MIRZA VIQAS RAUF , J. By way of this constitutional petition under Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973, the petitioner namely Noor ul Ain Shah assails the vires of judgment and decree dated 22 of June, 2015, whereby the learned Additional District Judge, Rawalpindi, while partially accepting the appeal filed by respondent No.1 (hereinafter referred as "respondent") modified the judgment and decree dated 19 of July, 2014 passed by the learned Judge Family Court, Rawalpindi.
2. The facts in brief necessary for adjudication of instant petition are that the petitioner instituted a suit for recovery of dowry articles, dower and maintenance allowance averring therein that she married to "respondent" on 02 of June, 2007 at Peshawar according to injunctions of Islam. As per averments contained in the plaint, dower was fixed as 40 tolas of gold ornaments, out of which 10 tolas was paid at the time of marriage whereas remaining 30 tolas gold ornaments was yet to be paid by "respondent". The marriage remained intact till 2012 but ended in divorce pronounced by "respondent". It is averred that 10 tolas of gold which was given at the time of marriage as part of dower was also taken away from the petitioner by her mother-in-law, which was kept in her locker at Bank Alfalah City Branch, Peshawar. As per averments contained in the plaint, the petitioner was forced to leave the house of "respondent" on 11 of July, 2011, whereafter he never made any effort for cohabitation, rather sent a divorce on 24 of February, 2012. The suit was contested by the "respondent", who submitted his written statement, controverting the assertions contained in the plaint. As per stance taken by the "respondent", the petitioner on account of love and affection executed a relinquishment deed dated 08 of January, 2008, whereby she forewent her claim of remaining dower relating to 30 tolas gold ornaments and also surrendered the claim of maintenance allowance as mentioned in column No.20 of Nikahnama. The divergent stance of the parties to the lis, resulted into framing of multiple issues. After framing of necessary issues both the sides produced their respective evidence and on completion of the same, suit was partially decreed by the learned Judge Family Court, Rawalpindi vide judgment dated 19 of July, 2014. The "respondent", while feeling dissatisfied from the saidnd th nd th th th th judgment and decree preferred an appeal before the learned Additional District Judge, Rawalpindi. Finally the appeal was partially accepted by way of judgment and decree dated 22 of June, 2015, hence this petition.
3. Learned counsel for the petitioner submitted that as per Nikahnama 40 tolas of gold was fixed as dower out of which 10 tolas was paid, however , remaining was yet to be paid by the "responde nt". Learned counsel contended that after ending of matrimonial tie in divorce, the petitioner instituted a suit and in order to resist the claim of the petitioner , relinquishment deed was fabricated by "respondent" in order to deprive the petitioner from her claim of dower as well as maintenance allowance. Learned counsel contended that initially petitioner was held entitled for the maintenance as well as 30 tolas of gold ornaments alongwith dowry articles by the learned Judge Family Court but a well reasoned judgment has been wrongly interfered with by the learned lower Appellate Court. Learned counsel added that petitioner has been deprived of from her right of dower as well as maintenance only on the basis of relinquishment deed which was not duly proved by the "respondent". Learned counsel canvassed that the findings of the learned Additional District Judge are the result of gross misreading and non-reading of evidence.
4. On the contrary , learned counsel for the "respondent", while defending the impugned judgment submitted that relinquishment deed was executed with free consent of the petitioner and she has badly failed to establish that the same was the result of coercion or undue influence. It is contended that the learned Additional District Judge has rightly exercised his appellate jurisdiction and evidence was rightly appraised, while partially allowing the appeal filed by the "respondent". Learned coun sel further contended that from the comparative analysis of both the judgments, the judgment passed by the learned lower Appellate Court can safely be termed as more justifiable and reasonable, which does not require any interference in exercise of constitutional jurisdiction.
5. I have heard learned counsels for both the sides at considerable length and also perused the record in order to appreciate their respective contentions raised at the bar .
