Mst. SHEHNAZ AKHTAR Versus FIDA HUSSAIN

SH. HAKIM ALI, J .--- I intend to dispose of the instant writ petition along with Writ Petition No.1050-F of 2006/BWP (Fida Hussain v. Additional District Judge, Bahawalpur and others) as both the writ petitions have arisen from one and the same judgment and decree passed by learned Additional District Judge on 3-12-2005 and common questions of law and facts are involved in both these writ petitions.

2. Dispute began when the strained relations between Mst. Shehnaz Akhtar, writ petitioner, with Fida Hussain commenced, which permitted Mst. Shehnaz Akhtar to file a suit for recovery of dower, dowry articles and for grant of maintenance allowance against Fida Hussain, present respondent No.1 and against his father respondent No.2, namely Allah Yar before the learned Judge Family Court, Bahawalpur on 19-2-2004. According to the version contained in the plaint one day before the performance of Nikah of Mst. Shehnaz Akhtar petitioner, with Fida Hussain, an agreement dated 28-8-1996 was executed by Allah Yar (father of respondent No.1) in favour of writ petitioners with regard to the dower. As per plaint, in this agreement it was promised that a plot measuring 5 Marlas along with one room constructed upon it would be given to bride in lieu of dower, while four Tolas gold ornaments valuing Rs.32,000 total Rs.92,000 was settled as dower which was to be paid to plaintiff. It was also undertaken that up till 31-12-1996, defendant No.2 (Allah Yar) would execute a registered sale-deed in favour of plaintiff. As per petitioner, this agreement was not completed and that Fida Hussain, defendant left plaintiff at the house of her parents on 20-2-2001. Therefore, plaintiff was entitled for the grant of maintenance at the rate of Rs.1,500 per month for the past period of three years and for the future at the rate of Rs.2,000. She also claimed dowry articles according to the list attached as Mark "A" with the plaint.

3. The suit was contested by defendants by filing a written statement. According to the version of defendants, Rs.60,000 were fixed as dower, while Rs.20,000 were already received by plaintiffs' along with five Tolas gold ornaments. According to them, no transfer of plot was promised and no document was executed by defendant No,

2. Dowry articles were taken away by plaintiff herself, when she had left the house of defendants by her own will. Suit for restitution of conjugal rights was also filed by respondent No.1 which was pending. It may be mentioned here that Fida Hussain had also filed a suit for restitution of conjugal rights on 12-4-2004 which was also disposed of through the impugned judgment. On the basis of pleadings of the parties issues were framed and parties were directed to produce their evidence. After appreciating oral as well as, documentary evidence the learned Judge Family Court dismissed the suit for recovery of dower and maintenance allowance, while decreed the suit for dowry articles and the suit for restitution of conjugal rights filed by Fida Hussain. This judgment and decree, dated 31-1-2005 was challenged before the learned Additional District Judge, Bahawalpur, who dismissed both the appeals filed by both the parties against the aforementioned judgment and decree on 3-12-2005. Hence, these two writ petitions, one filed by Mst. Shehnaz Akhtar and other by Fida Hussain.

4. Learned counsel for plaintiff submits that Rs.60,000 were admittedly settled as dower while one plot of five Marlas measurement along with one constructed room and four Tolas gold ornaments valuing Rs.32,000 were settled to be paid as dower. As the dower was not paid and agreement dated 28-8-1996 (Exh.P.1) had evinced that plot of five Marlas was to be transferred and gold ornaments were to be paid to plaintiff, which having not been paid and agreement having not been implemented, the plaintiff/petitioner was entitled for grant of maintenance along with delivery of dowry articles and the dower as settled. Learned counsel for the plaintiff has asserted- that as Allah Yar, father of Fida Hussain had executed agreement dated 28-8-1996, so the decree could be passed against the surety. He has referred to Muhammad Alam and another v. Shamas-un-Nisa and others NLR 1979 (Civil)

