Writ Petition No. 11306 of 2015 ( challenge to jurisdiction of Family court for dowry)

The petitioner questioned the validity of the judgment passed by the Additional District Judge in Multan on 13-05-2015 upholding the judgment passed by the Family Court in Multan on 17-09-2013 which upheld the claim of dower and dowry articles of respondent No.3.

Facts:  Respondent No3 filed a suit for the recovery of maintenance allowance, recovery of dower mentioned in the Nikah Nama, and dowry articles worth Rs. 1180,256/-. The suit was resisted by the current petitioner who filed a separate suit for the restitution of conjugal rights.

After consolidating the two suits the trial court, on 17-09-2013, decided that the suit for maintenance allowance was decided to be in favor of the plaintiffs for Rs.2000/- per month from the date of the suit’s institution till the dissolution of marriage of the plaintiff No.1. For Plaintiff No.2 the maintenance was decided to be the same with a 10% annual increase until he reached the age of legal entitlement. Regarding the suit by the plaintiff for the return of dowry articles, Rs.4,00,000/- was decided to be provided to the plaintiff and the suit for the recovery of dower was decreed in the plaintiff’s favor as well. The suit for restitution of conjugal rights was dismissed.

Appeals against this decision were filed by both parties which were dismissed by the judgment on 13-05-2015.

This writ petition was then filed.

The petitioner argued that the impugned judgment was worthy of dismissal as the value of dowry articles awarded had never been proven to be of such value by the respondent No.3, nor had the court acknowledged the fact that items listed in Column No.16 of the Purt Nikah could not be included as part of the dower. The respondent argued these to be issues of evidence, not within the constitutional purview of the High Court, whereby which she requested a dismissal of the petition.

Judgement: The court decided that decisions regarding dower could be entertained by a family court as they concern gifts given to a wife in consideration of marriage which was within the exclusive jurisdiction of a Family Courtas decided by the Supreme Court in the cases of Mst. Yasmeen Bibi versus Muhammad Ghazanfar Khan and others^[1] and Mst. Mithan V Additional District Judge, Jatoi and 7 others^[2] according to which post the insertion of item No.10 of amendment Schedule of Act XXXV of 1964 all the matters relating to the Nikah Nama were within the exclusive competence of a Family Court.

Gold ornaments worth Rs.2,00,000/- had been mentioned in Column No.13 of the Purt Nikah and the respondent No.3 had accepted a plot of 5 marlas with a constructed house as dower and this had been mentioned in Column No.16. The court held that specifying the items of dower in the Purt Nikah was enough and the fact that the dower had been fixed in the wrong column had no effect on the validity of the existence of the items of dower as such. This did not permit the petitioner to renege from his undertaking to provide the plot with the constructed house to the respondent, in lieu of the dower.

Noting the fact that the petitioner had specifically pleaded that he would provide the 5 marlas plot according to his financial means if the respondent decided to reside with him, the court stated this to be  the petitioner accepting the validity of the elements entered into column No. 16 of the Nikah Nama.

The respondent had produced receipts as evidence of articles exchanged between her and the petitioner and this was relied upon by the petitioner to state that respondent had taken these articles with her when she left his residence in June of 2011. He admitted that some furniture had been left behind by the respondent which he was willing to return. The court stated that where the petitioner takes a specific plea, he is required to substantiate it via ‘confidence inspiring evidence’ which he had failed to adduce. The court also noted that the petitioner had made false statements in his deposition by not mentioning claims made originally by him whereby which the respondent had been alleged to have taken away Rs.70,000/- in cash and gold ornaments. In addition to this the petitioner, while being cross examined, admitted that he was not present when the respondent was leaving with the alleged cash and gold, from his place of residence. The witnesses he produced to corroborate his allegations could not confirm the version the petitioner had presented which disqualified their testimony.

The court stated that perusal of evidence showed that the occurrence had not been witnessed by the petitioner himself and had been narrated to him by his brother-in-law and another, who did not confirm this finding in their testimonies. Therefore the trial courts’ decision as to the petitioner’s stance being unacceptable and the value of dowry articles was upheld by the court.

The court, while dismissing the petition, also noted that when challenging the constitutional jurisdiction it is mandatory for the petitioner to specify the specify a jurisdictional defect or error with regard to the judgments of lower for a which the petitioner had failed to point out. Therefore, by relying on the dictum laid down in Waqar Haider Butt. Vs. Judge Family Court and others[3] the findings of fact settled by the lower courts could not be meddled with by the current court.

Being considered to be devoid of any force, the writ petition was dismissed by the court.

[1] PLD 2016 SC 613

[2] 2017 MLD 1101

[3] 2009 SCMR 1234