ABDUL RAHMAN AURANGZEB, J. --- Present petitioner has questioned validity of the judgment and decree passed by learned Additional District Judge, Multan dated 13.05.2015 whereby the judgment and decree passed by the learned Judge Family Court, Multan dated 17.09.2013 was upheld and the claim of dower and dowry articles of respondent No. 3 was concurrently decreed.
2. Precise and foremost facts of the case are that respondent No.3 filed a suit for recovery of maintenance allowance, recovery of dower, mentioned in the Nikah Nama, and dowry articles valuing Rs. 1180,256/-. The suit was resisted by the petitioner/defendant by filing written statement.
The petitioner also filed a separate suit for restitution of conjugal rights.
3. The learned trial Court consolidated both these suits, framed consolidated issues and recorded pro and contra evidence led by the parties in order to prove their respective contentions: Thereafter the learned trial Court decreed the suit of respondents on 17.09.2013 with the following relief:-- "In the light of above discussion, suit of the plaintiffs for maintenance allowance is decreed to the extent of Rs.2000/- per month each from the date of institution of the suit till the intact of marriage of plaintiff No.1, while to the extent of plaintiff No. 2 till his legal entitlement with 10% annual increase, while the suit of plaintiff for return of dowry articles to the extent of Rs.4,00,000/- is decreed. The suit of the plaintiff lady for dower is also decreed in her favour. The connected suit of petitioner-defendant for restitution of conjugal rights is dismissed. No order as to costs."
Both the parties being aggrieved preferred their separate appeals against the impugned judgment & decree of learned trial Court but the learned appellate Court while upholding the findings of the learned trial Court vide his judgment & decree dated 13.05.2015, dismissed both the appeals. Hence, this writ petition.
4. Learned counsel for the petitioner at the very outset states that he do not challenge the validity of impugned judgment and decree to the extent of maintenance allowance as already expressed by him before this Court on 04.08.2017. However, he challenges the validity of impugned judgments and decrees passed by the Courts below to the extent of alternate value of dowry articles as well as dower in favour of respondent No.3 It is argued that the Courts below have not adverted to the actual facts relating to dower while awarding the decree. He has specifically mentioned that the contents of Purt Nikah have a pivotal role in case of dower and as such entry in Column No. 16 cannot be treated as the part of dower, therefore, the learned trial Court as well as the learned appellate Court have not considered this fact and wrongly decreed the suit. Similarly the value of dowry articles was also awarded in favour of the respondent No. 3 without considering the evidence of the parties as the respondent No.3 has failed to prove the dowry articles of such value; therefore, her claim is also liable to be dismissed. He relied upon "Mst. ISHRAT BANG versus NOOR HUSSAIN and 2 others" (PLJ 2010 Peshawar 139 (DB), "Syed NADEEM RAZA through Attorney General versus Mst. AMNA-TAZ-ZAHRA and 2 others" (2011 CLC 726), "UMAR FAROOQ versus MEHNAZ IFTIKHAR and 2 others" (2006 M LD 555) and "LAL MUHAMMAD versus Mst. GUL BIBI AND ANOTHER" (PLD 1986 Quetta 185).
5. Refuting to the arguments of the learned counsel for the petitioner, the learned counsel for the respondents argued that both the Courts below have validly examined the evidence of the parties and the constitutional jurisdiction is not meant for to re-evaluate or re-assess the evidence, hence, the petition is liable to be dismissed.
6. Arguments heard and record perused.
7. At the first instance with regard to issue of dower, it has to be examined that:-- "Whether the entry of column No.16 of Purt Nikah can be entertainable by the Judge Family Court?"
The columns No. 13 to 16 of Nikah Nama, which relates to dower, shows that in 'these specific columns, anything mentioned therein is the dower or the part of dower. The specific, question whether the entry of column No 16 can be treated as dower has already been examined by the apex Court in the case titled "Mst. YASMEEN BIBI versus MUHAMMAD GHAZANFAR KHAN and others"
(PLD 2016 SC 613), whereby it is held that an undertaking given in the Nikah Nama that certain property/land shall be transferred in the name of wife and she would be exclusive owner of the same, then such an undertaking can be construed as a part of dower or a gift' to wife in consideration of marriage, therefore, it would fall within the exclusive domain of the Family Court to pass a decree in relation to such property/land.
8. Reverting to the columns of Purt Nikah where the wording of column No. 16 is as under:-- {{URDU TEXT}} The contention of the petitioner that as in column No. 13 no such plot with constructed house is mentioned, therefore, the entry mentioned in column No. 16 is not applicable on the petitioner and cannot be termed as dower. Although the specification of property/plot with constructed house is not mentioned in column No. 13, wherein only amount of Rs.200,000/- is mentioned in shape of gold ornament (prompt) but even then at the time of marriage the condition of 05- marlas plot with constructed house was accepted by the petitioner and, hence, the same is mentioned in column No.16 as dower.
