1986 PLP 2617 (CLC)

‑‑S. 14‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2‑ Dissolution of marriage‑‑Grounds for‑‑Appeal, competency of‑‑Appeal from decree passed by Family Court dissolving marriage on any other ground being barred except on grounds mentioned in S.2(viii)(d), Act VIII of 1939 relating to disposal of property of wife or preventing her from exercising her legal rights over same‑‑Appeal against decree of dissolution of marriage passed on ground of maltreatment of husband against wife, held, was not competent in circumstances. (e) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 199‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss.7 & 14‑‑D.ssolution of marriage‑‑Judgment in suit for dissolution of marriage‑‑Objection to‑‑Constitutional jurisdiction Object on that judgment in suit for dissolution of marriage was passed by Trial Court as Civil Court and not as Family Court, held though, correct but was of no significance as suit itself was registered as family suit, filed under provisions of Act XXXV of 1964 and subsequently, petitioner filed family appeal invoking appellate jurisdiction against order of Trial Court‑‑Such procedural lapse being of no help to petitioner, no interference would be called for in constitutional jurisdiction. Syed Madad Ali Shah for Petitioner. Syed Sarfraz Ahmed, A.A.‑G. for Respondent No.l Imam Ali Memon for Respondent No.2. This Constitutional Petition calls in question judgment, dated 27‑10‑1984 of learned Civil Judge, Tando Allahyar, Sind in a family suit, whereby, suit filed by respondent No.2 Mst. Shahar Bano for dissolution of her marriage has been decreed against her husband, who is petitioner before me, on the ground of cruelty. Briefly stated the relevant facts giving rise of this Constitutional Petition are that Mst.Shahar Bano filed a family suit against her husband Shafi Mohammad for dissolution of her marriage on several grounds. Shafi Mohammad filed written statement and contested the suit. There were allegations and counter‑allegations and the trial Court keeping in view the pleadings of the parties framed as many as 9 issues. In the evidence Mst. Shahar Bano examined herself and her father Jammo, and on the other side husband Shafi Mohammad examined himself and two other witnesses Jan Mohammad and Urs. The trial Court after assessing the evidence and hearing the parties found all issues against the plaintiff in the suit excepting issues Nos. 2 and 4, which are to the effect whether the husband is a man of questionable character and whether the husband had maltreated the plaintiff in the suit. It would be partinent to mention here that against the decision of learned Civil Judge an appeal was filed in the Court of District Judge Hyderabad as Family Appeal No. 174 of 1984 which was subsequently dimissed as withdrawn vide order, dated 18‑12‑1984 as the learned counsel who filed the appeal had conceded that the appeal was not maintainable. In this Constitutional Petition before me impugned judgment has been assailed on the ground that the learned Civil Judge had no jurisdiction to entertain the family suit and decree the same. In this context my attention was drawn to section 4 of the West Pakistan Family Court Act. 1964. Perusal of this section clearly shows that Civil Judge is included in the persons who have been declared to be competent to hear the family suits. Attempt was made to argue that a Civil Judge was bracketed with Qazi appointed under the Dastur‑ul‑Amal Diwani, Riasat Kalat and since no Civil Judges are appointed under the Dastur ul‑Amal Diwani, hence the Civil Judge was not competent. This argument is fallacious and without substance. Civil Judge is to be read disjunctively with Qazi, who is appointed under Dastur‑ul‑Amal Diwani, in Riasat Kalat. This means that Civil Judge had jurisdiction as well as Qazi appointed under Dastur‑ul‑Amal Diwani Riasat Kalat also has jurisdiction. Another argument raised was that there was not proper and sufficient evidence to warrant finding on issues Nos. 2 and 4 perusal of impugned judgment shows that evidence of all the witnesses recorded has been assessed by the trial Court. In this context it would be pertinent to mention that as long as the concerned Court has jurisdiction and there is no jurisdistional defect then on a question of finding of fact no interference is to be made in the Constitutional jurisdiction. Appreciation of evidence is exclusive function of the trial Court on the factual side. If there is no illegality committed then no interference is called for in writ jurisdiction even if some other view on the question of fact is possible. It was urged on behalf of the petitioner that the impugned judgment has been passed in contravention of Order XX, Rule 5, C.P.C. read with Rule 14 of the West Pakistan Family