MUZAMIL AKHTAR SHABIR, J. --- Through this Constitutional petition, the petitioner has challenged the judgments and decrees dated 05.09.2016 and 08.03.2017 passed by Judge Family Court, Muzaffargarh (respondent No, 2) and Addl. District Judge Muzaffargarh (respondent No, 1) to the extent of decree of a house alongwith four walls constructed on land measuring 07 Marlas in favour of the respondent to the extent of 50% as per law.
2. Brief facts of the case are that marriage between the parties was solemnized on 16.04.2012 and from the wedlock one child Mst. Aiman Fatima was born. Later on, on 14.11.2015, the respondent filed a suit for dissolution of marriage recovery of past and future maintenance allowance, recovery of dowry articles and dower debt against the petitioner, which was partially decreed in favour of the respondent and against the petitioner vide judgment and decree dated 05.09.2016, against which the petitioner filed an appeal, which was dismissed vide judgment and decree dated 08.03.2017.
Both the afore-referred judgments and decrees are under challenge through this Constitutional petition.
3. Learned counsel for the petitioner has argued that both the judgments and decrees passed by the Courts below suffer from misreading and non-reading of the relevant record as plaint, affidavits and evidence of the PWs did not specifically disclose that the 7 marlas constructed house was agreed to be delivered by the petitioner at the time of marriage. Learned counsel refers to cross-examination of the respondents where she deposes that she herself got written paragraph No, 1 of the plaint, and the haqq-ul-mehar written in the said paragraph was the only haqqul-mehar which was agreed to be paid by the petitioner and no other haqqul-mehar was fixed. Learned counsel for the petitioner also states that he does not challenge the findings of the Courts below to the extent of maintenance allowance, dower of gold ornaments and alternate price of dowry articles valuing Rs, 30,000/-.
4. On the other hand, the counsel for the respondent argues that both the Courts below have concurrently decreed the suit filed by the respondent. Further argues that the petitioner has failed to produce any evidence qua interpolation of entries reflected in the Nikahnama, therefore, no illegality, misreading, non-reading or erroneous exercise of jurisdiction has been pointed out by the petitioner. Finally prays that the petition be dismissed.
5. Heard. Record perused.
6. The marriage between the parties is an admitted fact. The said marriage subsisted for almost four years. The respondent filed a suit for recovery of past and future maintenance allowance of the plaintiffs, recovery of dower debt, dowry articles and dissolution of marriage. Whereafter, the respondent got the decree for dissolution of maje on 21.01.2016 and then vide judgment and decree dated 05.09.2016, the learned Judge Family Court, Muzaffargarh decreed the suit filed by the respondent with the observations that the maintenance allowance of the respondent was fixed @ Rs, 2000/- per month during the period of iddat and the maintenance allowance of the minor daughter of the petitioner was fixed @ Rs, 2500/- per month from the date of institution of the suit till her marriage including rukhsati with 10% annual increase on principal amount, in future subject to change of custody of the minor. Also decreed the claim of the respondent for recovery of deferred dower debt of gold ornaments weighing 2% tolas and a house alongwith four walls constructed on land measuring 07 marlas to the extent of 50% as per law and declared the respondent entitled to receive Rs, 30,000/- as alternate price of dowry articles from the petitioner.
The remaining claim of the respondent for recovery of Rs, 2000/- cash as dower debt was declined.
The appeal filed by the petitioner was dismissed vide judgment and decree dated 08.03.2017. The contention of the learned counsel for the petitioner is that the plaintiff/respondent vide paragraph No, 1 of her plaint has specifically stated that marriage between the parties was affected on 16.04.2012 in lieu of haqqul mehar of Rs, 2000/- and 21/2 tolaa gold ornaments, whereas no haqqul mehar with regard to 7 marlas constructed house is mentioned in her plaint. Moreover, the respondent also reiterated the same stance in her affidavit. Learned counsel also refers cross- examination of the respondent where she deposed that paragraph No, 1 of the plaint was got written by her and there is no haqqul mehar other than mentioned in Paragraph No, 1 of the plaint.
7. It has been noticed that the afore-said argument of the learned counsel does not find support from the record. In the head note of the plaint it is specifically noted haqqul mehar Rs, 2000/-, gold ornaments weighing 21/2 tolas valuing Rs, 1,20,000/- and house alongwith 'nalka' four walled comprising 7 marlas valuing Rs, 12,00,000/-. Moreover, paragraph No, 7 of the plaint specifically mentions haqqul mehar Rs, 2000/-, 2% tola gold ornaments and 7 marlas constructed house with four walls total worth Rs, 13,20,000/-, which has not been paid by the petitioner. Moreover, the prayer clause of the plaint also states haqqul mehar Rs, 2000/-, 21/2 tola gold ornaments valuing Rs, 1,20,000/- and a house four walled worth Rs, 12,00,000/-comprising 7 marlas. Even in her affidavit Exh.P1 produced in evidence, the same stance had been reiterated. The stance of the other PWs remained consistent with the plaintiff/respondent, which is evident from the evidence and affidavits produced by them. The counsel for the petitioner has argued that the matter with respect to Paragraph No, 1 of the plaint where 7 marlas house has not been mentioned and same has been reiterated in evidence by the respondent in her cross-examination to argue that the respondent had not claimed the same as outstanding dower. However, this argument has no substance as in Paragraph No, 7 of the plaint and the Nikahnama and affidavits submitted in evidence as Ex.P1 to P3, 7 marlas house has specifically been mentioned and a document as well as evidence has to be read as a whole and not piecemeal. Reliance in this regard is placed on 2002 YLR 1061 (Mst. SHAMIM JAVAID ZAR and 3 others v. Mst. WAZIR BEGUM and 5 others), wherein the Hon'ble Court has held as under:--- "10. I have examined the arguments advanced from both the sides and perused the record. In the process of construction of a document it is by now a well-settled principle that the document is to be read as a whole to differentiate between general statement and the particular statement contained therein and attempt be made to save document rather than destroy or nullify it.
