' MIRZA VIQAS RAUF, J.---While deciding the instant petition, I intend to decide the fate of Writ Petition No, 13806 of 2013, as both these petitions are arising from the same judgment and decree.
2. The petitioner, through instant petition challenges the validity of judgment and decree dated 2nd of February, 2013 passed by the learned Additional District Judge, Lahore whereby while accepting the appeal filed by the respondent No, 1, the judgment and decree dated 24th of March, 2012 passed by the learned Judge Family Court, Lahore has been modified and the appeal filed by the petitioner against the said judgment has been dismissed..
3. Facts in precise, necessary for the adjudication of these petitions are that the respondent No,1 filed a suit for dissolution of marriage, recovery of maintenance allowance, dower, dowry articles, personal property/belongings and medical expenses against the petitioner before the learned Judge Family Court, Lahore. The said suit was resisted by the petitioner, being the defendant. He submitted his written statement in response to the said suit, whereby the assertions contained in the plaint were controverted.
4. The learned Judge Family Court, from the divergent pleadings of the parties, framed the following issues:-- ISSUES i. Whether the plaintiff is entitled to recover a sum of Rs,50,000/- per month from the defendant from the date of marriage till the period of Iddat? OPP ii. Whether the plaintiff was given the dowry articles at the time of marriage valuing Rs, 1.5 million, if so they are in possession of the defendant and the plaintiff is entitled to recover the same? OPP iii. Whether the plaintiff is entitled to a decree for recovery of personal property/belongings as per list attached or alternative a sum of Rs,3,00,000/-? OPP iv. Whether the plaintiff is entitled to recover a sum of Rs,1,00,000/- as medical/delivery expenses from the defendant? OPP v. Whether the plaintiff has no cause of action and not come to the court with clean hands? OPD vi. Relief.
5. After framing of the issues, both the parties were directed to lead their evidence in support and contra to their claim. The respondent No, 1 herself appeared as PW 1. She also produced her mother Mst. Yasmeen Khushnud as PW2 and paternal uncle Waqar Saeed as PW3. In addition to the oral evidence, documentary evidence in the shape of lists of dowry articles. Ex.P2 and Ex.P3, list of personal belongings Ex.P4, receipts and prescription of delivery Ex.P5, certified copy of FIR Ex. P6 and affidavits of the witnesses as Ex.P7 and Ex.P8 respectively were tendered, whereas photocopies of receipts of gold ornaments were placed on record as Mark-A to Mark-J. On the other hand, the petitioner himself appeared as DW1. He produced Iqbal Majeed as DW2, Khawaja Abdul Majeed as DW3 and Shahid Saeed Pal his father, as DW4. The said witnesses also produced their affidavits as Ex.D 1 to Ex.D4 whereas copy of Nikahnama was exhibited as Ex.D5, certified copy of suit titled "Mst.
Imrana Khushnood v. Abdul Rehman Majeed" as well as written statement as Ex.D6 and statement of account of National Bank of Pakistan was placed as Ex.DW3/1.
6. The learned Judge Family Court, upon completion of evidence from both the sides, vide his judgment and decree dated 24th of March, 2012 decreed the suit in the following manner:-- "The suit of the plaintiff has been partially decreed and the plaintiff is held entitled for the recovery of maintenance allowance a Rs,5000/- per month from her date of desertion i,e, 21.03.2008 till the expiry of her Iddat period. She is further held entitled for the recovery of dowry articles according to Ex.P-2 and Ex.P3. Weight of the gold ornaments is fixed as 65 tolas. There shall be 20% depreciation in the value of the dowry articles mentioned in the list Ex.P-3.
Alternate price of the gold ornaments shall be the market value which was at the time of institution of the suit. The plaintiff is further held entitled to recover her personal belongings according to Ex.P-4 or their alternate price i,e, Rs,250,000/-. The plaintiff is also held entitled to recover delivery expenses of Rs,100,000/-. No order as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after its due compilation and completion."
