AHMAD ALI, J.---Abdul Ali, the petitioner, has filed present constitutional petition to set aside the decree of dower in shape of landed property with 05 Colas gold ornaments and the decree of monthly maintenance of respondents Nos. 1 and 2, granted by the learned Judge Family Court Charsadda vide Judgment/Decree dated 10.02.2018 and modified by the learned Addl. District Judge-I, Charsadda vide Judgment dated 25.07.2019.
2. Essential facts of the case in brief are that the respondents Nos. 1 and 2 (i.e. wife and daughter respectively of petitioner) filed a suit seeking therein the decree of dower of respondent No.1 per dower deed dated 24.10.1994, monthly maintenance of respondent No.1/wife Rs.10,000/-, monthly maintenance of respondent No.2/daughter Rs.15,000/- and the decree for return of dowry articles. The petitioner filed written statement claiming therein the decree for restitution of conjugal rights whereas, the contents of plaint were refuted. After framing issues and recording evidence of parties, the learned Judge Family Court Charsadda granted decree vide Judgment and Decree dated 10.02.2018 in the following manner:
1. Recovery of dower in shape of landed property measuring 16 Kanal and 1/2 share in house as per dower deed ex.P.W.1/1.
2. Recovery of maintenance allowance at the rate of Rs.2000/- per month for plaintiff No.1 and plaintiff No.2 at the rate of Rs.3000/- per month for the last three years prior to institution of suit and onwards till subsistence of marital tie in case of plaintiff No.1 and till marriage in case of plaintiff No.2.
3. Decree of restitution of conjugal rights; and rest of the claims of respondents/plaintiff stood dismissed.
3. Discontented with the Judgment and Decree of the learned Judge Family Court to the extent of dower and maintenance, the petitioner preferred a Family Appeal. Whereas, respondents Nos.1 and 2, dissatisfied with the partial dismissal of their claims, also filed their separate Family Appeal. Both the family appeals were clubbed together by the Additional District Judge-I Charsadda. The learned ADJ-I Charsadda vide single Judgment dated 25.07.2019 dismissed the appeal of petitioner whereas, allowed the appeal of respondents Nos.1 and 2 and thereby modified the decree of the learned trial court in the following manner:
1. Decree of 05 tolas of gold ornaments as dower in addition to the decree of dower already granted by the learned Judge Family Court.
2. Decree of maintenance of respondent No.1 was enhanced to Rs. 5000/- per month for the last three years prior to the institution of the suit and onwards till subsistence of marriage, whereas, maintenance of respondent No.2 was also enhanced to the tune of Rs.10,000/- per month for the last three years prior to institution of suit till her marriage.
4. Aggrieved of the aforesaid decree in favour of respondents Nos.1 and 2, the petitioner preferred present writ petition.
5. Arguments of the learned counsel for petition heard at length and record perused with their valuable assistance.
6. Minute sifting of the record reveals that the marriage of parties was solemnized in the year 1994 in consideration of dower vide deed dated 24.10.1994 and, per contents of plaint, respondent No.1 was ousted from the house within one year of her marriage and she was then pregnant. She gave birth to respondent No.2 in her parents' house and her parents have been bearing all expenses of respondents Nos.1 and 2. Now respondent No.2 is 19 years old but the petitioner had not taken care of them nor paid any expenses to them.
Thus, she filed a family suit for recovery of her subsisting claims including dowry articles. Both the learned courts below have concurrently dismissed the claim of dowry articles, however, decreed the dower and maintenance in favour of respondents and also granted a decree for restitution of conjugal rights in favour of the petitioner.
7. Perusal of record reveals that the claim of parties as to the quantum of dower is at variance. Respondent No.1/wife claimed that on the basis of dower deed dated 24.10.1994 her dower was fixed as 16 Kanals of landed property with half share in the dwelling house and seven tolas of gold ornaments, and all her dower is still outstanding. Petitioner/husband claimed that the dower was fixed as 02 tolas of gold ornaments which were paid to the respondent No.1 at the time of marriage.
8. Admittedly scribe and marginal witnesses of the dower deed dated 24.10.1994 have passed away, however, respondent No. 1/plaintiff substantiated the execution of same by producing sons of scriber and marginal witnesses. PW-1 is the son of scriber who produced an extract of the dower deed from the register of his father and also testified the signature of his father. PW-3 is the son of Inayatullah Bacha, one of the marginal witnesses, and he verified the signature of his father. PW-4 is the son of other marginal witness namely Unwan ul Haq and he too endorsed the signature of his father on the dower deed. No shortcoming could be pinpointed by the petitioner in the execution of the dower deed. A Petitioner while appearing as DW-3, admitted in his cross-examination that he had not paid the dower per dower deed to respondent No. 1/wife because the same is a bogus document, however, he was not able to disprove the dower deed. It means that the entire dower per dower deed is outstanding against the petitioner; nevertheless, the petitioner asserted delivery of 02 tolas gold ornaments on account of dower and respondent No. 1/wife too admits the giving of these ornaments by petitioner/husband at the time of marriage. Thus, only two tolas gold ornaments are proved to be paid while the rest of the dower is proved to be unpaid.
