SAFDAR SALEEM SHAHID, J.---The petitioner has assailed the concurrent findings of both the courts below recorded in the judgment and decree dated 28.11.2019, passed by the Family Court, Bahawalpur and judgment and decree dated 11.09.2020, passed by the learned Additional District Judge, Bahawalpur.
2. Brief facts necessary for disposal of the writ petition are that respondent No. 3 filed the suit for recovery of dowry articles and dower through two different suits. Both the suits were contested by the petitioner by raising preliminary legal and factual objections. The petitioner also filed separate suit for restitution of conjugal rights. After failure of pre-trial reconciliation efforts between the parties, both the suits were consolidated and following consolidated issues were framed;-
1. Whether the plaintiff is entitled to get the decree for "recovery of agricultural land measuring 16- Kanal situated in Chak No.8/BC and golden ornaments weighing 10-tolas or alternate its price?
OPP
2. Whether plaintiff Tehmina Bibi is entitled to get a decree for recovery of dowry articles Rs.8,61,.500/-? OPP
3. Whether the suit of the plaintiff is not maintainable in its present form and same are liable to be dismissed? OPD
4. Relief.
Whereafter, the parties produced their evidence. Respondent No.3 herself appeared as PW-1, whereas, no other witness was produced by respondent No.3. From the petitioner side, the petitioner himself appeared as DW-1 and got examined two witnesses Muhammad Zulfiqar as DW- 2 and Muhammad Siddique as DW-3. Whereas, Ex.P-2 was submitted in the statement of learned counsel for respondent No.3, while respondent No.3 in her statement had not submitted any document. The affidavits from both sides were tendered in the affirmative evidence. Finding the evidence of Respondent No.3 more convincing the learned Civil Judge decided the issue No.1 in favour of respondent No.3 and decreed 16 Kanal land mentioned in Ex.P-2 against column No.16 and also decreed 10 tolas gold ornaments or alternate market value of the same. Whereas, issue No. 2 was decreed to the extent of dowry articles amounting to Rs.4,50,000/.-. The suit for restitution of conjugal rights of the petitioner was decreed subject to payment of dower. This judgment and decree was assailed before the court of learned Additional District Judge and the learned Additional District Judge maintained the judgment and decree passed by the learned Family Judge and finding that all the issues have been decided according to its merits, dismissed the appeal of the petitioner. Against both the judgments and decrees, the present constitutional writ petition has been filed.
3. It was argued by counsel for the petitioner that both the courts have not properly read the evidence of the parties. The stance of the petitioner has not been properly appreciated. In support of the fact that the petitioner's stance was very clear in the written statement, no issue regarding the same was framed by the court. The evidence tendered by the petitioner was not properly read and discussed by the court. The court has also not kept in view the point that respondent No.3 was to prove her demand but respondent No.3 had failed to prove anything regarding her demand.
There is no corroboration to the statement of respondent No.3. Ex.P-2 i.e. has not been correctly interpreted by both the courts below. It was argued that in column No.16, it has been mentioned that the said property is to be given in dower as deferrer dower, but the court below has wrongly interpreted the wording of the said column, specifically there is mentioning of word dower but the court has interpreted that since word has been written along with therefore, it will be read as prompt/on demand dower. It was argued that the petitioner has produced all the relevant witnesses. Both the courts below have not taken the notice of the evidence produced by the petitioner. The stance of the petitioner from the very beginning was that the land was mentioned in column No.16 just on the asking of the father of respondent No.3, factually, that land was not fixed as dower of the lady. The witnesses have proved this fact but the court below has not properly appreciated the evidence of the petitioner. It was argued that it was deferred dower which cannot be interpreted in any way as prompt dower and the lady is not entitled at this stage to claim the same as marriage is intact between the parties. It is premature claim/demand of the respondent It was further argued that the court has misread the evidence. The learned Civil Judge in his judgment has mentioned that DW-1/petitioner has stated that he had paid cash to respondent No. 3/plaintiff. It was argued that no such statement was made by the petitioner. The court itself has assumed regarding the same and the same is the position with the judgment of the learned Additional District Judge. Neither this statement was made by the petitioner nor any of his witness has made such a statement regarding the payment of anything, therefore, the findings of both the courts below on issue No.1 are contrary to the evidence, therefore, the impugned judgment and decree to this extent be set-aside.
4. Counsel for respondent No.3, on the other hand, resisted the arguments and argued that (Ex.P- 2) is an admitted document. The petitioner has not challenged the contents of the same before any forum. The statement made by the petitioner is in a way of admission on his part that the same property mentioned in column No.16 was written in The other version taken by the petitioner is not provided as no such evidence is produced by the petitioner. Regarding the payment of the ornaments, no proof has been given by the petitioner, court has correctly observed that neither any receipt nor any witness for giving the said ornaments has been produced by the petitioner. It was argued that in Ex.P-2 against column No.16, it is not mentioned that said gold ornaments have been paid at the time of or marriage. Therefore, the contention of respondent No.3 is correct and has been correctly observed by both the courts below that respondent No.3 was entitled for the gold ornaments mentioned in Ex. P-2. There is no such misreading or non-reading of evidence. The issues have been settled on its merits. Respondent No.3 herself has appeared in the witness box and she has stated her claim, whereas, in cross-examination, the petitioner was unable to bring on record that any of the claim of respondent No.3 was false.