Reference is made to a case of Allah Bakhsh and others v. Muhammad lshaque and others (PLD 1984 SC 47). A.R. Khan v. P.N. Boga through legal heir (PLD 1987 SC 107)."
Even otherwise, the petitioner in his cross-examination admitted Nikahnama (Exh.P4) and his signatures over it. In Column No, 16 of the Nikahnama, 7 marlas constructed house alongwith four walls has specifically been mentioned. The petitioner in his evidence admits his signatures in column No, 16 of Exh.P4. The only document available on the record is the attested copy of Nikahnama. Column No, 13 of the Nikahnama clearly states mehar @ Rs, 2000/- and 2% gold ornaments 'indul talab', whereas column No, 16 states 7 marlas constructed house alongwith four walls where the petitioner has put his signatures. The entries reflected at Serial Nos, 20 to 22 have been crossed by hand, where signatures of the petitioner can also be seen which clearly indicate that the said columns were filled in with the consent of the petitioner. Two witnesses on each side have signed the Nikahnama. The name and the stamp of the Nikah Registrar is also affixed on the Nikahnama. In my considered view, to negate the version of the plaintiff-defendant the petitioner could easily produce the Nikah Registrar on his behalf to disprove the claim of the petitioner that entries reflected at serial No, 16 are result of interpolation and the said entry has been inserted after-thought. Furthermore, the petitioner failed to bring on record the evidence of the witnesses of the Nikahnama, which also strengthens the case of the plaintiff/respondent No, 3 and sufficient to prove her claim beyond any doubt. Furthermore, there are four copies of the Nikahnama. Two copies remain with husband and wife independently and the other two copies remain with the Nikah Registrar and Union Council. In case the plaintiff has inserted the entries reflected at Serial No, 16 as an afterthought, the petitioner could produce his own copy or obtain attested copy of the said Nikahnama issued by the concerned Union Council in support of his claim and place the same in evidence, which has not been done. Moreover, marriage is a civil contract and as per law the civil contract has to be executed as it is and none of the parties can go beyond that contract. It is well-settled law that human beings can tell a lie but documents can't. Even otherwise, the admitted document needs not be proved and presumption of truth is attached to such document.
The petitioner-defendant cannot deviate from the conditions of the Nikahnama. The other aspect of the matter is that the petitioner did not challenge the entries of the Nikahnama during the subsistence of marriage at any forum in order to negate the entries reflected in the Nikahnama.
8. The marriage between the parties has been dissolved on the basis of Khula. When the marriage is dissolved on the basis Of Khula then the remaining dower becomes payable and the deferred dower which is the liability of the husband is to be paid to the wife to the extent of 50% as per law.
The relevant provision of law is reproduced below:--- Section 10(5) of Family Courts Act, 1964 "In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in case of dissolution of marriage through Khula, may direct the wife to surrender upto fifty percent of her deferred dower or upto twenty-five percent of her admitted prompt dower to the husband."
Moreover, the learned counsel for the petitioner failed to put the question relating to 7 marlas constructed house in cross-examination of the respondent which also strengthens the claim of the respondent qua haqqul mehar of 7 marlas constructed house. Thus the Courts below have rightly decreed the suit to the extent of dower. Besides, the petitioner has not challenged the findings of the Courts below relating to maintenance, dowry articles and gold ornaments as dower as such the said findings are upheld.
9. The counsel for the petitioners has failed to point out any misreading, non-reading of evidence available on the record to set aside the judgments passed by the Courts below. Even otherwise, the High Court in its extraordinary jurisdiction can neither substitute findings of facts recorded by Appellate Court, nor can give it opinion regarding quality or adequacy of the evidence. The assessm ent and appraisal of evidence is the function of the lower Court, which is vested with exclusively jurisdiction in this regard. Reliance in this regard is placed on the case reported as PLD 1981 SC 522 (Abdul Rehman Bajwa v. Sultan and 9 others), 2003 YLR 3097 (Parveen Umar and 3 others v. Sardar Hussain and 5 others) and 2003 CLC 702 (Aqal Zaman v. Mst. Azad Bibi and others). The petitioner was required to show some illegality or jurisdictional defect committed by the Courts below in order to make its case entertainable by this Court while exercising Constitutional jurisdiction. No such defect has been highlighted in the impugned judgments & decrees passed by the Courts below.
10.For what has been discussed above, this petition being devoid of any merit stands dismissed.