FAMILY WRIT FILED BY
HUSBAND BEFORE HIGH COURT – FORMAT
PROPOSITION: HUSBAND FILED SUIT FOR RESTITUTION OF CONJUGAL RIGHTS AND WIFE FILED SUIT FOR DISSOLUTION OF MARRIAGE AND RECOVERY OF MAINTENANCE ALLOWANCE & DOWRY ARTICLES. SUIT WAS DECREED AND APPEAL OF THE PETITIONER WAS DISMISSED BY APPELLATE COURT.
BEFORE HONOURABLE LAHORE HIGH COURT, LAHORE.
WRIT PETITION NO: _____________________________/2012
_____, SON OF _____,RESIDENT OF ____.
……..Petitioner
V E R S U S
1. ADDITIONAL DISTRICT JUDGE, DEPALPUR.
2. JUDGE FAMILY COURT, DEPALPUR.
3. MST. ____, DAUGHTER OF ____, RESIDENT OF ____ OKARA.
……..Respondents
W R I T P E T I T I O N
UNDER ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973, AGAINST JUDGMENT & DECREES DATED 29.05.2012, PASSED BY LEARNED ADDITIONAL DISTRICT JUDGE, DEPALPUR & JUDGMENT & DECREES DATED 04.01.2012 PASSED BY LEARNED JUDGE FAMILY COURT, DEPALPUR.
RESPECTFULLY SHEWETH:
1. That addresses of parties have correctly been given above for the purpose of service by this Honourable Court.
2. That through the instant writ petition, the petitioner humbly seeks indulgence of this Honourable Court for setting aside judgments & decrees as mentioned below:
(i) Judgment & Decrees dated 29.05.2012 [Annex-M Page No:88], passed by Learned Additional District Judge, Depalpur, whereby appeal preferred by the petitioner was dismissed and appeal preferred by Respondent No. 3 was accepted to the extent that the petitioner would return eight tolas gold ornaments to Respondent No. 3 or the executing court would get recovered the amount of alternative relief at the market rate prevailing at the time of execution; moreover, Respondent No. 3 was held entitled for maintenance allowance at the Rate of Rs. 3000/- per month till the period of iddat. &
(ii) Judgment & Decrees dated 04.01.2012 [Annex-J Page No:72] passed by Learned Judge, Family Court, Depalpur, whereby suit for restitution of conjugal rights filed by the petitioner was dismissed & suit for dissolution of marriage & recovery of dowry articles filed by Respondent No. 3 was decreed and Respondent No. 3 was held entitled to recover dowry articles and eight tolas gold ornaments or Rs.200,000/- in lieu thereof.
3. That succinctly stated facts giving rise to the filing of instant writ petition are that the petitioner & Respondent No. 3 were married to each other according to Sharia on ____. At the time of marriage parents of Respondent No. 3 did not give her anything as dowry, on the contrary, the petitioner himself not only paid each and every expenditures of marriage but he also handed over costly dowry articles valuing Rs. 150,000/- and gold ornaments weighing eight tolas. During the period when Respondent No. 3 lived with the petitioner, behavior of the petitioner remained pleasant and he always provided each and every possible facility to Respondent No. 3 as per his source of income. Respondent No. 3, one day, went to the house of her parents and took away precious articles including gold ornaments weighing 8 tolas. Respondent No. 3 flatly refused repeated requests of the petitioner to return to his house, therefore, the petitioner was constrained to file a suit for restitution of conjugal rights before Learned Family Court, Depalpur on 05.03.2011. Respondent No. 3 contested the suit by filing written statement, wherein, it was alleged that she was given dowry article of worth Rs.788500/- by her parents along with 8 tolas gold ornaments. Furthermore, she alleged that she was ejected by the petitioner from his house and subsequently, abducted by the petitioner in connivance with his relatives. Copies of plaint and written statement are Annex-A & B [Page No: 12 to 15].
4. That the Respondent No. 3 also filed a suit for dissolution of marriage, recovery of maintenance allowance, recovery of dowry articles valuing Rs.788,500/- & gold ornaments weighing 8 tolas. Said suit was contested by the petitioner by filing written statement. Copies of plaint & written statement filed by the petitioner are Annex-C & D [Page No: 16 to 21].
