2004 PLP 130 (YLR)

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Appraisal of evidence‑‑‑Finding of fact recorded by Court of competent jurisdiction‑‑Interference by High Court ‑‑‑Principles‑‑ Appraisal of evidence is function of Trial Court which is invested with the exclusive jurisdiction‑‑‑Finding of fact recorded by Trial Court cannot be interfered with in Constitutional jurisdiction when such finding is not shown to be based on misreading or non‑reading of material evidence and reasons have been given in support of the conclusion arrived at‑‑‑Order passed by the Court below cannot be interfered with in Constitutional jurisdiction unless the same is arbitrary, perverse or the. Court below has acted in excess of its jurisdiction. Khalil Ahmad v. Allah Rakhi and another 1994 MLD 119 and Abdul Faheem v. Mst. Shahnaz Begum and another 2003 CLC 1450 rel. Yousaf Khan Yousafzai for Petitioner. Nemo for Respondents. Date of hearing: 19th September, 2003. IJAZ‑UL‑HASSAN KHAN, J.‑‑ Mushtaq Ahmad, petitioner married Mst. Neelam respondent in December, 1994 and gold weighing 10 Tolas is stated to have been fixed as dower. After marriage, the relations between the couple started deteriorating which obliged the wife to file a suit before Senior Civil Judge/Judge Family Court, Swat for dissolution of marriage, recovery of dower, recovery of maintenance allowance and return of dowry articles. The allegations of the wife enumerated in her plaint were denied by the husband and she was claimed to have left the husband's house without any lapse on the husband's part. Issues were formulated and parties were afforded opportunity to produce evidence in support of their respective contentions. The suit was allowed vide judgment and decree dated 20‑5‑2003 which has caused annoyance to the petitioner and he has approached this Court by way of filing instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, with the prayer that the aforesaid judgment and decree be declared illegal, against law and without lawful authority.

2. Mr. Yousaf Khan Yousafzai, Advocate, appearing on behalf of the petitioner mainly contended that evidence in this case has not been properly assessed and evaluated which has resulted in manifest injustice and that failure on the part of the learned trial Judge to give finding on Issue No.4, relating to payment of dower, has resulted in miscarriage of justice. He also argued that decision on Issues Nos.6 and 7 is erroneous for the reason that having held 'that the parties cannot live within the limits of God' the marital tie should have been broken by way of 'Khula' with direction to the wife to return all the benefits to the husband.

3. It needs no reiteration that a wife is entitled to claim maintenance for herself and for her children if she is forced to live apart from the husband on account of the acts of cruelty to the husband. The maintenance is neither a nature of gift or a benefit but is an undeniable legal obligation of the husband to maintenance his wife when she is not staying away from him without any justifiable reason. Adverting to, the question, regarding appreciation of evidence, it is not denied that appraisal of evidence is the function of the Family Court which is invested to it with the exclusive jurisdiction. Finding of fact recorded by it cannot be interfered with in writ jurisdiction where it is not shown to be based on misreading or non‑reading of material evidence and reasons have been given in support of the conclusion arrives at. An order passed by the Court below cannot be interfered with in writ jurisdiction unless the same is mala fide arbitrary, perverse or the Court has acted in excess of its jurisdiction. Khalil Ahmad v. Allah Rakhi and another 1994 MLD 119 Lahore and Abdul Faheem v. Mst. Shahnaz Begum and another 2003 CLC 1450 Peshawar.

4. The impugned judgment and decree has been recorded in the light of the material on record and no case or misreading or non‑reading of evidence .on record has been made out. The mere fact that no finding has been returned on Issue No.4 pertaining to payment or otherwise/dower amount, by itself is not sufficient to annul the impugned judgment and decree in exercise of our Constitution at jurisdiction. The writ petition is without merit. The same is dismissed in limine. M.H./948/P Petition dismissed.