Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

Petitioner. (Khawaja Muhammad Afnan Sethi) By Mr. Abdur Rauf Rohaila,

Respondents. (Mst. Asma Durrani & others) By Mr. Niaz Wali Khan, Advocate.

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DOST MUHAMMAD KHAN, J.- This single judgment

shall also decide the connected Writ Petition No.

690/2010 entitled “Mst. Asma Durrani Vs. Muhammad

Afnan Sethi & others” because both have arisen out of

common judgment of the learned District Judge Peshawar.

2. Arguments heard and record perused.

3. The record reveals that the parties developed

sentimental attachment to each other, resulting into a love

marriage on 14.03.2001. Proper “Nikah Nama” was

executed by the parties along with a dower deed Ex. PW-

1/1 and Ex. PW-2/1 respectively. An amount of

Rs.1,50,000/- was fixed in cash as a dower, besides 25

tolas gold ornaments to be given at the time of “Rukhsati”.

Also a house measuring 10 Marlas situated in Peshawar

after being built and renovated was promised to be given

as part of the dower. It was further promised that in case of

temporary separation, on account of strained relation, the

petitioner would be liable to pay Rs.2,000/- per month

along with other expenditure to the respondent, the former

wife.

4. After marriage, the couple enjoyed a colourful life,

however, with the passage of time, as has been alleged, the

behaviour of the petitioner became cruel and unbearable

beating, abusing and torturing the respondent.

5. It is alleged in the plaint and has also come in

evidence that when the respondent was subjected to severe

torture, intolerable in nature, she demanded her dower; but

instead she was kicked, thus, took shelter in her parents

house from 29.03.2004. During this period, she was neither

paid the dower nor the maintenance allowance.

6. In view of the above circumstances, the respondent

was peddled-up to approach the family Court for the

dissolution of marriage, recovery of maintenance as well as

dower allowance and dowry articles.

7. The suit was contested on various grounds by the

petitioner, thus, the family Court framed issues from the

pleadings and held trial. At the conclusion, the same was

decreed on 30.04.2005, dissolving the marriage, allowed

the recovery of dower and maintenance allowance while

cross claim / suit of the petitioner for restitution of

conjugal right was dismissed. Similarly, the prayer of the

respondent for recovery of dowry articles was also refused.

Two cross appeals were filed by the parties but both were

dismissed by the learned District Judge on 06.09.02005,

however, the High Court in W.P.No. 1730/2005, filed by

the petitioner, and in the cross W.P.No. 1706/2005, filed

by the respondent, vide order dated 21.12.2006 set-aside

the judgment and decree of the appeal Court and remanded

the case to it to re-decide the same after making appraisal

of the entire evidence.

8. After remand, the learned District Judge allowed

the appeal of the petitioner on 16.07.2007 and set-aside the

decree of the Judge Family Court with regard to the grant

of dower and maintenance allowance while the appeal filed

by respondent for recovery of dowry articles was

dismissed.

9. Once again, the High Court in W.P.No. 1334/2007

set-aside the judgment and decree of the appeal Court vide

judgment dated 21.01.2009 and for the second time

remanded the case with certain specific hints / guidelines

given to the Appellate Court with direction to attend to

those aspects of the case.

10. This time, the learned District Judge vide impugned

judgment dated 18.07.2009 maintained the judgment and

decree of the learned Judge Family Court and dismissed

appeal of the petitioner as well as of the respondent with

regard to the dowry articles.

11. Learned counsel for the petitioner vehemently

contended that because of self imposed desertion, the

respondent failed to fulfill conjugal obligation for no

plausible reason, therefore, she was not entitled to the

decree, thus, granted. It was further contended that the

parents of the respondent have given a fatal jolt to the

happy union of the parties and because acting under

influence of her parents, respondent broke the union

without just cause, thus, she being on the wrong side, was

not entitled to any relief.