5. That Learned Trial Court consolidated above mentioned both the cases vide order dated 03.05.2011 & for the purpose of consolidated proceedings the petitioner was given status of plaintiff, whereas, Respondent No. 3 that of defendant. On the same date, learned Trial Court framed following consolidated issues out of divergent pleadings of the parties:
(i) Whether the plaintiff is entitled to the decree for restitution of conjugal rights? OPP
(ii) Whether the defendant is entitled to the decree for dissolution of marriage? If so on what ground? OPD
(iii) Whether the defendant is entitled to recover maintenance allowance? If so at what rate and since when? OPD
(iv) Whether the defendant is entitled to recover dowry articles as per plaint? OPD
(v) Whether the defendant is entitled to recover gold ornaments? OPD
(vi) Whether the suits are not maintainable in the light of objections taken in the written statements? OPPs
(vii) Relief.
Copy of order dated 03.05.2011 whereby suits were consolidated and issues were framed is Annex-E [Page No: 22-23].
6. That both the parties adduced their oral as well as documentary evidence. The petitioner himself appeared as PW-1 and submitted his affidavit as Ex.P.1. He produced ____ as PW-2 and in documentary evidence he submitted original Nikkahnama as Ex.P.3, receipt of purchase of gold ornaments as Ex.P.4, copy of complaint & statement of complainant(Respondent No.3) as Ex.P.5. Copies of affidavits & documentary evidence produced by the petitioner are Annex-F [Page No: 24-36] & G [Page No:37-43].
7. That on the other hand, Respondent No. 3 appeared as D.W-1 and she produced one ____ as DW-2. In documentary evidence she submitted copy of application for registration of case u/s 22-A/22-B Cr.P.C. along with order as Ex.D-1/1, copy of suit for declaration along with interim order as Ex.D.2/1, copy of order of this Honourable Court as Ex.D.3/1 and interim orders as Ex.D.4. Copies of affidavits & documentary evidence produced by Respondent No. 3 are Annex-H [Page No: 44 to 52] & I [Page No: 53 to 71].
8. That Learned Trial Court after closure of evidence & hearing arguments of both the parties, dismissed the suit for restitution of conjugal rights filed by the petitioner, however, suit of Respondent No. 3 for dissolution of marriage, recovery of dowry articles & gold ornaments vide judgment & decrees dated 04.01.2012. Learned Trial Court was pleased to held Respondent No. 3 entitled for recovery of dowry articles contained in list at serial No. 1,2,3,5,6,10,11,12,14,15,17,18,20,22,24,26,27,30,33&37 with 50% depreciation. Moreover, Respondent No. 3 could recover 8 tolas gold ornaments, which was given to Respondent No. 3 by the petitioner, or Rs.200,000/- as alternative as per column No. 16 of Nikahnama; however, suit of Respondent No. 3 to the extent of maintenance was dismissed. Copies of consolidated judgment & decrees dated 04.01.2012 are are Annex-J [Page No: 72 to 83].
9. That aggrieved of consolidated judgment & decrees dated 04.01.2012, the petitioner preferred an appeal before Learned Additional District Judge, Depalpur. An appeal was also filed by Respondent No. 3, wherein, she prayed for passing the decree as per her whole claim & for 16 tolas of gold ornaments. Copies of appeals filed by the petitioner and Respondent No. 3 are Annex-K [Page No: 84 to 87] & M [Page No: 88 to 89].
10. That vide judgment & decrees dated 29.05.2012, Learned Additional District Judge, Depalpur was pleased to dismiss appeal of the petitioner, however, appeal of Respondent No. 3 was partially allowed and she was held entitled to recover 8 tolas gold ornaments which were given to her by her parents or amount at market rate at the time of execution in alternative and maintenance allowance at the rate of Rs.3000/- till iddat period. Copies of judgment & decrees dated 29.05.2012 are Annex-N [Page No: 90 to 102].
11. That the petitioner has no other efficacious remedy available to him, therefore, he is invoking the writ jurisdiction of this Honourable Court through the instant petition.
