1984 PLP 448 (MLD)

By this judgment I propose to dispose of the two Constitution Petitions (W.P.Nos. 450 and 451 of 1983) as the questions of fact and law involved in both these petitions are one and the same.

2. The facts forming background of the litigation between the spouses, briefly stated, are that Mat. Saeedan petitioner was married to respondent on 2-7-1978. The parties lived for a period of about one year together but no child was born out of the wedlock. Due to this, complications arose between the parties as in the meanwhile a midwife of the village had also declared that the petitioner was incapable of bearing a child. The petitioner filed a suit for dissolution of marriage mainly on the ground of habitual cruelty and non-maintenance which as per the petitioner was due to her inability to bear a child. The petitioner sought the dissolution on the ground of Khula as well. The respondent contested this suit controverting the assertions of the petitioner and alleging that she had left the house on her own and while so leaving had taken certain ornaments and that she had later on refused to come to him. The respondent also filed a suit for restitution of conjugal rights. The learned trial Court consolidated both these suits and framed necessary issues arising out of the pleadings of both the suits. After recording evidence of the parties, learned tidal Court dismissed the suit of the petitioner filed for dissolution of marriage and decreed the suit for restitution of conjugal rights filed by the respondent. On the appeals filed, the learned Additional District Judge, Lahore, upheld the judgment of the learned Judge Family Court and dismissed the appeals vide judgment and decree dated 13-10-1982. Mst. Saeedan, the wife has assailed the judgments of the Judge Family Court and the learned Additional District Judge in these constitution petitions. 2-A. I have heard learned counsel for the parties. The fact that emerges from record and which is not denied by the parties is that the petitioner was unfortunate in not bearing a child from the respondent. It has also not been disputed before me that a midwife in the village declared that the petitioner was incapable of bearing a child. Learned counsel for the respondent also does not dispute the assertion of the petitioner that the main cause of conflict is the inability of the petitioner to bear a child. Learned counsel for the respondent, however, argued that in constitutional jurisdiction findings of fact recorded by the Courts below are not to be interfered with. It is true that the findings of fact recorded by a Court or tribunal of competent jurisdiction are not to be interfered with in exercise of constitutional jurisdiction unless the finding is shown to be arbitrary, capricious or is based on no evidence at all. In this jurisdiction this Court is primarily concerned with jurisdictional errors which render the orders passed without lawful authority. It is also well-settled that no sanctity, attaches to an order passed by misconceiving the law or where the wrong approach given to a case has resulted in miscarriage of justice. In the instant case, the learned g Courts below failed to examine the case of the petitioner in its true perspective. It is unfortunate that the learned Courts below failed to determine the question whether in the admitted circumstances of the case, which have been noted above, the petitioner was entitled 'to the dissolution of marriage on the basis of Khula. There is also failure to notice that the respondent in his own examination-in-chief failed to controvert the allegation of the petitioner in this respect. It was only in cross-examination that he denied the suggestion in the following words:

The respondent even when asked in cross-examination failed to controvert the allegation specifically and candidly. The learned Appellate Court also did not examine this aspect of the matter closely as it disposed of this matter by observing that "this assertion was countered by the respondent". It also failed to notice that the petitioner was not cross -examined with respect to the aforesaid allegation when she appeared in the witness-box and repeated the said allegation.

3. The respondent was also heard by me. He submitted that father of the petitioner received money from him at different occasions and that matter when taken to the "baradri" it was settled that the father of the petitioner should give 7 Tolas of gold and Rs.10,000 to the respondent for seeking separation and Talaq. He expressed his willingness to give Talaq to the petitioner even now if Rs.10,000 in cash and 7 Toals of gold are given to him. He further stated that this he needs for contracting the second marriage.

4. The Family Courts while exercising jurisdiction under Family Courts Act have to exercise parental jurisdiction. It is for this reason that the law makes special provision for pre-trial hearing and for conciliation proceedings. It is duty of the Judge Family Court to find out the real cause of conflict between the parties. The enquiry for finding out the real cause of rift is not to be left to the parties alone. A Family Court has to play an important part and has to consider whether the rift between the parties is serious one and whether the possibility to reunite the spouses exists. If on consideration of overall circumstances a Family Court finds that limits of God will not be observed in their relation towards one another or that harmonious married state as envisaged by Islam will not be possible or that the couple is being forced into a hateful union, then the marriage should be dissolved applying the principle of Khula. In the instant case, as is apparent from the above discussion, the matter was not considered in its true perspective.

5. The net result of the above discussion is that the impugned judgments of the learned Judge Family Court and learned Additional District Judge are hereby declared to have been passed without lawful authority and are hereby quashed. Both the suits stand remitted to the Family Court for decision in accordance with the observations made and in accordance with law. The parties shall appear on 18th February, 1984 before the learned District Judge, Lahore, who would then entrust both the suits to the Family Court for disposal within three months from the date of the receipt of the record by it. These petitions thus stand accepted without any order as to costs. M. I. Petitions accepted.