9. Besides the fact of fixation of dower specifically, it can more or less be treated as a valid undertaking for dower mentioned in the Purt Nikah when a bridegroom agreed to pay the dower then irrespective to the fact of mentioning the dower fixed in the specific column became redundant. Hence, the petitioner is not permitted to resile from his undertaking and he is under obligation to provide the plot with constructed house to the respondent (wife) in lieu of dower. The elaboration of word undertaking according to Black Law Dictionary Seventh Edition is as under:-- "A promise, pledge, or engagement. A bail bond"
In chambers Law Dictionary 12th Edition, it is defined as under:-- "that which is undertaken, any business or project engaged, in a task one sets oneself."
10.It is not the case of the petitioner that he has disputed/challenged the contents of entry of column No.16 of Nikah Nama as perusal of written statement reveals that the petitioner while replying to the plaint has specifically pleaded that if the respondent is ready to reside with him, then he can give 05 marlas plot according to his own financial status. Meaning thereby that the entry of column No. 16 of Nikah Nama was absolutely validly accepted by the petitioner. Hence, the decree with regard to the entry of column No.16 having full force of applicability.
11.Yet, another aspect of the entry of column No. 16 is also discussed in a recent judgment titled "Mst. MITHAN versus ADDITIONAL DISTRICT JUDGE, JATOI and 7 others" (2017 M LD 1101), where this Court in depth examined the validity of entry of column No. 16 envisaged in the Nikah Nama. The observation rendered by my learned brother is that after the insertion of item No.10 of amendment of Schedule of Act XXXV of 1964, all the matters relating to the Nikah Nama can only be examined and entertained by the Judge Family Court. Thus, it is settled that the Family Court has the jurisdiction to entertain and decide the matters arising out of Nikah Nama whether the same are mentioned as dower or undertaking for the satisfaction of dower.
12.The next contention of the petitioner regarding the dowry articles is also examined by this Court on the basis of available evidence. The fact reveals that the respondent produced receipts of various articles alongwith the plaint which have been placed on record during the evidence as mark-P-1 to Mark P-8. The petitioner through his written statement has not denied the factum of giving the dowry articles to the respondent at the time of marriage. He has taken a specific plea that when the respondent had left his house in June 2011, she had taken away dowry articles with her. However, he admitted that chairs, dressing table, almirah and bed are available in his house and he is ready to return these articles. In such situation when the petitioner has taken a specific plea, then he should prove his case through confidence inspiring evidence, but he has failed to substantiate his version through any material, supporting evidence. Furthermore, the false deposition is evident from his own statement when he has made addition to his earlier stance taken in' written statement where he specifically mentioned that gold ornaments of 10 tolas and 07 tolas and Rs.70,000/- cash was also taken away by the respondent alongwith her brothers Arshad, Rab Nawaz and Amjad, whereas in his written statement his plea of Rs.70,000/- cash and gold ornaments are not mentioned. In this way the padding and improvements in his deposition, is available and it can safely be presumed that the petitioner just to counter the claim of respondent has taken this plea. The witnesses of the respondents are consistent in their deposition and they have not shattered on this ground that the alleged dowry articles were taken away by the respondent (wife). It is also not out of place to mention that the petitioner in his cross examination has also admitted that when the respondent (wife) was leaving his house, he was not present. In this regard it was necessary for him to produce the witnesses in whose presence the respondent
(wife) allegedly left his house while taking the dowry articles but the evidence of DW-2 and DW-3 do not corroborate with the version of petitioner. Hence, their alleged presence was not proved.
13.A careful perusal of evidence of the DWs shows that the alleged occurrence was informed to the petitioner by Muhammad Shafique his brother-in-law but said DW-2 when appeared in the witness box did not state this fact. Similarly, DW-3 who is stated to be allegedly present at the time when the respondent (wife) was taking away dowry articles from the house of petitioner. He was also unable to state the above fact as alleged by the petitioner. Hence, the Courts below have rightly assessed that the stance taken by the petitioner is not acceptable and the learned trial Court as well as the learned Appellate Court after considering the period of habilitation (Abadi), and after calculating the depreciation have rightly assessed the value of dowry articles as Rs.4,00,000/- against the claim of Rs 11,80,256/-. Therefore, the same is also maintained and is upheld.
14. Since this is a case of concurrent findings and in the constitutional jurisdiction, it is mandatory for the petitioner to specify a jurisdictional defect or error with regard to the judgments of lower fora but the petitioner has failed to point out any illegality or error in the impugned judgments and decree passed by the Courts below. Hence, by relying upon the dictum laid down in "Waqar Haider Butt. Vs. Judge Family Court and others" (2009 SCMR 1234), the concurrent findings of fact settled by the Courts below, cannot be interfered by this Court. Thus, the same are maintained and upheld.
Epitome of above discussion is that the instant writ petition being devoid of any force and the same is hereby dismissed.