2010 PLP 746 (MLD)

MIAN FASIH-UL-MULK, J.

Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Muhammad Rehman has questioned the judgment of learned Judge Family Court Abbottabad, dated 15-10-2009 whereby she decreed the suit of respondent Mst. Fatima Bibi for dissolution of marriage on the basis of khula' and recovery of monthly allowance at the rate of Rs.1000 per month since August, 2004 till the completion of Iddat period.

2. Briefly stated the facts of the case are that Nikah in between the parties was solemnized some 2-1/2 years back in consideration of Rs.80,

000. Allegedly after about six months of marriage the attitude of petitioner towards respondent changed and the husband/petitioner started abusing and maltreating her. She was forced to leave his house whereafter she developed hatred towards her husband. The respondent filed suit for dissolution of marriage, recovery of dower amount of Rs.80,000 and recovery of maintenance allowance. The learned Judge Family Court after recording pro and contra evidence and hearing both the parties passed the aforesaid decree in favour of the respondent. Feeling aggrieved, the petitioner has filed this writ petition.

3. Learned counsel for the petitioner contended that the Judge Family Court has wrongly dissolved the marriage on the basis of khula' as no such plea was taken by her in the plaint. It was further contended that the dower has been paid in the shape of a house in Nikahnama but the learned Court below has concluded that since the house was neither transferred nor registered in the name of respondent, therefore, dower was not paid. Lastly it was added that the learned lower Court misread the evidence and failed to appreciate the law on the subject, therefore, impugned judgment and decree is liable to be set aside.

4. We have heard learned counsel for the petitioner at great length and perused the record annexed with the petition.

5. A perusal of record would show that the petitioner maltreated the respondent and his behaviour towards her was so harsh and cruel which compelled her to leave her husband's house. She developed extreme aversion against the petitioner. Respondent in her statement requested for grant of dissolution of marriage on the basis of khula'. The evidence led by the respondent goes unrebutted and, therefore, the learned trial Court was justified to dissolve the marriage on the basis of khula'.

6. Now adverting to the decree of maintenance allowance, suffice it to say that appeal against judgment of Family Court granting maintenance for Rs.1000 or less per month is barred under section 14(2) of N.-W.F.P. Family Courts Act, 1964. The intention of Legislature was to give an end to the litigation in such class of family matters. The constitutional jurisdiction shall obviously not substitute for the remedy of appeal and would not be exercised provided the order/judgment is patently illegal, without jurisdiction and without lawful authority. It needs no emphasis that the constitutional jurisdiction of this Court is always discretionary and equitable in nature and no party is entitled to it as of right. The object of High Court while exercising its discretionary jurisdiction has always been to foster justice, preserve the rights of the parties and to right a wrong. The aforesaid discussion adequately shows that no perversity or illegality has been noticed. The judgment in the constitutional petition is unexceptionable and thus need no interference.

7. Consequently, finding no merit in the writ petition, the same is dismissed in limine. H.B.T./33/P Petition dismissed.