67. When dower has not been paid which is a debt upon .the husband, in that event wife can refuse to perform marital .obligations and claim the maintenance. To support his contention, he has also cited Master Majeed v. Mst. Mulmah and 2 others 1992 CLC 13, Maj. (Retd.) Ishtiaq Mahmood v. Mst. Zareen Gul and others 2002 CLC 1838, Mst. Manzoor Elahi v. Muhammad Nawaz and others 2002 MLD 988, Mst. Farhad v. Additional District Judge-II, Mardan and 2 others 2000 MLD 1638 and Muhammad Afsar Khan v. Muhammad Rashid and 9 others PLD 1986 Azad J&K 196. Wife can claim past maintenance of six years before institution of the suit, therefore, institution of the maintenance suit was justified. Muhammad Aslam v. Mst. Zainab Bibi and others 1990 CLC 934, Family Court has been given exclusive jurisdiction without diminishing or curtaining rights already possessed by a litigant with regard to scheduled matters. Family Court possesses exclusive jurisdiction to entertain, hear and adjudicate upon matter relating to maintenance. Having settled and declared the exclusive jurisdiction of Family Court to entertain the suit for maintenance, leanred Judge had declared the application under section 488, Cr.P.C. to be no more entertainable by a Magistrate as the exclusive jurisdiction was conferred upon the learned Judge Family Court. This has been held in Mst. Hajiran Bibi v. Abdul Khaliq PLD 1981 Lah. 761. In Liaquat Ali v. Additional District Judge, Narowal and 2 others 1997 SCMR 1122 Honourable Supreme Court of Pakistan had declined to accept the plea that the learned Judge Family Court cannot entertain suit for possession of land given to wife in dower. Refers to Rukhsana Tabassam v. Judge, Family Court and 2 others 1999 CLC 878. Decree for restitution of conjugal rights can be refused to be executed when dower has not been paid. Transfer of property in lieu of dower made at the time of Nikah takes effect as a gift. For this, places reliance on Altaf Hussain Shah v. Mst. Azra Bibi and 2 others PLD 2000 Lah. 236. Dower is a pre-condition and prerequisite of a valid matrimonial contract otherwise that would be a sinful union. For this learned counsel has quoted Mst. Saiqa v. Additional District Judge Rawalpindi and 2 others 2003 YLR 70.

5. On the other hand, learned counsel for respondents relies upon Allauddin Arshad v. Mst. Neelofar Tareen and 2 others 1984 CLC 3369 to contend that claim for payment of dower cannot be put forth, by wife when articles of gold or dower were already paid and were taken away when between spouses strained relations had come into existence.

6. After considering the arguments of the learned counsel and the scanning of evidence, it has brought me to conclude in the following form:--

(i) Before proceeding to discuss the case on merits or on legal aspect, it is necessary to determine as to what were the terms/conditions settled between the parties for performance of Nikah. Exh. P.1 is an agreement, which was executed in favour of Mst. Shehnaz Akhtar on 28-8-1996 although stamps were purchased in favour of Ghulam Fareed by Allah Yar but the writing of deed itself was making it clear that it was written in favour of Mst. Shehnaz Mai. In the aforesaid document, in fact the deed writer and the parties have mixed up two subjects. According to the parties at the point of evidence, this document was stated to have been written as security. Mst. Shehnaz Akhtar and her witnesses have admitted also this fact in their oral evidence. While from the document itself, it appears that it was an agreement to transfer a plot of five Marlas in the shape of one room constructed house in favour of Mst. Shehnaz Mai for Rs.40,000, which was to be completed through registered deed, up till 31-12-1996. I have not been able to find out the version that the spot was to be transferred in lieu of Rs.40,000 out of Rs.60,000 settled as dower amount in clear terms but the word used "dower" is although perplexing yet after minute examination and the analysis of the document, one can easily reach to the conclusion that through this document plaintiff, Mst. Shehnaz Akhtar has been permitted to get plot (house of constructed one room) transferred in her favour for Rs.40,000 which might she can purchase it after deducting this amount from her dower amount of Rs.60,000.

