Wednesday, 3 October 2018

PLJ 2017 Sh.C. (AJ&K) 74

PLJ 2017 Sh.C. (AJ&K) 74
PresentMuhammad Sheraz Kiani, J.
ULFAT BIBI and others--Appellants
versus
Raja MAZHAR HUSSAIN and others--Resondents
Family Appeal Nos. 19 & 20 of 2015, decided on 25.3.2017.
Question of Law and Facts--
----Family appeal--Suit for Recovery of dowery article and maintenance--Entitled--Talaq--Effective--When defendant filed written statement in Court and he specifically mentioned that he has divorced plaintiff then divorce shall be considered effective for purpose of maintenance allowance from that date-Though it might have become effective for other purpose from written date and plaintiff is entitled to receive maintenance allowance from defendant at rate fixed by trial Court--Court below was not justified to award maintenance allowance beyond period prescribe period when same was formally pronounced in Court by person who has a right to pronounce it, it will be presumed that she was no more wife of defendant beyond that period, however, in addition to maintenance allowance of said period she would be entitled for expenses of her Iddat period of three months @ Rs. 3000/- per month as fixed the trial Court--Appeal was accepted.                                               [Pp. 78 & 79] A
Sardar Shakil Khan, Advocate for Appellants (Mst. Ulfat Bibi).
Syed Nishat KazmiAdvocate for Respondents/Appellants (Mazhar Hussain).
Date of hearing: 25.3.2017.
Judgment
Since common question of law and facts are involved in the above captioned appeals, therefore, these are being consolidated and will be disposed of together through this single judgment.
2.  The above captioned appeals have been directed against two separate judgment and decrees dated 24.02.2015 whereby, the suits filed by the plaintiff-appellants for recovery of dowry articles and maintenance allowance were decreed.
3.  For the sake of the brevity I am not inclined to narrate the brief facts of the case because the same have been incorporated in the impugned judgment of the trial Court in details. Suffice it to say that it is contended in the suit for recovery of dowry that on 01.08.2008 the defendant appellant ousted her along-with children and snatched the dowry articles which were given to her by her parents at the time of marriage. She remained in the house of defendant for about 16 years and dowry articles are lying in the house of defendant/appellant. Now she along-with her children lives in the house of her parents. During the period of desertion he did not pay any maintenance allowance to her and her children. She prayed that according to the list annexed alongwith the suit, a decree for recovery of dowry and maintenance allowance at the rate of 10,000/-each may be passed in favour of the plaintiff.
4.  On filing of the suits, the defendant/ appellant was summoned, who appeared before the Court and submitted his written statements in both the suits and refuted the claim of the plaintiff. He also refuted the allegation of maltreatment. He further contended that he divorced the plaintiff on 05.12.2008. The learned trial Court in the light of pleading of the parties framed relevant issues and directed the parties to produce evidence. The plaintiff in support of claim did record her statement, however, produced two witnesses who recorded their statements.
5.  The learned Judge Family Court after hearing the learned counsel for the plaintiff/appellant dismissed the suit for recovery of dowry for want of proof, however, decreed the suit for maintenance allowance to the tune of Rs. 2000/-per month including maintenance of Iddat period in favour of Plaintiff No. 1, whereas Plaintiffs No. 2 to 4 were held entitled to the tune of Rs. 2,000/-each per month while Plaintiff No. 3 is entitled to get future maintenance allowance to the tune of Rs. 3000/-per month, vide its impugned judgment dated 24.02.2015, hence these appeals.
6.  The learned counsel for the appellant-plaintiff argued that the trial Court committed grave illegality while recording the impugned judgment and decree. The plaintiff-appellant remained with the respondent-defendant as wedded wife for the period of more than 16 years. The learned counsel vehemently argued that plaintiff proved her claim with regard to recovery of dowry articles and in this regard she also produced receipts, but for unknown reasons the learned trial Court failed to appreciate the same. Finally, the learned counsel prayed that by accepting the appeal, the impugned judgment and decrees may be set aside and decree for recovery of dowry according to the list appended with the file, may be passed in favour of appellant-plaintiff.
7.  On the other hand, the learned counsel for the appellant-defendant argued that the plaintiff-appellant failed to prove her case with regard to maintenance and dowry through cogent and convincing evidence. He further argued that fake and fabricated receipts have been produced by the plaintiff-appellant and the trial Court has rightly discarded. He vehemently argued that defendant appellant divorced the plaintiff on 05.12.2008 through registry but she refused to receive the same, therefore, she is not entitled to the maintenance allowance. The learned counsel agitated on the point that trial Court fixed huge amount of maintenance allowance without considering the financial condition of the defendant appellant, therefore, the same may be reduced and appeal filed by plaintiff appellant may be dismissed.
8.  I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
9.  A careful consideration of the record reveals that marriage between the spouses was solemnized on 30.03.1992.
