P L D 1982 Karachi 449 (PLP)

This is a constitutional petition by which the petitioner Leemo has called in question the judgment of Ist Additional District Judge, Jacobabad, decreeing the suit of Mst. Kaz Bano, respondent No. 1 for dissolution of marriage. Mst. Kaz Bano was still minor when her marriage with the petitioner was solemnized. On attaining her puberty, she discovered that the petitioner was impotent and was incapable of performing sexual obligations. After initial hesitation, she brought the fact to the notice of her mother. When the petitioner was confronted with his alleged impotence he got annoyed and started maltreating his wife. He ultimately drove her out from his house. Being fed up with the petitioner's ill behaviour the respon dent No. 1 instituted a suit for annulment of marriage. She sought divorce on two grounds; namely, impotence of the petitioner and his failure to maintain her. The suit was, however, dismissed by the learned Senior Civil Judge and Family Court, Jacobabad by judgment dated 7th October, 1980. Msr. Kaz Bano preferred an appeal against the judgment which was accepted by learned Additional District Judge, Jacobabad, as stated above and decreed her suit. I have heard the learned counsel for both the parties at some length. Mr. Wahid Bux Baloch learned counsel for. the petitioner raised several points which merit some attention. He first contended that the appeal from the judgment of lower Family Court was incompetent and consequently, the impugned judgment of learned Additional District Judge was without jurisdiction. Mr. Daud Balouch who appeared on behalf of the respondent No. 1 repelled the argument, pointing out that as required by subsection (2) of section 14 of Family Courts Act, 1964, appeal is barred when a decree is passed for dissolution of marriage. He therefore averred that since the suit of the respondent was dismissed, the appeal was in order. The learned counsel for the petitioner had obviously no answer and therefore he dropped his objection with regard to competence of the appeal. The next contention raised by Mr. Wahid Bux was also of legal character. He referred to proviso (c), following section 2 of the Dissolution of Muslim Marriages Act, 1939, arguing that if on the data placed before the learned Additional District Judge, he was of the opinion that the petitioner was impotent, still he could not straightaway order for annulment of the marriage. In such eventuality he had to give an opportunity to the petitioner to satisfy the Court within a year of the order that he ceased to be impotent. Since this procedure was not followed by the lower Appellate Court, the learned counsel thought his judgment to be unsustainable. If the provision of law referred to by the learned counsel is read carefully, it would appear that the Court was not supposed to give the required opportunity suo motu and without asking for it by the petitioner. There is no indication in the record of the case that the petitioner ever asked for such opportunity but the Court declined it. Thus the argument of the learned counsel for the petitioner in this regard is without force. It was further urged on behalf of the petitioner that there was no satisfactory evidence to establish impotence of the petitioner or his failure to maintain his wife. Iv maybe so. This Court cannot, however, go into the factual mass of material for the purpose of determining controversial issue between the parties in exercise of its writ jurisdiction. The High Court does not act as Court of facts and, therefore, cannot take upon itself, the duties of the Family Court and decide the matter of controversy. In this) connection reference be made to the case reported as P L D 1977 Lah.

718. In view of above, I am convinced that the impugned judgment of learned Ist Additional District Judge is neither grossly erroneous nor perverse. I therefore, see no reason to disturb the judgment. The petition is according ly dismissed with costs. S. A. H. Petition dismissed.