LAHORE: The Lahore High Court has set aside the judgements of two lower courts wherein a woman was denied the right to claim her dowry articles back from her former husband on the basis of bizarre presumptions that the woman had a large family and Pashtuns do not give dowry to their daughters.

“A perusal of the judgement of the trial court reveals that the judge while rejecting the case of the petitioner for return of dowry articles has been stupendously impressed with the fact that since petitioners were twelve siblings in all, therefore, dowry articles could not have been given to her by her parents,” Justice Muhammad Shan Gul ruled in his verdict allowing a petition of Ms Sharaini.

The petitioner along with her minor daughter had approached the trial court under the West Pakistan Family Courts Act 1964 against her former husband for securing maintenance allowance, delivery expenses and seeking return of dowry articles worth Rs423,526. However, her petition, and a subsequent appeal, was dismissed by the lower courts.

Lower courts based decision on questionable presumption about Pashtun culture, says judgement

In his verdict, Justice Gul observed that the trial court misdirected itself in law in summarily dismissing the claim for dowry articles outrightly. He said the decision is somewhat erroneous in view of the law laid down by the Supreme Court.

“On the face of it, this is a questionable and unwarranted consideration because it has no basis in law. Regardless and irrespective of the number of siblings that a woman has, if the rukhsati takes place (and which did take place) then giving of dowry articles is presumed,” he added.

The judge regretted that the appellate court also could not resist the temptation of committing the cardinal mistake of basing its decision on a questionable and bald presumption that ‘Pashtun families do not give dowry articles to their daughters’.

The judge observed that there is no legal benchmark or yardstick, which explains that Pashtuns did not give dowry to their daughters. He notes that there is no law that says so, hence the reliance of the first appellate court on this consideration clearly reveals that the appellate court also misdirected itself in law and took into account an absolutely irrelevant consideration.

Justice Gul says the trial court, assuming without proof, of the inability of the petitioner’s parents to give her dowry at the time of her marriage, owing to a large family they had to maintain, or that of the appellate court, again assuming that Pashtuns did not give dowry to their daughters; could only stand if the financial inability of the parents or customs prevalent in the Pashtun clan were judicially noticeable facts.

He says other than the facts mentioned in the Qanun-i-Shahadat Order 1984, no other fact can either be assumed or taken as proven without evidence. He maintains that neither the financial status of a girl’s parents nor the custom of Pashtuns regarding dowry is one of such judicially noticeable facts.

“Both presumptions, of a large family by the trial court and of a Pathan family by the appellate court, are gratuitous, legally unwarranted and hence anathema,” the judge observes.

He set aside both judgements passed by the trial court and the appellate court to the extent of the question of return of dowry articles. The judge has not touched the remaining portions of the judgements pertaining to grant of maintenance (for the petitioner as also for her minor daughter), and with respect to delivery expenses.

However, the judge observes that the question of return of dowry articles shall be deemed to be pending before the family court concerned. And the trial court shall advert to the question of return of dowry articles in line with what has been noted above as also in line with the evidence available on record and without being in any manner influenced by the previous presumptions, the order concludes.

Published in Dawn, May 7th, 2022