, however, later on the respondent left the house of appellant with her own freewill and despite many efforts, she did not return back and at last she demanded for divorce, consequently, the appellant divorced her. The gold ornaments which were given to the respondent at the time of engagement were in her possession. Now she is no more his wife, therefore, she is bound to return the same. On filing of the suit, the defendant/respondent was summoned. The defendant/respondent appeared before the court and submitted her written statement wherein she refuted the claim of the appellant. It is further averred that the plaintiff/ appellant has no cause of action to file the suit. She further contended that ornaments were given at the time of engagement but they were only weighing 3 tolas and that were of England and the receipt prepared by the appellant is fake. It is averred that during their living the appellant took back the gold ornaments and the same are in his possession. It is contended that she has only two of the aforesaid items, but she cannot return the same because, the same were given as gift, which are not returnable. The learned trial court in the light of pleading of the parties framed relevant issues.
After framing of the issues, the trial court directed the parties to lead evidence.
3. The learned Judge Family Court after hearing the learned counsel for the parties dismissed the suit for recovery of bridal gifts on the basis of having no cause of action vide its judgments dated 26.08.2014, hence this appeal.
4. The learned counsel for the appellant argued that the trial court without going into the merits of the case, illegally and wrongly dismissed the suit for recovery of bridal gifts on the ground of having no cause of action under the Dowry and Bridal Gift (Restriction) Act, 1976 the suit is maintainable, he added. The learned counsel further submitted that the respondent herself admitted in her written statement that the appellant had given the ornaments to her at the time of engagement, but for unknown reasons the learned Judge Family Court dismissed the suit. Finally, the learned counsel prayed that by accepting the appeal, the impugned judgment may be set aside and a decree for recovery of bridal gifts may be passed in favor of appellant. In support of his contentions the learned counsel cited the following case-law:-- ' 1. 2008 CLC 1541,2. 2014 M LD 1400,3. 2014 CLC 87.
5. On the other hand, the learned counsel for the respondent submitted that the trial court has rightly dismissed the suit for recovery of bridal gifts. The learned counsel further contented that gifts given at the time of engagement cannot be claimed by filing the suit under Family Courts Act.
The learned counsel defended the impugned judgment on all counts.
6. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
7. It may be stated here that a gift or benefit is, in essence, a bounty from one to another person. No one is under any obligation to make a present to anybody else. A husband may give various material benefits to the wife. This may be due to love or respect for the other side. It may be done due to sense of companionship or could arise out of the need to satisfy certain norms or etiquette, but the husband is under no obligation in law to confer any benefit on the wife or pass on any gifts to her. The learned counsel for the appellant, in order to bring his case within the ambit of substantial question of public importance relied upon the Azad Jammu and Kashmir Dowry and Bridal Gifts (Restriction) Act, 1976 and referred case-law reported as 2014 M LD 1400 and 2014 CLC 87, and stressed that the suit is maintainable before the Family Court. In this regard, it is pertinent to note that the referred case-law are not applicable in this case. Although according to the definition given in the AJ&K Dowry and Bridal Gifts (Restrictions) Act, 1976 such gifts are within the definition of bridal gifts under section 2 of the Act, any property given as the gift, before or after the marriage by the bride groom in connection with the marriage shall be treated as bridal gifts.
However, at the same time there is no specific provision of law that may entitle the husband to recover such bridal gifts from his wife on divorce. In fact the object of the Act, 1976 was not to recover the bridal gifts or dowry etc. The object of the Act as given in the preamble is to impose some restrictions and limit the dowry and bridal gifts within a specified amount so that extravagance may be prevented and a sacred and necessary bond of marriage should not become a business or an affair of the rich. It was not intended by the legislature that if it exceeds the .Amount that would be returned back. Under section 5 of the Act, it has been held that the property given as a bridal gift to the bride as a present shall absolutely be in the ownership of the bride and her interest shall not be restricted or limited (due to the promulgation of this Act).
Section 5 of the Act, reads as under:- 'Section 5:-- 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 the property however, derived shall hereafter not be restrictive, conditional or limited.
Even in the schedule given in the AJ&K Family Court Act, 1993, no suit for the recovery of bridal gifts has been given, in others words, the Family Court has no jurisdiction to entertain such suits.
Moreover it has already been stated in this para, that the gifts or benefits, in essence are a bounty from one person to another and according to the general principal of law, when the ingredients of the gift are' completed, the gift becomes irrevocable. When possession of gifted property is handed over to the donee then a doner cannot claim return or recovery of the same. These principles are generally applied to immoveable property but in my view the same principle can be applied to moveable property with equal force and gift from a husband to wife is not an exception to that. No right in the Act has been given to a husband to get back those bridal gifts he gave to his bride due to love, affection or in pursuance of a social tradition or norms rather section 5:of the Act made it very much clear that due to promulgation of the Act the interest of the wife in such property shall not be restricted or limited. Therefore, due to above mentioned reasons, I respectfully disagree with the view of The Islamabad High Court given in the case of Mst. Nomail Zia V. Adnan Riaz, reported as 2014 CLC 87 referred by the learned counsel for the appellant. Section 7 of the Family Court Act does not visualize any suit for the recovery of the bridal gifts on the divorce of the wife or in any other eventuality with the obvious reason that a gift is unreturnable.
8. The other authority (2014 M LD 1400 (Sindh)) referred by the learned counsel for the appellant is not helpful to the case of the appellant rather it is negating the argument advanced by him. The relevant portion of the judgment is reproduced below:-- "The learned counsel for the petitioner has also raised an objection that the parameters of section 3 and Rule 4 of Dowry and Bridal Gift (Restriction) Act, 1976 and Rule 76 have not been fulfilled, hence the respondent No,1 is not entitled for the recovery of the dowry articles. He stated that since a legal issue going to the roots of the case has now been raised, he may be permitted to address the Court on this issue. Firstly it is noted that this issue was also raised before the lower authorities and was properly replied. However, it is noted that though in the said Act a restriction has been imposed that bridal gifts should not exceed Rs, 5000 but this restriction is only restrictive and not prohibitive. The said bar was only meant to control the said restriction but does not impose a complete ban and similar is the position of furnishing different forms with the concerned authorities as non-compliance of this provision, in my view, is only a technical lapse which would not disentitle a genuine claim if a claimant was able to prove that dowry articles exceeding Rs,5000 have been usurped and are in illegal occupation of a person. The decisions relied upon by the learned counsel in this behalf are quite distinguishable. In the decision given in the case of Musarat Zaman Begum v. Ali Hassan (1986 CLC 2265) the learned Judge has observed as under: - ' The Act does not even remotely suggest that the dowry, bridal gifts and present given to a bride in excess of the value fixed therein may become irrecoverable for her at any stage. Actually, it has been declared in the Holy Quran itself in Sura Baqra, as under: 229...........
"It is not lawful for you, (Men), to take back Any of your gifts (from your wives),"
' So is also re-affirmed in Sura Nisaa with added emphasis. It is therein commanded: "20. But if ye decide to take One wife in place of another, Even if ye had given the latter A whole treasure for dower, Take not the least bit of it back: Would he take it by slander And a manifest wrong?"
' Act XLIII of 1976 does not contemplate to make any provision to the contrary. The restrictions about the value of dowry, bridal gifts and presents contained in section 3 of the Act apply only to the time of their being given to the bride and have no relevance in the context either of her right and title to the property in excess of that value or of her right to recover the same."
9. Although the suit was rejected by the trial court on different grounds but the learned Court below has made a right conclusion. No illegality or irregularity has been committed by the trial court while recording the impugned order, therefore, the same is allowed to stand.
In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.