Judgment Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

Constitutional Petition No. S – 1011 of 2013

 

            Petitioner                   :  Rehan Ahmed Baig, through

   Mirza Adil M. Beg Advocate.

 

Respondent No.1    :  Mst. Sabeen Naz, called absent.

 

            Date of hearing        :  01.04.2019.

 

J U D G M E N T

 

NADEEM AKHTAR, JFamily Suit No.982/2010 filed by respondent No.1 against the petitioner for dissolution of their marriage, maintenance at the rate of Rs.5000.00 per month from May 2010 till completion of her iddat and recovery of dowry articles and gold ornaments worth Rs.900,000.00, was partly decreed by the learned Family Court vide impugned judgment and decree dated 29.02.2012 to the extent of dissolution of marriage, maintenance only for the period of iddat at the rate of Rs.3000.00 per month and recovery of dowry articles and gold ornaments as per the list filed by respondent No.1 along with her plaint ; and, Family Appeal No.47/2012 filed by the petitioner was dismissed by the learned appellate Court vide impugned judgment and decree dated 31.07.2013 and 05.08.2013, respectively. The above judgments and decrees have been challenged by the petitioner through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

 

2          It may be noted that the respondent No.1’s claim for past maintenance was rejected by the Family Court, which rejection was not challenged by her ; and, the petitioner did not challenge the grant of Khula or maintenance granted to respondent No.1 for the period of her iddat. Therefore, the dispute between the parties is confined only to the extent of the decree passed in favour of respondent No.1 for return of dowry articles and gold ornaments worth Rs.900,000.00. Respondent No.1 was duly served in this petition and she was being represented by a counsel, but they have chosen to remain absent.

 

3.         The case of respondent No.1, as averred in the plaint, was that her nikah with the petitioner was solemnized on 24.10.2008 and the rukhsati took place on 31.03.2010 ; at the time of rukhsati, she came to the petitioner’s house along with dowry articles and gifts worth Rs.500,000.00 given to her by her family members and gold ornaments worth Rs.400,000.00 purchased by her parents and also by her from her own income ; the marriage did not last long due to bad behavior of the petitioner who threw her out of his house on 10.05.2010 ; her above articles and ornaments were still in the petitioner’s house when she was thrown out by him ; and, the same were not returned to her by him till filing of the Suit. In his written statement, all the above averments and allegations were denied by the petitioner and it was specifically denied by him that any of above articles and/or gold ornaments were given to respondent No.1 by her family members or the same were brought by her to his house as family members of respondent No.1 were not happy with the marriage. It was alleged by him that on the contrary respondent No.1 had illegally withdrawn substantial amounts from his bank account and when she left his house, she had taken away jewelry worth Rs.250,000.00 given to her by him.

 

4.         After settlement of issues, evidence was led by both the parties by coming in the witness box and producing various documents in support of their respective cases. In addition to herself, respondent No.1 also produced one of her cousins Naveed Ahmed as her witness. While discussing issue No.4 regarding dowry articles and gold ornaments claimed by respondent No.1 as per the list filed and produced by her and giving findings in respect thereof, it was held by the Family Court that the said list produced by respondent No.1 was signed by the petitioner which was denied by him, but he did not file any application for verification of his signature ; amongst other articles a washing machine was also mentioned in the said list, receipt whereof was produced by respondent No.1 ; and, respondent No.1 had produced a witness in support of her claim, but the petitioner did not produce any witness to prove that the said items were not given to respondent No.1. This shows that the version of respondent No.1 that the items mentioned in said list were taken by her to the house of the petitioner was believed by the Family Court while decreeing her Suit in respect of all the said items.

 

5.         In the above context, it may be noted that respondent No.1 had clearly stated in her plaint that all the dowry articles and gold ornaments were brought by her to the petitioner’s house at the time of rukhsati, and it was never claimed by her in the plaint or in her evidence that any of the said items was received by the petitioner prior to rukhsati. Whereas, her witness Naveed Ahmed had made a completely new and contrary statement in his evidence that the said items were sent to the house of the petitioner and were received by him two days prior to rukhsati by signing the said list. Regarding the washing machine, it was admitted by this witness on two occasions in his cross-examination that the washing machine was mentioned in the said list, but it was delivered after one week of rukhsati. Respondent No.1 had also admitted in her cross-examination that the date on the receipt of washing machine was 06.04.2010 i.e. after the rukhsati. It may be noted that in the list of witnesses filed by respondent No.1, name of her above witness Naveed Ahmed was mentioned and it was stated therein that he will support her version. However, instead of supporting her version, the said witness made a completely different and contrary statement which was not even pleaded by respondent No.1 in her plaint. Since it was never claimed by respondent No.1 in her plaint or in her evidence that any of the items mentioned in the list or claimed by her was received by the petitioner prior to rukhsati or even thereafter, the alleged list of such items with the petitioner’s alleged signature thereon was of no value, had become redundant and as such could not be believed or relied upon. Interestingly, no issue was framed by the Family Court as to whether or not the petitioner had received the said items whether before or after the rukhsati, and the reason for not framing such issue is obvious that respondent No.1 had never pleaded or alleged such fact. In view of the above, the finding of Family Court that the petitioner did not file any application for verification of his signature on the said list, was meaningless and irrelevant.

 

6.         Despite the above position, the Suit of respondent No.1 was decreed by the Family Court by directing the petitioner to return all the items mentioned in the said list to her. Perusal of the impugned judgment shows that the only reason that prevailed upon the Family Court for giving such direction to the petitioner was that he had failed to prove that the said items were not given  to her at the time of marriage. To my mind such finding / direction was misconceived and perverse as it was not the case before the Family Court as to whether the said items were given to respondent No.1 or not. The case was whether the said items were actually taken by respondent No.1 to the house of the petitioner, and if so, whether the same were left there by her and were still lying there. Without first giving findings on these points, the claim of respondent No.1 could not be decreed nor could the above direction be given to the petitioner.

 

7.         As noted above, there was an obvious and glaring contradiction in the evidence of respondent No.1 and her witness Naveed Ahmed with regard to the date of delivery of the items mentioned in the list. The other serious contradiction in their evidence was in relation to the washing machine mentioned in the list, as respondent No.1 had claimed that all the items mentioned in the list were taken by her to the house of the petitioner at the time of rukhsati, but in her evidence she had admitted that the date on its receipt was subsequent to the rukhsati ; and, her witness had stated that the washing machine was delivered after one week of rukhsati. In addition to the above, the receipts of gold ornaments produced by respondent No.1 were admittedly issued in Saudi Arabia and UAE, but they were not in her name nor had she pleaded in the plaint that she had gone to the above countries or had purchased the ornaments therefrom, which fact was admitted by her in her cross-examination. In view of the above contradictory statements by respondent No.1 and her witness, which had completely demolished the case set up by her, they had lost their credibility and as such their evidence could not be believed. Due to this reason, respondent No.1 had failed in discharging the burden of proving her case and as such the burden never shifted upon the petitioner to rebut her claim. All the important aspects discussed above were completely ignored by both the courts below and this shows that this is a case of misreading and non-reading of evidence.

 

8.         In view of the above discussion, this petition is allowed by setting aside the impugned judgments and decrees to the extent of grant of dowry articles and gold ornaments worth Rs.900,000.00 to respondent No.1. There will be no order as to costs.  

 

 

 

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     J U D G E