7. Feeling aggrieved from the said judgment and decree, both the sides preferred separate appeals before the learned Additional District Judge, Lahore. The learned Additional District Judge, while adjudicating the Appeals, partly accepted the appeal filed by the respondent No,1 by holding her entitled for recovery of dowry articles including gold ornaments while modifying the judgment passed by the learned Judge Family Court whereby the appeal filed by the petitioner was dismissed vide judgment and decree dated 2nd of February, 2013.
8. Learned counsel for the petitioner contended that the judgment of the learned Additional District Judge is violative of Order XLI Rule 33 of Civil Procedure Code, 1908, as it fails to reflect the application of independent judicial mind to the facts of the case. He maintained that the findings of both the courts below are self-contradictory, which are not sustainable. Learned counsel added that the respondent No, 1, though has failed to bring on record any cogent evidence in support of her claim of dowry articles but both the courts below decreed her claim in a perfunctionary manner. It is argued that both the courts below have grossly misread the evidence available on the record. Learned counsel further added that the respondent No,1 has been allowed the relief which was even beyond her pleadings. In order to substantiate his arguments, learned counsel has also drawn the attention of this Court to the facts narrated in the written statement with regard to the conduct of the respondent No,1 and her family regarding solemnization of various marriages and effecting of divorces therefrom. Learned counsel for the petitioner submitted that the respondent No,1 has withheld the best evidence, thus in the light of principle laid down in Article 129(g) of Qanun-e-Shahadat Order, 1984, there is presumption against the respondent No,1 that her evidence is not believable. Learned counsel further argued that certain documents were got exhibited which were not even mentioned in the list of reliance placed on the record. In support of his contentions, learned counsel for the petitioner placed reliance on cases Gul Rehman v. Gul Nawaz Khan (2009 SCMR 589), Noor Muhammad and 2 others v. Nooruddin and 3 others (2010 MLD 1731), Syed Nazar Hussain Shah v. Federation of Pakistan through Secretary to the Government of Pakistan Establishment Division, Islamabad and 6 others (PLD 1996 Supreme Court 592), Muhammad Tahir Shera-zi v. Additional District Judge, Rawalpindi and others (2010 YLR 540), Muhammad Aril v. Irshad Bibi and 2 others (2010 CLC 988), Muhammad Ashiq v. Additional District Judge, Okara and 2 others (2003 CLC 400) and Mushtaq Hussain and others v. Muhammad Inayat and others (PLD 2012 Lahore 234).
9. Conversely, learned counsel for the respondent No,1, while refuting the arguments advanced by learned counsel for the petitioner, submitted that the respondent No,1 has led ample evidence in support of her claim which was rightly appreciated by both the courts below. He maintained that provisions of Civil Procedure Code, 1908 are not applicable in the proceedings before the Family Courts. Learned counsel for the respondent No,1 submitted that in presence of overwhelming evidence in favour of the respondent No, 1, she was entitled to 65 tolas of gold ornaments as bridle gifts and the maintenance at the rate of Rs,50,000/- per month. Learned counsel further added that value of the dowry articles in lieu thereof should be counted as it stand at the day of satisfaction of the decree. Learned counsel maintained that the appeal of the petitioner was rightly dismissed by the learned Additional District Judge and there is no illegality in the said judgment. In order to substantiate his contentions, learned counsel relied upon Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 Supreme Court 522), The Masjid Committee, Tagore Park v. Rashidul Hag and others (1982 SCMR 65), Aneela Akhtar v. Muhammad ',fan and 2 others (2009 MLD 945) and Mst.
Bushra Nazneen v. Allah Ditta and 2 others (2004 CLC 1700).