The main stress of the learned counsel was that if at

all the two Courts below were of the view that happy

reunion was not possible then, in that event, the marriage

should have been dissolved on the basis of “Khula” and

not otherwise, moreso, when both the Courts below were

of the view that mental and physical torture / cruelty

alleged by the respondent, was not fairly established. He

urged that the relationship between the spouses was

cordial; however, she was misled by the parents. He

referred to certain E-mails and Cell-phone SMS,

transcripts of which have been annexed with this petition

and contended that during the temporary separation, the

respondent was more desperate in love with the petitioner

but the hostility was indeed created by her parents and she

was not allowed to return back and that the petitioner has
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made every effort to persuade her for the reunion but all

his efforts did not bear fruit. He also referred to a letter Ex.

PW-2/X-1, addressed to the SHO of Police Station

Gulbahar, Peshawar, by respondent No.1, stating therein,

that she was willingly leaving the house of the petitioner,

thus, in the circumstances, the respondent, on the principle

of law and justice and keeping in view the Islamic

injunctions, was not entitled to the decree granted.

12. To the contrary, learned counsel for the respondent

referred to the evidence on record. The pivot of his entire

arguments was the “Nikah Nama” and the dower deed,

wherein, the petitioner has given solemn commitments and

undertakings to pay the dower in full, on demand, which

was in cash, in the shape of gold ornaments and a house, as

discussed earlier, besides the payment of maintenance

allowance and vehemently argued that not a little proof has

been adduced by the petitioner to have paid the same, thus,

it is fully established that the respondent was yet to receive

the dower in three kinds and when it was demanded from

the petitioner, the same was denied to her and she was

treated cruelly giving her inhuman treatment.

He further contended that the petitioner has

fraudulently withdrawn a handsome amount from the

account of the respondent which was jointly run albeit, the

respondent was a professional woman and a serving

officer, thus, being an earning hand, while the petitioner, a

petty official, encashed the amount and misappropriated

the property of the respondent which is an additional

ground, justifying the dissolution of marriage.

He further argued with considerable vehemence that

because of iron clad traditions and customs of the society

particularly, in this class of family, invariably costly and

expensive dowry articles are essentially given by the bride

parents, without that, the wife is cursed and treated with

contempt by her in-laws. These articles are normally

displayed before the relatives / friends to take a pride for

the same, therefore, in his view, the two Courts below

failed to attend to this aspect of the case and unreasonably

denied the decree for the recovery of dowry articles, the

list of which was brought on record in proper legal manner

which was not specifically denied, however, a special plea

was taken by the petitioner providing money for purchase

of these articles and bridal’s gifts. The onus to prove was

on the petitioner but he failed, thus, the impugned

judgment and decrees require to be modified to this extent

and the relief for recovery of dowry articles or its market

value may also be granted.

13. We have attended to the submissions made at the

bar and have minutely gone through the evidence, both

oral and documentary available on record which was

adduced at the trial.

14. In our writ jurisdiction, the High Court has to see as

to whether the lower Courts have committed jurisdictional

error, uncondonable in nature or in the exercise of

jurisdiction had committed patent legal error, causing

serious miscarriage of justice because the Hon’ble Apex

Court has consistently held that the High Court in its

constitutional jurisdiction is not supposed to decide such

matters, as a Court of appeal by making reappraisal of the

evidence and to form a different opinion from the one held

by the Courts below, even if it is possible.

15. The learned District Judge as well as the learned

Judge Family Court have attended to all the material

aspects of the case and have considered each and every

important piece of evidence and after its proper appraisal

recorded concurrent findings on each and every issue.

16. We have minutely attended to both the impugned

judgments but could not discover any gross misreading or

nonreading of evidence, causing miscarriage of justice to

attract the extra ordinary writ jurisdiction of this Court.

17. It is established on record that the parties after

coming into contact, were considerably moved by

sentimental attachment for each other, the level and degree

of love for each other went to the high peak whereafter,

they entered into wedlock but with the blessing of their

respective parents.

18. It also appears from the evidence that the

respondent was driven too much by love because, even

after temporary separation, despite of cruel behaviour and

conduct of the petitioner, she used to send electronic

messages / cell phone SMS expressing her deep love for

the petitioner but it was the petitioner who did not

reciprocate nor made a meaningful and objective effort to

retrieve the respondent and to restore happy reunion.