(ii) So far as the entries of Nikahnama (Exh.P.2), from this admitted document is concerned, in column No.13, total dower amount has been fixed at Rs.60,000. This amount is also not disputed between the parties but in Column No. 14, this amount has been shown as " ﻏﻴﺮﻤﻌﺠﻞ ". From this word, it is clear that the amount of Rs.60,000 is in the nature of deferred dower, which is to be paid at the time of dissolution of marriage or upon the death of husband. In Column No.16, there is mention of one plot consisting of five Marlas in measurement with one room and gold ornaments of four Tolas. Reference has also been made to the document executed by Allah Yar father of Fida Hussain bridegroom. So, from these entries, it evinces that Exh.P.1 was in fact a document with regard to dower and total amount of dower was settled at Rs.60,000 out of which plaintiff was to be allowed one room constructed house of five Marlas plot, to be got transferred by her in lieu of Rs.40,000 from dower amount and four Tolas gold ornaments were to be delivered for Rs.20,000. The mention of date for performance of agreement as 31-12-1996 has in fact created another perplexing position. If the dower was deferred in its nature, how the transaction of sale of plot for Rs.40,000 out of Rs.60,000 could be completed is another question requiring determination. Either an amount of Rs.60,000 was prompt or it was shown as deferred due to some mistake of parties or "Nikah Khawan" with the misunderstanding about the meaning of the word " ﻏﻴﺮﻤﻌﺠﻞ " or the agreement .was wrongly scribed by the scribe of that document. To resolve this controversy, I have got an option either to remand the case or to decide it completely at this stage, so as to save the parties from further litigation. After pondering upon this proposition and keeping in view the facts, circumstances and the evidence, I consider that word " ﻏﻴﺮﻤﻌﺠﻞ " has wrongly been entered in Nikahnama (Exh.P.2) instead of " ﻤﻌﺠﻞ ". As the amount of dower could be adjusted up to Rs.40,000 for plot and that could be up till 31st of December, 1996 through registered sale-deed, it would certainly be prompt dower. To elaborate more, it is strange that how this amount of Rs.60,000 could be considered' as " ﻏﻴﺮﻤﻌﺠﻞ " when Rs.40,000 out of Rs.60,000 were allowed to be used and paid for the above noted house and Rs.20,000 for gold ornaments. Therefore, I have come to the conclusion that the dower amount fixed was prompt and the dower amount settled was Rs.60,000, out of which plaintiff was permitted to obtain the plot of five Marlas A with one constructed room, transferred in her favour from Allah Yar on the basis of above noted agreement, in lieu of dower, amount of Rs.40,000 while for the remaining amount of Rs.20,000 four Tolas gold ornaments were to be ,delivered, IA which were handed over to her.

(iii) After considering the dower amount of Rs.60,000 as prompt dower, .question has arisen as to whether plaintiff can file suit against .father of bridegroom for completion of contract executed by him for the payment of her dower. I have not found any bar or prohibition in the way of plaintiff in this regard, so as to impede the way of plaintiff from claiming the implementation and completion. It is settled law that according to section 5 of the West Pakistan Family Courts Act, 1964 the Family Court .has got exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part-I of the Schedule. Section 5 of the aforementioned Act is reproduced for its ready appreciation: --

"5. Jurisdiction .--- (1) Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in ("Part 1 of the Schedule").

(2) Notwithstanding anything contained in the Code. of Criminal Procedure 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule., where one of the spouses is victim of an offence committed by the other.

(3) The High Court may with approval of the Government, amend the schedule (2) so as to alter, delete or add any entry thereto."

(iv) In the schedule and in Part I at Serial No.2 is "dower". There is no barring provision that while claiming dower from the husband only bridegroom/husband can be impleaded in the suit for recovery of dower and none else, even if the other had stood surety or had guaranteed the payment of dower. The person can lawfully be' impleaded in the suit for recovery of dower, who had undertaken or promised to pay the dower to the bride at the .time of performance of marriage, before or after the solemnization of marriage in connection with the marriage. Scope of the proceeding of the suit, for the determination of amount; kind or nature of the dower, character of the property settled, whether dower or anything else, the proper and necessary party to the payment of dower, all and other questions are deemed to have been included in the subject of dower and can be included in the suit for recovery of dower when a writing is there and its execution is also admitted by the parties to it. A surety is as much liable as his principal. Ina suit, when principal is to be sued, then his surety can be impleaded and made a party to that proceeding. There is no legal requirement to file a separate proceeding/suit against a surety or guarantor for the recovery of amount of dower to be paid to the bride by the bridegroom. Law cannot be interpreted in such a way, so as to multiply the litigation on mere technicalities or to push the parties to adopt, to rush towards and to fall into multifariousand multifacet litigation, when there is no .clear and express prohibition. The Family .Court has been conferred power to adjudicate upon a subject -and when a subject is to be entertained, the parties related to that subject must also be impleaded so to bring them within that circle and encompass. A party cannot be asked that for the one and the same subject, another proceeding for specific performance of contract be initiated by the bride or bridegroom.