10. I have heard the learned counsel for the parties and perused the record with their assistance.
11. The respondent No,1 claimed multiple reliefs through her plaint including dissolution of marriage on the basis of Khula, maintenance allowance, recovery of dower, dowry articles or in lieu thereof price of the same valuing Rs,1.5 million, recovery of the personal property/ belongings or in lieu thereof price of the same valuing Rs,3,00,000/- and recovery of Rs,1,00,000/- as medical/delivery expenses etc. The marriage between the parties was solemnized on 25th of April, 2007 in accordance with Sharia and the dower was fixed as Rs,50,000/-. During the proceedings before the learned Judge Family Court, upon failure of pre-trial reconciliation proceedings, the learned trial court vide its judgment dated 25th of October, 2008 decreed the suit to the extent of dissolution of marriage on the basis of Khula in terms of Section 10(4) of the Family Courts Act, 1964. The learned Judge Family Court also framed the relevant issues from the divergent pleadings of the parties.
The respondent No,1 in her suit claimed the maintenance at the rate of Rs,50,000/- per month from the date of her marriage. The respondent No,1. While appearing as PW 1 stated that she was expelled by the petitioner from his house on 21st of April, 2008 and the same is not disputed by the other side. Though the respondent No,1 claimed the maintenance at the rate of Rs,50,000/- per month but no cogent evidence was led in this regard in order to prove the financial resources of the petitioner that he is in a position to pay the maintenance at the said rate. On the contrary, the stance of the petitioner was that he used to give maintenance allowance to the respondent No,1 at the rate of Rs,4/5 thousands per month. The learned Judge Family Court in this view of the matter fixed the maintenance at the rate of Rs,5,000/- per month from the date of desertion till the expiry of her Iddat period.
12. To the extent of dowry articles, learned trial court framed issue No,2. In order to prove her claim qua dowry articles, the respondent No,1 appended the list of dowry articles with her plaint and while appearing as PW1, she reiterated her claim regarding dowry articles as asserted in the plaint. In addition to the same, list of dowry articles was tendered in documentary evidence as Ex.P2 and Ex.P3, respectively whereas the receipts pertaining to the gold ornaments were placed on record as Mark-A to Mark-J. Though the petitioner raised objection on the said receipts but the same was turned down by the learned Judge Family Court. During her cross-examination, the respondent No,1 mentioned each and every minute detail of dowry articles and her statement could not be shaken on material points. Though there was complete denial from the petitioner's side that the respondent No,1 has brought any dowry articles but no plausible B evidence was led by the petitioner in support of his stance. PW2 Mst. Yasmin Khushnud who was the mother of the respondent No,1 also deposed in line with the statement of the respondent No,
1. It has come on the record that both the parties are closely related to each other and father of the respondent No,1 is enjoying good financial status. Evidence led by the petitioner in order to dislodge the claim of dowry articles is self-discrepant and all the witnesses appearing on his behalf contradicted each other. Even the father of the petitioner during his cross-examination admitted that the value of personal belongings of the respondent No,1 is Rs,3,00,000/- whereas DW3 has shown his ignorance about the deposition about dowry articles. The learned Judge Family Court decreed the claim of the respondent No,1 relating to dowry articles as per list Ex.P2 and Ex.P3, respectively. The respondent No,1 was held entitled to the gold ornaments to the extent of 65 tolas and it was held that she is entitled to recover the dowry articles as per list Ex.P3 with 20% depreciation in the value of the same whereas the alternate price of the gold ornaments was fixed as per market value prevailing at the time of institution of the suit by relying upon case of "Mst. Mehbooba v. Abdul Jalil"
(1996 SCMR 1063). This Court observed that these findings are not in consonance with the latest view of the Hon'ble Supreme Court of Pakistan as enunciated in the case of Mst. Ayesha Shaheen v.
Khalid Mehmood and others (2013 SCMR 1049) wherein the Hon'ble Apex Court while dealing with the issue of determination of market value of gold ornaments and while taking into account the dictum laid down in Mehbooba's case supra held as under. The relevant extract of the same is reproduced below:-- "We heard the learned counsel for the appellant as well as the respondent and have gone through the judgments referred to in the leave granting order. As regards 17 tolas of gold, which were included in the list of dowry articles (Exh.P.5), the appellant had prayed for its recovery or its value, stated to be Rs,380,000. The Trial Court granted decree for recovery of dowry articles and not its market value in the alternative. The appellant was therefore held entitled to the recovery of 17 tolas of gold. This part of the decree can be satisfied either upon the handing over by the judgment debtor/respondent to the appellant gold ornaments weighing 17 tolas and in case he is not in a position to provide the same the appellant can be appropriately and fully compensated in terms of money only if she is paid an amount that would enable her to purchase the same from the open market. She can do that only if she is paid the current market value of gold.
