MUHAMMAD NASIR MAHFOOZ, J:- Through this single judgment, I propose to dispose of the titled writ petition as well as connected Writ Petition bearing No.374-M/2014 as common questions of law and facts are involved in both the petitions.
2. Brief facts of the case are that the plaintif f/ respondent had filed a family suit against petitioner/ defendant for dissolution of marriage, recovery of dowe r, maintenance and dowry articles. On contest, the learned Family Court partially decreed the suit qua dissolution of marriage on the basis of Khula in lieu of which plaintif f/ respondent shall return only 24 tolas out of 60 tolas of gold ornaments to the petitioner/defendant and plaintif f/ respondent was held entitled for recovery of her dowry articles as per list except items mentioned at S.Nos.35, 36 37 and 38 and also granted maintenance at Rs.5,000/- per month for the iddat period while rest of the suit was dismissed.
3. Being aggrieved, both the parties impugned the judgment and decree of the learned Judge, Family Court in their separate appeals. The learned appellate court partially allowed the appeal of the plaintiff/respondent to the extent of 24 tolas gold ornaments, while that of the petitioner/ defendant was dismissed, hence, the instant writ petition by the petitioner-husband.
Arguments heard and available record perused.
4. The learned appellate court has through consolidated judgment partially accepted the appeal of respondent/plaintif f and dismissed the appeal of petitioner/defendant though held that respondent/plaintif f is responsible for the breakup of the wedlock but also held the present petitioner responsible for miscarriage of a baby of respondent/plaintif f and held that the 24 tolas of gold ornaments could be considered as consideration for dissolution of marriage in lieu of Khula . Learned trial court has granted decree of maintenance allowance at the rate of Rs.5,000/- per month for the iddat period only and for the return of dowry articles as mentioned above and has granted decree for dissolution of marriage on the ground of Khula in lieu of returning the gold ornaments of 24 tolas which are in her possession.
5. No where in the whole oral and documentary evidence cruelty on the part of petitioner/plaintiff has been proved rather issue No.6 as to whether the respondent/plaintiff has self deserted the house has been decided in positive, meaning thereby, that respondent/ plaintiff was herself responsible for separation from petitioner/defendant. The same findings have been upheld by the learned appellate court on the said issue.
The date of Nikah between the spouses took place on 30.08.2008 and the date of consummation of marriage is dated 13.03.2010 and the parties remained together as husband and wife for about three years.
It is in the statement of P.W.1 wherein she had categorically admitted in her cross-examination that she was never mistreated by the petitioner/husband nor she has ever misbehaved with him rather the aspect of visiting on honeymoon is also admitted. There is also admission on her part that jirgas on behalf of the petitioner had visited her house for effecting compromise but that could not succeed. Her witness P.W.2 Muhammad Parvez also admitted the factum of Jirgas and also stated that petitioner or any member of his family has not taken back the dower from respondent/plaintiff in his presence and they both belong to a respectable family, her witness P.W.3 Muhammad Ayaz has expressed ignorance about many matter when he was questioned in the cross-examination and similarly P.W.4 Riaz Khan father of respondent/plaintiff admitted that the parties were residing in Islamabad. Respondent/ plaintiff has mentioned in para 2 of the plaint that out of the total 60 tolas gold jewelry, 30 tolas of gold jewelry has been returned to her but the remaining 30 tolas of gold jewelry is still with the petitioner/defendant which is yet to be returned and in para 4 she has alleged some mistreatment on the part of petitioner/defendant but contradicts the same in her statement in courts and she has expressed her extreme hatred against petitioner/plaintiff. For the purpose of grant of decree of dowry articles, she has annexed a list of articles with the plaint that has been valued at Rs.23,02,550/- but the learned trial court while granting decree of the dowry articles has excluded items mentioned at S.Nos.35, 36, 37 and 38. Value of these articles when added together comes to about Rs.15 lac and thereafter the total value of dowry articles decree comes to around 7/8 lac. The said list has neither been exhibited nor the receipts thereof have been exhibited in evidence whereas on the other hand, petitioner/defendant has also relied on a list of dowry articles marked as Ex.P.W.1/x-5, which was also confronted to the petitioner during evidence. The value of dowry articles of Ex.P.W.1/x-5 comes to more than Rs.7 lac, hence, it is held that parties have agreed on the list of dowry articles and in open court even today learned counsel for the petitioner volunteered that he is going to return the said items in workable condition to the respondent/plaintiff but submitted that since the respondent/plaintiff has deserted the house on her own sweet will and no allegation of cruelty has either been specifically alleged or proved in court, therefore, she is legally bound to return the dower to the present petitioner which consists of 24 tolas of gold ornaments and the shops but in his written statement he has only prayed for grant of decree of restitution of conjugal rights.
6. It is unusual that in the present case instead of the respondent/plaintiff present petitioner has produced Nikah Nama as Ex.P.W.1/x-1 during cross-examination and also relied on a marriage agreement Ex.P.W.1/x-3 wherein payment of 60 tolas of gold and 4 shops is stated to be received by the respondent/plaintiff. Be that as it may, the dowry as mentioned in the plaint and the list of dowry articles are admitted by both the parties but only the legal implication of decision on issue No.6 requires determination wherein the respondent/plaintiff has been held responsible for the separation and not an iota of evidence regarding cruelty is established. Learned appellate court has drawn a picture of the contentions of both the parties in para 12 of his judgment but those are neither supported by oral nor documentary evidence on record. It is not even the case of respondent/plaintiff hat she developed epilepsy after marriage nor the evidence recorded suggests that it was the fault of present petitioner so in the absence of any proof of cruelty as a ground for dissolution of marriage a wife is legally bound to return the dower in lieu thereof. In support of this contention, the learned counsel for the petitioner has relied on a number of judgments wherein judgment passed by the August Supreme Court of Pakistan in PLD 2014 SC 335 is applicable to the present case and while following the said dictum it was held as under:- "In the light of the above, the judgment and decree of the appellate court as has been affirmed in the writ jurisdiction by the learned High Court is modified to the extent of the maintenance and also for the recovery claim of the petitioner i.e. the suit of the petitioner with regard to articles of dowry shall stand decreed s per the list provided by the respondent (Exh.P5) and the case, the respondent is not in a position to return any articles/items in accord with the said list, he shall be liable to pay value/price with respect to such articles/items in the list of dowry articles (Ex.P1) brought on the record by the petitioner".
While deriving wisdom from judgment of August Apex Court above, I hold that the respondent/ plaintiff shall return the dower of 24 tolas gold alongwith 4 shops to the petitioner in lieu of decree for dissolution of marriage while the petitioner shall return the dowry articles as per list attached Ex.P.W.1/x-5 valuing the same as mentioned therein.
Consequently , this writ petition is allowed and the impugned judgment and decree of learned appellate court is modified to the extent as mentioned above and the rest of the decree for grant of maintenance as passed by learned trial court is maintained and the petitioner shall pay the lump sum amount on one single date to the respondent/plaintif f while the connected W .P. bearing No.374-M/2014 filed by Mst.Kulsoom Riaz is dismissed.