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H C J D A 38
JUDGMENT SHEET
LAHORE HIGH COURT
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
W.P. No. 4866 of 2017
Umair Hassan Sabri
VERSUS
Additional District Judge and another
JUDGMENT
Date of Hearing 11.04.2022
Petitioner by: Mr. Javed Ahmad Khan, Advocate
Respondent No. M/s Hafiz Adeel Sikandar and Mian Yasir
2 by: Hameed Bhatti, Advocates
ABID HUSSAIN CHATTHA, J. This consolidated Judgment shall
decide the titled as well as connected Writ Petition No. 5591 of 2017
since both the Petitions emanate from the family suits inter se the
parties and are directed against the impugned Order / Judgments &
Decrees dated 03.02.2016, 30.06.2016 and 09.03.2017 passed by Judge
Family Court, Sahiwal and Additional District Judge, Sahiwal,
respectively. Throughout this Judgment, Umair Hassan Sabri shall
hereinafter be referred to as the “Petitioner” and Hafsa Abbas Chishti
shall hereinafter be referred to as the “Respondent”.
2. Precisely, the Petitioner filed a suit for restitution of conjugal
rights against the Respondent averring therein that he was married to
the Respondent on 11.04.2010 and out of their wedlock a male child
was born who subsequently died. Consequently, the Respondent
separated from the Petitioner. Hence, the Petitioner was constrained to
file a suit for restitution of conjugal rights.
3. The Respondent not only contested the suit filed by the Petitioner
as stated above but also instituted a separate suit for the recovery of
dower, maintenance allowance, pocket money and dowry articles. She
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claimed her ouster from the house of the Petitioner without any just
cause and claimed recovery of Rs. 50,000/- per month as past and
future maintenance allowance; 120 Tolas silver & Rs. 1,500,000/- as
dower; and recovery of dowry articles as per detailed list appended with
the plaint valuing Rs. 1,050,000/-.
4. Both the above suits inter se the parties were consolidated and
out of the divergent pleadings of the parties, the Family Court framed
the following issues:-
(i) Whether the plaintiff Umair Hassan is entitled to get decree of
restitution of conjugal rights as per averments mentioned in
the plaint? OPP
(ii) Whether the defendant Hafsa Abbas is entitled to recover
Haq Mehr 120 Tolas Silver ornaments and Rs. 1,500,000/-
from the plaintiff Umair Hassan Sabri as per agreement
between the parties dated 14.04.2010? OPP
(iii) Whether the defendant is entitled to recover maintenance
allowance from the plaintiff, if so, for what period and to what
extent? OPD
(iv) Whether the defendant is entitled to recover dowry articles as
per list mentioned in Para No. 2 of the plaint or in alternative
its value of Rs. 1,050,000/- from the plaintiff Umair Hassan
Sabri? OPD
(v) Relief.
5. After recording the evidence of both the parties, the Judge Family
Court vide impugned consolidated Judgment & Decree dismissed the
suit of the Petitioner, whereas, the suit of the Respondent was decreed
and she was held entitled to recover 120 Tolas silver ornaments and Rs.
1,500,000/- as dower; Rs. 10,000/- per month as pocket money and Rs.
10,000/- as maintenance allowance from the date of filing of suit till her
marriage remains intact; and dowry articles as per paragraph No. 2 of
her plaint or in alternative an amount of Rs. 1,050,000/- as prayed for.
6. The threefold contentions were raised by learned counsel for the
Petitioner. He submitted that the grant of maintenance allowance and
pocket money was excessive and exorbitant; the dower of Rs.
1,500,000/- had been paid through cross cheque yet the payment thereof
was not accepted by the Courts below by misreading of evidence on
record; and the value of dowry articles was also accorded against the
evidence on record.
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7. It is contended that the Petitioner was married to the Respondent
on 11.04.2010 and Rukhsati took place on 17.04.2010. Originally, cash
amount of Rs. 1,500,000/- as dower was not part of Nikahnama and
during the intervening period between the Nikah and the Rukhsati, the
Respondent managed to get an agreement of an additional dower
amount as above. At the instance of the Respondent, the Petitioner sold
his house for Rs. 2,500,000/- out of which he paid the amount of dower
amounting to Rs. 1,500,000/- to the Respondent through cheque. The
parties lived for sometime in the house of father of the Respondent.
