HUBDAR ALI Versus COURT OF IVTH ADDITIONAL DISTRICT JUDGE DADU

ORDER

1. ZULFIQAR AHMAD KHAN, J .---Counsel for the petitioner submits that both the Courts below failed to appreciate the evidence brought on record and discussed the same improperly by awarding benefit to the respondent. Counsel further contends that both the Courts below have not considered the financial background of the petitioner and maintenance awarded to the respondent is beyond his control.

2. The case at hand is that respondent filed Family Suit for maintenance and recovery of dowry articles, which was decreed by the trial Court vide judgment dated 30.03.2017 by properly discussing the issues Nos.2 to 4, which are reproduced hereunder;-

3. "Both the issues are interconnected, therefore, both are discussed here, on these issues I have seen evidence of the plaintiff, she has supported the plaint and she in her evidence stated; "when I was pregnant the defendant drove me along with minors in three clothes from his house in June 2016, when I requested him to provide medical treatment to me as I was pregnant during the period neither the defendant visited the house of my father nor paid any maintenance to me and for the minors." the defendant's counsel asked one question from plaintiff regarding these issues that she after having quarrel with mother of the defendant left his house along with her sister to which she replied as incorrect. Her witness Ghulam Shabir stated that; "on 1st June 2016, defendant Hubdar Ali drove out the plaintiff from his house" he further stated that; "all the expenses of plaintiff and her minors are being borne by my father during the period the defendant completely failed to provide maintenance to plaintiff and her minors" on the other hand the defendant in concerned portion of his evidence stated that; "lately on 29.05.2016 when I was on my duty the plaintiff again left my house" he further stated; "she took both the minors with her" in his cross he denied that he drove the plaintiff from his house. It is also admitted position that the Nikah in between the spouse is still intact, nothing has been brought on record by the defendant that the plaintiff has refused from joining him or she is disobedient wife etc. or he has paid any maintenance for the minors, on the contrary, the plaintiff has stated that the defendant during intervening period neither visited her nor paid any maintenance to her or for the minors, therefore, in view of the above facts and discussion, where the defendant is father of both the minors and Nikah in between the parties is intact and defendant has not stated that the plaintiff is dis-obedient wife or she has refused from joining him, consequently, the above issues Nos. 2 and 3 are answered in Affirmative. ISSUE No.4. On this issue I have seen evidence of the plaintiff, she has supported her plaint, she in concerned portion of her evidence stated; "at the time of my marriage my parents had given me dowry articles consisting upon one big iron box, one cot, one stand fan, 10 rillies, 8 pillows, 2 quilts, one LCD TV, 22 pairs of clothes, 42 meter un-sewed cloth, tea set, water set, dinner set, and other house hold articles. All the above articles are lying in the house of defendant". She produced receipts of dowry articles at Ex: 8/c to Ex:81, in her cross-examination she denied the suggestion that no any dowry articles were shifted to the house of defendant, however, she admitted that some receipts do not bear name of shopkeepers. Her witness also supported her version and stated that dowry articles are lying at the house of her husband on the other hand the defendant has stated that all the receipts are false, the dowry articles were shifted to his house after seventh day of marriage and same were comprising upon one fan, one cot and one small iron box the defendants in his evidence stated: "after that plaintiff's father moved application against me to my higher officers after that the plaintiff along with her brother, cousin and uncle took away her dowry articles from my house leaving the minors at my house", but in his written statement the defendant has no where stated that plaintiff took her dowry articles from his house but in Para 7 of W.S. defendant has stated that on 29.05.2016 plaintiff and her sister after quarrel with mother of the defendant took important documents of defendant and his brother Bahram Khan and all their belonging articles. The defendant cited his brother Bahram Khan as witness in his support but he was not produced in support of defendant's version the witness/father of the defendant namely Nazar Ali on the point stated; "after 7/8 days of marriage plaintiff brought dowry articles i.e. one cot, one iron box, one pedestal fan to the house of defendant, the plaintiff in year 2015 took away the above mentioned dowry articles from the house of defendant to the house of her parents", here the witness/father of the defendant stated that plaintiff herself shifted her dowry articles to the house of her father in 2015 whereas the defendant has stated that her brother, cousin and uncle shifted the dowry articles, furthermore, it is admitted that the plaintiff resided at the house of defendant upto the end of May 2016 and it does not attract to the prudent mind that the plaintiff took her dowry articles in 2015 and after that she again joined the defendant for one year leaving all her dowry articles at the house of her parents. It has come on record that father is the plaintiff is retired Army Sobedar and all the dowry articles claimed by the plaintiff are of daily use which were generally given to brides at the time of their marriages and there is no any precious or Gold Ornament or article(s) which may be termed as extravagate or beyond the financial resources of the plaintiffs family and giving dowry articles to daughters was in line with custom/tradition and practices which were deeply rooted in the society and were followed by parents of all classes even irrespective of their financial status (reliance may be placed on 2017 SCMR 393, (a)) as for as the argument that the list was not prepared at the time of marriage/nikah same does not carry any weight and suffice is to hold that in our society specially in rural areas there is no such practice to prepare such lists, obtain signatures from husband etc., and then produce same in the court, however, after marriage the plaintiff resided with the defendant for more than 6 years and used her dowry articles, therefore, the dowry articles under went depreciation in value on account of use, therefore, I am of humble view that the plaintiff is entitled for return of her dowry articles or in alternate she is entitled for 55% of their value (Reliance may be placed on, 2017 SCMR 393 (b). Consequently the issue No.04 is answered as Affirmative.