12. That impugned judgments & decrees passed by Learned Additional District Judge, Depalpur/Respondent No. 1 & Judge, Family Court/Respondent No. 2 dated 04.01.2012 & 29.05.2012 respectively are not sustainable in eyes of law as same are illegal, capricious, arbitrary and suffer from surmises, therefore, liable to be set aside inter-alia on following:
G R O U N D S
i. That judgments & decrees dated 04.01.2012 & 29.05.2012 are against law and facts. The Learned Courts below proceeded on grave misreading and non-reading of the pleadings & evidence of the parties. The documentary evidence produced before Learned Trial Court has also been misread and misinterpreted. The rule of preponderance of evidence has also been ignored; precedents of binding and persuasive value were also lost sight of.
ii. That both the Courts below decided issues No. 1 & 2 in complete disregard of law as well as material available on the record in the shape of evidence. Learned Trial Court mainly relied upon documentary evidence pertaining to litigation between the parties produced by Respondent No. 3, however, Learned Trial Court completely ignored Ex.P4, the complaint filed by Respondent No. 3 against her father, wherein she had recorded statement in favour of the petitioner. [Page No: 42-43].
iii. That Learned Trial Court decided the issue of dissolution of marriage as if the marriage was being dissolved on the ground of “khula” and said finding was also endorsed by Learned Appellate Court by deciding that appeal against dissolution of marriage was not maintainable. Had the marriage was dissolved on the ground of khula, Respondent No. 3 was under obligation to return benefits of marriage to the petitioner.
iv. That both the courts below erroneously decide issue No. 4 regarding recovery of dowry articles. Respondent No.3 annexed a highly exaggerated list of dowry articles [Annex-O Page No: 103-104] along with the plaint, however, same was not produced by Respondent No.3 in her evidence.
v. That Learned Trial Court erroneously held Respondent No. 3 entitled for recovery of dowry articles mentioned in para 15 of the judgment of Trial Court. Both the courts below did not evaluate judiciously the evidence led by the parties. In fact, it was respondent No. 3 who had to prove her claims by independent evidence and her case had to stand on its own legs. She was allowed relief sweepingly although her evidence was extremely deficient and un-convincing. As a matter of fact, no dowry articles were given to Respondent No. 3 by her parents at the time of marriage and it was the petitioner who had helped the parents of Respondent No. 3 for preparation of the marriage, moreover, dowry articles valuing Rs. 150,000/- were also purchased by the petitioner.
vi. That the alleged claim of Respondent No. 3 was only supported by one _____ D.W-2 who had admitted in his cross-examination that he was not present at the time of purchasing of alleged dowry articles; meaning thereby his evidence was based on mere heresay; hence, same has no evidentiary value.
vii. That Respondent No. 3 did not produce any record comprising receipts with regard to so called articles of dowry. Neither the father of Respondent No. 3 nor her maternal uncle appeared before Learned Trial Court to corroborate version of Respondent No. 3.
viii. That as far as issue No. 5 regarding recovery of gold ornaments is concerned, it is submitted that onus to prove the same was laid upon Respondent No. 3 at the time of framing of issues. Respondent No. 3 completely failed to discharge onus in her favour. No receipt of purchasing of gold ornaments was presented by Respondent No. 3 in her documentary evidence, moreover, father of Respondent No. 3 who was alleged to be purchaser of gold ornaments did not appear before Trial Court to support version of Respondent No. 3.
ix. That primarily onus to prove issue No. 5 was upon Respondent No. 3, however, she miserably failed to prove her claim, on the contrary, the petitioner, through his oral as well as documentary evidence disproved the assertions of Respondent No. 3. A bare perusal of cross-examination of the petitioner would reveal that no question was put to him regarding his possession of those gold ornaments which were alleged to be given to the Respondent No. 3 by her parents. The petitioner had proved through cogent evidence that 8 tolas of gold ornaments as well as dowry articles valuing Rs. 150,000/- were given by him and he is entitled to get back in case of khula. Admittedly, delivery of 8 tola gold ornaments to Respondent No. 3 by the petitioner is evident from perusal of column 16 of the Nikkahnama.
x. That Learned Trial Court mainly relied upon documentary evidence of litigation between the parties at different forums and upon the admission of the petitioner that he had given 8 tolas gold ornaments to Respondent No. 3 at the time of marriage. However, Learned Trial Court completely failed to appreciate the fact that Respondent No. 3 could not prove her claim that she was given gold ornaments by her parents. Furthermore, Learned Appellate Court erroneously “clarified” that ornaments decreed were those which were given by father of Respondent No. 3 in complete disregard of the fact that Respondent No. 3 had completely failed to prove her claim.