Courts Rules, 1955. There is no such contravention in the instant case because Order XX, Rule 5, C.P.C. required the Court to give finding on each separately unless the finding upon any one or more of the issues is sufficient for the decisions of the suit. Rule 14 (2) of the Rules mentioned above required the judgment and orders, which are appealable shall contain the point or points for determination, the decisions thereon, and the reasons in brief for the decisions. Perusal of the judgment in the instant, case shows that all the issues have been dealt with by the trial Court separately and reasons are also given for findings on all such issues. Some issues are briefly dealt with for the reason that hidden was on the party filing the suit and the burden was not discharged while issues Nos. 2 and 4 have been dealt with in detail in the light of evidence produced by the parties. It may be mentioned here that section 14 of the West Pakistan Family Courts Act, 1964 contemplates appeal from the decision of the Civil Judge to be competent before District Judge and from the decision of the District Judge or Additional District Judge to be competent before the High Court and further bar is provided that no appeal shall lie from decree passed by a Family Court dissolving marriage on any other ground or grounds specified therein except on the mentioned in Section 2 (viii)(d) of Dissolution of Muslim Marriages Act, 1939, which relates to the disposal of property of wife preventing her from exercising her legal rights over it. This shows that except on this ground if marriage is dissolve of by the Family Court on any other ground then appeal is not competent. In the instant case appeal is not competent for the reason that marriage has been dissolved by the Family Court on the ground of maltreatment Lastly, it was argued, that the impugned judgment has been passed by the Civil Judge as Civil Judge and not as Family Court and every where in the record it appears that the depositions are recorded and judgment is announced by Civil Judge Tando Allahyar as such and nowhere name of the Family Court is mentioned. Even seal ,'fixed on the certified copies also shows that this is seal of Civil Judge and not of Family Court. This objection appears to be correct to a great extent but looses significance when it appears that in the caption the suit registered is Family Suit No. 8 ofl984 and that being so it is to be understood that family suit is filed under the provisions of West Pakistan Family Courts Act which is the special law for the purpose. This procedural lapse does not help the petitioner for the reason that in this petition he has himself filed certified copy of memorandum of E appeal which he had filed in the Court of learned District Judge, Hyderabad against the impugned decision with order or withdrawal of appeal thereon. Now according to this memorandum of appeal, the petitioner has sought to invoke Family Court Appellate jurisdiction, which he has specifically mentioned under the title of the Court and then has filed the appeal as Family Appeal No. 174 of 1984 and in the caption has mentioned that as appeal is filed under section 14 of West Pakistan Family Courts Act, 1964 read with Rule 22 of Rules framed thereunder read with section 2 (viii) (d) of Dissolution of Muslims Marriages Act, 1939. Further in the order counsel for the petitioner conceded that appeal was not competent under the Family Law and the same was withdrawn and was allowed to be dismissed as withdrawn. Now it does not lie in the mouth of the petitioner to say that the impugned judgment was announced by the learned Civil Judge not as a Family Court but as Civil Judge only. No interference is called for in constitutional jurisdiction as such this petition is dismissed in limine. Although, I have treated above non‑affixation of Family Court seals as a procedural lapse keeping in view of peculiar circumstances of this case as stated above but the fact cannot be lost sight of that Rule 24 of the West Pakistan Family Courts Rules 1965 does require that every Family Court shall keep a seal of that Court which shall be circular in shape and shall have thereon, the inscription "Family Court" and the name of the District and such seal of the Court shall be used on all summonesses, orders, decree, parties and other documents under the Act of the rules framed there under. This rule has to be followed in letter and spirit. Copy of this order may be sent to the Registrar of Sind High Court for its circulation among the Judges who are invested with powers for trial of Family Suits under the provisions of West Pakistan Family Courts Act, 1964 and Rules framed there under to get such seals prepared and to use them in compliance with Rule 24 of the Rules mentioned above. H.B.T. Petition dismissed.