1992 PLP 1013 (CLC)

Date of hearing: 11th November, 1991. By this petition, judgment of Vth Civil and Family Judge, Karachi (West) dated 17th November, 1990, is challenged whereby the learned Court had decreed the suit of the respondent and dissolved the marriage between the parties.

2. The respondent had filed suit for dissolution of the marriage on the ground of cruelty and non‑maintenance. It was alleged the respondent was married to the petitioner on 27‑2‑1988. Dower was fixed q Rs.25,

000. A few days after the marriage, the petitioner started quarreling with the respondents on petty matters and gave her physical and mental torture in order to conceal his physical incapacity of discharging his marital obligations as he was a chronic heart patient which fact he had not disclosed to the respondent's side prior to marriage. On the request of the respondent to get himself properly treated, the petitioner became infuriated and turned out the respondent from his house. She, therefore, took shelter with her brother and thereafter filed the suit. The petitioner contested the suit by filing the written statement. He admitted the marriage and the dowry, but alleged that the dower was paid on the day of marriage. He admits that he was a heart patient, but denies that he was incapable of performing marital obligations. He has alleged that the respondent had left the house of the petitioner with permission to go to America to see his relatives. He had also paid Rs.50,000 for her ticket. She had also taken away jewellery worth Rs.70,

000. The respondent was willing to come to the petitioner, but she has been misguided by her brothers to file the suit. Efforts were made for pre‑trial reconciliation on 23‑8‑1990, but it failed. Accordingly issues were framed and the case was set down for recording of evidence. On 8‑9‑1990 evidence of the respondent was recorded, but the. petitioner and his counsel remained absent. The case was adjourned to 22‑9‑1990, when the evidence of the remaining witnesses of the respondent was recorded. The petitioner and his counsel remained absent. Hence the case was adjourned from time to time till 17‑11‑1990, when it was decreed by the Family Judge in view of the respondent's evidence which was neither challenged, nor controverted by the petitioner..

3. I have heard Mr. Zubair Ahmed, Advocate for the petitioner and Mr. Farman A. Hashmi, Advocate for the respondent.

4. Mr. Zubair Ahmed has pressed his petition on two grounds, amongst others. His first ground is that the learned Vth Civil and Family Judge, Karachi (West) had no jurisdiction to entertain the suit as neither the petitioner, nor the respondent resided in his jurisdiction. The second ground is that post trial conciliation was not held after the evidence was recorded and therefore, the case should be remanded to the Family Judge. In his support be has relied upon P L D 1969 Dacca 548 (Goas Ali v. Feroza Kbatoon), PLD 1971 S C 192 (Mohammad Siddiq v. Mst. Ghafuran Bibi), 1990 ALD 180 (Bashir Ahmed v. Mst. Zubaida Bibi) and PLD 1977 Kar. 955 (Mst. Shamshad Begum v. Abdul Haque alias Nawaz and 2 others).

5. From the perusal of the plaint it appears that the respondent had shown that she was residing within the limits of Pak Colony Police Station, which was situated in District West and was within the jurisdiction of Vth Civil and Family Judge, Karachi (West). The petitioner did not deny this fact in his written‑statement. He also did not plead that the Court had no jurisdiction to entertain the suit. Apart from that the petitioner was duly served with the summon. He appeared in the Court and contested the suit by filing written ?statement. Admittedly the respondent as well as the petitioner were residing in Karachi and all the Courts of Karachi are situated at one and the same place. No serious prejudice was caused to the petitioner even if it is believed for the sake of arguments that the suit was filed in a wrong forum. So far as the ground of omission to hold post‑trial conciliation is concerned, the petitioner himself was responsible for the same as he and his counsel both continuously remained absent after the respondent's evidence was recorded. He neither cross‑examined the respondent and her witnesses, nor appeared on any date till the judgment was pronounced.

6. The authorities cited by the petitioner's counsel do not help him. PLD 1969 Dacca 548 (Goal Ali v. Feroza Khatoon) relates to a case of non‑maintenance and cruelty and was dealt with in the appellate jurisdiction of Dacca High Court and cannot be made applicable to the proceedings before this Court which have been invoked by a Constitutional, Petition. PLD, 1971 SC 192 (Mohammad Siddiq v. Mst. Ghafuran Bibi) relates to a case in which `Khula' was granted without there being such a prayer, while this is not a case for `Khula', but for a dissolution of marriage and therefore this ruling would also not apply. 1990 ALD 180 (Bashir Ahmed v. Mst. Zubaida Bibi) relates to a case in which the husband had been appearing in the Court and yet reconciliation proceedings were not held,' while in the present case it was not so. The petitioner remained absent and therefore, the Court cannot be blamed for not holding the post‑trial reconciliation proceedings. This ruling would also not apply to this case. PLD 1977 Kar. 855 (Mst. Shamshad Bcgum v. Abdul Haque alias Nawaz) on the contrary goes against the petitioner because it has been held that the writ would lie against the decision of a subordinate Court, if such order is without lawful authority and of no legal effect and this related to a case in which certain amount of consideration was ordered to be paid as a condition for grant of `Khula'. A Division Bench of this Court upholding the `Khula' held that it should not have been made conditional on payment of consideration. The Court maintaining the decree of `Khula' left the respondent to recover the amount by filing a suit. Hence I am satisfied that there is no justification for interfering with the judgment of the learned Family Judge under the Constitutional jurisdiction of this Court. The petition is, therefore, dismissed. H.B.T/M‑1537/K??????? Petition dismissed.,