ASIF MUSHTAQ vs DISTRICT JUDGE, RAWALPINDI and otherss
This petition for leave to appeal arose from a decision of the Lahore High Court dismissing a constitutional petition against the concurrent findings of the Family Court and the Additional District Judge. The Family Court had decreed the respondent-wife's suits for dower, maintenance, and recovery of dowry articles, while dismissing the petitioner-husband's suit for restitution of conjugal rights. The main question before the Supreme Court was whether the quantum of maintenance fixed for the respondent-wife and child was excessive given the husband's stated income, and whether the dower had been waived. The Supreme Court held that the determination of maintenance by the Family Court was a discretionary order passed after proper evaluation of evidence. Furthermore, the petitioner failed to provide cogent proof beyond his own oral statement to establish that the dower had been waived by the respondent. Finding no illegality or misreading of evidence to warrant interference with the impugned judgment, the Supreme Court refused leave to appeal and dismissed the petition.
- Whether the oral statement of a husband alone constitutes sufficient proof to establish the waiver of dower by the wife?
- Can the Supreme Court interfere with a discretionary order of a Family Court regarding maintenance passed after evaluating evidence?
ORDER
1. ' SH. RIAZ AHMED, C.J.--- For reasons incorporated in C.M.A. No,2217 of 2002 in C.P. No,274 of 2002, we recall our order, dated 27-9-2002 and restore the main petition to its original number and proceed to dispose of the same on merits.
2. ' With the assistance of Mr. Muhammad Munir Piracha, Advocate Supreme Court for the petitioner and Mr. Muhammad Zaman Bhatti, Advocate Supreme Court for respondent, We have gone through the order impugned. Petitioner was married to respondent way back in 1995 and out of the wedlock, a male child was born. Unfortunately, relations between the spouses became strained and ultimately they fell apart from each other. Subsequently, respondent filed suits for the recovery of dower amount, maintenance and for the recovery of dowry articles, whereas, the petitioner had instituted a suit for restitution of conjugal rights in a Family Court at Taxila. Vide judgment of the trial Court, dated 20-9-2000; all the suits of the respondent were decreed while that of the petitioner was dismissed. Appeal against the said judgment was dismissed by a learned Additional District Judge by means of order, dated 19-2-2001, which was called in question through the invocation of writ jurisdiction, but a learned Single Judge of the Lahore High Court dismissed the Constitution petition in terms of order impugned herein.
3. ' Mr. Muhammad Munir Piracha, Advocate Supreme Court appearing on behalf of the petitioner mainly contended that amount of maintenance at the rate of Rs,2,000 per month each for his wife and son is too excessive because the total income of the petitioner does not exceed Rs,5,000 per month.
4. ' Be that as it may, it was a discretionary order passed by Family Court after recording the entire evidence and going through the facts and circumstances emerging from the instant case. As regards amount of dower, it is contended by learned counsel for the petitioner that the same had been waived by respondent herself. There is no cogent evidence except the statement of the petitioner, which of course, cannot be equated with the proof of waiver and similar is the case with the return of dowry articles. Resultantly, no case or interference with the order impugned is made out, therefore, this petition is dismissed and leave to appeal refused.