3/16/23, 9:32 AM 2017 S C M R 393

2017 S C M R 393

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SHAFIQUE SULTAN---Petitioner

Versus

Mst. ASMA FIRDOUS and others---Respondents

Civil Petition No. 1855-L of 2014, decided on 9th August, 2016.

(Against judgment dated 13.10.2014 of Lahore High Court, Lahore, passed in Writ
Petition No. 14221 of 2010)

(a) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dowry articles---Husband denying that dowry

articles were ever given to wife---Proof---Wife appeared as a witness and gave details
of dowry articles and placed her affidavit on record---Wife was subjected to lengthy
cross-examination but nothing helpful to the husband could be brought on record---
Witness who appeared on behalf of wife categorically stated that dowry articles were
given by her parents at the time of her marriage---Said witness was not cross-examined
on such point---In the absence of cross-examination on the question of dowry articles,
the statement of said witness was to be presumed to be true which corroborated the
evidence of wife---Other than denying delivery of dowry articles, the husband did not
produce any evidence of any nature to substantiate his position---Furthermore, the list
of dowry articles provided by wife consisted of articles of daily use which were
generally given to brides at the time of their marriages---Said list did not contain any
article(s) which may be termed as extravagate or beyond the financial resources of the
wife's family---Supreme Court observed that giving dowry articles to daughters was in
line with custom/tradition and practices which were deeply rooted in the society and
were followed by parents of all classes irrespective of their financial status---Suit for
recovery of dowry articles had been rightly decreed---Petition for leave to appeal was
dismissed accordingly.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dowry articles---Depreciation in value of dowry

articles---Scope---Trial Court decreed the suit to the extent of 65% of the value of
dowry articles claimed by the wife on the ground that the marriage lasted 6-1/2 years
and the value of the dowry articles underwent depreciation on account of use---
Propriety---Such careful and circumspect approach showed due application of mind by
the Trial Court and was duly supported by the case record---Suit for recovery of dowry
articles had been rightly decreed---Petition for leave to appeal was dismissed
accordingly.

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(c) Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S. 17---Qanun-e-Shahadat (10 of 1984)---Suit for recovery of dowry

articles---Proof---Receipts of dowry articles--- Provisions of Qanun-e-Shahadat, 1984
were not stricto sensu applicable to family matters, as such, the argument of the
husband in the present case regarding proof of receipts and the effects of non-
production of authors of such receipts was misconceived---Suit for recovery of dowry
articles had been rightly decreed---Petition for leave to appeal was dismissed
accordingly.

Ch. M. Ejaz Jamal, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 9th August, 2016.

ORDER

IJAZ UL AHSAN, J.---The petitioner seeks leave to appeal against judgment dated
13.10.2014 rendered by the Lahore High Court, Lahore in Writ Petition No.14221 of
2010. Through the impugned judgment, a constitutional petition filed by respondent
No.1 was allowed; judgment and decree passed by the District Judge, Toba Tek Singh
dated 15.03.2010 was set aside; and judgment and decree dated 21.12.2009 handed
down by the Judge, Family Court, Toba Tek Singh was upheld.

2. The facts necessary for disposal of this petition are that Mst. Asma Firdous,
respondent No.1, filed a suit against the petitioner for recovery of maintenance
allowance for two minor children and return of dowry articles valuing Rs.217,710/-.
The petitioner contested the suit. He took the stance that he was not in a position to
provide maintenance to the minors and no dowry was given to the respondent by her
parents at the time of her marriage with him. After recording evidence, the Judge,
Family Court, Toba Tek Singh decreed the suit vide judgment and decree dated
21.12.2009 in the following terms:-

"The suit of the plaintiffs is decreed to the effect that plaintiffs Nos.2 and 3 are
entitled to recover Rs.1500/- per month each from the date of institution of the
suit till their marriage with 10% annual enhancement in future maintenance.
Plaintiff No.1 is also entitled to recover the dowry articles as per list Ex.P2
excluding the articles mentioned at serial Nos.18 and 20. In case of non-
delivery of dowry articles plaintiff would be entitled to get 65% of their price
mentioned in the list Ex.P2, except of gold ornaments of which she is entitled
to get value mentioned in Ex.P2. No order as to costs."

3. On appeal by the petitioner, the judgment and decree to the extent of maintenance
was upheld by the appellate Court and was not challenged before the High Court. It has
not been assailed before us either. However, the petitioner is aggrieved of the judgment
and decree of the Family Court as upheld by the High Court to the extent of return of
dowry articles.

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4. Learned counsel for the petitioner submits that the respondent could not establish
her claim regarding dowry articles. He maintains that the entire case of the respondent
was based upon oral evidence which was not supported by any cogent, confidence
inspiring or independent evidence. He further submits that neither receipts for purchase
of dowry articles were placed on record nor their authors were produced in evidence
before the trial Court. As such, the impugned judgment and decree were unsustainable.

5. Having heard learned counsel for the petitioner and gone through the record, we find
that the trial Court as well as the High Court examined the evidence produced by the
parties in its true perspective. The respondent appeared as PW.1 and gave details of
dowry articles and placed her affidavit on record as Ex.P1. She was subjected to
lengthy cross-examination but nothing helpful to the petitioner could be brought on
record. She also produced Abdul Rashid as PW.2 who categorically stated that dowry
articles as per list (Ex.P2) were given to the respondent by her parents at the time of
her marriage with the petitioner. He was not cross-examined on this point. The learned
trial Court, therefore, correctly reached the conclusion that in the absence of cross-
examination on the question of dowry articles, the statement of PW.2 was to be
presumed to be true which corroborated the evidence of PW.1. As opposed to this,
other than denying delivery of dowry articles, the petitioner did not produce any
evidence of any nature to substantiate his position. The learned trial Court rightly
found the evidence of the petitioner to be weak and unconvincing as compared to the
evidence produced by the respondent. The High Court also found that the conclusion
arrived at by the trial Court was realistic in the facts and circumstances of the case as
well as evidence placed on record.

6. We have also gone through the list of dowry articles (Ex.P2) and found that the same
consist of articles of daily use which are generally given to brides at the time of their
marriages. We have not found any article(s) which may be termed as extravagate or
beyond the financial resources of the respondent's family. Giving dowry articles to
daughters is in line with custom/tradition and practices which are deeply rooted in our
society and are followed by parents of all classes irrespective of their financial status.
Learned trial Court as well as the High Court have, however, been careful and
circumspect in decreeing the suit to the extent of 65% of the value of dowry articles
claimed by the respondent on the ground that the marriage lasted 6-1/2 years and the
value of the dowry articles underwent depreciation on account of use. Further, the
articles appearing at Sr.Nos.18 and 20 were disallowed for the reason that clothes
could hardly be in a recoverable condition due to lapse of time and there was no
evidence about the present condition of the cow and three calves which were allegedly
given to the respondent at the time of her marriage. We find that both impugned
judgments show due application of mind in appraising evidence, are well reasoned and
duly supported by the record. Even otherwise, the provisions of Qanun-e-Shahadat
Order, 1984 are not stricto sensu applicable to family matters. As such, the argument of
learned counsel for the petitioner regarding proof of receipts and the effects of non-
production of authors of such receipts, in the specific facts and circumstances of the
present case is misconceived.

7. We are not convinced that the findings recorded by the trial Court as upheld by the
High Court have any perversity, legal error or flaw that may furnish reasonable ground

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or lawful justification for interference by this Court in exercise of its powers under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973.

8. For the reasons recorded above, this petition is dismissed and leave to appeal is
refused.

MWA/S-34/SC Petition dismissed.

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