1983 PLP 133 (CLC)

The brief facts leading up to this Constitutional Petition are that the petitioner was married to respondents No. 1 on 8-8--1971, at Hyderabad, and the dower amount was fixed at Rs. 32.50. The parties lived together for about six months, whereafter the respondent No. 1 left the house: of the petitioner on the pretext of attending the marriage in their family. The petitioner tried to bring her back but could not succeed due to the intervention of her parents. Thereafter, respondent No. 1 filed Family Suit No. 24'8/75 for dissolution of marriage with the petitioner on grounds of impotency of the petitioner and, non-consummation of marriage. The suit was dismissed for non-prosecution on 8-1-1976. Thereafter the petitioner filed Family No. 93/76 for restitution of conjugal rights against the respondent No. 1, wherein the pleas raised by respondent No. 1 were impotency of the petitioner, non-consummation of the marriage and cruelty. The suit was decreed on 8-4-1977. On 5-12-1977, the respondent No. I filed a Family Suit No. 330/77 against the petitioner for dissolution of her marriage with the petition. The pleas raised by the respondent No. 1 in the suit were impotency- of the petition or, his cruel conduct towards her and Khula'. Her suit was dismissed on 1b-12-1978. Thereafter the respondent No. 1 filed a Family Civil Appeal No. 12/1979 in the District Court, Hyderabad, which was ultimately heard by the 1st Additional District Judge, Hyderabad, the respondent No. 2, and was allowed dissolving the marriage between the petitioner and respondent No. 1 on ground of Khula' ride his judgment dated 30-3-1980. Being aggrieved by this Judgment the petitioner has come in this petition.

2. I have heard Mr. Abdul Rahim Kazi, the learned counsel for the petitioner and Mr. Aftab Ahmad Shaikh for respondent No.

1. The learned 4cunsel for the petitioner has raised three-fold contention ; firstly, that the dismissal of Family Suit No.248/75 for non-prosecution and the decree passed in Family Suit No. 93/76 for restitution of conjugal rights would operate as res judicata against the respondent No. 1 the wite. in her second suit for dissolution of marriage, in which the impugned judgment was passed ; secondly, failure to succeed by the respondent No. 1 on other ground; of impotency, non-consummation of marriage and cruelty would cut off' the very route of the case of the respondent No. 1 and there would as no justification for dissolving the marriage on the ground of Khula' only ; thirdly, that Khula' cannot De granted only by mere asking by the wife for dissolution of her marriage and that she should justify showing circumstances for such dissolution of marriage on such ground of Khula'. The learned counsel for the respondent No. 1 has controverted the pleas raised on behalf of the petitioner and has mainly contended that the plea of res judicata raised on behalf of the petitioner is without any legal substance ; that merely for the reason that the petitioner did not succeed on the other grounds of impotency, cruelty and non-consummation of marriage could rare no legal justification for refusal of dissolution of marriage by way of Khula' and that the respondent No. 2 did not pass the impugned judgment without taking into account the material available before him and without appreciating the evidence on record. He contended that he neither acted without lawful authority nor in excess of jurisdiction and, therefore, this Court in exercise of its extra ordinary jurisdiction in this writ petition shall not act as a Court of appeal and, therefore, the plea raised on behalf of the petitioner have no force at all.

3. With regard to the plea of res judicata raised on behalf of the petitioner, there is no dispute that first Family Suit filed by respondent No. 1 for dissolution of marriage with the petitioner was dismissed for non-prosecu tion and the explanation offered on behalf of respondent No. 1 is that she was not intimated the date of bearing by her counsel. There is no gainsaying that the suit was not decided on merits and that in such a situa tion the legal position admittedly is that the subsequent suit for dissolution of marriage in which the impugned judgment was passed was not barred bar the 'principle of rev judicata specially when in the subsequent suit a new and additional plea with regard to Khula' was raised. If any authority is needed in that respect reference may be had to the case of Malik Khi Hayat Thvana and another v. Mst. Zainat Begun and others (P L D 1967 S C 402) for the Family Suit No. 96/76 filed by the petitioner for restitution of conjugal rights and the decree passed therein in his favour is concerned, there in no dispute that in the subsequent Suit No. 330/77 filed for dissolution of marriage, by the respondent No. I a new and additional plea of Khula' was raised, which was not the subject-matter of agitation in the suit filed by the petitioner for restitution of conjugal rights. In such a situation the plea of res judicata shall not operate against the respondent No. I in the suit filed by her for dissolution of marriage in which the decree was passed on ground of Khula' by the respondent No.

