W.P.NO.9733 OF 2012.

Muhammad Amir Addl. District Judge etc.

3. 22.05.2012 Malik Muhammad Akbar Awan, Advocate for the petitioner.

Ch. Salamat Ali Haidary, Advocate for respondents No.3-4.

This constitutional petition arises out of the judgment

and decree, dated 10.11.2011, passed by the learned Judge

Family Court, Gujranwala, which was partially modified by

the learned Additional District Judge, Gujranwala vide

judgment and decree dated 14.03.2012.

2. The facts forming background of the instant petition,

in brief, are that the petitioner was married to respondent

No.3 on 11.02.2009. Out of the wedlock, an off-spring,

namely, Mahnoor (respondent No.4) was born. Due to

strained relations, respondent No.3 shifted to her parental

house. Thereafter, respondent No.3 filed a suit for recovery

of dower and maintenance allowance for herself as well as

for the minor (respondent No.4). The petitioner contested the

said suit by filing written statement. Since the pre-trial

reconciliation proceedings were abortive, interim

maintenance allowance of respondent No.4 was fixed at the

rate of Rs.1500/- per month. Out of the divergent pleadings

W.P.9733/2012. 2

of the parties, following Issues were framed by the learned

Judge Family Court, on 13.04.2011:-

1. Whether the plaintiffs are entitled to decree for

recovery of maintenance allowance, if so, at what rate
and for which period? OPP.

2. Whether the plaintiff No.1 is entitled to decree for

recovery of dower as prayed for? OPP.

3. Whether the suit of the plaintiff is liable to be

dismissed as per preliminary objections raised by the
defendant in his written statement and defendant is
entitled to decree for restitution of conjugal rights as
prayed for? OPD.

4. Relief.

3. To prove their respective please, the parties led their

evidence inasmuch as respondent No.3/plaintiff herself

appeared as PW.1 presented her affidavit-in-evidence

(Exh.P.1) whereas Muhammad Anwar was examined as

PW-2 and also tendered his affidavit-in-evidence (Exh.P.2).

In addition to their oral evidence, the plaintiffs also tendered

in evidence Clearance Certificates qua properties No.B-V-3-

S-139/Shop and B-I-16-S-81/R.H. (Exh.P.4 and Exh.P.5)

photocopy of Birth Certificate of Mahnoor minor/respondent

No.4 (Mark-A), photocopy of Result Card of respondent

No.3 (Mark-B), Cash Memos. and Prescription by the Doctor

(Mark-C to Mark-H), Prescription of Dr. Musarrat Imtiaz

W.P.9733/2012. 3

Batth (Mark-I), Consultant Fee Receipt dated 03.04.2011

(Mark-J), Cash Memos. regarding purchase of medicines

dated 03.04.2011 (Mark-K and Mark-L), Cash Memo. dated

23.04.2011 (Mark-M), Cash Memo by Shuja Medical Store

(Mark-N), medical prescription by Dr. Muhammad Abdul

Basit (Mark-P), Cash Memo. of Shuja Medical Store

(Mark-Q), medical prescription of Dr. Muhammad Tariq

(Mark-R), Cash Memo. (Mark-S), medical prescription by

Dr. Atta-ur-Rehman Alvi (Mark-T), medical prescription of

Adil Hospital (Mark-U), Cash Memo. dated 21.04.2011

(Mark-V), Cash Memo. dated 05.12.2011 (Mark-W), Cash

Memo. dated 06.11.2011 (Mark-X) and bill consisting upon

17 pages (Mark-Y/1 to Y/17).

4. In rebuttal, the petitioner himself appeared as DW.1

and examined Asad Mehmood Mughal and Muhammad

Suleman as DW-2 and DW-3 who presented affidavits-in-

evidence as Exh.D.2 and Exh.D.3 respectively.

5. After going through the evidence of the parties, oral

well as documentary and hearing their learned counsel, the

learned Judge, Family Court, Gujranwala, while dismissing

the suit to the extent of recovery of dower, partially decreed

the same to the extent of maintenance allowance for

respondents No.3 and 4 and fixed the same at the rate of

Rs.6000/- each per mensem w.e.f. 16.08.2010 by holding

W.P.9733/2012. 4

entitlement of respondent No.3 till subsistence of marriage

including her Iddat period and respondent No.4 till her

marriage with 20% annual increase.

