PLJ 2013 Islamabad 105
Present: Riaz Ahmad Khan, J.
SHAKEEL HUSSAIN
SHAH--Petitioner
versus
BUSHRA HAMEED,
etc.--Respondents
W.P. No. 334 of
2012, heard on 21.2.2013.
Constitution of Pakistan,
1973--
----Art.
199--Constitutional petition--Dower amount was fixed at time of marriage--Contention--Husband
had paid dower amount on wedding night--Validity--Mere statement before Court
cannot be considered as proof in its own self--Validity--Mere statement before
Court cannot be considered as proof in its own self--Husband was bound to prove
payment of dower amount through evidence--In absence of legent
evidence, simple statement cannot be considered as a proof and in such case,
onus would not shift to wife to disprove claim of husband--Mere statement that
dower has paid on wedding night was not sufficient to prove payment of dower. [P. 107] A
Dower--
----Right to
refuse performance of marital obligation--Entitled to receive maintenance
allowance--Dower in fact was a debt against husband and in case dower amount
was not paid, wife would have a right to refuse performance of her marital
obligations--Once it was proved that dower had not been paid, wife would be
entitled to stay away from husband and husband would be bound to pay
maintenance to his wife--No evidence to prove that husband had paid dower
amount and therefore, wife was entitled to receive maintenance allowance. [P. 107] B
Constitution of Pakistan,
1973--
----Art.
199--Constitutional Petition--Maintenance allowance was fixed in Nikkah Nama--Restitution of
conjugal rights--Entitlement of decree--Payment of dower--Validity--Wife was
prepared to live with husband provided dower amount as well as maintenance
allowance was paid to wife and house for residential purpose was provided to
wife--Allegation of cruelty had not been proved, therefore, husband was
entitled to decree for restitution of conjugal rights subject to payment of
dower--Petition in respect of dower and maintenance allowance was dismissed
whereas in respect of restitution of conjugal rights was accepted subject to payment
of dower. [P. 108] C
Jan Muhammad
Khan, Advocate for Petitioner.
Syed Wajid Ali Gillani, Advocate for
Respondents.
Date of hearing:
21.2.2013.
Judgment
This judgment is
directed to dispose of W.P. No. 334/2012.
2. Brief facts of the case are that petitioner Shakeel Hussain Shah married
Respondent No. 1 Bushra Hameed
on 22-04-2009.
Unfortunately, after the marriage, the relations became strained and in May
2010, the respondent wife left the house of the petitioner. According to
respondent wife, she was mal-treated and was given beatings, so she-had to
leave the house, whereas contention of the petitioner husband is that the
respondent wife had left the house at her own sweet-will. Respondent wife
thereafter filed suit for recovery of dower amount Rs. 3,00,000/-
and maintenance allowance at the rate of Rs. 4000/- per month. Afterwards
prayer regarding recovery of dowry articles was also added to the plaint. Whereas, the defendant husband filed suit for restitution of
conjugal rights. The respondent/plaintiff appeared as her own witness
and against that defendant husband appeared as sole witness. Learned trial
Court after hearing the parties, passed the decree regarding dower amount as
well as maintenance allowance, however, the suit regarding dowry articles was
dismissed. The suit regarding restitution of conjugal rights was also decreed.
Both the parties filed appeals before learned Additional District Judge. In
appeal, the decree regarding dower amount as well as maintenance allowance was
maintained. The claim regarding dowry articles was dismissed. However, suit
regarding restitution of conjugal rights was also dismissed. Feeling aggrieved
of the same, the petitioner husband filed the present writ petition.
3. Learned counsel for the petitioner submitted
that petitioner/husband had paid dower amount on the wedding night to the
respondent/wife and the petitioner/husband had stated the same fact before the
Court. The wife as such, was required to produce evidence to disprove the claim
of the husband. It was further submitted that the allegation of cruelty was not
proved against the husband. The wife had left the house of her husband at her
own sweet-will and therefore, she is not entitled to maintenance allowance.
Learned counsel also submitted that since there is no suit for dissolution of
marriage, the dower amount had been paid, therefore, the petitioner husband was
entitled to decree for restitution of conjugal rights.
4. On the other hand, learned counsel for
respondent wife submitted that the dower amount was never paid, the respondent
wife was subjected to physical torture and in that respect, medical
report is available. The respondent wife had been living in the house of her
parents since 11-05-2010
and she is, therefore, entitled to maintenance allowance.
5. I have heard learned counsel for the parties
and have also perused the record.
6. Admitted position in the present case is that
dower amount fixed at the time of marriage was Rs. 3,00,000/-.
It is also admitted that the maintenance allowance, agreed at the time of Nikkah was Rs. 4000 per month. Nikkah-nama
in this respect is also available on record. Contention of the petitioner
husband is that he had paid the dower amount on the wedding night and in this
respect had deposed before the learned trial Court. Mere statement before the
Court cannot be considered as a proof in its own-self. The petitioner husband
is bound to prove the payment of dower amount through evidence. In absence of
cogent evidence, simple statement cannot be considered as a proof and in such case, the onus would not shift to the wife to disprove the
claim of the husband. Mere statement that dower was paid on the wedding night,
is not sufficient to prove the payment of dower. Infact,
such a statement cannot even be considered as evidence. The payment of dower as
such has not been proved.
7. Dower in fact is a debt against the husband
and in case the dower amount is not paid, the wife would have a right to refuse
the performance of her marital obligations. Once it is proved that the dower
has not been paid, the wife would be entitled to stay away from the husband and
the husband would be bound to pay maintenance to his wife. In the present case,
there is no evidence to prove that the husband had paid the dower amount and
therefore, the wife is entitled to receive maintenance allowance.
8. As far as amount of maintenance allowance is
concerned, the same was fixed in the Nikkah-nama as
Rs. 4,000/- per month, so both the learned lower Courts had rightly fixed the
said amount as maintenance
allowance of the
respondent wife. Regarding restitution of conjugal rights, the learned counsel
for the respondent wife submitted that the respondent wife is prepared to live
with the petitioner husband provided the dower amount as well as the
maintenance allowance is paid to the wife and house for residential purpose is
provided to the respondent wife. The allegation of cruelty has not been proved, therefore, the petitioner husband is entitled to the
decree for restitution of conjugal rights subject to payment of dower. The writ
petition in respect of dower and maintenance allowance is therefore, dismissed,
whereas in respect of restitution of conjugal rights is accepted subject to
payment of dower.
(R.A.) Petition
dismissed
