NAZAKAT PARVEEN Versus IKHLAQ AHMAD

ORDER

This appeal has been preferred against the judgment and decree of Judge Family Court, Mirpur, dated 31‑1‑2000, whereby the suit of dowry of the plaintiff‑appellant was dismissed.

2. The brief facts giving rise to the present appeal are that Mst. Nazakat Parveen appellant, herein, filed a suit for dowry worth Rs.1,11,174 before District Judge Mirpur on 6‑5‑1997 which was later on transferred to the file of Judge Family Court, Mirpur, vide order dated 1‑10‑1998. It was averred by the appellant that she had instituted a suit for dissolution of marriage. A cross‑suit for restitution of conjugal rights was also filed by the respondent. It was further stated that at the time of marriage, the parents of the appellant had given furniture, sofa‑set, dresses, Fridge, T.V., Washing machine, precious crockery and other utensils etc. A detailed list of dowry was also annexed with the plaint which according to the appellant is of worth Rs.1,11,174 and it is still in the possession of the respondent. The respondent filed his written statement on 8‑10‑1997 and levelled various allegations against the parents of the appellant. He stated that according to Pathan traditions the respondent had paid Rs.41,000 to the father of the appellant on the eve of Nikah ceremony. After that he also paid Rs.30,000 to her parents for bridal dresses. Thus, the respondent has to receive Rs.1,26,000 from the appellant. He has further averred that no dowry was given to the appellant at the time of marriage. Therefore, she has got no cause of action.

3. In the light of the pleadings of the parties the following issues were framed by the District Judge Mirpur on 12‑11‑1997

(i) Whether the plaintiff is entitled to receive dowry according to her ' plaint, from the defendant? OPP

(ii) Whether the plaintiff left the house of the defendant with her free will with her brother and did not come back? OPD

(iii) Whether the defendant‑ had paid price of the plaintiff Rs.41,000 according to the Pathan traditions at the time of Nikah ceremony and after that Rs.30,000 for bridal dresses and golden ornaments weighing 15/16 tolas worth Rs.55,000, thus, plaintiff is obliged to pay Rs.1,26,000 to the defendant? OPD

(iv) Whether at the time of 'Rukhsati' of plaintiff, the parents of ine plaintiff had given furniture, the precious deresses, crockery, fridge, TV, Washing machine and other utensils worth Rs.1,11,174 to the plaintiff? OPP

(v) Whether the plaintiff has got cause of action? OPP

4. The plaintiff‑appellant has produced Muhammad Yasin, Muhammad Sabir, Shaukat Khan and Qasim as witnesses. She also entered herself into witness‑box.

5. In rebuttal, the defendant produced Mtizaffar Hussain. Muhammad Maroof and Muhammad Riaz witnesses and he also appeared as a witness.

6. The Court below arrived at the conclusion that the appellant failed to prove issues Nos. 1, 4 and 5. On this account, her suit was dismissed. Feeling aggrieved and dissatisfied, the appellant has preferred the present appeal against the aforesaid judgment and decree dated 31‑1‑2000.

7. Arguing on behalf of the appellant, Muhammad Riaz Alam, the learned Advocate, has contended that issue No.3 has been decided against the respondent by the Court below. Thus, the respondent has failed to prove his claim mentioned in para. 3 of the written statement. The learned Counsel has also submitted that the learned Judge Family Court fell in error while holding that the receipts and the list of the dowry were not exhibited in the evidence, therefore, could not be taken into consideration as proof. He has emphasised that the provisions of Qanun‑e‑Shahadat and Code of Civil Procedure do not apply to the instant proceedings. Therefore, the documentary evidence produced by the appellant was confidence inspiring. According to him, it was sufficient proof to prove the fact of dowry. The learned Counsel further argued that the appellant .has also testified and proved the list as well as the receipts in her statement recorded in the Court below. The learned Counsel has maintained that Muhammad Yaseen, Muhammad Sabi1 and Shaukat Khan, witnesses have categorically stated that the dowry is in possession of the respondent but no specific question was asked from them in the cross‑examination which connotes that in a way the respondent admits that the dowry of the appellant is in his possession. He has further submitted that, the respondent has put suggestions to Shaukat Khan and Qastm Khan, the witnesses of the appellant, in the manner that whether it, is correct that they have not mentioned the correct price of dowry which according to him means that the respondent has in a way admitted that the dowry of the appellant is in his possession but it is of not that worth which has been described by the respondent. The learned Counsel has pressed into service the submission that the appellant has proved her case through cogent and sufficient evidence whereby the respondent could not rebut the evidence led by appellant but the. Court below failed to evaluate the evidence in its true perspective and thus, arrived at a wrong conclusion which cannot be sustained.