9. Yet there is another aspect of the case. Petitioner contends that he was not owners of the landed property in the year 1994 rather the same was ownership of his grandfather Redi Gul. In this regard, evidence is very much clear that the father of petitioner died during his minority and he was brought up by his grandfather Redi Gul and after the death of Redi Gul, all his property has been transferred in favour of the petitioner. (sic) as such, the petitioner cannot take any refuge from the responsibility of payment of dower per dower deed dated 24.10.1994.
The dower was settled by the elders of parties and grandfather of the petitioner being his elder had given his own property to the wife of his grandson through the said dower deed which bore his (grandfather's) signature.
Petitioner could not give any property in dower to his wife which did not belong to him but, in the present case, the grandfather of petitioner had consented and agreed to do so. Although grandfather of husband had no liability to give the debts of his grandson but, when he had consented to give the bride of his grandson the specific property or portion of the same as her share in lieu of dower, then grandfather-in-law would assume the direct liability and stood surety. Redi Gul was present at the time of scribing dower deed having full knowledge of terms and conditions of the same, and he agreed to give the portion of his property and house to his granddaughter-in-law. Redi Gul died after 16/17 years of the scribing of dower deed and no objection/legal action was initiated to exclude the said property from the dower deed. In view of the foregoing, I am of the view that the house and property mentioned in the dower deed as dower for respondent No. 1, even though, it did not belong to the husband of respondent No. 1 is liable to be transferred to the respondent No.1 as the original owner i.e. grandfather of petitioner had given his consent for the same. Reliance is placed on the case titled Mst. Shumaila Bibi v. Zahir Khan and 3 others PLD 2015 Peshawar 182 and the case titled Muhammad Anwar Khan v. Sabia Khanam and another PLD 2010 Lahore 119.
10. Father or grandfather-in-law could give a dower of movable as well as immovable property on the eve of his son's/grandson's marriage particularly when the dower deed contains full particular in shape of description and boundaries of the property/house. Reliance is placed on 2008 CLC 803 (Peshawar) titled Maj. Rifat Nawaz and 5 others v. Mst. Tahira and 2 others. And if another person had stood surety or had guaranteed the payment of dower then surety and guarantor to the dower are as much party and liable to pay dower as the bridegroom himself. Reliance is placed on the case of Mst. Shehnaz Akhtar v. Fida Hussain and 2 others 2007 CLC 1517 [Lahore].
11. The signature of Redi Gul on the dower deed has not been impugned by the petitioner. Presence of wife at the time of execution of dower deed/agreement is not necessary as the same is not a commercial transaction settled between a buyer and seller. Marriage between parties was an arranged one, and its terms and conditions would have been settled amongst elders of both families and not by bride and bridegroom, and womenfolk including bride are usually, particularly in the Khyber Pakhtunkhwa, not allowed to participate in such meetings. The dower deed in question has been fully proved in the record of the case. Two courts below had appreciated the evidence on record and after scanning the same had passed the decree in favour of the plaintiff. No misreading or non-reading of evidence had been pointed out. Reliance is placed on 2011 MLD 176 [Lahore] titled Mst. Maryam Haseena and 3 others v. Syed Ejaz Hussain Shah and 3 others.
12. No doubt after the death of Redi Gul (grandfather of petitioner), now the petitioner has become the sole owners of all the estate of his grandfather on the basis of inheritance but the inheritance mutation in favour of petitioner to the extent of share of respondent No.1 in the property and house is illegal and void because the dower deed was executed prior in time, therefore, subsequent inheritance in favour of petitioner cannot cast aspersions on correctness of dower deed. Guidance may be derived from Sardar Arshid Hussain's case (2017 SCMR 608).
13. Both the learned courts below have rightly passed decree of dower comprising of 16 Kanals Land, 1/2 share of the house and 05 tolas gold ornaments.
14. So far as the maintenance of respondents is concerned, petitioner in his statement as DW-3 stated that he used to pay maintenance to respondents according to his capacity but it is mere oral assertion without any solid evidence or concrete proof. The wife has a right to refuse the conjugal rights of her husband in case of non- payment of dower and therefore, the desertion of respondent No.1 in her parents' house cannot be taken as her disobedience particularly when her dower is proved to be outstanding against petitioner. Besides, the father is responsible to maintain his children and therefore, the petitioner cannot be absolved from the responsibility for the payment of maintenance to his daughter i.e. respondent No.2. Petitioner was required to disclose his financial status before the learned trial court so as to ascertain the adequate amount as maintenance of his deserted wife and daughter but considers the maintenance that has been awarded to be excessive. Willful non- disclosure of his earnings suggest that the maintenance amount is well within his means. So far as the increase in the maintenance of respondent No.2 by 10% per annum is concerned, although both the learned courts below have not given any logical finding for such annual increase but the same increase is within the discretion and jurisdiction of the Family Court and also the Appellate Court and the exercise of such discretion and granting an annual increase of ten percent is comparable to the prevailing and past rate of inflation. The decision so arrived at by the learned ADJ-I Charsadda regarding enhancement of the rate of monthly maintenance of both the respondents is fully in accordance with the need of the present days. Guidance is derived from Muhammad Asim's case (PLD 2018 Supreme Court 819).
15. In view of the foregoing discussion, there is no legal force in the instant petition, the same is, therefore, dismissed in limine.