Later, the Petitioner purchased another house and moved all the dowry
articles to the house of his in-laws and thereafter to his new house
where they resided till 2013. The new house was in the joint ownership
of the parties having shares as 1/3 and 2/3, respectively. Subsequently,
the parties sold the said house and purchased another house on
02.01.2014 which was in the ownership of the Respondent. After
sometime on account of dispute between the spouses, the Petitioner had
to leave the house. Eventually, both the parties filed the above referred
suits against each other.
8. Conversely, learned counsel for the Respondent vehemently
defended the impugned Judgments & Decrees and categorically
submitted that the Respondent was never paid the amount of dower of
Rs. 1,500,000/- through cheque as claimed by the Petitioner. Rather, on
account of financial transactions, the cheque was required to be
deposited in the Respondent’s bank account and while doing so, the
Petitioner intentionally and deceitfully wrote thereon in urdu language
that it was payment against Haq Mehar.
9. While dismissing the suit for restitution of conjugal rights, the
Courts below aptly relied upon the evidence on record which
unequivocally depicted that during negotiating rapprochement with the
Respondent, the Petitioner and his family members had imposed
unreasonable restrictions and conditions for restitution of marriage
including return of Haq Mehar and dowry articles. The Courts below on
the basis of evidence on record rightly concluded that the Petitioner was
not entitled to decree regarding his suit for restitution of conjugal rights.
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10. The Respondent with respect to her claim of Haq Mehar of Rs.
1,500,000/- in cash and 120 Tolas silver ornaments testified that the
same was granted on the eve of marriage but could not be inserted in
the Nikahnama and as such, later on an agreement dated 14.04.2010
was executed to record the intentions of the parties. In rebuttal, the
Petitioner as PW-1 admitted the existence of the agreement but stated
that the same was result of undue influence and coercion and took a
specific plea that the amount of dower was paid through cheque No.
93431912 maintained with MCB Bank, Sahiwal. It was established on
the basis of evidence on record that in fact on 14.04.2010 two separate
agreements were executed between the spouses. The first agreement
was regarding the enhancement of dower amount, whereas, the second
agreement was regarding the receipt of dowry articles. This was
testified by PW-4, Pirzada Ali Muhammad Sabri and even admitted by
the Petitioner himself. PW-4 stood as marginal witness of the said
agreements which were executed at the dera of one Munir Sabir. No
element of coercion or undue influence was established. Rather, the
parties lived a cordial life after execution of both the agreements for
sometime before their matrimonial life was marred with the present
disputes. The Courts below also discovered from scanning of evidence
that payment of Rs. 1,500,000/- through cheque was based on
production of photocopy of the cheque as Mark-B claiming that after
sale of house, the Petitioner was given an amount of Rs. 2,500,000/- by
his father as share from the inherited property. The Petitioner paid the
amount of dower as aforesaid through cheque from his own account
maintained with Bank of Punjab, however, the receipt of amount of Rs.
2,500,000/- from his father was not independently proved from any
source. On the other hand, the Respondent testified that an amount of
Rs. 3,000,000/- was given to the Petitioner by her father out of which
Rs. 1,500,000/- was returned by the Petitioner through the said cheque
and while depositing the said cheque in her account, the Petitioner
artfully and fraudulently mentioned the word Haq Mehar on the said
cheque. Looked at by naked eye, the words ادائیگی برائے حق مہرis
written in urdu language, whereas, the cheque is drawn in the name of
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the Respondent and filled in terms of date and amount in English
language. The same is also written in the deposit slip which is usually
not stated in column of bank / branch which depicts conscious writing
to this effect to achieve the desired objective. The Respondent was
never cross examined on her statement to this effect. Her father / PW-2
was also not cross-examined on this point. This led the Courts below to
concurrently apply the principle of law that specific portion or claim not
cross-examined would be deemed to have been admitted and as such,
concluded that payment of amount of Rs. 1,500,000/- in lieu of dower
by the Petitioner was not established. The Courts below concurrently
concluded that since an agreement regarding fixation of dower was
admitted by the Petitioner and he also filed a suit for restitution of
conjugal rights alleging that on 04.05.2014 he was expelled by the
father and brothers of the Respondent, therefore, the stance taken by
him regarding payment of dower without demand could not be believed
during subsistence of marriage merely 04 months after the marriage
when it is clearly described as Ghair Muajjal in the agreement dated
14.04.2010. Rather, it appears as a counter blast as alleged by the
Respondent with reference to her suit for recovery of maintenance
allowance, dower and dowry articles. Even, the Petitioner had initially
not acknowledged the existence of the agreement but later admitted the
same and acknowledged the fixation of Rs. 1,500,000/- as Haq Mehar
as deferred dower payable on demand. The Petitioner could not prove
on record that the same was demanded by the Respondent at the time of
execution of the alleged cheque. This Court is not inclined to substitute
the concurrent finding of facts recorded by the Courts below on the
issue stated above when learned counsel for the Petitioner failed to
point out any misreading and non-reading of evidence. On the other
hand, the Judgments passed by the Courts below are exhaustive and
have covered each and every piece of evidence on record and examined
all the contentions raised by the parties to reach to their concurrent
findings to this effect. Importantly, other transactions between the
Petitioner and the father of the Respondent are also evident on record
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which testified that the assertion of payment of dower through cheque
was not proved.
