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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