6. The petitioner was married to "respondent" on 02 of June, 2007 and to this effect Nikahnama (Mark-A) was registered with Town/Union Council No.35 Gharbi, Peshawar . As per column No.1 3 of the Nikahnama, dower was fixed as 40 tolas of gold out of which 10 tolas was paid to the bride/petitioner at the time of marriage. Similarly Rs.10,000/- per month was also fixed on account of maintenance allowance. The spouses lived together till 24 of February, 2012 when petitioner received a divorce from "respondent" on account of matrimonial dispute. The petitioner instituted a suit for recovery of dowry articles, dower and maintenance allowance. In order to prove her claim, the petitioner herself appeared as PW1 and also tendered her affidavit in evidence as Exhibit-P1, list of dowry articles was tendered in evidence as Exhibit-P5 in addition to the other relevant documents. On the other hand, Syed Azaz Ali Shah father of "respondent" being his attorney appeared as DW1 whereas Sabir Ali Shah one of the attesting witnesses of relinquishment deed, appeared as DW2 and Ghulam Aziz appeared as DW3.
The learned Judge Family Court after analyzing the evidence led by both the sides partially decreed the suit in the following manner :- "17. Nutshell of my foregoing discussion is that, suit of plaintif f is partially decreed in following manner :-
1. Suit of the plaintiff for recovery of maintenance allowance is decreed in her favour and she is entitled to recover maintenance allowance @ Rs.10,000/- since 11.07.2011, as past maintenance and at the same rate in future till the completion of iddat.
2. Suit of the plaintif f for recovery of gold ornaments is partially decreed in her favour and she is entitled to recover 30 tolas of gold ornaments.
3. Suit of the plaintif f for recovery of dowry articles is partially decreed in her favour as per list Ex.P6/1 of the defendant.
4. Suit of the plaintif f for recovery of gold ornaments weighing 18 tolas 15 grams is decided in the terms that she is entitled to get gold as per list of defendant Ex.P6/1. Decree sheet be drawn. No order as to costs. File be consigned to the record room after its due completion."
It is manifest from the above that the petitioner was held entitled to receive mainte nance allowance @ Rs.10,000/- since 11 of July, 2011 as past maintenance and at the same rate in future till the completion of Iddat period. The quantum of maintenance was fixed in accord with the entries of Nikahnama. Though the petitioner asserted that 10 tolas of gold which was given to her at the time of marriage was taken away by the family of "respondent" but thisnd nd th th aspect was not believed by the learned Judge Family Court and she was only held entitled to recover remaining dower which was in the shape of 30 tolas gold ornaments. The claim of dowry articles was decreed partially as is evident in the above referred portion of the judgment. The petitioner , being satisfied from the findings of learned Judge Family Court did not challenge the same, however , an appeal was preferred by the "respondent" questioning the findings of learned Judge Family Court. The learned Additional District Judge, while adjudicating the appeal and relying upon relinquishment deed (Exhibit-D1) modified the judgment and decre e of the learned Judge Family Court by observing that the petitioner is not entitled to get the decree for recovery of 30 tolas gold ornaments and similarly she is not entitled to get maintenance except Iddat period amounting to Rs.30,000/-.
7. A critical view of above narrated facts reveals that matter in controversy between the parties is now confined to the extent of remaining dower i.e. 30 tolas of gold ornaments and maintenance allowance. As already observed that the judgment passed by the learned Judge Family Court was modified by the learned lower Appellate Court, while taking into consideration the relinquishment deed which was tendered in evidence as Exhibit-D1, so said document becomes pivotal for laying the controversy at rest. Perusal of relinquishment deed reflects that it was purportedly executed on 08 of January , 2008, whereby the petitioner forewent her claim of remaining dower as well as maintenance allowance fixed in the Nikahnama. The deed was attested by Asad Kamal and Sabir Ali Shah (DW2), whereas the petitioner was identified by Naveed Maqsood Sethi, Advocate and the same was notarized by Gul Daraz Khan, Advocate.