xi. That Learned Appellate Court while imposing payment of maintenance by the petitioner to Respondent No. 3 at the rate of Rs. 3000/- till iddat period, did not take into account the fact that the petitioner was always ready & willing to perform his matrimonial duties and same fact is evident from filing of suit for restitution of conjugal rights by the petitioner. Respondent No. 3 had herself sought dissolution of marriage from the petitioner, therefore, she was not entitled for any relief in the shape of maintenance.
xii. That judgment & decrees dated 29.05.2012 passed by Learned Additional District Judge, Depalpur & Judgment & Decrees dated 04.01.2012 passed by Learned Judge, Family Court, Depalpur are based upon presumptions and assumptions. Impugned judgments have been passed in complete disregard of material available on the record. Hence; said judgments suffer from misreading and non-reading of evidence.
xiii. That the petitioner humbly seeks permission of this Honourable Court for raising additional grounds at the stage of arguments.
P R A Y E R
In aforementioned circumstances, it is humbly prayed that the instant writ petition may kindly be accepted and judgments & decrees dated 29.05.2012 & 04.01.2012 passed by Learned Additional District Judge, Depalpur & Learned Judge, Family Court, Depalpur, whereby the marriage between spouses was dissolved, Respondent No. 3 was held entitled for recovery of (i) 8 tolas gold ornaments, (ii) dowry articles as mentioned in para 15 of the judgment of Trial Court, maintenance allowance at the rate of Rs.3000/- per month till iddat may graciously be set aside. Furthermore, it is prayed that suit filed by the petitioner for restitution of conjugal rights may graciously be decreed.
Any other relief which this Honourable Court deems fit and proper and which has inadvertently not been prayed for may kindly also be granted.
PETITIONER
THROUGH
Zeeshan Ahmad Malik
Advocate High Court
“THE LEGAL MENTORS”
66/3, Hajvery Complex, 2-Mozang Road, Lahore.
Certificate:
It is certified that upon instructions of the client it is the 1st writ petition filed before this Honourable Court in the matter in hand.
Advocate
PROPOSITION: HUSBAND FILED SUIT FOR RESTITUTION OF CONJUGAL RIGHTS AND WIFE FILED SUIT FOR DISSOLUTION OF MARRIAGE AND RECOVERY OF MAINTENANCE ALLOWANCE & DOWRY ARTICLES. SUIT WAS DECREED AND APPEAL OF THE PETITIONER WAS DISMISSED BY APPELLATE COURT.
BEFORE HONOURABLE LAHORE HIGH COURT, LAHORE.
WRIT PETITION NO: _____________________________/2012
_____, SON OF _____,RESIDENT OF ____.
……..Petitioner
V E R S U S
1. ADDITIONAL DISTRICT JUDGE, DEPALPUR.
2. JUDGE FAMILY COURT, DEPALPUR.
3. MST. ____, DAUGHTER OF ____, RESIDENT OF ____ OKARA.
……..Respondents
W R I T P E T I T I O N
UNDER ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973, AGAINST JUDGMENT & DECREES DATED 29.05.2012, PASSED BY LEARNED ADDITIONAL DISTRICT JUDGE, DEPALPUR & JUDGMENT & DECREES DATED 04.01.2012 PASSED BY LEARNED JUDGE FAMILY COURT, DEPALPUR.
RESPECTFULLY SHEWETH:
1. That addresses of parties have correctly been given above for the purpose of service by this Honourable Court.
2. That through the instant writ petition, the petitioner humbly seeks indulgence of this Honourable Court for setting aside judgments & decrees as mentioned below:
(i) Judgment & Decrees dated 29.05.2012 [Annex-M Page No:88], passed by Learned Additional District Judge, Depalpur, whereby appeal preferred by the petitioner was dismissed and appeal preferred by Respondent No. 3 was accepted to the extent that the petitioner would return eight tolas gold ornaments to Respondent No. 3 or the executing court would get recovered the amount of alternative relief at the market rate prevailing at the time of execution; moreover, Respondent No. 3 was held entitled for maintenance allowance at the Rate of Rs. 3000/- per month till the period of iddat. &
(ii) Judgment & Decrees dated 04.01.2012 [Annex-J Page No:72] passed by Learned Judge, Family Court, Depalpur, whereby suit for restitution of conjugal rights filed by the petitioner was dismissed & suit for dissolution of marriage & recovery of dowry articles filed by Respondent No. 3 was decreed and Respondent No. 3 was held entitled to recover dowry articles and eight tolas gold ornaments or Rs.200,000/- in lieu thereof.
