' MUHAMMAD YOUNIS THAHEEM, J.---Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mst. Naushen Bibi, the petitioner, has impugned consolidated judgment dated 07.4.2015 rendered by learned Additional District Judge-III/Izafi Zilla Qazi, Swat, whereby appeals preferred by both the parties against judgment and decree dated 17.12.2014 passed by learned Judge Family Court/Illaqa Qazi, Khwaza Khela, Swat were dismissed by maintaining the judgment of learned Family Court with slight modification in respect of dowry articles.
2. Brief facts of the case as spelt-out from the record are that Mst. Nosheen Bibi, herein petitioner/plaintiff filed a family suit against Ziaullah, the respondent for dissolution of her marriage on the basis of oral Talaq, recovery of dower eight (8) tola gold ornaments along with one (1) tola gold in shape of rings received by plaintiff from her parents' house, recovery of dowry articles, maintenance allowance and medical allowance for the past two months and onwards till disposal of the case.
3. According to the averments in the plaint, Nikah was performed between the parties some three months back in lieu of Haq-e-Mahar of 8 tola gold and after Rukhsati the plaintiff spent one month as wife with the respondent/defendant. It was also alleged in the plaint by the petitioner 'that at the time of her Rukhsati, one tola gold in shape of two rings by her father for the defendant/husband and his mother were given along with dowry articles, as per list annexed with the plaint. She resided in the house of respondent/husband where other family members brother-in-law (Dewar) and sisters-in-law (Dewaraniyan) lived together and she resided for one month with her husband but the attitude of the defendant, his mother (Saas), 'Dewar' and other family members was not cordial with her/plaintiff and they forced her to adopt immoral activities and misbehaved the plaintiff. It is further averred in the plaint, that her husband/respondent started beating her along with his mother and sisters-in-law. Her Nikah was solemnized in lieu of 8 tola dower, out of the same, she was given 5 tola gold in shape of ornaments at the time of her marriage, however, the said given dower in shape of 5 tola gold ornaments were later on snatched by the respondent/defendant along with dowry articles and were kept in the room. She further alleged in her plaint that about 1- 1/2 months back, the defendant pronounced oral Talaq and was ousted from her conjugal domicile after abusing, beating and snatching of her said dower. The defendant/respondent was told time and again to return the fixed dower, but he refused, so, in such unbearable circumstances, she had knocked the doors of family Court for redressal of her grievances in shape of suit for decree as prayed for in the plaint.
4. When put on notice by the learned Judge Family Court Khwaza Khela, Ziaullah, the respondent/defendant contested the suit through a special attorney by submitting written statement, wherein he raised several objections both legal and factual. In Para No, 1 of the written statement, the defendant clearly admitted that the dower was fixed as 8 tola gold, however, rest of the allegations alleged by the plaintiff in the plaint were denied and according to him, since the petitioner/Mst. Nosheen Bibi has left his house at her own free will, therefore, she is not entitled for payment of any maintenance allowance. With respect to the dower, it has been asserted by him in the written statement that she left his house to visit her parents with his permission and took all the gold ornaments along with valuable clothes with her. He has also denied the pronouncement of oral Talaq, rather prayed for restitution of conjugal rights. From divergent pleadings of the parties, the learned trial Court framed as many as thirteen (13) issues including the relief and thereafter parties produced their respective evidence. On close of the evidence by the parties, the learned trial Court after hearing arguments partially allowed the family suit of Mst. Nosheen Bibi, plaintiff/petitioner vide its judgment/decree dated 17.12.2014 in the following terms:-- 1.Dissolution of marriage on the basis of Khula with directions to plaintiff to return already received 05 tola gold as dower to defendant/respondent.
2.Recovery of dowry articles as per list annexed with the plaint except items mentioned at Serial Nos. 2 and 5.
3.Recovery of maintenance allowance for the period of Iddat Rs, 5,000/- per month.
5. Aggrieved from the above judgment/decree dated 17.12.2014 of the learned trial Court, the petitioner/plaintiff preferred family appeal bearing No, 1/FCA of 2015, while the defendant/respondent filed family appeal bearing No, 03/FCA of 2015. The learned appellate Court vide its consolidated judgment dated 07.4.2015, dismissed both the appeals preferred by parties by maintaining the judgment/decree of learned trial Court with slight modification and decreed furniture consisting of Double Bed and Sofa set in favour of petitioner.
6. Still not satisfied Mst. Nosheen Bibi, the petitioner, has come to this Court by filing instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 inter alia on the grounds mentioned therein.
7. Learned counsel for the petitioner argued that dower was fixed as 8 tola gold which has been admitted by the respondent No, 1/defendant in Para No, 1 of his written statement but at the time of marriage she was given only 5 tola gold ornaments, out of said 8 tola gold the total dower and the same was later on snatched, thus, the entire Haq-e-Mahar is still outstanding against the defendant and to this effect the findings of fora below are based on mis-appreciation and non- appreciation of evidence. Learned counsel further added that the plaintiff/petitioner has not sought dissolution of her marriage on the basis of Khula but on the ground of oral pronouncement of Talaq and cruelty, therefore, the learned Trial Court of family Judge had wrongly burdened the plaintiff to return 5 tola gold ornaments to the defendant in lieu of dissolution of marriage on the basis of Khulla which before beating and ousting were snatched and this legal and factual aspect was overlooked by the learned appellate Court. Learned counsel submitted arguments about the findings of the Courts below with regard to not granting of decree for recovery of entire dowry articles including Refrigerator.