10.  So far as the case with regard to recovery of dowry articles is concerned, suffice is to say that the plaintiff-appellant claimed in her suit that her parents have given dowry articles at the time of marriage. She lived at the defendant’s house for about 16 years and dowry articles are lying in the house of defendant/appellant. In support of her case, the plaintiff-appellant produced a list of dowry articles, which was not tendered into evidence. The P.Ws Munwar Hussain and Mirza Qurban Ali deposed that the dowry articles were given to the plaintiff at the time of marriage and the evidence is un-rebutted and when evidence remains un-rebutted it is considered a sufficient proof. Even in the statement of defendant appellant, he has not denied the fact of dowry articles rather his evidence was deferred and he has completed in other File No. 40/2014 on 06.06.2014 but he has not uttered a single word about dowry articles. The plaintiff also claims gold ornaments, but such ornaments cannot be treated as a dowry, ordinarily ornaments are given as a gift by the parents or as a gift or dower by the husband. The learned Court below has not appreciated the evidence in this regard, in its true perspective and wrongly held that the list of dowry articles has not been exhibited and due to that the plaintiff was not entitled for dowry articles. The second reason given by the learned Judge is also not tenable that due to passage of period of 16 years, according to him, it is not possible that the items of dowry could be in usable position. This is an erroneous approach without any proof to declare the usable items (i.e. furniture, crockery, utensils etc.) as scrap. A wife is entitled to recover her property as it is, or its equal amount. In the present case, the estimate of the depreciated price of the articles has not been given in the evidence so it would be appropriate that the articles proved in evidence must be handed over to the appellant/plaintiff. According to the un-rebutted evidence of the plaintiff the following items/articles have been proved:--
77777
The plaintiff/ appellant is entitled to recover the above articles/items.
11.  So far as the case with regard to recovery of maintenance allowance is concerned, suffice is to say that Plaintiff-Appellant Nos. 2 to 4 are sons and daughter of defendant-appellant and legally and under Sharia, he being father is duty bound to maintain his children in such a manner that they could live in a respectable way. It is contended that plaintiffs have attained the age of majority; therefore, they are not entitled to the allowance. So, this fact has to be considered during execution of decree before the tried Court, but at this stage, in my view the decretal amount is sufficient to meet the ends of justice, however, the plaintiff, Ulfat Bibi, according to the impugned judgment was declared to be entitled to receive the maintenance allowance till the date of knowledge of the divorce. The learned counsel for the appellant contended that the defendant had given a written divorce to the plaintiff/appellant on 05.12.2008 and then she is not entitled for any maintenance allowance thereafter, but a perusal of record shows that the defendant filed a written statement on 17.04.2009 and on that date he disclosed the fact that he had given divorce to the plaintiff, Ulfat Bibi, on 05.12.2008.
12.  Now, the question arises whether the divorce for the purpose of maintenance allowance can be considered from 05.12.2008 or 17.04.2009. Although, the defendant placed a written divorce on record but during his examination-in-chief, he has not tendered it as evidence. The marginal witnesses shown in the divorce-deed namely Raja Afzal Khan & Raja Rukhsar Khan were not produced by the appellant neither Maqsood Hussain Araiz Navees (scribe) who written the Tallaq was examined by the defendant/appellant nor any credible evidence has been brought on record whereby it may be presumed that plaintiff, Ulfat Bibi, had received such Talaq-Nama, on 05.12.2008 or soon thereafter, so, it has not been proved that Talaq-Nama was delivered or this fact was conveyed by the defendant on 05.12.2008 to the plaintiff. It is true that in order to divorce his wife it is a right of husband and as soon as he pronounces Talaq it becomes effective but when a husband writes such Talaq and put in his pocket or in any other box and which does not deliver or convey to the wife it cannot be declared effective for the purpose of maintenance from that date.
13.  So when the wife is kept ignorant deliberately and purposely for a considerable period that a divorce was written by the husband and she thinks that she was still wife of her husband and does not isolate her from that position then she cannot be deprived from maintenance allowance for the period when she was not informed about the fact of Talaq by her husband negligently or deliberately. Talaqwhether oral or written becomes effective once it is given directly to a wife though without presence of a witness, but when the appellant-defendant has not pronounced in that way and nor delivered to her then it would be deemed he pronounced divorce on 17.04.2009, when he filed the written statement and declared the fact of divorce formally, for the purpose of maintenance allowance in particular.
14.  So, under these circumstances I am of the considered view that when the defendant filed written statement on 17.04.2009 in the Court and he specifically mentioned that he has divorced the plaintiff then the divorce shall be considered effective for the purpose of maintenance allowance from that date (i.e. 17.04.2009). Though it might have become effective for other purpose from the written date and the plaintiff is entitled to receive maintenance allowance from defendant at the rate fixed by the trial Court from December, 2008 till

17.04.2009. The learned Court below was not justified to award maintenance allowance beyond the period of 17.04.2009 when the same was formally pronounced in the Court by the person who has a right to pronounce it, it will be presumed that she was no more wife of defendant beyond that period, however, in addition to the maintenance allowance of the said period (i.e. December, 2008 to April, 2009) she would be entitled for the expenses of her Iddat period of three months @, Rs. 3000/- per month as fixed the learned trial Court.
In the light of what has been discussed above by accepting the Appeal No. 19/185, the judgment & decree of the trial Court dated 24.02.2015 is hereby set-aside and it is ordered that the plaintiff/appellant, Ulfat Bibi, is entitled to recover her dowry articles/items mentioned in Para No. 10 from defendant Raja Mazhar Hussain. Other Appeal No. 17/15 titled Raja Mazhar Hussain vs. Ulfat Bibi & others is partly accepted and the judgment & decree of the learned trial Court dated 24.02.2015 is hereby modified in the terms that the plaintiff/respondent shall be entitled to receive her maintenance allowance @ Rs. 2000/- per month from December, 2008 to April, 2009 along-with expenses of Iddat period @ Rs. 3000/- per month and she would not be entitled to receive any maintenance allowance for the remaining period.
(A.A.K.)          Appeal accepted



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