2. If any authority Is needed in that regard, reference may be had to the cases of Muhammad Younus v. Nurgas Sultana (P L D 1970 Lah. 41), Lal Hussain Akhtar v. The Judge Family Court, Duska and another (P L D 1975 Lah. 1136) and Sardara v. Mst. Sakina and others (P L D 1979 Lah. 476). It was held in all these decisions that principle of res judicata shall not be attracted to the wife's subsequent suit for dissolution of marriage specially when a new and additional pleas are raised including that of Khula'.

4. With regard to the second contention raised on behalf of the petitioner to the effect that in view of the failure to succeed by the respondent No. 1 as other issues including cruelty there was no justification for allowing her dissolution of marriage on the ground of Khula', it has been contended that there is no legal bar to such a decree as the ground of Khula' was taken as a new and additional ground which was never raised in the earlier two suits one for dissolution of marriage which was dismissed for non-prosecution and the other for restitution of conjugal rights which was decreed in favour of the petitioner. If any authority is needed in support of such proposition, reference may be had to the case of Muhammad Sadiq v. Mst. Aisha and another (P L D 1975` Lah. 615.) and Mukhtiar Ahmad v. Mst. Kalsoom and another (P L D 1975 Lah. 805). The conten tion raised by the learned counsel for the petitioner to the effect that in view of the decree for the restitution of conjugal rights no subsequent suit for dissolution of marriage by the wife against the husband would legally lie is also without force for the single reason that the wife cannot be compelled to live with her husband even when he had obtained a decree for restitution of conjugal rights. Reference may be had to the case of Mst. Bibi Khatoon v. Faiz and another (P L D 1976 Lah. 670).