' Unlike other property, moveable or immoveable determination of the market value of the gold does not pose any difficulty as the same is fixed by the gold market on daily basis and is readily exchangeable for cash. The case of Mst. Mehbooba v. Abdul Jalil (ibid) is distinguishable as there the plaintiff wife had not claimed the recovery of gold ornaments or its value but only its value specified in the plaint. In order to highlight the distinction the relief claimed in the suit filed by Mst.
Mehbooba is reproduced:- "...For recovery of Rs,1,62,600, detailed as under:-
(1) .
(2) Rs,25, 000/- the value of the golden ornaments exclusively given to her by her husband at the time of her marriage as given in para. 9 of the plaint; and
(3) Rs,87, 000 the market value of the golden ornaments belonging to the plaintiff, given to her by her parents mentioned in para. 10 of the plaint."
' The Court thus held that the petitioner before it was entitled to the market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as "no decree for delivery of ornaments had been passed." The petitioner was granted a simple money decree. In the present case not only the relief claimed was for the recovery of gold ornaments or in the alternative its market value but the decree so granted was for the recovery of the gold ornaments.
The case of Mst. Mehbooba v. Abdul Jalil turned on its own facts and does not in any way lay down a general rule that in all cases where the decree for recovery of gold is granted its value shall be determined at the market price prevailing on the date of grant of decree or filing of the suit. Where decree for delivery of gold or its market value is granted the value shall be determined with reference to the date of payment. As only then the decree can become fully satisfied. Neither the High Court nor the First Appellate Court had focused on the afore-stated distinction. In the case of Mst. Humaira Majeed v. Habib Ahmad cited in the leave granted order the Lahore High Court had also drawn the said distinction and had rightly held that the provisions of Order XX, Rule 10, C.P.C. Will not be applicable strictly to the execution of a decree by the Family Court in view of section 17 of the West Pakistan Family Courts Act, 1964. "
' In the light of above principles, the learned Additional District Judge has rightly modified the judgment of the learned Judge Family Court to this extent.
13. The respondent No, 1 also claimed the recovery of personal property/ belongings as per list which was tendered in evidence as Ex. P4 or in the alternative a sum of Rs,3,00,000/-. The petitioner in his written statement completely denied the stance of the respondent No, 1 and it was averred in the written statement that she has not brought any such personal property/belongings along with her. However in evidence completely different stance was taken and petitioner while appearing as DW1 deposed that the respondent No, 1 has shifted the said items to her mother's house during her visits to the said house and no such thing is available in his house whereas father of the, petitioner namely Shahid Saeed Pal appeared as DW4, who admitted in his cross-examination that the value of the personal belongings to the respondent No,1 is Rs,3,00,000/-. In view of such evidence, the learned Judge Family Court decreed the claim in terms of list Ex.P4 or in the alternate price of the said items and keeping in view the principle of depreciation, the alternate price of the said items was fixed as Rs,2,50,000/-. The respondent No,1 also claimed an amount of Rs,1,00,000/- on account of medical/delivery expenses. She deposed that at the time of forcible desertion in March, 2008, she gave birth to a premature baby who died soon after the birth and all the medical expenses were borne by her which amounts to Rs,1,00,000/-. In support of her claim, the respondent No,1 produced different medical receipts and certificates as Ex.P5. On the other hand, the petitioner completely denied the said claim and he deposed that all the medical expenses were paid by him.
DW2 and DW3 rather supported the case of the respondent No,1, as in their evidence they admitted that the receipts of medical expenses are in possession of the respondent No,1 and it was customary in their family that the first baby shall take birth in the house of maternal relations. In view of this overwhelming evidence, claim of the respondent No, 1 was decreed in toto.