(v) To interpret in a way that surety cannot be impleaded in a suit for dower, for which he had stood guarantor, is an interpretation of a narrower conception and impression is the wrong interpretation of the law on the subject. It would tantamount to detract from the power and jurisdiction, of a learned Judge, Family Court, which, the law has vested in and conferred upon the learned Judge, Family Court. Therefore, relying upon the judgment of Muhammad Alam and another v. Shamas-un-Nisa and others NLR 1979 Civil 67 cited by the learned counsel for the plaintiff/writ petitioner, I also hold that surety and guarantor to the dower are as much party and liable to pay dower as the bridegroom himself. In consequence of above discussion, the finding of the learned Judge, Family Court that suit for specific performance was necessarily to be filed by plaintiff cannot be maintained.

7. The outcome of the .above discussion is that plaintiff (Mst. Shehnaz Akhtar) is held to have still not been paid the dower amount of Ks.40,000 in the shape of five Marlas plot consisting of; one room constructed house, according to the entries of Ex.P.1 agreement (contract) and of the Nikahnama (Exh.P.2) dated 29-8-1996. Therefore, she is entitled for the decree of that plot of one room constructed house as described in Exh.P.1. While for Rs.20,000 she cannot claim it, as she had herself deposed in her statement that gold ornaments were delivered to her. Therefore, the suit for dower is partially decreed upto the extent of plot/house of five Marlas containing constructed one room for the value of Rs.40,000 out of Rs.60,000 dower settled. Both defendant, Fida Hussain as well as Iris father Allah Yar shall be bound to get it registered in favour of plaintiff within one month otherwise plaintiff shall be entitled to get it registered through executing Court.

8. As plaintiff was not paid the settled dower by defendants, resultantly, petitioner/plaintiff, namely, Mst. Shehnaz Akhtar can claim separate maintenance. Therefore, the suit for maintenance allowance is also decreed in favour of Mst. Shehnaz Akhtar, but the amount of Rs.1,500 claiming for past period of three years and Rs.2,000 for the future cannot be considered to be based upon any reasonable ground, as no detail of expenses has been given by her justifying this amount to be granted to her. Therefore, keeping in view the rule of thumb, I consider Rs.1,000 sufficient as maintenance allowance and pass a decree in favour of Mst. Shehnaz Akhtar, at the rate of Rs.1,000 per month from the date of institution of her suit for maintenance till the marriage bond remains intact or death of one of the spouses occurs.

9. From the above discussion and findings that Fida Hussain, writ petitioner of (Writ Petition No.1050 of 2006/BWP) (Fida Hussain v. Additional District Judge., Bahawalpur and 2 others) has not paid the slower and maintenance to his wife, Mst. Shehnaz Akhtar, his suit for restitution of conjugal rights, therefore cannot be decreed. Accordingly, the suit for restitution of conjugal rights is dismissed.

10. As regard the claim of dowry articles of Mst. Shehnaz Akhtar, I have noted that the list of dowry articles has not been proved by her through any cogent evidence, on the record of the case, while, the plea of having taken away the dowry articles raised by defendant has also not been proved through any independent evidence. Therefore, in these circumstances, I rely upon the statement of Mst. Shehnaz Akhtar that she had brought to his house the following dowry articles:--

To assess value of these articles, there is no evidence on the record but to save the parties from further remand and another round of litigation, I fix the amount approximately to the extent of Rs.30,000 only of these articles keeping in view the state of value in the year 1996. Therefore, this amount of Rs.30,000 is fixed as amount for the dowry articles of the plaintiff and plaintiff is declared entitled to recover this amount from Fida Hussain, defendant/respondent.

(i) To conclude, it is held that plaintiff (Mst. Shehnaz Akhtar) is entitled to be paid the dower amount of Rs.40,000 in the shape of five Marlas and one room constructed house. The decree of which is passed in her favour while claim of Rs.20,000 of writ petitioner is not accepted and to that extent' it is dismissed, as she had admitted that gold ornaments were delivered to her.

(ii) As regard the maintenance allowance, the writ petitioner is granted Rs.1,000 as maintenance allowance from the date of institution of her suit for maintenance till the divorce or death of one of the parties.

(iii) As the dower amount of Rs.40,000 and maintenance allowance above noted have not been paid by Fida Hussain, writ petitioner, therefore, suit for restitution of conjugal rights decreed is set aside, consequently the suit is dismissed.

(iv) As regard dowry articles Rs.30,000 has been fixed and the decree is passed in favour of plaintiff for that amount. The petitioner shall be entitled to recover it from Fida Hussain respondent. So in these terms this writ petition is accepted, decided and disposed of.

M.B.A./5-119/L Order accordingly.