UMER NASEEM Versus ADDITIONAL DISTRICT AND SESSIONS JUDGE LAHORE
ORDER
MUHAMMAD FARRUKH IRFAN KHAN, J.--- By means of this order, I propose to decide the aforementioned writ petition filed by Umar Naseem as well as Writ Petition No.29500/13 filed by Sadia Iqbal as both these arise out of the single judgment of the learned Appellate Court dated 25.03.2013 and involve identical question of law and facts. (Hereinafter Umer Naseem shall be referred to as petitioner, whereas, Sadia Iqbal shall be referred to as respondent).
2. Briefly the facts of the case are that the respondent filed a suit for recovery of gold ornaments and dower amount of Rs.1,00,000/- against the pdtitioner, who contested the same by filing written statements. Out of the divergent pleadings of the parties the learned Judge Family Court, framed necessary issues, recorded the evidence of the parties thereupon and vide impugned judgment dated 28.07.2011 proceeded to decide the suit in the following terms:-
"In sequel to my findings on issues written above, the suit filed by the plaintiff for recovery of gold ornaments is hereby decreed and plaintiff is held entitled to recover gold ornaments as prayed for or its market value Viz. Rs. 11,03,385/- at the time of institution of suit. The suit to the extent of dower is hereby dismissed."
3. Being aggrieved both the parties filed appeals before the learned Appellate Court, who vide impugned consolidated judgment dated 25.03.2013 dismissed both the appeals. Both the parties have now assailed the findings of the learned Appellate Court through these Constitutional petitions.
4. Learned counsel for the petitioner submits that the judgments and decrees of the learned courts below are based on surmises and conjectures and result of mis-reading and non-reading of evidence; that according to Articles 103 and 104 of the Limitation Act, prescribed time for filing of such a suit was three years as such suit of respondent was badly barred by time as it was filed after more than three years of the divorce; that soon after the divorce the petitioner returned all the dowry articles in presence of the witnesses; that there is no explanation to the fact that if such a huge quantity of gold ornaments was in possession of the petitioner then why the respondent remained silent for more than three years of the divorce; that in fact the suit of the respondent was a counter blast to a guardian petition filed by the petitioner for custody of the minor; that the respondent has failed to prove that the gold ornaments alleged in the plaint were given to her at the time of marriage and the same are in possession of the petitioner; that there are material contradictions amongst the statements of the PWs; that the petitioner through cogent and reliable evidence proved that all the articles belonging to respondent were returned to her soon after divorce and this fact was also admitted by the PWs during their evidence; that the learned courts below while passing the impugned judgments and decrees overlooked the solid and confidence inspiring evidence produced by the petitioner and based their decisions on assumptions and presumptions; that the evidence in this case has not been properly evaluated and the conclusions drawn therefrom are liable to be set aside.
5. Conversely, learned counsel for respondent submits that the respondent through cogent and reliable evidence proved that gold ornaments enumerated in the plaint were given to her at the time of marriage and the same are in possession of the petitioner; that evidence of the PWs on material points remained consistent and could not be shaken by the petitioner despite lengthy cross-examination; that the learned courts below were thus fully justified in decreeing the suit of the respondent for gold ornaments but the alternate price of gold ornaments was not assessed properly; that it is settled principle of law that alternate price of gold ornaments is to be assessed according to the market value at the time of execution but both the courts below arbitrarily awarded their price which was prevalent at the time of institution of the suit which is liable to be modified. Adds that according to Nikahnama Rs.1,00,000/- was fixed as deferred dower which has also not been paid by the petitioner; that divorce between the parties has been effected, therefore, dower has become due on the part of the petitioner; that the learned Judge Family Court committed material illegality and irregularity while non-suiting the respondent merely on the basis that she exercised her delegated right of divorce; that no doubt the respondent exercised her right of Talaq-e -Tafweez which was given to her by the petitioner at the time of Nikah but it does not in any manner absolve the petitioner from his responsibility of payment of dower; that the judgments and decrees of the learned courts below are liable to be modified in accordance with the prayer of the respondent.
6. In rebuttal learned counsel for the petitioner submits that the respondent herself pronounced divorce, therefore, under the law she cannot claim dower; that the conclusions of the learned courts below on this issue are quite in accordance with law and needs no interference by this Court in its Constitutional jurisdiction.