5. Being dissatisfied with the judgment and decree of the

learned trial Court, both the parties filed independent appeals

before the District Judge, Gujranwala. The said appeals were

entrusted to the learned Additional District Judge,

Gujranwala, who vide consolidated judgment and decree

dated 14.03.2012 dismissed the appeal of the petitioner and

partially accepted that of respondent No.3 holding her

entitled to recover Rs.300,000/- as dower from the petitioner

whereas dismissed the same to the extent of prayer for

enhancement of maintenance allowance. Being aggrieved by

the judgment and decree passed by the learned Additional

District Judge, the petitioner has instituted the present

petition.

6. Learned counsel for the petitioner contends that the

learned appellate Court wrongly upset the well-reasoned

finding of the learned trial Court that as per column No.15 of

the Nikahnama six tolas gold ornaments valuing

Rs.150,000/- were paid to respondent No.3 at the time of

Nikah. Further submits that the findings of both the courts

below that petitioner is owner of ‘Amir Cloth House’ are

unfounded as he is only a salesman there. Adds that

W.P.9733/2012. 5

sufficient material was available on record to show that, in

fact, the petitioner was only a salesman at ‘Amir Cloth

House’ and was, thus, not earning Rs.100,000/- per month as

claimed by respondent No.3 and as such the maintenance

allowance granted to her as well as her minor daughter does

not commensurate with the income of the petitioner.

7. Learned counsel for the respondents, on the other

hand, supported the impugned judgments and decrees of the

learned Courts below. He, while drawing attention of this

Court towards paragraph 5 of the written statement filed by

the petitioner, states that since the petitioner himself averred

that he had paid dower amount of Rs.1000/- as well as six

tolas gold ornaments to respondent No.3 at the time of

marriage, burden to prove the said assertion was on the

petitioner but he miserably failed to do so. In this regard, he

relies on “Abdul Sattar vs. Mst. Kalsoom (PLD 2006

Karachi 272)” and “Mst. Shazia Kausar vs. Muhammad

Ahmed and another (2006 CLC 251)”. Further adds that

conduct of the petitioner speaks volumes about his

irresponsible and careless attitude as neither he made any

effort for reconciliation nor filed a suit for restitution of

conjugal rights, hence he was bound to maintain the

respondents even during the period of desertion. In this

respect, he relies on the cases of “Mst. Farida Khanum vs.

W.P.9733/2012. 6

Deputy Commissioner/Collector, Okara and others (2004

MLD 798)”.

8. I have heard the learned counsel for the parties at

length and have also perused the record with their able

assistance.

9. Firstly, taking up the question of maintenance, I am of

the view that neither any hard and fast rule can be laid to

adjudge the exact need of a child of the age of respondent

No.4 nor any conclusive proof is available on record. Thus,

the learned Courts below were left with no other option but

to take into consideration the routine expenses of growing

child and financial status of the petitioner and to fix the

maintenance of the spouse of the petitioner as well as his

daughter. The learned Judge Family Court, after considering

the situation prevalent in the society and prices of

commodities of daily use, fixed the maintenance allowance at

the rate of Rs.6000/- per head per month with annual

increase of 20%. The said findings were affirmed by the

learned Appellate Court. Even otherwise, Asad Mahmood

Mughal (DW-2), who according to the petitioner is owner of

a shop in the Bazar where ‘Amir Cloth House’ is situated,

stated in unequivocal words that petitioner-Amir being the

only son of his father-Abdul Rahim, is owner of ‘Amir Cloth

House’. Even a layman knows that a cloth merchant cannot

W.P.9733/2012. 7

be dubbed as poor that he cannot pay Rs.6000/- per month

towards the maintenance of his spouse and daughter. Even

otherwise, in this arena of price-hiking, an amount of

Rs.6000/- cannot be termed as exaggerated one. Thus, the

findings of both the courts below qua awarding of

maintenance to respondents No.3 and 4 are unexceptionable.

