2025 PLP 928 (MLD)

Sana Akram MInhas, J.

The Petitioner has filed the present Petition to contest the concurrent findings against him of the two courts below. He is aggrieved by the judgment and decree dated 5.1.2022, and 8.1.2022, issued by the Trial Court, which ruled in favor of Respondent No.1 in Family Suit No.700/2018 (Amber Mughal and others v. Faisal Athar Hussain) ("Family Suit"). Furthermore, the Petitioner challenges the subsequent judgment and decree dated 23.11.2022, of the Additional District Judge-VII (MCAC) Karachi (South), which dismissed the Petitioner's Family Appeal No.45/2022 (Faisal Athar Hussain v. Amber Mughal and others) ("Family Appeal") and upheld the Trial Court's decision.

2. The Petitioner is the former husband of the Respondent No.1 and the father of the Respondents Nos.2 and 3 (both of whom were minors at the relevant time). The official Respondents Nos.4 and 5 are the Presiding Officers of the learned Courts who have decreed the Respondent No.1's Family Suit and dismissed the Petitioner's Family Appeal respectively.

3. The Petitioner and the Respondent were married on 25.6.2002 and divorced on 22.7.2015. On 25.4.2018, the Respondent No.1 instituted Family Suit seeking the recovery of dowry articles and maintenance. Both parties presented their evidence, and subsequently, the Trial Court issued a Judgment and decree, granting relief only in regard to maintenance. The Court's decision included the following: i) Maintenance for Respondent No.1 during the "iddat" period of 3 months at a rate of Rs. 15,000/- per month; ii) Past maintenance for Respondent No.1 amounting to Rs. 1,775,335/-; iii) Maintenance for the minors (Respondents Nos.2 and 3) at a rate of Rs.30,000/- per month per child from the filing of the Family Suit to the present date, with future maintenance continuing at the same rate and an annual increment of 10% until they reach legal entitlement or marriage.

4. The core issue agitated by the learned Counsel for the Petitioner was that the past and future maintenance amount awarded to the Respondents Nos.1 to 3 is excessive and/or exceeds the Petitioner's financial capacity. He averred that both the Courts below failed to properly consider the evidence, resulting in arbitrary judgment(s) and decree(s), urging this Court to set aside them. Conversely, the learned Counsel for Respondent No.1 has argued for the affirmation of the impugned judgment(s) and decree(s), contending that they are strictly in accordance with the law and record and were rendered in the light of the Petitioner's concealment of resources and refusal to divulge any details of his assets, bank accounts etc. Both Counsel presented case law to back up their submissions.1

5. The rival submissions have been duly evaluated and the record considered.

6. Addressing the central issue, the Trial Court's impugned judgment noted that the Petitioner held multiple jobs and testified during cross-examination that he worked part-time from September 2017 to October 2019. Yet, in his written statement (dated 20.10.2018 in paragraph 17), he claimed to have been unemployed for the past 21 months. This, therefore, diminished the credibility of his unemployment claim. Before the Appellate Court, the Petitioner argued (as recorded in the Appellate impugned judgment), that he had been financially impacted and rendered jobless due to NAB Reference No.7/2010, making it impossible for him to meet the maintenance amount ordered by the Trial Court for his minor children.

7. It is important to highlight that before this Court, the Petitioner has not claimed unemployment or weak financial position in the memo. of Petition. Even otherwise, by simply alleging unemployment, the father cannot absolve himself of his responsibility in maintaining his children, nor does it relieve him of his duty to support them2.

