PLJ 2010 Peshawar 16 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ.
SHAH NAWAZ--Petitioner
versus
Mst. SURIYA BIBI and 2 others--Respondents
W.P. No. 243 of 2008, decided on 13.5.2009.
Bridal Gifts Act, 1976--
----Scope of--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage on the basis of Khula, decreed--Entitlement to remaining dower though same was converted into bridle gift--Appellate Court directed the respondent to forgo the 5 kanal land received by her as dower but has held her entitlement to 10 tolas of golden ornaments though the same was converted into bridal gift--Validity--Once the parties enter into a wedlock, execute the deed and reside in the husbands house as husband and wife, the husband is duty bound to pay the same and no penal provision under the Bridal Gift Act, would be applicable in the case--Petition dismissed. [P. 18] A
Mr. Muhammad Yousaf Khan, Advocate for Petitioner.
Date of hearing: 13.5.2009.
Order
Muhammad Alam Khan, J.--Shah Nawaz petitioner has filed the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 against the judgment and decree dated 11/9/2008 passed by the learned Additional District Judge-V D.I.Khan in favour of the respondent Mst. Suria Bibi.
2. Facts of the case are that Mst. Suria Bibi filed a suit for recovery of Rs.72,000/- as maintenance at the rate of Rs. 2000/- per month for prior three years of filing of the suit and dower articles as per the list attached with the plaint, suit for partition of a house equal to ¬ share and golden ornaments weighing ten tolas which have been transferred by way of dower deed dated 18/2/2003. She had also claimed decree for dissolution of marriage. The learned trial Court after calling the petitioner who submitted detailed written statement denying the allegation contained in the plaint. It was submitted that the plaintiff has gone to parents house of her own free will and she is not entitled to the dower amount claimed by her. It was also submitted that the petitioner has maintained the wife, but the plaintiff Suria Bibi being a strong head lady is not residing with him. It was also submitted that the plaintiff has raised this objection in order to pave her way for the dissolution of marriage. The petitioner also claimed as a counter claim decree for restitution of conjugal rights in his favour. The learned Trial Court after framing necessary issues and affording opportunity to the parties to lead pro and contra evidence vide judgment and decree Suit No. 353/3 of 2006, decided on 12.12.2007 granted a decree for recovery of 10-toal Golden ornaments as well as decree for restitution of conjugal rights in favour of the husband and Rs. 2000/- per month from the date of decree till the satisfaction of the decree for conjugal rights was also passed in favour of Mst. Suria Bibi.
3. Mst. Suria Bibi respondent feeling aggrieved filed a Family Court appeal, which was entrusted to the Court of learned ADJ-V, who vide the judgment and decree dated 11.09.2008, partially accepted the appeal of the respondent's wife and passed a decree for dissolution of marriage on the basis of Khulla in her favour. However, in consideration of Khulla respondent was directed to forgo her dower including 5-kanal landed property, mentioned in the deed Ex:PW-2/1, while relief of respondent for conjugal rights in favour of the petitioner was also declined, and decree to that extent was set-aside. Learned appellant Court also maintained the decree for golden ornaments in favour of respondent's wife, but modified the same to bridal gift instead of dower. The decree for dower was modified and also the decree for maintenance @ Rs.2000/-P.M. for Iddat period was passed in favour of the respondent, hence the present writ petition.
4. It was submitted by the learned counsel for the petitioner that the respondent was not entitled to the decree for dissolution of marriage and for the recovery of dower and golden ornaments as well as maintenance allowance. It was submitted that the learned trial Court has granted the decree for the recovery of golden ornaments of 10 tola to that of bridal gift, which under the Bridal Gift Act, 1976, was not permissible. It was also argued that the respondent was seeking dissolution in order to contract the 2nd marriage and thus she was not entitled either to the maintenance or to the decree for dissolution of marriage.
5. We have gone through the record of the case and found that as far as the dissolution on the basis of Khulla is concerned the learned appellate Court has directed the respondent to forgo the 5-kanal land mentioned in the deed referred to above, but has held her entitlement to the remaining dower though the same was converted into bridle gift. The contention of the learned counsel for the petitioner that 10 toals golden ornaments was violative of the provision of Bridle Gift Act 1976 is also not in accordance with law, as once the parties enter into a wedlock, execute the deed and reside in the husband's house as husband and wife, the husband is duty bound to pay the same and no penal provision under the Bridal Gift Act would be applicable in the case in view of the dicta handed down in the case of Mst. Nasim Sharif Vs. Imtiaz Ali Khan and 2 others (2006 CLC 1393) and in the case of Muhammad Tazeel Vs. Mst. Khair-un-Nisa (1995 SCMR page 885).
6. The judgments of the two Courts below are strictly in accordance with law, justice, equity, and warrants no interference by this Court in exercise of its extra ordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973.
7. In view of the facts and circumstances of the case narrated above, then is no force in this writ petition which is dismissed in limine.
(M.S.A.) Petition dismissed.