4. In fact it is admitted position that the marriage of the petitioner is still intact with the respondent, hence, maintenance awarded by trial Court has also been discussed by appellate Court in point Nos.1 and 2, which are reproduced as under;-

5. "The respondent/plaintiff deposed in his examination-in-chief that she was married with defendant on 14.4.2010, from the wedlock she have two babies. At the time of Nikah her parents had given her dowry articles consisting upon one big iron box, one cot, one stand fan, 10 Rillies, 8 pillows, 2 quilts, one LCD TV, 22 pairs of clothes, 42 meters of un-sewed cloth, tea set, water set, dinner set and other house hold articles as per list and same are lying in the house of appellant/defendant. She further deposed that appellant/defendant is serving in Pak Army as Sepoy and drawing salary about Rs. 20,000/ 22000/- per month. The respondent/plaintiff in support of her version examined her brother Ghulam Shabir who in his deposition has deposed that at the time of marriage his father had given dowry articles to his sister consisting upon one Big iron box, one LCD, 42 meters of cloth un-sewed, washing machine, sewing machine and other house hold articles, and defendant is working as Seopy in Pak Army and drawing salary about Rs. 20,000/ per month. The appellant/defendant in his examination in chief has deposed that after seventh day of marriage respondent/plaintiff brought dowry articles to his house comprising upon one fan, one cot, and one small iron box and same were shifted on rickshaw to his house. He further deposed that he is working in Pak Army and his salary is 20,000/- per month. He further deposed that the respondent/plaintiff along with her uncle and brother took away cash of Rs.120,000/- and gold of Rs. 53,000/- she also took both the minors with her. The appellant/defendant in support of his version examined one Nazar Ali who in his examination in chief has deposed that after 7/8 days of marriage plaintiff brought dowry articles i.e one cot, one iron box and one pedestal fan to the house of appellant defendant and she took away the above articles from house of appellant defendant in the year 2015 to the house of her parents she also took away some documents, gold and other house hold articles from house of appellant/defendant. Perusal of entire evidence recorded before learned trial court, it reveals that there is admission of appellant in respect of his salary Rs. 20,000/- Per month. As it is settled principle of law that monthly maintenance of children is to be settled looking to income of father appellant/defendant. The monthly income of appellant/defendant is on record in shape of his admission as he himself has deposed that he earn Rs.20000/ per month, therefore, this point is decided in favour of respondent/plaintiff. Point No.2. Since, the court is legally bound to see maintenance of each child, what amount will incurred on food/meal of each child, the education, treatment are also compulsory for every child, therefore, the learned trial court passed the impugned judgment and decree appears as legal and genuine one not requires interference, wherein maintenance of each child and maintenance of respondent/plaintiff appears legal and looking to the high rates of food for meal preparation of meal. The respondent/plaintiff and two children are entitled to receive last maintenance from appellant/defendant as decided by learned family court, this point is answered in favour of respondent/plaintiff.

6. This Constitution Petition has been filed against concurrent findings of the Courts below in family matter, where disputed question of facts based on evidence have been assailed as to the maintenance and dowry goods etc. which cannot be entertained in a Constitution Petition.

7. In the given circumstances where no misreading and non-reading of evidence is apparent, I see no merits in the instant petition, accordingly the same is dismissed along with pending applications in the light of dictum laid down by the apex Court in the case of Abdul Razzaque v. Shabana Noonarz (2012 SCMR 976) and Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304).

8. MQ/H-25/Sindh Petition dismisse