8. It is the command of Almighty Allah in the Holy Quran (Quran Majeed) Surah An-Nisa verse No.4 :- {{URDU TEXT}} Under Muhammedan Law by D.F. Mulla' s by virtue of Para No.287 the amount of dower can be fixed either before or at the time of marriage or after marriage and it can be increased after marriage and by virtue of Para No.291 of the Muhammedan Law the wife can remit the dower or any part thereof in favour of the husband or his heirs. Such a remission is valid though made without consideration but law is well settled that such remission must have been made with free consent and any such remission on part of bide is to be examined by the courts with great care and caution, so as to protect the right of dower of a bride from being abrogated by the husband on account of his illegal deeds. Reference in this respect if needed, can be made to "GHANIA HASSAN versus SHAHID HUSSAIN SHAHID and another" ( 2016 SCMR 2170 ).
9. Since the "respondent" was the ultimate beneficiary of relinquishment deed (Exhibit-D1), so on the basis of general principles of law, he was obliged to prove that the deed was executed with free consent of the petitioner and it is not a sham transaction. Section 17 of The Family Courts Act, 1964 though clearly ousts the applicability of the provisions of The Qanun-e-Shahadat Order , 1984 to the proceedings before any Family Court but such an ouster clause cannot be used to disadvantage of the weaker gender . Despite ouster clause the "respondent" was not immune from proving the genuineness of relinquishment deed. As already noted hereinabove that relinquishment deed was attested by Asad Kamal and Sabir Ali Shah but only Sabir Ali Shah was produced as DW2 whereas there is no explanation as to why the other marginal witness was not produced. Similarly neither Notary Public nor the identifier of the petitioner , who was an advocate by profession was produced in support of the relinquishment deed. Even the "respondent" himself has not opted to enter into the witness box. This by itself is sufficient to give rise to a presumption that best evidence was purposely withheld by the "respondent".
10. Looking from another angle, father of "respondent" Syed Azaz Ali Shah, while appearing in the witness box as DW1 took the following stance :- {{URDU TEXT}} He was even not aware from whom the stamp paper was purchased for execution of relinquishment deed. The relevant portion of his statement is reproduced below :- {{URDU TEXT}} Though Sabir Ali Shah who was clerk of the counsel was produced as DW2 but there are notable discrepancies in his statement with regard to the execution of relinquishment deed. The accumulative effect of the evidence produced by the "respondent" is that it is established on the record that parents of "respondent" were not willing atth all for fixation of 40 tolas gold as dower at the time of marriage and this surely was a reason under which petitioner was forced to forego her claim.
11. After having a critical analysis of the available material, it can safely be held that the learned Additional District Judge, while exercising his appellate jurisdiction has grossly misread the evidence and wrongly interfered with the well-reasoned findings of the learned Judge Family Court. The reliance on relinquishment deed (Exhibit-D1) by the learned lower Appellate Court was highly unwarranted. Though as per common practice in case of conflict between judgments of courts below , preference is normally given to the conclusion drawn by the learned lower Appellate Court but this is only a matter of procedure and not an inflexible rule. The constitutional jurisdiction vested in terms of Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973 casts a duty upon the Court to curb the illegality or gross misreading committed by any of the courts below , while determining the rights of the parties. The petitioner has successfully established that exercise of appellate jurisdiction by the learned Additional District Judge is the result of inapplication of judicious mind and the impugned judgment is the outcome of gross misreading and non-reading of evidence.
12. For the foregoing reasons, instant petition is allowed , consequently judgment and decree dated 22 of June, 2015 passed by the learned Additional District Judge, Rawalpindi being illegal and unlawful is set aside, as a sequel thereof, judgment and decree dated 19 of July, 2014 passed by the learned Judge Family Court, Rawalpindi is restored with no order as to costs.