8. In reply, Mr. Kamran Tariq, the learned counsel for the respondent, has submitted that the present case is a case of documentary evidence, thus, oral evidence has no value which was rightly discarded by the Court below. He has also argued that burden of proving her case lies upon the appellant who has failed to discharge the same, therefore, she cannot be allowed to take assistance from the weaknesses of the respondent's case. The learned counsel has pointed out that the patents of the appellant were important witnesses who did not appear before the Court in support of her case which adversely affects the case of the appellant. The learned counsel has criticized the statement of Muhammad Sabir, a witness for the appellant and argued that according to the said witness, respondent belongs to village Poona, thus, his statement cannot be relied upon. fhe learned counsel has maintained that the Court below has rightly ignored the documentary evidence which was not exhibited by the appellant m her evidence. He has submitted that the trial Court has dealt with all material points involved in the case and has discussed the material on the record, therefore, the impugned judgment does not suffer from any infirmity or illegality‑ Reliance was placed upon 1981 CLC 1055 and 1986 CLC 770.

9. I have carefully considered the arguments addressed at the Bar, perused the record and the case‑law cited by the learned counsel for the respondent. It may be pointed out that the Azad Jammu and Kashmir Family' Courts Act, 1993, (hereinafter to be referred as the Act) was promulgated and the Family Courts were established for the expeditious settlement and disposal of disputes relating to marriage and other family affairs and special procedure was also provided to achieve the object referred to above. For the purpose, the provisions of Qanun‑e‑Shahadat and Code of Civil Procedure, 1908, were not made applicable to the proceedings before any Family Court under section '17 of the Act, therefore, the difference between the proceedings of Civil nature and the proceedings before a Family Court has to be taken into consideration by the Court at the time of the disposal of such disputes and matters connected with the family affairs. In order to appreciate the position, it will be fruitful to examine the provisions contained in section 7 of the Act. It is reproduced below:‑‑

"Institution of suits. ‑‑(1)Every suit before a Family Court shall be instituted by the presentation of a plaint or in such other manner and as may be prescribed.

(2) The plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and address of the witnesses and brief summary of the facts to which they would depose;

Provided that the parties may, with the permission of the Court, call any witness at any later stage; if the Court considers such evidence expedient in the interest of justice.

(3) (i) Where a plaintiff sues or relies upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time, deliver document or a copy thereof to be tiled with the plaint;

(ii) Where he relies on any other document not in his possession or power, as evidence in support of his claim, he shall enter such document in a list to be appended to the plaint.

(4) The plaint shall be accompanied by as many duplicate copies thereof (including the Schedule and the lists of documents referred to in subsection (3)), as there are defendants in the suits, for service upon the defendants."

10. Section 11 of the Act deals with the recording of the evidence which reads as under:‑‑

"Recording of evidence :‑‑(1) On the date fixed for recording of evidence, the Family Court shall examine the witnesses produced by the pies in such order as it deems fit.

(2) The Court shall not issue any summons for the appearance of any witness unless, within three days of the framing of issues, any party intimates the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible or practicable for such party to produce the witness.

(3) The witnesses shall give their evidence in their own words:

Provided that the parties or their counsel may further examine, cross‑examine or re‑examine the witnesses:

Provided further that the Family Court may forbid any question which it regards as indecent, scandalous or frivolous or which appears to it to be intended to insult or annoy anyone or is needlessly offensive in form.

(4) The Family Court may permit the evidence of any witness to be given by means of an affidavit:

Provided that if the Court deems fit it may call such witness for the purpose of examination in accordance with subsection (3).

11. The perusal of the above sections make it crystal clear that the method of institution of suit and recording of the evidence is altogether different from the cases instituted in the Civil Courts. On this account, the evidence adduced before a Family Court cannot be evaluated and appraised in a manner as it is appreciated in cases presented under Code of Civil Procedure. In such state of affairs, the documentary evidence produced by the appellant cannot be discarded for the mere reason that the list of dowry 8 and the receipts were not exhibited.

