Friday, 24 July 2015

CLAIM OF MAINTENANCE ALLOWANCE AND COMPENSATION AS PER AGREEMENT.



IN THE COURT OF NAME OF THE JUDGE,
            JUDGE FAMILY COURT, CITY.


                          Ladies  etc.              Vs.                  Muhammad Din

Family suit No.         151-FC/0000
Date of institution    19.05.0000
Date of decision       01.04.0000

SUIT FOR RECOVERY OF MAINTENANCE ALLOWANCE, DOWRY ARTICLES VALUING RS.3,51,700/- AND RECOVERY OF COMPENSATION AMOUNT RS.300,000/-.

Present:          Learned counsel for plaintiff.
                        Learned counsel for the defendant

JUDGMENT:

                         In nutshell, factum as per plaint are that plaintiff get married with defendant on 00.04.0000 according to Muslim Rites. That the defendant get second marriage with Naveen on 25.09.0000. That between the parties an agreement dated 00.00.0000 was executed in which the defendant acknowledged that he would pay Rs.4000/- per month as maintenance allowance to the plaintiff. In case of breach of terms of agreement, defendant shall pay Rs.300,000/- to plaintiff as compensation. That according to paragraph No.4 of agreement the dowry articles have to be returned to the plaintiff but the defendant breached the conditions of agreement and expelled the plaintiff from his house in wearing apparels about two months ago. That the plaintiff asked the defendant through respectable to pay maintenance allowance, to return dowry articles and pay Rs.300,000/- as compensation amount but he refused to do so, hence, this suit.
                        Defendant appeared before the court submitted contested written statement with the contention that allegations leveled against him are false and suit is liable to be dismissed. After submission of written statement suit was fixed for pre-trial reconciliation proceedings. On 10.10.0000, pre-trial reconciliation proceeding was failed.
                        Out of the divergent pleadings of the parties following issues were framed:
ISSUES:
·        Whether the plaintiff is entitled for recovery of maintenance allowance as prayed for? if so, for what period and for what rate?OPP
·        Whether plaintiff is entitled to recover dowry articles as per list annexed with the plaint in tune of Rs.3,51,700/-?OPP
·        Whether plaintiff has to recover Rs.300,000/- as per condition mentioned in stamp paper No.0000 dated 00.00.0000?OPP
·        Whether the plaintiff has no cause of action to file this suit and suit is liable to be dismissed?OPD
·        Relief?
                        Arguments heard & record perused. After hearing the arguments and perusal of record my issue wise finding is as under:-
ISSUE NO.1:
                        Onus to prove this issue was placed on plaintiff, plaintiff has been wedded wife of defendant but as the defendant has divorced the plaintiff according to evidence furnished before this court; Furthermore, plaintiff is not cohabitating with the defendant anymore so, she is not entitled for maintenance allowance except for the period of Iddat only as per financial status of defendant which is already on record. Therefore, this issue is decided affirmative and plaintiff is held entitled to maintenance allowance @ Rs.4000/- per month for the period of Iddat only.
ISSUE NO.2:
                        Onus to prove this issue was also placed on plaintiff, plaintiff herself appeared as PW-1 and furnished list of dowry articles as Ex.P.2, agreement between the parties as Ex.P.3. In corroboration plaintiff produced Mr. Shah as PW-2 and Ali Shah as PW-3. In rebuttal the defendant himself appeared as DW-1. Defendant produced Aman as DW-2 and Ramzan Shah as DW-3 respectively. In documentary evidence defendant furnished subsequent agreement between the parties as Ex.D.3. The learned counsel for the plaintiff argued that in first agreement dated 00.00.0000 between the parties the defendant admitted in paragraph No.4 that the plaintiff was given dowry articles while the subsequent agreement which was submitted to rebut the first agreement is false and bogus as the all witnesses contradict each other regarding purchase of stamp paper of agreement.
                        The learned counsel for the defendant controverted and argued that plaintiff has admitted the subsequent agreement of cancellation of first agreement. He further argued that as per 2nd agreement she has received her all dowry articles in presence of witnesses.
                        After perusing the whole record and evidence, it reveals that defendant has produced the marginal witnesses who deposed regarding execution of agreement of cancellation of first agreement dated 00.00.0000. The plaintiff has admitted the execution of the subsequent agreement between the parties. For instance, if the first agreement dated 00.00.0000 be admitted as correct, so as per content No.4 of the agreement, dowry articles are in possession of plaintiff. The subsequent agreement of cancellation is purchased by the plaintiff and issued in her name. Contradiction of DWs regarding purchase of stamp paper is not important to overlook the agreement between the parties as the marginal witnesses as well as plaintiff has proved the subsequent agreement between the parties. All the marginal witnesses of PWs are inter-se entrusted and are not reliable being brother and nephew of plaintiff. So this court is of the view that plaintiff has miserably failed to prove this issue. Hence, decided in negative.
ISSUE NO.3:
                        Onus to prove this issue was also placed on plaintiff, as the plaintiff has claimed Rs.300,000/- as compensation in case of breach of condition of agreement but this court is of the view that as the DWs have proved the subsequent agreement between the parties which is also admitted by the plaintiff during cross examination. Furthermore, claim of any compensation which is not part of Nikah Nama between the parties can not be challenged through Family Suit because Nikah is Civil Contract between the parties and all conditions of Nikah Nama are treated under Family Court Act, 1964, but at the same time, the execution of agreement in question is separate agreement and was prepared by the consent of both the parties therefore, this court is of the view that claim of compensation is not maintainable in this case being barred by law and is exclusive jurisdiction of Civil Court. This court thinks that the plaintiff has miserably failed to prove existence of first agreement. So, this issue is also decided in negative.
ISSUE NO.4:
                        Onus to prove this issue was placed on defendant, in the light of discussion on issue No.1, 2 & 3 this court is of the view that defendant has proved that plaintiff has no cause of action to file this suit. So, this issue is decided affirmative.
RELIEF
                        In the light of discussion dilated above, this court is of the view that plaintiff has failed to prove her case. Hence, keeping in view financial status of defendant, she is held entitled for maintenance allowance at the rate of Rs.4000/- per month for the period of Iddat only and the suit of plaintiff for the rest of claim is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after its due completion.
Announced:

Dated

                                                                                    Judge Family Court,
                                                                                                City

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