3. That succinctly stated facts giving rise to the filing of instant writ petition are that the petitioner & Respondent No. 3 were married to each other according to Sharia on ____. At the time of marriage parents of Respondent No. 3 did not give her anything as dowry, on the contrary, the petitioner himself not only paid each and every expenditures of marriage but he also handed over costly dowry articles valuing Rs. 150,000/- and gold ornaments weighing eight tolas. During the period when Respondent No. 3 lived with the petitioner, behavior of the petitioner remained pleasant and he always provided each and every possible facility to Respondent No. 3 as per his source of income. Respondent No. 3, one day, went to the house of her parents and took away precious articles including gold ornaments weighing 8 tolas. Respondent No. 3 flatly refused repeated requests of the petitioner to return to his house, therefore, the petitioner was constrained to file a suit for restitution of conjugal rights before Learned Family Court, Depalpur on 05.03.2011. Respondent No. 3 contested the suit by filing written statement, wherein, it was alleged that she was given dowry article of worth Rs.788500/- by her parents along with 8 tolas gold ornaments. Furthermore, she alleged that she was ejected by the petitioner from his house and subsequently, abducted by the petitioner in connivance with his relatives. Copies of plaint and written statement are Annex-A & B [Page No: 12 to 15].
4. That the Respondent No. 3 also filed a suit for dissolution of marriage, recovery of maintenance allowance, recovery of dowry articles valuing Rs.788,500/- & gold ornaments weighing 8 tolas. Said suit was contested by the petitioner by filing written statement. Copies of plaint & written statement filed by the petitioner are Annex-C & D [Page No: 16 to 21].
5. That Learned Trial Court consolidated above mentioned both the cases vide order dated 03.05.2011 & for the purpose of consolidated proceedings the petitioner was given status of plaintiff, whereas, Respondent No. 3 that of defendant. On the same date, learned Trial Court framed following consolidated issues out of divergent pleadings of the parties:
(i) Whether the plaintiff is entitled to the decree for restitution of conjugal rights? OPP
(ii) Whether the defendant is entitled to the decree for dissolution of marriage? If so on what ground? OPD
(iii) Whether the defendant is entitled to recover maintenance allowance? If so at what rate and since when? OPD
(iv) Whether the defendant is entitled to recover dowry articles as per plaint? OPD
(v) Whether the defendant is entitled to recover gold ornaments? OPD
(vi) Whether the suits are not maintainable in the light of objections taken in the written statements? OPPs
(vii) Relief.
Copy of order dated 03.05.2011 whereby suits were consolidated and issues were framed is Annex-E [Page No: 22-23].
6. That both the parties adduced their oral as well as documentary evidence. The petitioner himself appeared as PW-1 and submitted his affidavit as Ex.P.1. He produced ____ as PW-2 and in documentary evidence he submitted original Nikkahnama as Ex.P.3, receipt of purchase of gold ornaments as Ex.P.4, copy of complaint & statement of complainant(Respondent No.3) as Ex.P.5. Copies of affidavits & documentary evidence produced by the petitioner are Annex-F [Page No: 24-36] & G [Page No:37-43].
7. That on the other hand, Respondent No. 3 appeared as D.W-1 and she produced one ____ as DW-2. In documentary evidence she submitted copy of application for registration of case u/s 22-A/22-B Cr.P.C. along with order as Ex.D-1/1, copy of suit for declaration along with interim order as Ex.D.2/1, copy of order of this Honourable Court as Ex.D.3/1 and interim orders as Ex.D.4. Copies of affidavits & documentary evidence produced by Respondent No. 3 are Annex-H [Page No: 44 to 52] & I [Page No: 53 to 71].
