2003 PLP 2809 (YLR)

Date of hearing: 9th July, 2003. Petitioner and respondent No.2 were married to each other in 1996. In the year 2001 they filed suits against each other for restitution of conjugal rights and dissolution of marriage in the Family Court, Lodhran (respondent No. 1) which were disposed of by the said Court on 19-4-2003 vide consolidated judgment whereby petitioner's suit was dismissed and that of respondent No.2 was decreed.

2. The aforesaid consolidated judgment and decrees are called in question in this Constitutional petition by the petitioner (husband) on the grounds:-- (i) that they are against law and facts; (ii) evidence of respondent No.2, besides untrustworthy not reliable and vague was also deficient, on the strength of which her suit merited dismissal whereas evidence produced by the respondent was confidence inspiring and was comparatively strong both in quality and quantity, hence 'Family Court had erred in relying on petitioner's evidence; (iii) it was incumbent on the Family Court to have passed the decree for dissolution of marriage subject to return of land or its market price which was given in dower by the petitioner to respondent No.2, hence the Family Court had committed a grave illegality in not making order for the return of the said property by the wife which she had received as a consideration of marriage; and (iv) Family Court in the exercise of its jurisdiction had acted illegally and with material irregularity in dismissing petitioner's suit and decreeing that of the respondent.

3. Petitioner's counsel has been heard. Writ petition and the annexures appended therewith perused.

4. Constitutional jurisdiction can be invoked where no other adequate remedy is provided by law. Judgment in the suit for restitution of conjugal rights was appealable under section 14 of the Family Courts Act. 1964. The aforesaid judgment being appealable was not appealed against hence had attained finality and would be deemed to have been accepted by the petitioner. It is therefore, not amenable to writ jurisdiction.

5. A perusal of the impugned judgment shows that marriage was dissolved by the Family Court on the grounds of cruelty and failure of the petitioner to maintain his wife (respondent No.2) for a period of about six years.

6. Constitutional jurisdiction can only be exercised if the lower Court has exceeded as jurisdiction or acted without jurisdiction. Where the Court possesses jurisdiction, finding of fact recorded by it cannot be disturbed merely on the ground that another view is possible on the same evidence unless such finding is based on no evidence or is fanciful.

7. High Court in its extraordinary jurisdiction can neither substitute findings of fact recorded by Family Court nor can give its opinion regarding quality or adequacy of evidence. Assessment and appraisal of evidence is the function of the Family Court which is vested with exclusive jurisdiction in that regard.

8. Marriage was dissolved on the grounds of cruelty and non-maintenance and was not dissolved on the ground of Khula' hence it was not mandatory for the Family Court to have passed the decree subject to return of benefits which the wife may have obtained in consideration of her marriage.

9. A perusal of impugned judgment shows that it is neither arbitrary nor fanciful but is reasonable; conclusions are based on evidence and are supported by plausible reasoning.

10. Words "illegally or with material irregularity" have reference to material defects of procedure and not to errors of law or fact after the formalities which the law prescribed have been complied with. My attention could not be drawn to the breach of any provision of law or commission of any error of procedure by the learned Family Court.

11. For the reasons stated above, this writ petition being devoid of any merit, is hereby dismissed in limine. M.B.A./A-864/L Petition dismissed.