7. I have heard the arguments of the learned counsel for the parties and gone through the record.
8. First of all I would like to dilate upon the issue of limitation. During the course of arguments learned counsel for the petitioner has laid a lot of emphasis that according to Articles 103 and 104 of the Limitation Act, 1908 suit of the respondent was time barred. The Hon'ble Supreme Court of Pakistan in case reported as Syed Muhammad v. Mst. Zeenat and others (PLD 2001 Supreme Court 128) has observed that "As far as Limitation Act is concerned under its Article 182 period for execution of a decree of any Civil Court has been prescribed to be three years but in our opinion as the Family Court is not a Civil Court stricto sensu, therefore, the provisions of this Article can also not be pressed into service. Thus reliance has to be placed on the residuary Article i.e. Article 181 of the Limitation Act, which provides the period of three years when the right to apply accrues." Articles 103 and 104 of the Act ibid relied upon by the learned counsel for the petitioner provides as under:-
Description of Suit
Periof of Intimation
Time from which period begins to run
1
2
3
103. By a Muhammadan for exigible dower (mu'ajjal)
Three years
When the dower is demanded and refused or (where during the continuance of marriage no such demand has been made) when the marrige is dissolved by death or divorce.
Description of Suit
Periof of Intimation
Time from which period begins to run
1
2
3
104. By a Muhammadan for deferred dower (mu'wajjal)
Three years
When the marriage is dissolved by death or divorce.
Even if for the sake of arguments, it is assumed that the aforesaid Articles are applicable to the respondent's suit even then the suit of the respondent is well within time. Admittedly, the divorce has been effected on 07.11.2004, whereas, the suit was filed on 07.09.2007 i.e. prior to expiry of three years period of limitation in the light of the aforesaid Articles. The contention of the petitioner that limitation would be computed from the date of pronouncement of divorce is misconceived because if it is taken into consideration then the whole intention of legislation for revocation of divorce within a certain period would fall to ground. Thus conclusion of the learned courts below on this issue is unexceptionable and needs no interference.
9. On merits, it was the case of the respondent that at the time of marriage she was given gold ornaments as enumerated in the plaint and the same are in possession of the petitioner. In order to prove this fact, she besides recording her own statement also examined four other witnesses. Muhammad Iqbal Bhatti is real father of the respondent who while appearing in the witness box as PW1 deposed that gold ornaments fully described in the plaint were given to respondent at the time of her marriage which are in possession of the petitioner. Mst. Rasheeda Sultana, real mother of the respondent in whose names all the receipts of jewelry Ex.P1 to Ex.P12 are issued while appearing in the witness box corroborated the stance of the respondent. Respondent Sadia Iqbal appeared as PW3 and reiterated her stance as stated in the plaint. Nazar Hussain Jeweller who scribed the receipts Ex.P1 to Ex.P12 while appearing in the witness box as PW4 identified his signatures thereupon. All the witnesses were subjected to lengthy cross-examination but they remained consistent on all material points. On the other hand, the petitioner in rebuttal while appearing as DW1 though denied possession of the gold ornaments but nowhere stated that the said ornaments were not given to the respondent by her parents. Kishwar Naseem, the mother of the petitioner while appearing in the witness box as DW2 also did not specifically deny the factum of giving gold ornaments to respondent as enumerated in the plaint.
10. It is in evidence and thus established fact that respondent belongs to a well to do family. Her marriage was solemnized in Pearl Continental Hotel, Lahore and prominent personalities of the country including Governor of the Punjab participated in the marriage ceremony which is a clear manifestation of high social status and sound financial back ground of the respondent. It is also evident from the record that the respondent is the sole daughter of her parents and in this eventuality giving of seventy tola gold ornaments to her at the time of marriage is not something extraordinary, as it is common knowledge that parents of such sound financial status would go beyond the norm for their only daughter. Furthermore, scribe of the receipts of gold ornaments fully supported the version of the respondent that the said gold ornaments were got prepared by the respondent's parents at the time of her marriage. All the aforesaid facts and circumstances are sufficient to believe that the gold ornaments enumerated in the plaint were given to respondent at the time of marriage.
