PLJ 2020 Lahore (Note) 183
[Multan Bench, Multan]
Present: Mujahid Mustaqeem Ahmed, J.
MUHAMMAD ASIF--Petitioner
versus
JUDGE FAMILY COURT and others--Respondents
W.P. No. 16740 of 2018, heard on 6.9.2018.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 10(5), (6)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for recovery of dower & dissolution
of marriage--Decreed--Appeal--Dismissed--Interpolation and tempering of nikahnama--After thought plea--Non-challenging of entries of Nikahnama--Ignoration of provision of law by Courts below--Excess of jurisdiction--Modification in judgments--Direction to--Entitlement for recovery of residential house--Counsel for petitioner could not point out any misreading or non-reading of evidence by Courts below and as such this Court is of considered view that Courts below were fully justified to discard such after-thought plea--Courts below were not justified to decree total claim of respondent for recovery of Haq-ul-Mehr--In view of Sub-Section 5 & 6 of Section 10 of Act, wife could be directed to surrender upto 50% of deferred dower and upto 25% of admitted prompt dower to husband--Whereas in instant case, Courts below have totally ignored this provision of law--As such impugned judgments being contrary to law and in excess of jurisdiction are not sustainable--Petition was dismissed. [Para 10, 11 & 12] A & B
20002 SCMR 1408, PLD 2016 SC 613 and 2009 SCMR 1458 ref.
Malik Sajjad Haider Maitla, Advocate for Petitioner.
Mr. Abdul Samad Ali, Advocate for Respondent No. 3.
Date of hearing: 6.9.2018.
Judgment
By filing the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the legality and propriety of the judgments passed by learned Courts below, by which suit of Iram Bibi-Respondent No. 3 (respondent) for recovery of dower stood decreed.
2. The summarized facts of this family litigation, necessary for adjudication of this writ petition are that petitioner and respondent were married on 13.03.2016 vide 'Nikah Nama' Exh.P2, against Haq-ul-Mehr Rs. 2000/- in cash. The petitioner also undertook to give a residential house consisting 1-Kanal land (residential house) to respondent and 3-Tola gold ornaments as Haq-ul-Mehr. Just two months after the marriage, the respondent filed a suit for multiple reliefs i.e (i) suit for dissolution of marriage and (ii) for recovery of dower i.e residential house and 3-Tola gold ornaments as per column No. 15 and No. 16 of Nikah Nama'.
3. The suit was resisted by the petitioner mainly on the grounds that it was love marriage and entries in 'Nikah Nama' against column No. 15 and 16 were forged, unauthorized and as such he was not bound to pay claimed "Haq-ul-Mehr'.
4. On 21.07.2016, the pre-trial reconciliation efforts ended in failure and consequently decree for dissolution of marriage was passed in favour of respondent on the basis of 'Khula' subject to surrender of 25% of prompt paid dower. To resolve the remaining controversy, following issucts were framed:--
ISSUES
i. Whether plaintiff is entitled to decree for recovery of 01 Kanal of land alongwith alleged constructions within limits of Tibba Mustaqil Darmiani worth Rs. 08/- lacs on account of her dower as is prayed by her in her plaint? OPP.
ii. Whether plaintiff is entitled to decree for recovery of 75% of 03 "TOLLAS" of golden ornaments worth Rs. 1,80,000/- as is prayed by her in her plaint? OPP.
iii. Whether plaintiff is available with cause of action & locus standi to institute this suit? OPP
iv. Whether defendant is entitled to recover special costs from plaintiff, if so? Quantum thereof? OPD
v. Relief.
5. Both the parties led evidence in support of their respective claims and vide judgment and decree dated 28.02.2017, passed by learned Judge Family Court, suit of the respondent was decreed in the following terms:
'A. Plaintiff shall be entitled to recover from defendant 01 Kanal of land alongwith constructions consisting up of four walled boundary & hand pump etc. located heated at Tibba Mustaqil Darmiani.
B. Plaintiff shall also be entitled to recover from defendant 75% of 03 "TOLLAS" of golden ornaments."
6. The petitioner feeling dissatisfied with the impugned judgment and decree assailed the same before learned -Additional District Judge, Kot Addu but the same was dismissed vide judgment and decree dated 06.11.2017, while affirming the findings of learned Judge Family Court, Kot Addu.
7. Feeling dissatisfied with the above judgments of the learned Courts below, the petitioner has approached this Court by filing this writ petition in terms of Article 199 of the Constitution of the, Islamic Republic of Pakistan-1973, with the following prayer:-
" .... that this writ petition may kindly be accepted and impugned judgment and decree dated 28.02.2017 and judgment and decree dated 06.11.2017 be declared as null and void and the same may kindly be set aside in the larger interest of justice and suit of the Respondent No. 3 may very kindly be dismissed."