However, the annual increase awarded by the learned Judge

Family Court and affirmed by the learned Additional District

Judge is bit on higher-side. While dealing with the question

of annual increase in maintenance the Hon’ble Supreme

Court in the case reported as “Muhammad Ali & 11 others

v. Province of KPK and others (2012 SCMR 673)” has inter

alia held that—

“3. The other question as to automatic annual

increase in the maintenance for the minor children has
been dealt with by the High Court in para 7 of the
impugned judgment. At present, there appears to be no
factual basis brought on record to justify such annual
increase. The learned counsel for the petitioner,
however, states that he will be in a position to lead
evidence in the form of financial statistics including
the Sensitive Price Index (“SPI”) to persuade the trial
Court to grant annual increase in line with such
statistical data.

4. In the foregoing circumstances, the appellate

judgment dated 23.2.2010 and the impugned judgment
dated 4.8.2011 are set aside. The matter is remanded to
W.P.9733/2012. 8

the trial Court which shall proceed to frame specific

issues relating to the dowry articles as well as
enhancement of maintenance awarded to the minor
children and shall thereafter allow the parties to lead
evidence before deciding the case afresh. During this
period, maintenance at the rate of 2,000 per month
shall continue to be deposited by the respondent
No.1/grandfather.”

Similarly, in the case of “Tauqeer Ahmad Qureshi v.

Additional District Judge and 2 others (PLD 2009 S.C. 760)”

the apex Court has declared that—

“In view of the above mentioned, this appeal is partly

allowed. The annual increase of 20% over and above
the maintenance allowance of Rs.3000 per month per
child ordered by the Family Court affirmed by the
appellate Court and High Court is reduced to 5%
annual increase with an observation that minors can
always approach the Family Court for the increase in
their maintenance allowance due to any change in any
circumstances. There are, however, no orders as to
costs.”

After going through the afore-quoted judgments of the august

Supreme Court I am of the view that the 20% annual increase

is not justified in view of the age of the minor. Thus, the

same is reduced to 10% with the observation that the minor

would be at liberty to recourse to proper proceedings for

enhancement of maintenance due to any change in the

circumstances.
W.P.9733/2012. 9

10. As far as the Issue of recovery of dower is concerned,

respondent No.3 claimed dower in the shape of six tolas gold

ornaments or in alternate its present market value i.e.

Rs.300,000/-. Though the petitioner denied the said claim of

respondent in his written statement by taking the plea that

dower amount of Rs.1000/-, in addition to six tolas gold

ornaments, was paid to her at the time of marriage but during

the course of proceedings in the appeal before the learned

Additional District Judge, the petitioner, on 18.02.2012,

made statement to the following effect:-

In token of authenticity of the aforesaid statement, not only

the petitioner put his signatures but his counsel also verified

the same. However, the petitioner did not return the

ornaments to respondent as he covenanted in his above-

quoted statement. It is important to observe over here that if

the petitioner had already handed over gold ornaments to

respondent No.3 then why he undertook to return the same to

her. Even otherwise, despite repeated queries learned counsel

for the petitioner badly failed to wriggle out of the same. In

this scenario, the only inference, which can possibly be

drawn, goes against the petitioner. Thus, the learned

 W.P.9733/2012. 10

appellate Court has rightly held that defence of the petitioner,

in that regard was lacking and even the statements of DW.1,

DW.2 and DW.3 were not confidence inspiring. Moreover,

Learned counsel for the petitioner has neither referred to any

material on record nor advanced any legal or plausible reason

for disbelieving the material relied upon by the learned

Appellate Court while holding respondent No.3 to be entitled

to dower. Similarly, learned counsel for the petitioner has not

pinpointed any misreading or non-reading of any evidence.

11. In the light of above discussion, there is no factual or

legal infirmity in the impugned judgments, therefore, I do not

find any reason to interfere with the concurrent findings of

the Courts below on the issue of maintenance and that of

Appellate Court on the issue of dower in exercise of

constitutional jurisdiction. Consequently, with the

modification of annual increase of maintenance from 20% to

10%, this petition is dismissed being devoid of any merits

with no order as to costs.

(Shujaat Ali Khan)

Judge
Approved for Reporting.

Judge
Saleh