"This case is a sorry tale of two presumptions albeit erroneous. While the trial court has misdirected itself in law while taking into account an absolutely irrelevant consideration and treating it as a presumption, the appellate court, too, has fallen in grave error while basing its judgment on an equally bald presumption which has no legal basis".
MUHAMMAD SHAN GUL, J. Through this judgment the titled constitutional petition is sought to be decided.
2. The petitioner, Mst. Sharaini Bibi along with her minor daughter Fazeelat Fatima approached the trial court under the West Pakistan Family Courts Act, 1964 against respondent No.3 Saif Ullah Khan for securing maintenance allowance, delivery expenses and seeking return of dowry articles worth Rs.4,23,526/-.
3. Marriage between petitioner Sharaini Bibi and respondent Saif Ullah Khan was solemnized in 2016. On account of alleged cruelty of respondent No.3, it is stated, the petitioner was forced to run away and go back and live with her parents. The minor was born during this period of separation.
4. The petitioner approached a Judge Family Court by filing a suit. This suit was partially decreed. in as much as plaintiff was held entitled to receive maintenance for her Iddat period only, her minor daughter was awarded maintenance of Rs.2000/- per month w.e.f the decision in the suit with 10% annual increase and past maintenances allowance Rs.1500/- per month since her birth. The petitioner was also awarded Rs.10,000/- as delivery expenses. However, and of the essence, the petitioner was not allowed any past maintenance for herself and her claim for return of dowry articles was dismissed in totality.
5. This led the petitioner to file an appeal in the matter and which appeal was also dismissed vide judgment dated 14.5.2018.
6. The present challenge before this Court is in respect of two issues and which are past maintenance allowance of the petitioner as also her claim for return of dowry articles or their alternative price.
7. Heard. Record perused.
8. At the outset, it has been made clear to the learned counsel for the petitioners that her challenge with respect to past maintenance allowance is a non-starter because she could not prove the fact that she had been compelled to leave the house of respondent No.3 on account of cruelty and that allegations raised by her never converted into acknowledged and proved facts and hence there is nothing irrational, illegal, untoward or erroneous about this particular aspect of the matter whereby past maintenance has been refused.
9. In this view of the matter, this petition is primarily being adjudicated only with respect to the limited question of non-award of dowry articles and the challenge with respect to past maintenance allowance is not sustainable and is accordingly rejected.
10. A perusal of the judgment of the trial court reveals that the trial Judge while rejecting the case of the petitioner for return of dowry articles has been stupendously impressed with the fact that since petitioners were twelve, siblings in all, therefore, dowry, articles could not have been given to her by her parents. On the face of it, this is a questionable and unwarranted consideration because it has no basis in law. Regardless and irrespective of number of siblings that a woman has, if Rukhsati takes place (and which did take place) then giving of dowry articles is presumed. This is trite and acknowledged. Hence, the trial court misdirected itself in law in summarily dismissing the claim for dowry articles outrightly. The decision, of the trial court is somewhat erroneous in view of the law laid down in "Shafique Sultan v. Mst. Asma Firdous and others" (2017 SCMR 393), "Mst.
Arooj Malik and another v. Additional District Judge and others" (2017 CLC (Note) 16), "Mst. Sahib Noor v. Zafar 1qbal and others" (2011 YLR 1268) and "M. Jaffar v. Additional District Judge and others" (2005 MLD 1069).
11. It has been held by the Hon'ble Superior Court that giving dowry articles to daughters is in line with customs/traditions and practices which are deeply entrenched in the society and are followed by parents of all classes irrespective of their financial status. That, in an arranged marriage, and in line with customs which are deeply rooted and entrenched in our society, parents whether rich or poor always give dowry to their daughters at the time of marriage. In terms of the law laid down in "M. Jaffar v. Additional District Judge and others" (2005 MLD 1069) delivery of dowry articles can be presumed if Rukhsati takes place.
12. In the matter before this Court, the petitioner had specifically taken the plea about dowry articles and had relied on a schedule marked as 'A' filed along with her suit according to which dowry articles valuing Rs.4,23,526/- had to be recovered. She also appeared as her own witness.
Even during the course of cross-examination, her testimony could not be shattered as such.
13. The decision passed by the trial court was challenged in an appeal filed by the petitioner. But even the appellate court could not resist the temptation of committing the cardinal mistake of basing its decision on a questionable and bald presumption and which is 'Pathan families do not give dowry articles to their daughters'. This pretext is outrightly questionable, entirely presumptuous and has no legal basis. It is, by far, too generalized a presumption to be relied upon.'
There is no legal benchmark or yardstick which explains that Pathans do not give dowry articles to their daughters. There is no law that says so and hence the reliance of the first appellate court on this consideration clearly reveals that the appellate court also misdirected itself in law and took into account absolutely irrelevant consideration and thereby rendered its H decision susceptible to interference.
14. Although the application of Qanun-e-Shahadat Order, 1984 has been deliberately ousted from the proceedings before Family Courts, the principles governing proving of a fact can be applied while evaluating evidence presented to Family Courts. The observation of the learned trial court, assuming without proof, of the inability of the petitioner's parents to give her dowry at the time of her marriage, owing to a large family they tad to maintain or that of learned appellate court, again assuming that Pathans do not give dowry to their daughters; could only stand if the financial inability of parents or custom prevalent in the Pathan clan, were judicially noticeable facts.
15. Judicial notice is used by a court when it declares a fact presented as true without a formal presentation of evidence i.e. allowing a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.
This rule is codified in Articles 111 and 112 of Qanun-e-Shahadat Order, 1984. Other than the facts mentioned in Article 112, no other fact can either be assumed or taken as proven without evidence; let alone be used as a basis for adjudication of rights. Neither the financial status of a girl's parents nor the custom of Pathans regarding dowry is one of such judicially noticeable facts, hence, none of these could either be inferred nor any judgment could have been delivered on the basis of the same.
16. Even otherwise, the appellate court despite ,noting petitioner's deposition about purchase of dowry articles by her as also by her father did not attach any importance to the same and rather brushed it aside without much ado.
17. Both presumptions, of a large family by the trial court and of a Pathan family by the appellate court, are gratuitous, legally unwarranted and hence anathema. The Constitution of Islamic Republic of Pakistan, 1973 or for that matter any statutory dispensation in force does not recognize such presumptions to defeat the return of dowry articles. Furthermore, in the presence of the fact that Rukhsati took place, the delivery of dowry articles ought to have been presumed as per law.
18. In view of what has been discussed above, both judgments, dated 24.1.2018 passed by the trial court and dated 14.5.2018 passed by the appellate court, are set aside and declared to be of no legal effect only to the extent of the question of return of dowry articles. However, the remaining portions of the judgments pertaining to grant of maintenance (for petitioner as also for her minor daughter), and with respect to delivery expenses are left untouched and maintained.
19. However, in so far as the question of return of dowry articles is concerned, the same shall be deemed to be pending before the Judge Family Court concerned. The Court shall advert to the question of return of dowry articles in line with what has been noted above as also in line with the evidence available on record and without being in any manner influenced by the presumptions relied upon earlier i.e. family with twelve siblings or petitioner belonging to a Pathan family.
20. Allowed in the above terms.