14. Though both the sides preferred separate appeals against the judgment and decree passed by the learned Judge Family Court but the learned Additional District Judge dismissed the appeal filed by the petitioner whereas the appeal filed by the respondent No,1 was partly allowed to the extent of findings on issue No,2 and the judgment of the learned Judge Family Court was modified to the following extent:-- "Hence the suit of the plaintiff is decreed that the respondent must return the dowry articles mentioned according to the list attached and regarding the gold ornaments in case of non-return of articles he will pay the price of the said articles prevailing at the time of making of payment of the same as the price of gold ornaments has escalated with passage of time. Moreover regarding gold ornaments the purity of gold is fixed at 22 kirat in case at the time of returning of gold ornaments, if the quality of gold is to be assessed, the value of the same is to be calculated, when the reference price of gold in market is 24 Kirat. Remaining issues are not pressed. So findings of the learned trial court on issue No,2 are modified in view of above discussion."
15. I have minutely examined the evidence led by both the sides as well as the judgments of both the courts below delivered on the basis of said evidence. The objection raised by learned counsel for the petitioner with regard to the judgment passed by the learned Additional District Judge that it is violative of Order XLI, Rule 33 of Civil Procedure Code, 1908, it is held that provisions of said code are stricto sensu not applicable to the proceedings before the Family Courts and by virtue of Section 17 of the Family Courts Act, 1964, the ouster clause has been provided to this effect. Even otherwise the judgment passed by the learned Additional District Judge in all respects is well reasoned and covered all the material aspects of the case, thus the same is a valid judgment for all intents and purposes. Similarly, the contentions of learned counsel for the petitioner regarding withholding of best evidence is concerned, I do not see any force in the same as for proving the dowry articles, no hard and fast rule can be laid as a criterion for proving the same as it varies from case to case. Thus no adverse presumption can be drawn in the light of Article 129(g) of Qanun-e- Shahadat Order, 1984. Even otherwise the rigours of said provision cannot be pressed into service in the case relating to family disputes, as the provisions of Qanun-eShahadat Order, 1984 have not been made applicable to the proceedings before the Family Courts in terms of Section 17 of Family Courts Act, 1964. Section 17 of the Family Courts Act, 1964 reads as under:-- "Provisions of Evidence Act and Code of Civil Procedure not to apply. (1) Save as otherwise expressly provided by or under this Act, the provisions of the [Qanune-Shahadat, 1984 (P.O.
No,10 of 1984)] and the Code of Civil Procedure, 1908 [except Sections 10 and 11] shall not apply to proceedings before any Family Court, [in respect of part I of Schedule]
(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts."
16. The respondent No,1 even otherwise has led cogent evidence to prove her claim of dowry articles. In this regard, reliance can be placed on the case M. Jaffar v. Additional District Judge and others (2005 MLD 1069) in which this Court has already dealt with somewhat similar issue. The relevant extract from the said judgment is reproduced:-- "It is an admitted fact that Rukhsati had taken place. It will not be out of place to mention here that in our society if Rukhsati takes place, then naturally articles of dowry are shifted along with bride. So I am of the view that articles of dowry were given to the respondent Mst. Shehnaz Bibi respondent No,3 at the time of Rukhsati. But the question is as to what should be the value of articles of dowry. A reference is made to the statement of Mst. Shahnaz Bibi P. W.1, in which she could mention the articles as a show case, a bed, iron boxes, bedding, clothes, dinner set and various utensils but could not mention any ornaments. So I am also of the view that the learned Additional District Judge has rightly fixed Rs,30,000/- as the value of the articles of dowry on the basis of the statement of Mst. Shahnaz Bibi P.W.1/ respondent and there is no illegality in the impugned judgment."
