KAM RAN HAYAT M IANKHEL, J. Through instant petition filed under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks the following prayer:- "Allowing this writ petition, judgments of both the courts below, be struck down as illegal be set aside and plaintiff be directed for the return of Rs.300,000/- dower amount alongwith 21 Tola gold ornaments, which the plaintiff has received and then taken away with her to the house of her parents"
2. Brief facts leading to the filing of the present writ petition are that respondent No.1 instituted a family suit against the petitioner with the following prayer:
(A) Decree for recovery of dower Rs.300,000/- alongwith profit thereon till the payment thereof.
(B) Decree for recovery of gold ornaments weighing fifteen Tolas or in alternate market value of the same according to existing rate alongwith profit thereon till the payment thereof.
(C) Decree for recovery of dowry articles or in alternate market value of the same i.e. Rs.4 lacs and profit thereon till the handing over the possession of the same to the plaintiff.
(D) Decree for recovery of maintenance allowance @ Rs.15,000/- per month from 1st January 2009 alongwith profit thereon till the payment thereof.
(E) Decree for recovery of loan amount of Rs.200,000/- alongwith profit thereon till the payment thereof.
The petitioner was summoned who submitted his written statement controverting all the contentions and allegations of respondent No.1. Out of contentious pleadings of the parties, issues were framed and both the parties led their pro and contra evidence. The respondent No.1 produced her evidence and before the conclusion of evidence of petitioner, respondent No.1 moved an application for amendment of suit which was allowed and amended suit was instituted in which the respondent No.1 claimed decree for dissolution of marriage on the basis of Khulah and dowry articles or in lieu of that Rs.4 lacs. The petitioner submitted his amended written statement and the learned trial court framed as many as five issues which are reproduced below:
1. Whether the plaintiff has got cause of action? OPP
2. Whether the plaintiff is entitled for recovery of dowry articles as per the list appended to the amended plaint for dissolution of marriage on the basis of Khula or in alternate market value of the same? OPP
3. Whether dower of the plaintiff has been paid? OPD
4. Whether the defendant is entitled for recovery of dower? OPD.
5. Relief.
The respondent No.1 relied on the earlier evidence produced by her. After the recording of evidence of defendant, the learned trial court decreed the suit of the respondent No.1 vide judgment and decree dated 13.11.2015. Against that the petitioner filed an appeal which was dismissed vide judgment and decree dated 31.01.2017. Hence, the instant writ petition.
3. Arguments heard and record perused.
4. The record transpires that respondent No.1/ plaintiff in order to prove her stance about the dowry articles produced as many as nine witnesses. The petitioner/defendant contended in his written statement as well as in his evidence that the list is fake and also contended that the sale price of the dowry articles has been paid by the defendant to the plaintiff at the time of Rukhsatti. The petitioner/defendant in Para No.6 of his written statement has categorically stated that before Rukhsatti, the respondent No.1/petitioner received Rs.200,000/- as sale price of dowry articles. DW- 4 Tasawar Hussain who is the brother of petitioner stated in his cross-examination that it is true that respondent No.1/plaintiff belongs to a well-off family. The petitioner appeared as DW-5 stated in his chief that he has paid dower Rs.300,000/- in front of Qaiser Khan (brother of respondent No.1) and in front of witnesses Muhammad Safdar, Mubarak Ahmad and Tasawar Hussain. Tasawar Hussain was produced as DW-2 who did not utter a single word about the payment of dower in front of him. He stated in his examination-in-chief that he belongs to a respectable family and people often make him Jirga member and that is why he was made Jirga member to reconcile the petitioner as well as defendant No.1. He further stated that in Jirga it was decided that the gold ornaments which were in the custody of respondent No.1 will be returned to petitioner and both of them will live peacefully hereafter. He stated in his cross-examination that it is wrong that dower of respondent No.1/plaintiff is paid. Petitioner took to the witness-box and presented himself to face the music of cross-examination as DW-5, who in his cross-examination stated that he paid Rs.100,000/- to the father of respondent No.1/plaintiff and also admitted that he has got no documentary proof or evidence regarding the same payment. Self stated that he has given dowry articles in presence of witnesses, thus blowing hot and cold in one breath. It is by now trite law that approbation and reprobation by a witness puts doubt on the truthfulness of his/her statement.
Petitioner (DW-5) further stated in his cross-examination that respondent No.1/plaintiff's dowry articles are lying in his house. Self stated that dowry articles do not belong to respondent No.1/plaintiff. Further self stated that respondent No.1/plaintiff father was given Rs.100,000/- for dowry articles and he has got no evidence about the said payment of Rs.100,000/-. Further self stated that dowry articles were given before the witnesses. The petitioner in Para 6 of written statement stated that he has paid Rs.200,000/- for the dowry articles before the Rukhsatti of respondent No.1/plaintiff and took a totally different stance while examined as DW-5.
5. The meticulous sifting of the record further reveals that respondent No.1/plaintiff's dower was fixed as Rs.300,000/- which was payable on demand and this fact is established through Nikahnama Ex.PW-1/1. Iqrar-Nama Ex.PW-4/2 further corroborates and strengthens that dower was fixed as Rs.300,000/- payable on demand. Vide Iqrar-Nama Ex.PW-4/3, the petitioner agreed to gift ten Tola gold ornaments to respondent No.1/plaintiff at the time of Rukhsatti. The petitioner failed to bring on record any cogent and reliable evidence to substantiate his claim that dower was paid to the respondent. The witnesses produced by the respondent No.1/plaintiff were put to lengthy and grueling cross-examinations but nothing favourable was extracted out of their mouths in favour of petitioner.
6. The petitioner also contended that the respondent No.1/plaintiff took away 21 Tolas gold ornaments with her, at the time of leaving his house, but he miserably failed to prove as to when the said gold ornaments were delivered to her. As far as the petitioner's claim regarding his entitlement and recovery of gifted 10 Tolas gold ornaments is concerned, section 5 of the Dowry and Bridal Gifts (Restriction) Act, 1967 has provided that all property given to the bride as gift shall absolutely vest in the bride and her interest in property shall not be restrictive, conditional or limited. As the marriage was dissolved on the basis of Khulah under Proviso to section 4 of the Family Court Act, 1964 wherein it has been stipulated that wife shall restore the dower received by wife in consideration of marriage of her husband. There is nothing in section 4 which provides that wife is under bounden duty to return all the gifts or other benefits derived at during the marriage to the husband as consideration of Khula.
7. In view of the above discussion, the petitioner/defendant failed to point out any misreading or non-reading of evidence, illegality or irregularity in the concurrent judgments passed by the two courts below and, therefore, the instant writ petition merits dismissal, accordingly the same is dismissed.