8. Arguments heard. Record perused.
9. The main contention of learned counsel for the petitioner is that it was love marriage, so, no stipulation regarding giving residential house and 3-tola gold ornaments as dower was settled between the parties and entries in this regard in 'Nikah Nama' Exh.P2 are based on interpolation and tampering. Suffice to observe that this plea of the petitioner could not find favour by learned Courts below, who have out-rightly rejected petitioner's this plea. The learned Judge Family Court while attending to this factual controversy has concluded as under:
"Nikahnama of parties is owned and admitted by defendant, but he alleged that entries thereof so based for plaintiff's claim are forged & fabricated by plaintiff or her parents or her father alone in collusion with nikahkhawan. In said regard, he was obliged to mention down & elaborate relevant details as to when, where, how and by whom such developments was effected. He did not move to get produce original record of said nikahnama, relevant nikah khawan, nikah registrar, witnesses to said nikahnama etc. He was unable to produce "PERT" of nikahnama used to be handed over to groom at the time of nikah. Further significant to mention here that in such like marriages, in prevalent social situation, it is the groom who uses to make up arrangements for such a love marriage including travelling, nikah ceremony, nikah khawan & witnesses etc. Relevant spot and attendants of such marriage including nikah khawan always remain unfamiliar with a bride of love marriage. So, even probabilities of collusive arrangements of plaintiff or her family members with nikah khawan to force in alleged developments in record are not believable at all."
10. During course of arguments, learned counsel for the petitioner could not point out any misreading or non-reading of evidence by the learned Courts below and as such this Court is of the considered view that the learned Courts below were fully justified to discard such after-thought plea.
11. It is settled law that the presumption of truth is attached to the entries of "Nikah Nama" being a public document, whereas as per petitioner's own case, he has not assailed the "alleged" un-authorized entries of "Nikah Nama" before Deputy Commissioner concerned or custodian of 'Nikah Register' or any other competent forum. It means that plea of the petitioner that entries in "Nikah Nama" are unauthorized and made afterwards is without any foundation. In case reported as 'Jan Muhammad Versus Mst. Salamat Bibi and others' (2002 SCMR 1408), 'Abdul Malik and others Versus Mst. Subbha Mai alias Sabbah Mai' (2016 MLD 925 Lahore) and 'Mst. Nabeela Shaheen and others Versus Zia Wazeer Bhatti and others' (PLD 2015 Lahore 88) it has been laid down that 'Nikah Nama' is public document and presumption of truth is attached to the entries made therein. The learned Courts below have given due consideration to the version of the petitioner and rightly discarded the same.
12. The petitioner vide stipulation against Column No. 15 of Nikah Nama' (Exh.P2) has undertaken to transfer a residential house consisting 1-Kanal land in favour of respondent. In view of case 'Mst. Yasmeen Bibi Versus Muhammad Ghazanfar Khan and others' (PLD 2016 Supreme Court 613) such undertaking can be treated as part of dower to respondent in consideration of marriage, whereas in view of case Saddia Usman versus Muhammad usman Iqbal (2009 SCMR 1458), this dower settled between spouses is "Deferred Dower". Under Section 10(5) of the West Pakistan Family Courts Act, 1964 (The Act) in case of passing a decree for dissolution of marriage through 'Khula', the Court can direct a wife to surrender upto 50% of her deferred dower and 25% of her admitted prompt dower to husband, whereas under sub-section 6 of the aforesaid Section, subject to sub-section 5 in a decree for dissolution of marriage, the family Court may direct the husband to pay whole or part of the deferred dower to a wife. As noticed earlier, the parties have entered into marriage on 13.03.2016 and matrimonial dispute arose between them within two months of marriage, forcing the respondent to approach learned family Court for dissolution of marriage and recovery of 'Haq-ul-Mehr'. In the peculiar facts and circumstances of the caserne learned Courts below were not justified to decree the total claim of respondent for recovery of 'Haq-ul-Mehr. In view of Sub-Section 5 & 6 of Section 10 of the Act, the wife could be directed to surrender upto 50% of the deferred dower and upto 25% of the admitted prompt dower to the husband. Whereas in the instant case, the learned Courts below have totally ignored this provision of law. As such impugned judgments being contrary to law and in excess of jurisdiction are not sustainable. Consequently the instant petition is partly allowed. The impugned judgments are modified and respondent is directed to surrender 50% of deferred dower (residential house) measuring 1-Kanal. Consequently, suit of respondent for recovery of dower is decreed to the extent of 50% of deferred dower and respondent will be entitled to recover residential house measuring 10-Marla or its alternate price to be fixed by the learned executing Court. Rest of the decree for dower passed in favour of respondent is in line with Section 10 of the Act and to this extent, the instant petition being devoid of merits is dismissed.
(M.M.R.) Petition dismissed