19. It is also established beyond doubt that the dower

was not paid to the petitioner, as in the “Nikah Nama” and

dower deed it was of prompt kind and was payable on

demand and once it was demanded by the respondent, the

petitioner was under legal obligation to have paid the same

there and then but he did not discharge the liability, he had

incurred under the written documents, referred to above.

20. Both the Courts below, as mentioned above, have

recorded concurrent findings to the above effect. These

findings are sacrosanct being based on proper appraisal of

the entries contained in the two documents, therefore, no

exception could be taken to it and that too, in extra

ordinary writ jurisdiction when these are neither perverse

nor illegal, causing miscarriage of justice.

21. The Family Court is a Special Tribunal, constituted

with the object to decide domestic disputes. It has the

benefit of reading the mind of the spouses during pre-trial

and post trial reconciliation, besides noting the demeanor

of the witnesses and conduct of the parties during the trial.

Similarly, the Court of appeal is a Court of fact and law

both and when both such Courts decide any dispute in a

legal manner then, the High Court has to exercise

maximum restraints in interfering with findings of these

Courts, unless and until it is shown that these were the

result of misconstruction of duly executed documents and /

or based on misreading and nonreading of material

evidence, resulting into miscarriage of justice, in our view,

the case in hand does not fall within that category.

22. So far as the connected writ petition filed by the

respondent for recovery of dowry articles is concerned,

while apply the above principle of law, we are unable to

interfere with the concurrent findings recorded by the two

Courts below albeit, we have some reservations and

exceptions to such findings but again substituting our own

opinion on re-appraisal of evidence, we would be entering

into the field of determining the question of facts like a

Court of appeal which is not permissible in writ

jurisdiction.

23. The plea that the marriage should have been

dissolved on the basis of “Khula” is based on entire

misconception because the prompt dower was not paid to

the respondent, hence, she was entitled to refuse herself for

performing conjugal obligation and to live separately from

the husband and when the petitioner has failed to prove

that he has paid the dower and the maintenance allowance

for the stated period, the respondent was staying in her

parents house for a long duration, then, in the

circumstances, she was fully entitled to ask for dissolution

of marriage otherwise than “Khula”. Both the Courts

below have committed no serious legal error, granting the

decree for dissolution, dower and maintenance allowance.

The plea of the petitioner in this regard is absolutely

untenable and misconceived one.

24. This Court has already directed the Law Division,

Government of Pakistan, Islamabad to amend the Rules if

it is necessary and to reprint the form of “Nikah Nama”

wherein the entries in Column No. 15 & 16 shall be fully

clarified and while doing so it is suggested that the kind of

dower in cash and in kind be clearly bifurcated and if its

different kinds are promised to be paid, the entries to that

effect printed in Column No. 15 & 16 shall speak clearly

about that. This Court also directed the Law Division that

in cases of this nature, the wife in each case is subjected to

unbearable heavy burden to prove various articles of

dowry which are ordinarily purchased from different shops

and even from different districts, it becomes almost

impossible for the wife to produce each and every

shopkeeper to prove the receipts or the dowry articles

purchased from them and it was directed that independent

and spacious Column in addition to the present one be

provided in the “Nikah Nama” wherein the descriptions of

the dowry articles are mentioned along with its market

price because “Nikah Nama” is executed by the parties and

is signed by them as well as the witnesses, in this way the

onus of proof would be considerably reduced and would

remain confined to a single document and there would be

no need to produce many witnesses / shopkeepers etc in

this regard, however, the Law Division, as so far not

responded as to what progress has been made by it in that

regard, therefore, it is once again directed that the Law

Division, Government of Pakistan, Islamabad shall move

quickly in the matter and to arrange the reprinted /

amended proforma, as suggested above, within two months

at the most because in this case too due to non-production

of many shopkeepers, from whom dowry articles were

purchased, the respondent has lost her case which is

injustice to her.

The Registrar of this Court shall pursue the matter

with the Law Division, Government of Pakistan, Islamabad

till the object is achieved within the given time.

For what has been discussed, both this petition and

the connected one, mentioned above, are dismissed with no

order as to cost.

Announced:
25.03.2010.

JUDGE

JUDGE

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