8. That Learned Trial Court after closure of evidence & hearing arguments of both the parties, dismissed the suit for restitution of conjugal rights filed by the petitioner, however, suit of Respondent No. 3 for dissolution of marriage, recovery of dowry articles & gold ornaments vide judgment & decrees dated 04.01.2012. Learned Trial Court was pleased to held Respondent No. 3 entitled for recovery of dowry articles contained in list at serial No. 1,2,3,5,6,10,11,12,14,15,17,18,20,22,24,26,27,30,33&37 with 50% depreciation. Moreover, Respondent No. 3 could recover 8 tolas gold ornaments, which was given to Respondent No. 3 by the petitioner, or Rs.200,000/- as alternative as per column No. 16 of Nikahnama; however, suit of Respondent No. 3 to the extent of maintenance was dismissed. Copies of consolidated judgment & decrees dated 04.01.2012 are are Annex-J [Page No: 72 to 83].
9. That aggrieved of consolidated judgment & decrees dated 04.01.2012, the petitioner preferred an appeal before Learned Additional District Judge, Depalpur. An appeal was also filed by Respondent No. 3, wherein, she prayed for passing the decree as per her whole claim & for 16 tolas of gold ornaments. Copies of appeals filed by the petitioner and Respondent No. 3 are Annex-K [Page No: 84 to 87] & M [Page No: 88 to 89].
10. That vide judgment & decrees dated 29.05.2012, Learned Additional District Judge, Depalpur was pleased to dismiss appeal of the petitioner, however, appeal of Respondent No. 3 was partially allowed and she was held entitled to recover 8 tolas gold ornaments which were given to her by her parents or amount at market rate at the time of execution in alternative and maintenance allowance at the rate of Rs.3000/- till iddat period. Copies of judgment & decrees dated 29.05.2012 are Annex-N [Page No: 90 to 102].
11. That the petitioner has no other efficacious remedy available to him, therefore, he is invoking the writ jurisdiction of this Honourable Court through the instant petition.
12. That impugned judgments & decrees passed by Learned Additional District Judge, Depalpur/Respondent No. 1 & Judge, Family Court/Respondent No. 2 dated 04.01.2012 & 29.05.2012 respectively are not sustainable in eyes of law as same are illegal, capricious, arbitrary and suffer from surmises, therefore, liable to be set aside inter-alia on following:
G R O U N D S
i. That judgments & decrees dated 04.01.2012 & 29.05.2012 are against law and facts. The Learned Courts below proceeded on grave misreading and non-reading of the pleadings & evidence of the parties. The documentary evidence produced before Learned Trial Court has also been misread and misinterpreted. The rule of preponderance of evidence has also been ignored; precedents of binding and persuasive value were also lost sight of.
ii. That both the Courts below decided issues No. 1 & 2 in complete disregard of law as well as material available on the record in the shape of evidence. Learned Trial Court mainly relied upon documentary evidence pertaining to litigation between the parties produced by Respondent No. 3, however, Learned Trial Court completely ignored Ex.P4, the complaint filed by Respondent No. 3 against her father, wherein she had recorded statement in favour of the petitioner. [Page No: 42-43].
iii. That Learned Trial Court decided the issue of dissolution of marriage as if the marriage was being dissolved on the ground of “khula” and said finding was also endorsed by Learned Appellate Court by deciding that appeal against dissolution of marriage was not maintainable. Had the marriage was dissolved on the ground of khula, Respondent No. 3 was under obligation to return benefits of marriage to the petitioner.
iv. That both the courts below erroneously decide issue No. 4 regarding recovery of dowry articles. Respondent No.3 annexed a highly exaggerated list of dowry articles [Annex-O Page No: 103-104] along with the plaint, however, same was not produced by Respondent No.3 in her evidence.
v. That Learned Trial Court erroneously held Respondent No. 3 entitled for recovery of dowry articles mentioned in para 15 of the judgment of Trial Court. Both the courts below did not evaluate judiciously the evidence led by the parties. In fact, it was respondent No. 3 who had to prove her claims by independent evidence and her case had to stand on its own legs. She was allowed relief sweepingly although her evidence was extremely deficient and un-convincing. As a matter of fact, no dowry articles were given to Respondent No. 3 by her parents at the time of marriage and it was the petitioner who had helped the parents of Respondent No. 3 for preparation of the marriage, moreover, dowry articles valuing Rs. 150,000/- were also purchased by the petitioner.
