2006 PLP 912 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

This constitutional petition seeks judgment and decree dated 28-2-2004 passed by learned Additional District Judge, Sadiqabad, to be declared as illegal void and of no legal consequence, whereby suit of the petitioner for restitution of conjugal rights was ordered to be dismissed, by reversing judgment and decree dated 31-5-2000 of the trial. Court.

2. Precisely, relevant facts are that the petitioner entered into a tie of marriage with respondent No.1 about 12 years back, but relations between the spouses did not remain cordial, on account of interference by relations of respondent No.1. It is asserted by the petitioner that respondent No.1 has deserted his house without any cause or reason and now she is living away, making a fake divorce, allegedly executed by the petitioner, on basis of her claim. Petitioner filed a suit for restitution of conjugal rights before the learned Judge Family Court, Sadiqabad, which after contest by respondent No.1, was decreed on 31-5-2000.

3. Respondent No.1 aggrieved of the judgment and decree dated 31-5-2000, tiled an appeal before the learned Additional District Judge, where she succeeded as her appeal was accepted and suit by the petitioner was dismissed vide judgment and decree dated 28-2-2004. Thereafter the petitioner has filed instant constitutional petition for the relief, noted above.

4. Learned counsel for the petitioner submits that respondent No.1 was wedded wife of the petitioner, who had no lawful right to live away from him and thus his suit for restitution of conjugal rights has incorrectly been dismissed. He further submits that though respondent No.1 has entered into a second tie of marriage on the basis of a forged Talaqnama, yet the same having been manoeuvred and arranged pending suit for restitution of conjugal rights, has no legal validity. It was also submitted that appellate judgment has been passed out of misreading and non-reading of evidence, thus the same is not sustainable.

5. I have anxiously considered the arguments of the learned counsel for the petitioner, and have examined the record, appended herewith. Though the appellate Court (respondent No.3) has given findings of facts, after due appraisal of evidence on the file, which could not be shown to be tainted with any illegality of misreading or non-reading, yet it is not denied before me, as well that respondent No.1 has entered into a second tie of marriage and at the present she is living with her second husband. Second marriage by respondent No.1 was solemnized on the basis of Talaqnama dated 17-4-1999, which was found to be lawful and executed out of freewill of the petitioner. Dispute regarding Talaq was put to issue by respondent No.2 and in view of findings given by the appellate Court within the framework of law, this Court is not in a position to substitute the view taken by it. Respondent No.1 is leading a second married life, which cannot be interrupted through a decree for restitution of conjugal rights, which stood dissolved by an intentional and active act of the petitioner himself. The appellate Court has taken a lawful view of the matter 'and has committed no illegality and at the same time the judgment impugned is not arbitrary or fanciful. This constitutional petition has no merit in it and is accordingly dismissed in limine. H.B.T./A-584/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.