17. Even the judgments cited by learned counsel for the petitioner as Syed Nazar Hussain Shah (PLD 1996 Supreme Court 592) and Noor Muhammad and 2 others v. Nooruddin and 3 others (2010 MLD 1731) are hardly attracted to the present case. Similarly, the principles laid down in case Mushtaq Hussain and others v. Muhammad Inayat and others (PLD 2012 Lahore 234) have no relevance to the issue in hand as the said judgment was delivered in a suit for pre-emption. The proceedings before the Family Courts are to be regulated by the procedure embodied in the Family Courts Act, 1964 read with the rules framed thereunder.
18. From the above discussion, it can easily be observed that the learned Judge Family Court has passed the decree after properly evaluating the evidence available on the record. The said judgment is based on reasoning and fully supported by the evidence available on the record. Even the learned lower appellate court has upheld the said judgment and decree with only a slight modification as mentioned in para supra. Judgments of both the courts below are based on proper appraisal of evidence. No misreading or non-reading of evidence or jurisdictional defect has been pointed out by the counsel for the petitioner. The respondent No,1 though also challenged the judgment in Writ Petition No, 13806 of 2013 but that is for limited purposes as she is claiming the modification of the judgment and decree dated 2nd February, 2013 to the extent of bridle gifts and maintenance allowance. In view of well-reasoned judgments by both the courts below and in absence of any jurisdictional defect in the same, this Court is of the considered view that there is no valid reason to interfere with the said judgments. The findings of the learned Additional District Judge are fully supported by the evidence and this Court cannot embark upon to reappraise the evidence or to proceed as if it is court of appeal. In this regard reliance can be placed on the case of Mst. Farah Naz v. Judge Family Court, Sahiwal and others (PLD 2006 Supreme Court 457) wherein the following principle has been laid down:-- "Taking up the issue of dowry articles, again the evidence of the appellant was neither contradicted nor rebutted and the list of article as well as value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles in the sum of Rs,4,00,000 appears to be artificial, whimsical and arbitrary. On the other hand calculation made by the appellate Court accepting the claim of the appellant in the sum of Rs,9,55,038 is evidently justified and warranted by law. It was none of the business of the High Court in writ jurisdiction to substitute its own findings for the findings recorded by the court of appeal after due appraisal of evidence. We would, therefore, set aside the judgment of the High Court as well as that of the Family Court decreeing the suit in the sum of Rs,4,00,000 and restore the judgment of the appellate Court accepting the claim of the appellant, as pleaded in the suit."
19. Similarly in the case of Mst. Mehbooba v. Abdul Jalil, (2008 SCMR 1584) while dealing with the issue of dowry articles, the Hon'ble Supreme Court of Pakistan observed as under:-- "Having heard learned counsel for the petitioner in the light of the material on file, we find that learned High Court has rightly observed that "the evidence of the petitioner is insufficient to rebut the version of the plaintiff/ respondent, Mst. Safia Bibi, The learned appellate Court after proper appreciation of the evidence on record modified the decree of learned Judge Family Court and accepted the appeal of the plaintiff/respondent regarding her whole claim of Rs,1,80,7000. The perusal of list Exh.P.1 reveals that these are the articles which are ordinarily given to a bride at the time of her marriage. Both the Courts below have given concurrent findings which are based upon substantial evidence and the petitioner has not been able to show any illegality or irregularity committed by the Courts below in the impugned judgments so as to warrant interference by this Court in . Exercise of its constitutional jurisdiction."
20. The nutshell of the above discussion is that there is no misreading or non-reading of the evidence which can be attributed to the judgments passed by both the courts below. Neither there is any jurisdictional defect which requires invocation of Constitutional Jurisdiction of this Court in exercise of jurisdiction conferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Appraisal of evidence is the function of courts below and if the findings are based on proper appraisal of evidence then the same cannot be interfered with lightly in exercise of writ jurisdiction. The party approaching the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has to demonstrate that there is gross misreading or non-reading of the evidence or any jurisdictional defect floating on the surface but in the instant case all these preconditions are clearly missing, therefore, the petition in hand is devoid of any. Force which is dismissed with no order as to costs.