IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Const. Petition No.S-118 of 2022

Petitioner Haleemullah son of Meenhal

through Mr. Saeed Ahmed Bhatt, Advocate.

Respondent No.1 Mst. Sameena @ Saima Khatoon.

Respondent No.2 Civil & Family Judge, Kingri

through Mr. Mehboob Ali Wassan, AAG.

Date of hearing 26.09.2022

Date of order 14.10.2022

<><><><><>

O R D E R

SHAMSUDDIN ABBASI, J:- This Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises from the concurrent findings of two Courts below, whereby the suit filed by the respondent No.1 was partly decreed and appeal preferred against such decree met the same fate.

2. Nikah of the respondent No.1 was performed with the petitioner on 11.05.2003 and the rukhsati took place on 09.12.2004. The dower was fixed as 10 tolas gold and Rs.100,000/- cash. At the time of rukhsati, the parents of the respondent No.1 gave her dowry articles worth Rs.3,50,700/-. The matrimonial life fails and the petitioner ousted the respondent No.1 from his house and failed to maintain her, hence she filed Suit No.07 of 2019 seeking following relief(s):-

“(i) That this honourable court may graciously be pleased to dissolve the marriage between the parties on the ground of Khula, in view of the facts and circumstances narrated above;

(ii) To direct the defendant to return the dowry articles worth Rs.3,50,700/- (Rupees Three Lacs, Fifty Thousands Seven hundreds only) as mentioned in Annexure “B”;

(iii) To direct the defendant to pay the maintenance about previous 8 (eight) years back at the rate of Rs.10,000/- (Ten Thousand) per month to the plaintiff till the Iddat period;

(iv) To direct the defendant pay the Haq Mahar/Dower amount which was fixed as Rupees One Lac and Ten (10) Tolas Golden Ornaments in the Nikahnama as Annexure “A”;

(v) Cost of the suit; and

(vi) Any other relief as this honourable court deems fit and proper under the circumstances of the case”.

3. The petitioner contested the suit and filed his written statement, wherein he has denied all the allegations leveled against him by the respondents mainly agitating that respondent No.1 was disobedient wife and she at her own left his house and obtained Khula and also taken the dowry articles and gold ornaments with her, hence prayed for dismissal of suit.

4. The issues were framed. The parties led their evidence. The learned Civil and Family Judge, Kingri, after hearing the parties’ respective counsel, partly decreed the suit of respondent No.1 vide judgment and decree dated 26.09.2019, granting Khula and past maintenance for three years @ Rs.4,000/- per month till Iddat period (total amounting to Rs.156,000/-) whereas the claim with respect to recovery of dower as well as dowry articles was declined. Impugning the said judgment and decree, both parties filed their respective appeals. The respondent No.1 preferred Family Appeal No.45 of 2019 claiming her dower as well as dowry articles while petitioner filed Family No.46 of 2019 and prayed for setting aside the judgment and decree passed by the learned Family Court. Both appeals fail in terms of judgment dated 15.05.2022 and decree dated 16.05.2022, penned down by the learned Additional District Judge-III, Khairpur, whereby the judgment and decree passed by the learned Family Court was upheld. Aggrieved of consolidated Judgment passed in aforesaid appeals, the petitioner has filed this petition and prayed for following relief(s):-

(i) This Hon’ble Court may be pleased to allow the above petition of the petitioner and set aside the both the judgments and decree passed by Learned Civil/Family Judge Kingri in Family Suit No.07/2019 and Learned IIIrd Additional District Judge Khairpur in Family Appeal No.46/2019;

(ii) This Hon’ble Court may further be pleased to direct the respondent/plaintiff No.1 return back the dower amount of Rs.1,00,000/- and 10 tola gold to the petitioner/ defendant because the respondent No.1 has sought Khula from the petitioner/defendant;

(iii) This Hon’ble Court may further be pleased to grant stay order till disposal of the petition thereby suspending the execution, operation and implementation of judgments and decrees passed by both the courts below till final disposal of the petition; and

(iv) To award any other relief deemed fit and proper in circumstances of the case.

5. Heard and record perused minutely.

6. Reviewing the claim of the respondent No.1 in Family Suit No.07 of 2019, it is noted that, while seeking dissolution of marriage by way of Khula, she also claimed her dower. It is well settled that when a lady sought dissolution of marriage on the ground of Khula, she has to forego her dower in lieu of Khula. I am, thus, of the view that the claim of dower has rightly been declined by the two Courts below.

