SHAFIQUE SULTAN vs Mst. ASMA FIRDOUS and others

ORDER

' IJAZ UL AHSAN, J.---The petitioner seeks leave to appeal against judgment dated 13.10.2014 rendered by the Lahore High Court, Lahore in Writ Petition No,14221 of 2010. Through the impugned judgment, a constitutional petition filed by respondent No,1 was allowed; judgment and decree passed by the District Judge, Toba Tek Singh dated 15.03.2010 was set aside; and judgment and decree dated 21.12.2009 handed down by the Judge, Family Court, Toba Tek Singh was upheld.

2. The facts necessary for disposal of this petition are that Mst. Asma Firdous, respondent No,1, filed a suit against the petitioner for recovery of maintenance allowance for two minor children and return of dowry articles valuing Rs,217,710/-. The petitioner contested the suit. He took the stance that he was not in a position to provide maintenance to the minors and no dowry was given to the respondent by her parents at the time of her marriage with him. After recording evidence, the Judge, Family Court, Toba Tek Singh decreed the suit vide judgment and decree dated 21.12.2009 in the following terms:- "The suit of the plaintiffs is decreed to the effect that plaintiffs Nos.2 and 3 are entitled to recover Rs,1500/- per month each from the date of institution bf the suit till their marriage with 10% annual enhancement in future maintenance. Plaintiff No,1 is also entitled to recover the dowry articles as per list Ex. P2 excluding the articles mentioned at serial Nos. 18 and 20. In case of non-delivery of dowry articles plaintiff would be entitled to get 65% of their price mentioned in the list Ex.P2, except of gold ornaments of which she is entitled to get value mentioned in Ex.P2. No order as to costs."

3. On appeal by the petitioner, the judgment and decree to the extent of maintenance was upheld by the appellate Court and was not challenged before the High Court. It has not been assailed before us either. However, the petitioner is aggrieved of the judgment and decree of the Family Court has upheld by the High Court to the extent of return of dowry articles.

4. Learned counsel for the petitioner, submits that the respondent could not establish her claim regarding dowry articles. He maintains that the entire case of the respondent was based upon oral evidence which was not supported by any cogent, confidence inspiring or independent evidence.

He further submits that neither receipts for purchase of dowry articles were placed on record nor their authors were produced in evidence before the trial Court. As such, the impugned judgment and decree were unsustainable.

5. Having heard learned counsel for the petitioner and gone through the record, we find that the trial Court as well as the High Court examined the evidence produced by the parties in its true perspective. The respondent appeared as PW.1 and gave details of dowry articles and placed her affidavit on record as Ex.P1. She was subjected to lengthy cross-examination but nothing helpful to the petitioner could be brought on record. She also produced Abdul Rashid as PW.2 who categorically stated that dowry articles as per list (Ex.P2) were given to the respondent by her parents at the time of her marriage with the petitioner. He was not cross-examined on this point.

The learned trial Court, therefore, correctly reached the conclusion that in the absence of cross- examination on the question of dowry articles, the statement of PW.2 was to be presumed to be true which corroborated the evidence of PW.1. As opposed to this, other than denying delivery of dowry articles, the petitioner did not produce any evidence of any nature to substantiate his position. The learned trial Court rightly found the evidence of the petitioner to be weak and unconvincing as compared to the evidence produced by the respondent. The High Court also found that the conclusion arrived at by the trial Court was realistic in the facts and circumstances of the case as well as evidence placed on record.

6. We have also gone through the list of dowry articles (Ex.P2) and found that the same consist of articles of daily use which are generally given to brides at the time of their marriages. We have not found any article(s) which may be termed as extravagate or beyond the financial resources of the respondent's family. Giving dowry articles to daughters is in line with custom/tradition and practices which are deeply rooted in our society and are followed by parents of all classes irrespective of their financial status. Learned trial Court as well as the High Court have, however, been careful and circumspect in decreeing the suit to the extent of 65% of the value of dowry articles claimed by the respondent on the ground that the marriage lasted 6-1/2 years and the value of the dowry articles underwent depreciation on account of use. Further, the articles appearing at Sr.Nos.18 and 20 were disallowed for the reason that clothes could hardly be in a recoverable condition due to lapse of time and there was no evidence about the present condition of the cow and three calves which were allegedly given to the respondent at the time of her marriage. We find that both impugned judgments show due application of mind in appraising evidence, are well reasoned and duly supported by the record. Even otherwise, the provisions of Qanun-eShahadat Order, 1984 are not stricto sensu applicable to family matters. As such, the argument of learned counsel for the petitioner regarding proof of receipts and the effects of non- production of authors of such receipts, in the specific facts and circumstances of the present case is misconceived.

7. We are not convinced that the findings recorded by the trial Court as upheld by the High Court have any perversity, legal error or flaw that may furnish reasonable ground or lawful justification for interference by this Court in exercise of its powers under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973.

8. For the reasons recorded above, this petition is dismissed and leave to appeal is refused.