11. The onus is now shifted upon the petitioner to prove that the said ornaments are not in his possession. In support of his plea, the petitioner besides recording his own statement, produced his parents and not even a single independent witness could be produced by the petitioner to support his version that respondent took the gold ornaments with her. Even an offer was put to the mother of the petitioner that if she would take Oath on his son that they had returned the gold ornaments, the respondent shall withdraw her suit. This offer was also not accepted by her which fact also leads to the inference that the petitioner in order to deprive the respondent from her lawful right of recovering these gold ornaments is not disclosing true facts. For what has been discussed above, while arriving at the conclusion that the gold ornaments which were given to respondent at the time of her marriage are in possession of the petitioner, the learned courts below have not committed any mis reading or non-reading of the evidence which requires intervention by this Court.
12. Now coming to the question that on which date the alternate price of the gold ornaments is to be determined. There is a plethora of judgments of this Court as well as the Hon'ble Apex Court that in case of a decree of gold ornaments the alternate price is to be determined at the time of its execution, so, that on failure of return of gold ornaments the decree holder would be able to fetch equal weight of the gold. Learned Judge Family Court while awarding alternate price of the gold ornaments at the rate which was prevailing at the time of filing of institution of suit, relied upon the judgment of the Hon'ble Supreme Court of Pakistan reported as Mst. Mehbooba v. Abdul Jalil (1996 SCMR 1063). The facts and circumstances of the said case are distinguishable. In the said case plaintiff/wife had not claimed recovery of gold ornaments rather she specifically claimed alternate value of the gold ornaments specified in the plaint. Therefore, it was held by the Hon'ble Apex Court that she was held entitled to market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as no decree for delivery of gold ornaments had been passed. She was granted money decree simplicitor. While in the present case respondent claimed for a decree of gold ornaments or in the alternative its market value and the same was awarded to her by the learned courts below, therefore, while determining alternate price of said gold ornaments prevalent at the time of institution of suit, both the courts committed material illegality and irregularity. Reliance is placed on case reported as Mst. Ayesha Shaheen v. Khalid Mehmood and another (2013 SCMR 1049) wherein the Hon'ble Apex Court while distinguishing Mst. Mehbooba's case referred supra has observed as under:-
"The case of Mst. Mehbooba v. Abdul Jalil turned on its own facts and does not in any way lay down a general rule that in all cases where the decree for recovery of gold is granted its value shall be determined at the market price prevailing on the date of grant of decree or filing of the suit. Where decree for delivery of gold or its market value is granted the value shall be determined with reference to the date of payment. As only then the decree can become fully satisfied. Neither the High Court nor the First Appellate Court had focused on the afore-stated distinction. In the case of Mst. Humaira Majeed v. Habib Ahmad cited in the leave granted order the Lahore High Court had also drawn the said distinction and had rightly held that the provisions of Order XX, Rule 10, C.P.C. will not be applicable strictly to the execution of a decree by the Family court in view of section 17 of the West Pakistan Family Courts Act, 1964."
13. In view of the above, findings of the learned courts below on this issue are modified and the respondent is held entitled for recovery of gold ornaments as prayed for or in alternate their market value which would be prevailing at the time of execution/satisfaction of the decree.
14. Next issue is with regard to dower. Admittedly, at the time of Nikah Rs.1,00,000/- was fixed as deferred dower. The learned courts below while non-suiting the respondent for recovery of dower were of the view that she exercised her right of Talaq-e-Tafveez as such she is not entitled to the recovery of dower. Now the question which requires determination is whether right of Talaq-e -Tafveez can be equated with Khula. Section 8 of the Muslim Family Laws Ordinance, 1961 provides as under:-
"Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or whereby any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq, the provision of section 7 shall, mutatis mutandis and so far as applicable, apply."
15. This section specifically provides for this form of Talaq i.e. "Talqq-e-Tafveez", whereby husband delegates the right of divorce to the wife or to a third person either absolutely or conditionally or either for a temporary period or permanently and enshrines that in this eventuality the procedure provided in section 7 for divorce shall have to be followed.
16. Subsection (1) of section 314 of the Principles of Mahommedan Law by D.F. Mulla provides as under:-
314. Delegation of power to divorce. Although the power to give divorce belongs primarily to the husband, he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable, but a permanent delegation may be revoked."