8. On the other hand, learned counsel for the respondent, while supporting the impugned judgments of the fora below contended that the plaintiff had left his house on her own free will on the pretext that she is going to the house of her parents by taking with her the gold ornaments of 5 tola i,e, dower gold and other valuable articles; her this conduct proves that she deserted herself and was not willing to live with her husband, so, remained disobedient and was not entitled to maintenance allowance, thus, to this effect the findings of the fora below with regard to dissolution of marriage on the basis of Khulla are correct. He further argued that the dower was actually fixed as 5 tola gold and not as 8 tola gold and in this respect, the admission in Para No, 1 of the written statement is not binding on him being given by his attorney to whom real facts at the time of submission of written statement were not known, but on getting knowledge defendant/ respondent moved an application .for amendment of written statement, but unfortunately it was not allowed, however, fixation of Haq-e-Mahar as 5 tola gold through cogent evidence in shape of written Nikah-Nama as Ex. DW-1/4 has been proved, whereas preference may be given to the documentary evidence than to statement on oath or other oral evidence on record, so, learned trial Court rightly decreed returned of 5 tola gold ornament in lieu of decree of dissolution of marriage on the basis of Khulla. He further argued that the plaintiff in her cross-examination in unambiguous terms admitted that she has received 5 tola gold, thus, the payment of dower and receipt of it by plaintiff stands proved on record.
9. Arguments of learned counsel for the parties heard and available record perused with their valuable able assistance.
10.Perusal of the record reveals that the plaintiff failed to prove that defendant had divorced her, as according to her averments and statement on oath she was beaten, divorced and thereafter was ousted.
In this respect, she was cross-examined and she replied as under:-- {{URDU TEXT}} ' Similarly during cross-examina-tion, she deposed as below:- {{URDU TEXT}} 11.From the above suggestion and answer both the learned Courts below had inferred that plaintiff/petitioner had admitted the receiving of Haq-e-Mahar up to 5 tola gold ornaments, which interpretation or appreciation is not correct as her entire statement and cross-examination shall be read together and not in isolation, so, it could not be termed as an admission and had been wrongly analyzed as admission, which is being out of context and belied by earlier stance of petitioner. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan regarding principle enunciated by their Lordships in case law titled as "Sher Zaman v.
Nawab Khatoon" (1998 SCM R 133).
12.Moreover, statement on oath and during cross-examination she responded the suggestion about payment of Mahar in negative as reproduced above as she deposed that it was not fixed as 5 tola, rather stated that it was fixed as 8 tola and at the time of marriage 5 tola gold ornaments were given to her and 3 tola was outstanding and that 5 tola ornaments were snatched at the time of ousting her. She was not cross-examined about her statement that gold ornaments were snatched by defendant at the time of ousting her and no evidence was produced by defendant to prove that she took with her the 5 tola gold ornaments with her while leaving with his permission to his "Maika".
13. The defendant/respondent took the stance in his written statement as well as in his statement on oath that she while leaving his house took-away gold ornaments along with valuable matrimonial garments, but when plaintiff Mst. Nosheen appeared in the witness-box for cross- examination, she was not cross-examined by defendant over this particular material part of her statement on oath from the aspect of his stance. Moreover, defendant did not produce any evidence with regard to taking-away matrimonial precious garments and ornaments weighing 5 tola with her while leaving his house with his alleged permission. The learned Courts below without considering evidence as a whole had held that she made admission about payment of Mahar worth 5 tola and same findings are contrary to evidence on record. The statement on oath and averments were not distinguished during cross-examination, so, both the learned Courts below while giving findings about receiving or snatching or possessive of gold ornaments, erred in law as her statement that it (gold ornaments) too were snatched and she came to her "Maika" with her paternal uncle in wearing cloths, was overlooked. Moreover, respondent had not proved meticulously the fact that while petitioner leaving his house she took all the ornaments with her, so, he failed to discharge the onus that the ornaments were in her possession. The defendant could not be absolved from his legal duty to prove the fact which he had alleged in his written statement as well as reiterated in his statement on oath. Thus, the findings of respondents Nos. 2 and 3 with regard to return of dower are set aside as when it is proved that gold ornaments of 5 tola are lying with respondent/defendant and no other benefits are proved to be received by petitioner, hence, it could not be returned in lieu of dissolution of marriage on the basis of Khulla. So, petitioner is not liable to return back what she has not in her possession.
14.Rest of the findings of the fora below with regard to dowry articles and maintenance allowance are found correct after examining record, so do not call for any interference by this Court.
15.In view of what has been discussed above, the instant writ petition is partially allowed to the extent of above-referred modification in the impugned judgments of both learned Courts below with regard to return of 5 tola gold are set aside, however, the remaining findings of learned Courts below are maintained.