These two Constitutional petitions are being dealt with by this common order as they arise out of common set of facts and circumstances.
2. Mst. Kausar Parveen, the petitioner, was married to Abdul Khaliq, respondent No. 1 on 8-1-1993 under Sunny Muslim Law and admittedly the dower amount was fixed at Rs.40,000. It is the case of petitioner that on 5-5-1994 she demanded the dower which the respondent No.1 refused to pay. On 23-1-1995 she filed Suit No.25 of 1995 for recovery of the dower amount which was resisted by the respondent No. 1 on the ground that on 12-1-1993 in presence of witnesses an indenture regarding payment of the dower amount was executed by the petitioner. He pleaded in his written statement that while producing the agreement dated 4-1-1993 the petitioner had suppressed the fact of aforementioned agreement executed on 12-1-1993 and according to him, the Nikah was solemnized on 8-1-1993 the earlier document dated 4-1-1993 was quite doubtful.
3. The petitioner filed another Suit (No. 26/95) for maintenance alleging that the respondent No. 1 all along harassed her and gave her beatings and lastly on 4-5-1994 turned her out of his house after snatching her dowry articles and gold ornaments, she, therefore, took residence with her parents.
According to petitioner the respondent No. 1 did not make efforts to bring her back, and failed to provide her maintenance. She claimed maintenance at the rate of Rs.2,000 per month including arrears of Rs.18,000 from May, 1994 to January, 1995. The respondent No. 1 contested this suit also and at the outset took the plea that this suit as well as the suit for recovery of dower were a counterblast to the suit filed by him earlier against the petitioner for restitution of conjugal rights.
He alleged that the petitioner left his house under pre-planned conspiracy and while doing so she took away all the valuables/clothes including cash and gold ornaments with her. He pleaded that the petitioner was not entitled to maintenance.
4. In the suit for restitution of conjugal rights (F.S. No.615/94) the respondent No.1 alleged that the petitioner, after marriage, lived with him but after about two or three months at the behest of her parents and other family members, misbehaved with his parents and often left his house and went to her parent's house but the matters were resolved through intervention of Local Punchait.
According to him, the petitioner, left his house in the year 1994 and took away all her valuables and although he made efforts for reconcilitation, the parents of the petitioner foiled his efforts and issued threats of false implication in criminal cases. They, allegedly, insisted that the respondent No. 1 shall live with them as their "Ghar Damad". The petitioner, in her written statement, denied all these allegations. All the three suits were consolidated and the following common issues were framed:-- (1)Whether the defendant habitually maltreated the plaintiff?
(2)Whether the plaintiff is entitled to for recovery of her maintenance, if so, on what consideration?
(3)Whether the plaintiff is entitled to for recovery of her dower?
(4)Whether the plaintiff is living away from the defendant without any just cause?
(5)What should the decree be?
5. Parties led evidence on these issues and after assessment of the material on record the learned IV-Civil and Family Judge, Karachi West by her judgment dated 28-4-1997 decreed the suit for restitution of conjugal rights (No.615/94) and directed the petitioner to join the respondent No. 1 as his wife. The learned Family Judge dismissed the suit for payment of dower amount (F.S. No.5/95) but decreed the suit (No.26/95) for maintenance allowing past maintenance at the rate of Rs.2,000 per month from May, 1994 till the respondent No. 1 deposited decretal amount and at the same rate till marriage subsisted.
6. The petitioner preferred an appeal against the said judgment and decree which too met the same fate. The petitioner filed two Constitutional Petitions Nos.S-222 and 223 of 1998 challenging the consolidated judgment dated 25-3-1998 passed by the I-Additional District Judge. The above petitions were accepted and the impugned judgments were set aside remanding the cases to the Appellate Court for reconsideration of the cases on merits after giving notice to the parties.
Direction for early disposal was also issued. The learned I-Additional District Judge, Karachi West, after hearing the parties, remanded the case to the trial Court with direction to record the evidence of both parties, witnesses of Nikah, Nikah Registrar and also attesting witnesses. A direction was also issued to get the signature of Mst. Kausar Parveen verified. Being aggrieved by the said order the petitioner has instituted these petitions with prayers: (i) in C.P. No.S-639 of 1999 for declaration that the judgment dated 22-7-1999 passed in Family Appeal No. 12 of 1997 was illegal and not tenable in law and be set aside and the Family Appeal No-12 of 1997 be allowed and the Suit No.25 of 1996 be decreed; and (ii) in C.P. No.S-643, for declaration that judgment dated 22-7-1999 passed in Family Suit No. 11 of 1997 was illegal and that in consequence thereof the same be set aside and the judgment and decree passed by the Family Court in Family Suit No.26 of 1995 be upheld.