8. When a father obstructs a court's ability to accurately determine or to reach a just evaluation as to his earning or payment capacity, his assets, savings or bank accounts etc-through wilful misdeclaration or non-disclosure or by concealing his source of income the court is entitled and justified to draw an adverse inference.3

9. Considering that the Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973, it is important to recall some of the established legal parameters that have evolved over time for this jurisdiction. These fundamental guidelines include: i) If a lower forum makes an error of law in deciding a matter, it creates a jurisdictional issue, as the forum is only authorized to decide matters correctly. Such a decision can be nullified under constitutional jurisdiction for being in excess of the law; since Article 4 of the Constitution guarantees an individual the right to be dealt with in accordance with the law and when the law is incorrectly or improperly applied, it becomes appropriate for the High Court to Intervene and exercise its constitutional jurisdiction.4 ii) Where the forums available within the legal hierarchy have resolved all controversial issues based on the record and in accordance with the law, the High Court's scope of interference is limited, as it cannot delve into disputed questions of fact when exercising its constitutional jurisdiction.5 iii) The High Court in its constitutional jurisdiction would not interfere with findings of fact recorded by competent courts, tribunals, or authorities, unless such findings result from, inter alia, a misreading or non-reading of evidence, are based on no evidence or there is a clear error of law that warrants correction.6 iv) Concurrent findings of fact by fora below cannot be overturned unless they suffer from jurisdictional defects, involve a failure to properly read or interpret the evidence on record, are perverse or physically impossible.7 v) A finding does not become sacrosanct merely because it is concurrent; it attains that status if it is based on a proper appraisal of the evidence. If the concurrent findings recorded by the lower forums violate the law, suffer from jurisdictional defects, or are based on errors evident from the record, they cannot be regarded as so sacrosanct or inviolable that they cannot be reversed or corrected by the High Court in its constitutional jurisdiction8. vi) Disputed questions of fact cannot be entered into or re-agitated under constitutional jurisdiction. Article 199 of the Constitution cannot serve as a substitute for a revision or an appeal, or be used to convert constitutional jurisdiction into appellate jurisdiction9. vii) Simply because an alternative conclusion might be drawn from a reappraisal of facts or evidence, the High Court cannot interfere in its constitutional jurisdiction10. viii) The High Court will be slow in exercising constitutional jurisdiction when a statute provides an appeal and the remedy has either been availed or declined, unless it is shown that the action or order is clearly without jurisdiction and violates principles of justice11.

10. Recent Supreme Court judgment in the case of Arif Fareed v. Bibi Sara12 has expressed concern about the frequent recourse to the High Court, given that the Family Courts Act, 1964 does not allow for a second appeal. The Apex Court observed that the legislature intended to conclude family litigation after the appellate court's decision. However, the extraordinary Jurisdiction under Article 199 of the Constitution is used as a substitute for appeal or revision, undermining the statute's goal of expeditious case resolution. While some cases may warrant intervention, many do not fall within this exception.

11. Similarly, In M. Hamad Hassan v. Isma Bukhari13 (which case also pertained to payment of maintenance by the father), the Supreme Court drawing upon Arif Fareed decision, reiterated that the right to appeal is a statutory provision and if the legislature intended for two appeals, it would have specified it. Without a provision for a second appeal, the appellate court's decision is final on facts and the High Court should not offer another opportunity of hearing, particularly in family cases where the goal is to avoid prolonged disputes. Once a matter is decided by the trial and appellate courts, constitutional courts should not re-evaluate facts or substitute their opinions. Accepting the finality of appellate court decisions is crucial for resolving disputes conclusively, preventing unnecessary litigation, and respecting the legislature's intent for a definitive resolution.

12. Turning to the matter at hand, the determination by the Family Court and the Additional District Judge that the Petitioner was liable for paying maintenance for the Respondents Nos.1 to 3 and that the amount set was appropriate per child was a factual finding within their exclusive jurisdiction. The Petitioner perhaps could have challenged these findings in this Court's limited constitutional jurisdiction had he demonstrated that they were unsupported by evidence or resulted from a misinterpretation of the evidence. However, except for a bare assertion, the Petitioner's Counsel failed to show how these findings were either unsupported by evidence or misread.

13. Both the Trial Court and the Appellate Court have reached concurrent factual findings against the Petitioner, having thoroughly evaluated and assessed the evidence presented by the parties and provided well-reasoned conclusions. Therefore, there is no basis for interference under Article 199 of the Constitution, which is intended for exceptional circumstances that are not present here. Consequently, the present Petition is dismissed, along with any pending applications. Each party shall bear its own costs. MH/F-4/Sindh Petition dismissed.