FAISAL ZAM AN KHAN, J. Through this petition consolidated judgments and decrees dated 20.10.2015 and 04.05.2016 passed by respondents Nos.2 and 1, respectively, have been assailed. By virtue of the former judgment suits for recovery of maintenance allowance, delivery expenses and dowry articles instituted by respondents Nos.3 and 4 against the petitioner have been decreed, whereas, the custody petition filed by the petitioner has been dismissed and through the latter while accepting the appeal preferred by respondents Nos.3 and 4, respondent No.3 has also been held entitled to recovery of gold ornaments and delivery expenses.
2. Succinctly, the facts of the case are that the marriage was solemnized between the petitioner and respondent No.3 on 05.06.2009 whereafter, Rukhsati took place on 07.12.2009. Out of the wedlock respondent No.4 was born. Due to altercation between the spouses initially a suit for recovery of delivery expenses and dowry, articles were instituted by respondents Nos. 3 and 4 against the petitioner, in which a compromise was effected between the parties, whereafter, the suit was withdrawn. Subsequent to this, petitioner divorced respondent No.3 on 11.02.2014, whereupon, present cross suits were instituted by the parties, in which both the parties filed their respective written statements and out of divergent pleadings of the parties as many as 07 consolidated issues were framed; evidence pro and contra was led, whereafter, through consolidated judgment and decrees dated 20.10.2015 the suits filed by respondents Nos.3 and 4 were decreed, however, the relief of recovery of gold ornaments and delivery expenses was refused, whereas, custody petition filed by the petitioner was dismissed. Feeling aggrieved, both the parties filed their respective appeals, which were decided vide consolidated judgment and decrees dated 04.05.2016 and both the appeals were partially accepted and respondent No.3 was held entitled to recovery of gold ornaments as well as delivery expenses, therefore, this petition.
3. At the outset of hearing, learned counsel for the petitioner submits that he contests the impugned judgments and decrees to the extent of decree qua alternate value of dowry articles and the decree for recovery of gold ornaments passed in favour of respondent No.3. In view of the above, to the extent of remaining judgments and decrees, the same are upheld.
4. In the above backdrop, learned counsel for the petitioner submits that both the learned courts below without ascertaining the wear and tear of the dowry articles have passed the decrees in favour of respondent No.3, thus, the same are not maintainable. Further adds that both the learned courts below erred in law in not considering that respondent No.3 has failed to prove that gold ornaments were ever snatched from her while she left the house of the petitioner, therefore, she was not entitled to the same.
5. Opposed to the above, learned counsel for respondents Nos.3 and 4 supports the impugned judgments and decrees.
6. Arguments heard. Record perused.
7. From the perusal of the available record, it transpired that list of dowry articles was produced by respondent No.3 as Exh.P.1, in which the total alternate value of dowry articles as ascertained by respondent No.3 is Rs.300,300/-. Item Nos.1 and 2 of the said lists would show the value of the gold ornaments are fixed at Rs.163,500/- whereas for all remaining dowry articles the alternate value has been determined as Rs.136,800/-.
8. In the above backdrop, a perusal of impugned judgments and decrees passed by respondents Nos.1 and 2 would show that the said respondents without ascertaining the duration of marriage and wear and tear of the dowry articles, passed a decree in favour of respondent No.3, as prayed for qua dowry articles, which has been endorsed by respondent No.1 with a modification that respondent No.3 is also held entitled to recovery of gold ornaments and delivery expenses. The said finding of respondent No.2 was not only erroneous but also against the law as a bare perusal of Exh.P1 would show that most of the items are of daily use and are consumed with the passage of time.
9. A bare perusal of the impugned judgments and decrees passed by respondent No.1 would show that without any cogent reason respondent No.3 has been held entitled to recovery of gold ornaments despite the fact that she has failed to prove that when she was deserted by the petitioner, either gold ornaments were snatched from her or whether she was given those ornaments at the time of her marriage. Moreover, she has also not been able to prove that she had any gold ornaments with her entitling her to recover the same.
10. In the above backdrop, both the learned courts below erred in law in not considering the duration of marriage, the nature of dowry articles and its wear and tear and granted the decree qua dowry articles, as prayed for by respondent No.3. Similarly, respondent No.1 without any proof that respondent No.3 is entitled to gold ornaments, held her to be entitled to such ornaments.
11. In view of the above, this petition is allowed, as a sequel to which, the impugned judgments and decrees passed by both the learned courts below to the extent of recovery of dowry articles and gold ornament are modified. As regards the alternate value of the dowry articles, since most of the articles are of daily use and were consumed due, to duration of marriage, which lasted for about 05 years, thus, the decree is modified and it is held that respondent No.3 is entitled to receive 50% of the alternate value (total value is Rs.136,800/-) of the dowry articles. As regards the recovery of gold ornaments to that extent the judgment and decree passed by respondent No.1 is set aside.