7. I have heard learned counsel for petitioner. He has mainly contended that the remand of the case would open new avenues allowing the respondent No. 1 to adduce fresh additional evidence although, at the trial, he has failed to prove the controversial document and the payment of dower amount.
8. At the outset it would be significant to mention that the Appellate Court in the impugned judgment has observed that the respondent No. 1 has taken the plea that he paid the Gower amount through the document Exh. 'D/1-C' produced at the trial which was attested by Notary public, but the petitioner Mst. Kausar Parveen has categorically denied the execution of the said receipt and has taken the plea that she did not at all appear before the Notary Public and further she has denied her signature, as well. Consequently, the Appellate Court has taken the view that although the case of respondent No. 1 was based on the aforesaid document Exh. D/1-C', the same has not been proved by examining its attesting witness and by sending it to any handwriting expert in order to verify the signature of Mst. Kausar Perveen. The learned Judge has also observed that no doubt the parties did not apply for sending the said document to handwriting expert nevertheless it was the duty of the Court to get its execution proved by examining the attesting witnesses and by sending it to handwriting expert. The Court has also taken note of the admission made by the petitioner in respect of Column .16 of Nikahnama which indicates that gold was given to her towards payment of dower.
9. On a similar approach towards the document of Nikah the Court has taken note of the fact that neither witnesses of the said Nikah nor the Nikah Registrar has been examined to establish the fact that such column was written in lieu of payment of dower amount; it was, therefore, concluded that without recording evidence of such witnesses the contents of Column 16 could not be proved.
Ultimately, the Appellate Court ordered that the matter may be remanded to the Family Court for recording evidence of witnesses of the document, Exh. ' D/1-C' and for getting the signature of Mst.
Kausar Parveen verified by sending it to handwriting expert and after recording such evidence fresh judgment be passed.
10. It is, indeed, clear from the above observations that the Appellate Court has thoroughly examined the evidence available on record and has dealt with the most controversial point which essentially depends upon the proof of the document Exh. 'D/1-C' being the receipt allegedly signed by Mst. Kausar Parveen.
11. Mr. Sh. Muhammad Usman, learned counsel for petitioner submitted that the respondent No. 1 failed to prove this document at the trial and that the remand of the case was not justified in that event. In his support he relied on the authorities Faqir Hussain Shah Bokhari v. Asmat Bibi (1993 CLC 1388), Sher Muhammad v. Ghulam Ghaus (1983 SCM R 133); Manzoor Hussain v. Zulfiqar A.I (1983 SCM R 137), Pramatha Nath Chowdhury v. Kamir Mondal (PLD 1965 SC 434) and Hayat v. Bibi (1993 M LD 1002). Most of these cases relate to the remand made in cases other than in family matters.
Without disagreeing with the principles laid down in these authorities it may be observed that the facts of the instant case warrant a clear finding on the execution and proof of document Exh.'D/1-C' and in that context even relevant evidence would be required as to the Column 16 of Nikahnama.
This Court, in exercise of its Constitutional jurisdiction cannot substitute its finding on the point of fact and it is for the trial Court to draw a definite conclusion. There is no doubt about the fact that the evidence pointed out by the 1st Appellate Court for the purpose of proof of these documents is relevant as well as necessary for the purpose of proving execution of the point in controversy' as such there is no illegality in the order if parties are allowed ample opportunity to lead evidence. In the case reported as Arshad & Company v. Capital Development Authority (2000 SCM R 1557)
Hon'ble Supreme Court has observed that investigation in the disputed question of fact which necessitates taking of evidence cannot be undertaken by the High Court in exercise of its jurisdiction under Article 199. So also the principle laid down in Mir Zaman v. Sheda (2000 SCM R 16991 would apply to the instant case as the petitioner has first to observe the regular procedure for the purpose of proving his case at the trial and have recourse to appeal permissible under the law.
12. As observed earlier, there is no illegality in the impugned judgment the petitions are, therefore, dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.