vi. That the alleged claim of Respondent No. 3 was only supported by one _____ D.W-2 who had admitted in his cross-examination that he was not present at the time of purchasing of alleged dowry articles; meaning thereby his evidence was based on mere heresay; hence, same has no evidentiary value.
vii. That Respondent No. 3 did not produce any record comprising receipts with regard to so called articles of dowry. Neither the father of Respondent No. 3 nor her maternal uncle appeared before Learned Trial Court to corroborate version of Respondent No. 3.
viii. That as far as issue No. 5 regarding recovery of gold ornaments is concerned, it is submitted that onus to prove the same was laid upon Respondent No. 3 at the time of framing of issues. Respondent No. 3 completely failed to discharge onus in her favour. No receipt of purchasing of gold ornaments was presented by Respondent No. 3 in her documentary evidence, moreover, father of Respondent No. 3 who was alleged to be purchaser of gold ornaments did not appear before Trial Court to support version of Respondent No. 3.
ix. That primarily onus to prove issue No. 5 was upon Respondent No. 3, however, she miserably failed to prove her claim, on the contrary, the petitioner, through his oral as well as documentary evidence disproved the assertions of Respondent No. 3. A bare perusal of cross-examination of the petitioner would reveal that no question was put to him regarding his possession of those gold ornaments which were alleged to be given to the Respondent No. 3 by her parents. The petitioner had proved through cogent evidence that 8 tolas of gold ornaments as well as dowry articles valuing Rs. 150,000/- were given by him and he is entitled to get back in case of khula. Admittedly, delivery of 8 tola gold ornaments to Respondent No. 3 by the petitioner is evident from perusal of column 16 of the Nikkahnama.
x. That Learned Trial Court mainly relied upon documentary evidence of litigation between the parties at different forums and upon the admission of the petitioner that he had given 8 tolas gold ornaments to Respondent No. 3 at the time of marriage. However, Learned Trial Court completely failed to appreciate the fact that Respondent No. 3 could not prove her claim that she was given gold ornaments by her parents. Furthermore, Learned Appellate Court erroneously “clarified” that ornaments decreed were those which were given by father of Respondent No. 3 in complete disregard of the fact that Respondent No. 3 had completely failed to prove her claim.
xi. That Learned Appellate Court while imposing payment of maintenance by the petitioner to Respondent No. 3 at the rate of Rs. 3000/- till iddat period, did not take into account the fact that the petitioner was always ready & willing to perform his matrimonial duties and same fact is evident from filing of suit for restitution of conjugal rights by the petitioner. Respondent No. 3 had herself sought dissolution of marriage from the petitioner, therefore, she was not entitled for any relief in the shape of maintenance.
xii. That judgment & decrees dated 29.05.2012 passed by Learned Additional District Judge, Depalpur & Judgment & Decrees dated 04.01.2012 passed by Learned Judge, Family Court, Depalpur are based upon presumptions and assumptions. Impugned judgments have been passed in complete disregard of material available on the record. Hence; said judgments suffer from misreading and non-reading of evidence.
xiii. That the petitioner humbly seeks permission of this Honourable Court for raising additional grounds at the stage of arguments.
P R A Y E R
In aforementioned circumstances, it is humbly prayed that the instant writ petition may kindly be accepted and judgments & decrees dated 29.05.2012 & 04.01.2012 passed by Learned Additional District Judge, Depalpur & Learned Judge, Family Court, Depalpur, whereby the marriage between spouses was dissolved, Respondent No. 3 was held entitled for recovery of (i) 8 tolas gold ornaments, (ii) dowry articles as mentioned in para 15 of the judgment of Trial Court, maintenance allowance at the rate of Rs.3000/- per month till iddat may graciously be set aside. Furthermore, it is prayed that suit filed by the petitioner for restitution of conjugal rights may graciously be decreed.
Any other relief which this Honourable Court deems fit and proper and which has inadvertently not been prayed for may kindly also be granted.
PETITIONER
THROUGH
Zeeshan Ahmad Malik
Advocate High Court
“THE LEGAL MENTORS”
66/3, Hajvery Complex, 2-Mozang Road, Lahore.
Certificate:
It is certified that upon instructions of the client it is the 1st writ petition filed before this Honourable Court in the matter in hand.
Advocate
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