17. In Hamilton's Hedaya, Vol.I, Book IV, Chapter III, page 257 it has been stated:
"If a husband says to his wife divorce yourself when you please, she is at liberty to divorce herself either upon the spot or at any future period, because the word `when' extends at all times and hence it is the case as if he were to say 'divorce yourself at whatever time you like'."
18. In Bailee's Digest of Muhammadan Law, Second Edition, Section Third, page 254 , it has been observed. " When a man has said to his wife, 'repudiate thyself' (whether he says 'if you please,' or not), she may repudiate herself at the meeting, and he cannot divest her of the power."
19. In case reported as Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir (PLD 1995 Lahore 187) it has been observed as under:-
"Under Mahomedan Law husband enjoys an absolute power of divorce to his wife. He may delegate this power to his wife by way of a contract. As a man in person repudiates his wife so he may commit the power of repudiation to his wife to repudiate herself. This power may be conferred on a third party as well.] (Wilson Anglo Mahmodan Law, Edn. VI and Baillie Digest of Mahomedan Law, Book III, Chapter III).
When such power of repudiation is conferred on the wife or some third person the divorce will take effect, if the power so conferred is exercised. (Mahomedan Law by Tayyabjee and Buffatan Bibi v. Sh. Abdul Salim AIR 1950 Calcutta 304). This power can be a conditional power or rests upon the happening of some contingencies. It can also be unconditional. When it rests upon the happening of certain contingencies then the wife should exercise the delegated power of divorcing herself when the condition entitling her to exercise that power is fulfilled. But if that power is unconditional she may exercise the same when and where required. In both these circumstances a formal pronouncement of Talaq is necessary."
20. In case reported as Mehnaz Mehboob v. Ishtiaq-ur-Rashid and another (2006 YLR 335) it has been laid down as under:-
"Although the power to give divorce belongs to the husband, he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable but a permanent delegation may be revoked. The pronouncement of divorce after demand had not caused public policy and principles of Muhamadan Law. Such a divorce is known as "Talak by Tafweez". The delegation of option called "Tafweez" by the husband to his wife, confers on her the power of divorcing herself Tafweez is of three kinds, (a) Ikhtiar, giving her the authority of Talak herself (b) Amr-ba-Yed, leaving the matter in her own hand and (c) Mushiat, giving her the option to do what she likes. All these, when analyzed, resolve themselves into one. Viz., leaving it in her or somebody else's option to do what she or he likes. The wife cannot sue to enforce the authority alleged to have been given to her but she sues after she has given effect to it to make the husband liable for her dower or to restrain him from seeking conjugal rights."
21. It is an admitted fact that the petitioner delegated the powers of Talaq to the respondent. According to Muhammadan Law once a person to whom the power of divorce is delegated pronounces divorce, the power so delegated becomes irrevocable and this will operate as Talaq of the wife by husband. Keeping in view the aforesaid discussion it can safely be concluded that the said delegated powers in no manner can be equated with Khula depriving the respondent/wife from claiming her dower. Reliance is placed on case reported as Sajid Hussain Tanoli v. Nadia Khattak and 3 others (2013 CLC 1625) wherein it has been laid down as under:-
"Since the right of "Tafweez of Talaq" is delegated right, therefore it cannot be termed as khulla by making wife liable to return dower. There is much difference between prepare of Khulla and exercise of delegated right of divorce. In latter wife can repudiate marriage herself while in former, wife has to seek divorce/ dissolution of marriage from her husband or from Court. In such a state of affairs, dissolution of marriage in the present case cannot be considered as divorce by khula."
22. From the above discussion, it has been established on record that both the learned courts below erred in law while declining the prayer of respondent for recovery of deferred dower. The petitioner could not prove that he has paid the dower during the existence of marriage, therefore, respondent is held entitled to recover Rs.1,00,000/- from the petitioner as deferred dower.
23. Resultantly, Writ Petition No.12640-13 filed by the petitioner is dismissed , whereas, Writ Petition No. 29500/13 filed by respondent is allowed in the above terms. No order as to costs.
ZC/U-9/L Order accordingly.