5. As regards the third contention to the effect that the marriage cannot be dissolved on a mere asking by the wife on the ground of Khula', the respondent No. 1's counsel has referred to the material available on the record and has contended that the respondent No. 2 has not only considered the material and the evidence on the record seriously but has also appreciated the same appropriately and the conclusions arrived at by him were after having given them a very serious thought. He has further contended that the case is neither of misreading of evidence nor that of misappreciating the same. In that respect I would refer to the observations made by the two courts below which are relevant to the issue in this petition. The learned Family Judge in his judgment dated 18-12-1978 observed as under:- Advocate for plaintiff has argued that the plaintiff is entitled for dissolution of her marriage on the ground of Khula'. In plaint she has levelled allegations of cruelty, non-maintenance and inability of defendant to perform material obligations. It is very such an admitted position that in law the word cruelty is taken with ordinary meaning of the word and no special sense is attached to it. The word cruelty, therefore, means that if a painful or unsympathetic treatment is given to an innocent and obedient person then it can be said that he or she is the victim cruelty. Learned Advocate for plaintiff has referred me P L D 1959 Lah. 566, P L D 1967 S C 97, P L D 1975 Lah. 805 in support of his arguments. I have considered these authorities. There are number of important authorities on this subject which provide guideline to the Courts to dissolve marriage of the parties by means of Khula`. The decision reported in P L D 1973 B J 382 provides a complete answer to this legal point. The principle which is laid down by all the authorities is that this power should be exercised only when the Court comes to the conclusion that the parties cannot live happily together within the limits of Clod. In the present case, in fact there is no serious trouble in-between the parties and record shows that they can still live happily together if they are allowed to reside together. Taking all the factors into consideration, I am satisfied that plaintiff has not made out a case for Khula` also." The learned 1st Additional District Judge in his impugned judgment observed as follows :- "As for the issues, relating to physical fitness, cruel conduct of the respondent and non-maintenance etc. are concerned, the learned counsel for the appellant does not question the individual finding given on such issue. But, he pressed that the appellant is entitled to have her marriage dissolved, by way of Khula` in present circumstances of the case. Citing such a circumstances, the learned counsel made a pointed reference to the fact within a couple of years the parties are again arrayed against each other in the proceedings before the court and that even since her separation from the respondent, she has not resided for a single day with him. Referring to the deposition of Mst. Tahira (Exh. 15) herself, the learned counsel pointed out that situa tion at tie house had been quarrel some due to misbehaviour of the respondent, which of course did not amount to cruelty, and that the appellant has developed hatred of the immense order for the respondent. The bitterness between the parties also seems to be begotted by the facts that the plaintiff herself, her mother and one Juna Choudhry had got respondent arrested through police and Martial Law Authorities as admitted in his examination-in-chief, and that the appellant has brought in famy to the respondent by levelling allegation of impotency, a subject seriously tabooed in our society, against him. In the circum stances, I agree with the learned counsel for the appellant that it appears a sheer hoax and pretence of the prime order when the respondent says that he will keep the plaintiff happily, notwithstanding the happening of such eventualities. It would also be in the fitness of the situation to mention here that even the respondent did not spare mother of the appellant by saying in para. 17 of the written statement that she too had charged her husband for impotency as that was the custom with their family, which version bas also been echoed by his sister-in-law. D. W. Mst. Sacra in her deposition (Exh. 25). So I think it shatters all the pretence of the respondent that he still has love and affection for the appellant. His hatred and anguish for the appellant, and her family is quite evident from his such uncalled for recitation, in written statement. To conclude, I find that though the appellant has failed to satisfy the legal requirements technically on individually issues, nonetheless there are strong circumstances as discussed above which, when taken together induce an obvious impression that neither the wife nor the husband has liking for the other, but that they, particularly of course, the wife, harbour hatred of high order against each other. Therefore, she is entitled to decree for separation on ground of Khula` as was held and reported in P L D 1975 Lah. 805." Perusal of the above-mentioned observation, would make it clear that the learned Family Judge without assigning any reason dismissed the claim of respondent No. 1 with regard to Khula`, whereas the learned appellate Judge allowed her claim after having considered the relevant evidence and material on the record and after having given serious thought to her claim with regard to Khula`. Apart from what he said in his impugned judgment, what I find that during this period of 11 years of marriage between the petitioner and respondent No. 1 they have lived together only for period of about six months. They continuously lived separately for a period of about 10 years and during this period they admittedly entered into a continuous litigation against each other. What is further clear in the material available that the petitioner was jailed at the instance of respondent No. 1, his wife as a result of the criminal case filed against him with the Police and Martial Law Authorities. It is also obvious that she made a serious allegation against him throughout the litigation in the Family Courts with regard to his impotency and that the petitioner while denying the allegations alleged that the family of respondent No. 1 was in the habit of bringing such allegations, as her mother had also brought such allegations of impotency against her husband. What further evidence on the record that the lower court on the remand of the case vide the order in the impugned judgment determined the benefits received by the wife, respondent No. 1, at Rs. 2,500 and that the amount actually has been deposited by the wife in Court to returned to the petitioner. The respondent No. 2, the learned appellants in such circumstances allowed dissolution of marriage in favour of respondent No.1 as would be clear from the observations made by him abovementioned. In the exercise of its extraordinary Constitutional Juris diction under Article 199 of the Constitution of Pakistan, this Court does not exercise appellate powers. In exercise of its writ jurisdiction this Court confines itself to determining whether the tribunal concerned was possessed of the jurisdiction to go into the issue before it and whether in doing so it transgressed the limits of it's lawful authority. It is also well-established that in the exercise of its constitutional Jurisdiction this Court will not interfere with the decision of subordinate forum merely because in its opinion the decision is wrong, for where there is jurisdiction to decide a particular Matter, then the mere tact that the decision may be wrong does not render the decision without jurisdiction. There a subordinate forum is possessed of jurisdiction and there is material on the record sufficient to sustain the impugned order this Court will not interfere. A reference to this context can be made to the cases of Nawab Syed Raunaq Ali v. Chief Settlement Commissioner (P L D 1973 S C 236) ; Muhammad Hussain Munir v. Sikandar (P L D 1974 S C 139) ; Badrul Haq v. Election Tribunal, Dacca (P L D 1963 S C 704) ; Muhammad Asghar v. Safia Begum (P L D 1976 S C 435) ; Begum Nazir Ahmad v. Niaz Ahmad (P L D 1976 S C 214) ; Sadiq Hussain Qureshi v. Federation of Pakistan (P L D 1979 Lah. 1) ; and to the judgment in the case of Javed Manznor etc. v. Member Board of Revenue etc. (1980 C L C 1196). Accordingly, none of the contentions raised on behalf of the petitioner have got any force.

6. I would, therefore, find that in view of the evidence and the material available on the record the impugned judgment was not passed without lawful authority and in excess of jurisdiction. This court, in the circumstances, cannot act as Court of appeal in this petition. The impugned judgment passed by respondent No. 2, therefore, does not call for interference.

7. In the result, the petition fails and is dismissed with no order as to costs. S. Q. Petition dismissed.