This constitutional petition under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 calls in question the judgment and decree dated 7th December , 2018, whereby the learned Additional District Judge, Rawalpindi, while dismissing the appeal filed by the petitioner and partly allowing the appeal preferred by Respondent No. 1 (hereinafter referred as "respondent"), modified the judgment and decree dated 24th May, 2018 passed by the learned Judge Family Court, Rawalpindi.
2. Brief facts necessitating the filing of instant petition are that the "respondent" instituted a suit for recovery of maintenance, dower and dowry articles averring therein that she was married to the petitioner on 24th January , 2014 against a dower of 4 tolas gold ornaments, which was though paid, however , the same was snatched by the petitioner while ousting the "respondent" from his house. It is averred by the "respondent" that she was given dowry articles and gold ornaments by her parents at the time of marriage. As per averm ents contained in the plaint, the petitioner went abroad in connection with his job whereafter on 21st June, 2014, his family members ousted the "respondent" from his house after snatching dowry articles and gold ornaments. The petitioner resisted the suit by filing written statement wherein he controverted the assertions contained in the plaint. From the divergent pleadings of the parties, the learned Judge Family Court framed multiple issues and recorded evidence of both the sides.
After culmination of trial, suit of the "resp ondent" was partly decreed by way of judgment dated 24th May, 2018.
Both the sides, feeling dissatisfied from the said judgment and decree, preferred their respective appeals under Section 14 of The Family Courts Act, 1964. The appeal filed by the petitioner was, however , dismissed whereas appeal preferred by the "respondent" was partly accepted by the learned Additional District Judge by way of judgment and decree dated 7th December , 2018.
3. Learned counsel for the petitioner , at the very outset, submitted that she would confine her arguments to the extent of modification in findings qua dowry articles. Contended that initially the learned Judge Family Court, while partly allowing the claim of "respondent", has though rightly appraised the evidence available on the record, but the learned Additional District Judge, without assigning any cogent reasoning has modified the said findings of the learned trial Court. Maintains that judgme nt of the learned Additional District Judge is the result of gross misreading and non-reading of evidence and the same is not tenable under the law .
4. Heard. Record perused.
5. The question in the matter in hand is with regard to dowry articles. There is complete divergence of stances of both the sides in the pleadings qua claim of dowry articles. In order to capture the controversy , the learned Trial Court framed Issue No. 3 in this regard. As per claim of the "respondent", all the dowry articles valuing Rs. 11, 23, 307/-, which were given to her at the time of marriage by her parents, are in possession of the petitioner whereas the petitioner asserted that the "respondent" was given a few dowry articles by her parents at the time of marriage.
In order to prove her claim, the "respon dent" herself appeared a PW-1 and tendered her affidavit as Exh.P1.
Muhammad Shabbir appeared as PW-2 and supported the stance of "responde nt". The "respondent" produced documentary evidence in shape of list of dowry articles as Exh.P2, notice of divorce as Exh.P4, snaps as Exh.P5 and Exh.P6 and notice of arbitration council as Mark-A.
6. On the contrary , the petitioner , in order to prove his assertion, produced .his attorney namely Saleem Shahzad as DW-1, who tendered deed of attorney as Exh.D1 and affidavit as Exh.D2. Muhammad Iqbal appeared as DW-2; whose affidavit was placed on record as Exh.D4. In documentary evidence, list of dowry articles was placed on record as Exh. D3.
7. The learned Trial Court, after appraising the evidence produced by both the sides, partly decreed the claim of the "respondent" in the following manner: "Suit of the plaintiff for recovery of dowry articles is decreed as per list Exh.D.3."
The learned Appellate Court, however , while partly accepting the appeal filed by the "respondent" vide judgment and decree dated 7th December , 2018, modified the findings of the learned Trial Court to the following ef fect: "9. Up-shot of the above discussion is that appeal filed by the appellant having no force is dismissed whereas appeal filed by the respondent is partially accepted and respondent is entitled to get dowry articles as per list Ex.P2 except gold ornaments or its alternative price Rs. 750,000/- and to the extent of remaining claim appeal is dismissed."
8. While making an analysis of the findings of the Courts below qua dowry articles, it is observed that though initially the learned Judge Family Court decreed the claim of "respondent" for recovery of dowry articles, while believing the list tendered by the petitioner as Exh.D3, but these findings were modified by the learned Additional District Judge in appeal as mentioned above. After having a comparative analysis of both the judgments on this specific issue, it is noticed that the learne d Judge Family Court, while decreeing the claim of the dowry articles, did not take into consideration the custom of our society by way of.which parents of every bride give items of daily use to their daughter as dowry articles. It is apparent from the record that items, which have been decreed in favour of the "respondent" by the learned Additional District Judge, are of daily use, which a bride always brings with her at the time of marriage. The learned Judge Family Court has not assigned any coge nt reasons while discarding the list of dowry articles tendered in evidence by "respondent". Such conclusion was the outcome of presumption and supposition. Guidance in this respect, if needed, can be sought from "Shafique Sultan vs. Mst. Asma Firdous and others" (2017 SCMR 393 ). The relevant extract from the judgment is reproduced below: "6. We have also gone through the list of dowry articles (Ex.P2) and found that the same consist of articles of daily use which are generally given to brides at the time of their marriages. We have not found any article(s) which may be termed as extravagate or beyond the financial resources of the respondent's family . Giving dowry articles to daughters is in line with customltradition and practices which are deeply rooted in our society and are followed by parents of all classes irrespective of their financial status."
It is also held in the case of " Muhammad Habib vs. Mst. Safia Bibi and others " (2008 SCMR 1584 ) that: "4. Having heard learned counsel for the petitioner in the light of the material on file, we find that learned High Court has rightly observed "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 plaintif f !respondent regarding her whole claim, of Rs. 1,80, 70001, The perusal of list Exh.P .1 reveals that these are the articles which are ordinarily given to a bride at the time of the marriage. Both the Courts below have given concurrent findings which are based upon substantial evidence and the petitioner has not been able to controvert the same during the trial, as such the petitioner has failed, 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."
The learned Additional District Judge, while exercising his appellate jurisdiction, took into account the said aspect of custom of our society and principle of law and held the "respondent" entitled to recover dowry articles mentioned in the list Exh.P-2 or in the alternative prices thereof Rs. 7,50,000/-. The alternate value thereof as determined by the learned lower Appellate Court is quite justified keeping in view the period of subsistence of marriage, which lasted for more than 2 years.
9. On comprehensive analysis of both the judgments, I am of the considered view that the learned Additional District Judge was justified to interfere with the findings recorded by the Court below . The learned Appellate Court has rightly appraised the evidence and the conclusion derived therefrom is unex ceptionable, which calls for no interference in constitutional jurisdiction.
10. The nutshell of above discussion is that instant petition is devoid of any merits, Resultantly , the same is dismissed in limine .