7. Insofar as the claim of dowry articles worth Rs.3,50,700/-, the respondent No.1 has not placed on record any documentary evidence or a list, duly attested by Nikah Registrar and two witnesses, as provided in rule 4(1) to Dowry & Bridal Restriction Rules, 1976. Mere producing a list not in accordance with rule 4(1) would not absolve the respondent No.1 from her duty to prove it in order to substantiate her claim that articles mentioned therein were given to her as dowry articles at the time of Rukhsati. Though it is our tradition and practice that brides are given dowry articles by parents of all classes irrespective of their financial status, but whenever the claim of dowry articles is denied or disputed then the same must have been proved though cogent and reliable evidence, which is lacking in this case. Even otherwise, the respondent No.1 has recorded contradictory statements. She in para-11 of her plaint has claimed Rs.9,49,000/-, equivalent to the price of dowry articles, but in her prayer clause has prayed for Rs.3,50,700/- in lieu of dowry articles and while appearing before the learned Family Judge also admitted that her parents gave her dowry articles worth Rs.300,000/-. The respondent No.1 failed to convince the two Courts below as well as this Court with regard to dowry articles, even she could not succeed to place on record any convincing evidence that may require interference. The approach of the two Courts below to this particular aspect of the case is not only well reasoned, but is perfect in all respects.

8. Now coming to the claim of maintenance @ Rs.10,000/- per month for past eight years, it is borne out from the record that the petitioner ousted the respondent No.1 from his house and during subsistence of matrimonial tie, the respondent No.1 stayed at her parents’ house. Sufficient evidence has been brought on record which proves that petitioner has neither maintained his wife during such period she passed at her parents’ house nor tried to rehabilitate her. The factum of second marriage of the petitioner is also proved through evidence. No iota of evidence much less cogent and confidence inspiring has been brought on record to substantiate that respondent No.1 was a disobedient wife without a good cause. Rather, it is established from the record that the desertion of the respondent No.1 from the petitioner’s abode was not voluntary, not caused by any misconduct on her part, therefore, she is entitled to claim maintenance for the period she was legally wedded wife of the petitioner and the petitioner is legally and morally bound to pay the same. The maintenance is considered a debt upon the husband in conformity with his tenet. Islam binds a husband to maintain his wife throughout the period she remains in matrimonial bonds with him. The maintenance is neither the nature of gift nor a benefit, but is an undeniable legal obligation of husband to maintain his wife. It is the duty and moral obligation of a husband to provide maintenance to his wife. When a woman surrenders herself into the custody of her husband, it is incumbent upon him to supply her with food, clothing, and lodging whether she be a Muslim or belong to any other religion because such is the precept in Holy Qur’an. I am, therefore, of the view that the findings of the two Courts below granting maintenance to respondent No.1 @ Rs.4,000/- per month for past three years till her Iddat period are well reasoned and in line with the evidence and documents brought on record.

9. As to the contention of learned counsel for the petitioner that the judgments, impugned herein, are bad in law and facts and contrary to the evidence brought on record is not legally correct. I am convinced that both the Courts below have appreciated the evidence and scrutinized the material available on record in complete adherence to the principles settled by the Hon’ble apex Courts in various pronouncements and has reached a just conclusion. I am, therefore, of the view that the two judgments, impugned herein, are based on fair evaluation of evidence and documents brought on record.

10. Besides, there are concurrent findings on the issue of fact against petitioner. Under constitutional jurisdiction re-appraisal of evidence in order to have a different conclusion than already inferred by the learned Courts below has never been considered an option to be upheld. The Court under constitutional jurisdiction has to see whether any illegality has been committed by the forums below or the findings of the fact are based on material extraneous to the pleadings of the parties to justify interference on its part. The two Courts below have concurrently refused to exercise their discretion in favour of the petitioner. The learned counsel for the petitioner too has failed to point out any illegality or irregularity and/or jurisdictional defect in the impugned judgments of the Courts below warranting interference by this Court while exercising extra ordinary constitutional jurisdiction. The impugned judgments of the Courts below are well reasoned and according to law, therefore, there is no reason to interfere in the concurrent findings of facts. In view thereof, the findings recorded by the learned Courts below are the outcome a proper application of judicial mind to the facts and circumstances of the case. Thus, this Court is hesitant to interfere. Resultantly, the instant petition is bereft of merit stands dismissed.

JUDGE