5. I have heard counsel for the parties, record has been perused.
6. There is no denial regarding the existence of Ex.P-2. However, the petitioner had shown his reservations regarding column No.16 of Ex.P-2 that this land i.e. 16 Kanal was not settled as dower but it was written in thejust to show-off. There are two questions before this court;
(i) Whether the learned Judge Family Court has properly appreciated the evidence and whether there is any element of non-reading or misreading of the evidence as pointed out by the petitioner.
(ii) Whether that interpretation of the court that no amount was paid as against the ornaments can be considered as the ornaments were not paid by the petitioner.
Secondly, the status of mentioning dower in column No.16 and beside that the word can it be interpreted as prompt or it is a premature demand of respondent No.3.
Muhammadan Law confirms in paragraph No.290 that defines prompt and deferred dower as:-
290. "Prompt" and "deferred" dower.---(1) The amount of dower is usually split into two parts, one called "prompt," which is payable on demand, and the other-called "deferred" which is payable on dissolution of marriage by death or divorce.
In "Saadia Usman and another v. Muhammad Usman Iqbal Jadoon and another" (2009 SCMR 1458) it is hold that; "----S. 5---Muslim Family Laws Ordinance (VIII of 1961), S.9--- Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider the correct import of `deferred dower' and whether it could become prompt if and when demanded; whether Family Court could not grant maintenance which instead could be granted by Arbitration Council as mentioned in S.9 of Muslim Family Laws Ordinance, 1961; whether amount of maintenance decree commensurated with status and income of husband; whether restitution of conjugal rights could be allowed subject to condition of separate living of wife with husband abroad; and whether restitution of conjugal rights could be subjected to payment of maintenance."
The amount of of Rs.1,000/- dower is mentioned in column No.13 of Ex.P-2 which is payable on demand, whereas, in column No.16 the property mentioned 16 kanal is a deferred dower which can only be payable either in case of separation between the spouses or death of either the husband or wife. So far as 10 tola gold ornaments is mentioned, there is nothing mentioned in Ex.P-2 whether the same is prompt, or deferred, then according to law, it will be considered that this 10 tola gold ornaments are to be paid on demand, because if the same had been paid by the petitioner as per his claim, there must be the mentioning of the same in Ex.P-2. The petitioner has admitted that Ex.P-2 was executed and all the mentioned persons on Ex.P-2 in the column of witnesses had signed over the same. Even the witnesses appeared in support of the petitioner's contentions, had not shown any reservation about the genuineness of the document Ex. P-2. So far as the contention of the petitioner that the property in column No.16 was just mentioned as show-off is concerned, the petitioner has not produced any independent reliable confidence inspiring evidence on the same. The two witnesses produced are closely related to the petitioner. The petitioner could have produced the who has solemnized the and has filled in the columns of Ex.P-2 to prove his version, if, it was so settled. The version of the petitioner that it was for the lady to prove that the same was written as dower, is not a correct approach because has the authenticity of correctness. And if the petitioner had any reservation then it was for him to prove the same. Ex.P-2 was exhibited in the evidence without objection. Meaning thereby, its all contents are correct and admissible to the petitioner. The learned Judge Family Court although has .not correctly interpreted the statement of the petitioner regarding handing over .of gold ornaments, yet the meaning of the sentence was that the petitioner had not proved with the evidence that the gold ornaments were paid at the time of to respondent No.3, as no receipt for the purchase of the same was produced nor any independent evidence was produced. in this regard that at the time of the same was given to the lady as dower, as, mentioned in column No.16 of the Ex.P-2. Had it be given to the lady, it would have been mentioned in Ex.P-2, therefore, the finding on issue No.1 to the extent of gold ornaments is correctly recorded by both the courts below, in view of evidence of 13 the parties.
7. So far as the interpretation regarding the remaining part of the dower mentioned in column No.16 of Ex.P-2 is concerned, the citation referred by counsel for respondent No.3 is not as such applicable to the present proposition, because there is no word in Islamic or Arabic dictionary used for dower. It may be then interpreted as deferred, as the same has been written in the column against the said condition of Ex.P-2. Therefore, the right interpretation of this entry is that such dower is payable but as deferred, which is a pre-mature demand of the lady at this stage. So to that extent, the prayer of respondent No.3 is not correctly decreed by the courts below. The finding on issue No.1 to the extent of decreeing 16 kanal land as prompt dower is hereby set-aside.
However, the version of the petitioner is not proved and has been correctly answered by the courts below that it was just a show-off in Ex.P-2, but factually, this was a dower fixed between the parties, but it cannot be treated as prompt, at this stage.
8. Since, the petitioner has not pressed the findings on issues Nos.2 and 3, therefore, there is no need to discuss and answer the findings on both these issues and findings on these issues are upheld.
9. Upshot of the discussion is that the petition is partly allowed to the extent that the dower i.e. 10 tola gold ornaments has been correctly decreed in favour of respondent No.3 and to that extent, the findings of both the courts below are upheld. And the dower of 16 kanal land, will be treated as deferred dower and to that extent, the claim of respondent No.3 is pre-mature and the findings to that extent of both the courts below are reversed. This petition is partly allowed.