11. The Petitioner in the agreement dated 14.04.2010 had undertaken
that he would pay Rs. 10,000/- as pocket money to the Respondent. The
same is also written in column No. 20 of the Nikahnama. In this
context, the Courts below have rightly awarded Rs. 10,000/- per month
as pocket money and Rs. 10,000/- per month as maintenance allowance
to the Respondent till her marriage remains intact. It was also proved on
record that the Respondent has brought dowry articles with her and the
descriptions & details of dowry articles as mentioned in the plaint were
not disputed. The Petitioner did not produce any cogent evidence to
prove that dowry articles once given to the Respondent were taken from
the house of his father and shifted to the house of the Respondent’s
father. The findings recorded by the Courts below on this issue are also
unimpeachable.
12. Before parting from this Judgment, it is also noted that the
Respondent also filed a separate suit for dissolution of marriage against
the Petitioner. The pre-trial reconciliation proceedings met with failure
on 29.06.2016 and the marriage between the parties was dissolved by
the Family Court vide Order dated 30.06.2016 under Section 10(5) of
West Pakistan Family Courts Act, 1964 with the direction to the
Respondent to relinquish 25% of her prompt dower as consideration of
Khula. The Petitioner assailed the aforesaid Order by filing an Appeal
before the Appellate Court which was dismissed vide Judgment dated
09.03.2017. The Petitioner assailed the aforesaid Order / Judgment by
filing W. P. No. 5591 of 2017. In this behalf, the impugned Judgments
& Decrees have been thoroughly scanned by this Court. The contention
of the Petitioner that the Family Court had decided the suit of
dissolution of marriage in a mechanical way without returning the
dower benefit derived by the Respondent is ill founded. The order to
surrender up to 25% of prompt dower was part of discretion of the
Family Court which was rightly exercised. The Appellate Court rightly
observed that decree for dissolution of marriage can even be passed
without consideration of Khula and it was not lawful for husband to
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take back anything from his wife, particularly when Khula was due to
some fault on the part of husband. Therefore, the Courts below while
allowing the suit for dissolution of marriage of the Respondent and
dismissing the Appeal of the Petitioner did not commit any illegality or
irregularity subject to relinquishment of 25% of prompt dower. This
Court maintains the findings recorded by the Courts below to the effect
that the Respondent is not bound to return the benefits derived by her
from the Petitioner on account of Khula except as determined by the
Court. Admittedly, prompt dower of 11 Tolas silver received by the
Respondent was to be relinquished up to 25% as decided by the Court
which had been paid by the Petitioner to the Respondent at the time of
marriage. The right to exercise Khula was attached with relinquishment
of dower amount and the same was qualified with the word “at the time
of marriage”. Thus, the Family Court rightly decided the matter by
invoking the provision of Section 10(5) of West Pakistan Family Courts
Act, 1964.
13. In view of the above discussion, the impugned Judgments &
Decrees passed by the Courts below in the titled and connected Petition
have been passed in consonance with law. No case of interference is
made out. Therefore, both the Writ Petitions being devoid of any merit
are hereby dismissed.
(Abid Hussain Chattha)
Judge
*Abu Bakker*