[D.I. Khan Bench]
Present: Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ.
SHAH NAWAZ--Petitioner
versus
Mst. SURIYA BIBI and 2 others--Respondents
W.P. No. 243 of 2008, decided on 13.5.2009.
Bridal Gifts Act, 1976--
----Scope of--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage on the basis of Khula, decreed--Entitlement to remaining dower though same was converted into bridle gift--Appellate Court directed the respondent to forgo the 5 kanal land received by her as dower but has held her entitlement to 10 tolas of golden ornaments though the same was converted into bridal gift--Validity--Once the parties enter into a wedlock, execute the deed and reside in the husbands house as husband and wife, the husband is duty bound to pay the same and no penal provision under the Bridal Gift Act, would be applicable in the case--Petition dismissed. [P. 18] A
Mr. Muhammad Yousaf Khan, Advocate for Petitioner.
Date of hearing: 13.5.2009.
Order
Muhammad Alam Khan, J.--Shah Nawaz petitioner has filed the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 against the judgment and decree dated 11/9/2008 passed by the learned Additional District Judge-V D.I.Khan in favour of the respondent Mst. Suria Bibi.
2. Facts of the case are that Mst. Suria Bibi filed a suit for recovery of Rs.72,000/- as maintenance at the rate of Rs. 2000/- per month for prior three years of filing of the suit and dower articles as per the list attached with the plaint, suit for partition of a house equal to ¬ share and golden ornaments weighing ten tolas which have been transferred by way of dower deed dated 18/2/2003. She had also claimed decree for dissolution of marriage. The learned trial Court after calling the petitioner who submitted detailed written statement denying the allegation contained in the plaint. It was submitted that the plaintiff has gone to parents house of her own free will and she is not entitled to the dower amount claimed by her. It was also submitted that the petitioner has maintained the wife, but the plaintiff Suria Bibi being a strong head lady is not residing with him. It was also submitted that the plaintiff has raised this objection in order to pave her way for the dissolution of marriage. The petitioner also claimed as a counter claim decree for restitution of conjugal rights in his favour. The learned Trial Court after framing necessary issues and affording opportunity to the parties to lead pro and contra evidence vide judgment and decree Suit No. 353/3 of 2006, decided on 12.12.2007 granted a decree for recovery of 10-toal Golden ornaments as well as decree for restitution of conjugal rights in favour of the husband and Rs. 2000/- per month from the date of decree till the satisfaction of the decree for conjugal rights was also passed in favour of Mst. Suria Bibi.
3. Mst. Suria Bibi respondent feeling aggrieved filed a Family Court appeal, which was entrusted to the Court of learned ADJ-V, who vide the judgment and decree dated 11.09.2008, partially accepted the appeal of the respondent's wife and passed a decree for dissolution of marriage on the basis of Khulla in her favour. However, in consideration of Khulla respondent was directed to forgo her dower including 5-kanal landed property, mentioned in the deed Ex:PW-2/1, while relief of respondent for conjugal rights in favour of the petitioner was also declined, and decree to that extent was set-aside. Learned appellant Court also maintained the decree for golden ornaments in favour of respondent's wife, but modified the same to bridal gift instead of dower. The decree for dower was modified and also the decree for maintenance @ Rs.2000/-P.M. for Iddat period was passed in favour of the respondent, hence the present writ petition.
4. It was submitted by the learned counsel for the petitioner that the respondent was not entitled to the decree for dissolution of marriage and for the recovery of dower and golden ornaments as well as maintenance allowance. It was submitted that the learned trial Court has granted the decree for the recovery of golden ornaments of 10 tola to that of bridal gift, which under the Bridal Gift Act, 1976, was not permissible. It was also argued that the respondent was seeking dissolution in order to contract the 2nd marriage and thus she was not entitled either to the maintenance or to the decree for dissolution of marriage.
5. We have gone through the record of the case and found that as far as the dissolution on the basis of Khulla is concerned the learned appellate Court has directed the respondent to forgo the 5-kanal land mentioned in the deed referred to above, but has held her entitlement to the remaining dower though the same was converted into bridle gift. The contention of the learned counsel for the petitioner that 10 toals golden ornaments was violative of the provision of Bridle Gift Act 1976 is also not in accordance with law, as once the parties enter into a wedlock, execute the deed and reside in the husband's house as husband and wife, the husband is duty bound to pay the same and no penal provision under the Bridal Gift Act would be applicable in the case in view of the dicta handed down in the case of Mst. Nasim Sharif Vs. Imtiaz Ali Khan and 2 others (2006 CLC 1393) and in the case of Muhammad Tazeel Vs. Mst. Khair-un-Nisa (1995 SCMR page 885).
6. The judgments of the two Courts below are strictly in accordance with law, justice, equity, and warrants no interference by this Court in exercise of its extra ordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973.
7. In view of the facts and circumstances of the case narrated above, then is no force in this writ petition which is dismissed in limine.
(M.S.A.) Petition dismissed.
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