12. Coming to the present case, the appellant has appended the list of her dowry as well as the receipts with her plaint. She has also tendered the abovementioned documents in her statement recorded by the Court below. . She was cross‑examined in detail, therefore, the abovementioned documentary evidence cannot be ignored and discarded merely for the reason I that it could not be exhibited.

13. Muhammad Yaseen and Muhammad Sabir, the witnesses for the appellant, have stated in an unequivocal manner that the dowry is in possession of the respondent but no specific question was asked from them in respect. Thus the statement of both the witnesses stands proved to this extent which leads to the conclusion that the dowry of the appellant is in possession of the respondent. Both the abovementioned witnesses are independent persons and not related to the appellant. The statement of Muhammad Sabir, a witness for appellant, cannot be ignored for the simple reason that he has deposed that the respondent belongs to village Poona instead of village Domas. Shaukat Khan, brother and a witness for .the appellant, has given the detail of the dowry. A suggestion was put to him in cross‑examination by the defendant which reads as under:‑‑

Urdu Typing 1175

14. The perusal of the above stated suggestion reveals that the respondent admits the fact that some dowry was given to the appellant but the witness has not stated the correct price of the same.

15. Qasim Khan, another witness and nephew of the appellant has also corroborated the appellant's version but abovenoted suggestion was also put to him. Thus, it implies from the above stated suggestions that the respondent has admitted the claim of dowry but controversy between the parties remains for the price of dowry only.

16. On the contrary, the respondent has stated that no dowry was given to the appellant. Muhammad Riaz, his father and his witnesses Muzaffar Hussain and Muhammad Maroof have also deposed in the like manner.

17. Let me now deal with the documentary evidence led by the appellant. The appellant has appended five receipts, one issued by Al‑Saud Furniture House and other by Shan Distributors but both the above mentioned receipts neither bear any signature nor any date of purchase, thus, cannot be taken into consideration. So far as the other three receipts are concerned, the receipt issued by Mirza Jan Whole Sale Electronics deals with the purchase of Washing Machine, dinner set and some electronics goods etc. worth Rs.15,200 on 10‑10‑1994. It bears the name of Shaukat Khan, brother of the appellant, as purchaser. The receipt issued by Azam Crockery House deals with some crockery and utensils dated 2‑12‑1994 worth Rs.3,374. The receipt issued by Tariq Electronics in the name of Shuakat Khan deals with purchase of a Fridge, TV and Heater worth Rs.24,700 dated 11‑6‑1994. When the abovementioned documentary evidence is examined and appraised coupled with the other evidence led by the parties, the claim of the appellant stands proved by sufficient material and cogent evidence which was erroneously ignored by the Court below. The Court below has given improper and scanty reasons in support of findings and judgment, therefore, it cannot be maintained.

18. I cannot agree with this contention of the learned counsel for the respondent that the oral evidence of the appellant is not trustworthy and she, cannot be allowed to take assistance from the weaknesses of the respondent's case. The law on the point is very clear that when the statement of a witness is not challenged in the cross‑examination, it would be legally presumed to have been accepted by opposite party (PLD 1995 SC (AJ&K) 41) and (1997 MLD 2013).

19. The other contention of the learned counsel for the respondent also does not appear to be well‑founded that the parents of the appellant were important witnesses and in absence of their statements the case of the appellant has been adversely affected. Suffice to note that Shaukat Khan, real brother of the appellant and Qasim Khan, maternal uncle of the appellant, have appeared as witnesses before the Court below, who have deposed that they went to Peshawar to buy the dowry, thus, the non‑appearance of the parents of the appellant does not matter much.

20. In the light of the abovestated oral and documentary evidence, it has been proved on the record that the dowry worth Rs.43,274 was given to the appellant at the time of marriage ceremony which is still in the possession of the respondent and has to be handed over to her but the Court below failed to appreciate the evidence of the parties in its true perspective.

21. The cases cited by Mr. Kamran Tariq, Advocate, referred to above, have circumstances not identical with the one available in the present case and, therefore, are distinguishable. These cases have no application to the facts of the present case, thus, need no analytical survey.

For the reasons listed above, I accept this appeal and set aside the impugned judgment and decree dated 31‑1‑2000 and order that a decree of dowry is passed in favour of the appellant against the respondent in the manner that the respondent will hand over the dowry to the appellant according to the receipts appended at pages 12, 13 and 14 of the file of the Court below or shall pay her Rs.43,274, the price of the dowry. The appeal is disposed of in the manner indicated above.

H.B.T./27/Sh.C.(AJ&K) Appeal accepted.