1984 PLP 1138 (SCMR)

‑‑ Art. 199‑West Pakistan Family Courts Act (XXXV of 1964) S. 7‑Dissolution of marriage‑Certain plea not raised in Constitu tion petition but decree passed in suit alone was challenged therein Plea in question even otherwise not open for consideration by High Court but should have been raised by petitioner either in proceedings for dissolution of marriage or in Court of Family Judge who passed decree ‑Refusal of High Court to go into such plea, held, unexcep tionable in circumstances. Petitioner in person. S. M. Gharib Nawaz, Advocate‑on‑Record for Respondent No.

1. Date of hearing : 31st May, 1984. S. A. NUSRAT, J.‑By the impugned order, dated 27‑11‑1983 a Cons titution petition of the petitioner was dismissed by the Sind High Court which has given rise to this petition for leave to appeal. The facts of the case are that the first respondent, who is the divorced wife of the petitioner, filed suit for the recovery of Rs. 11,000 on account of dower, return of bridal gifts worth Rs. 20,000 and maintenance allowance of Rs. 14,567 in the Court of XXIII Civil and Family Judge, Karachi. The suit was, however, decreed for Rs. 11,000 for dower amount and Rs. 3,000 on account of maintenance for the Iddat period on 27‑4‑1983. The petitioner's appeal challenging the judgment and decree of the trial Court was dismissed by the Additional District Judge, Karachi, on 8‑10‑1983. The said two judgments were challenged by the petitioner in the Sind High Court by filing a Constitution petition which was dismissed as per impugned judgment. According to the petitioner, who appeared in person, the respondent was not entitled to any decree for dower amount because she had allegedly given up her claim in respect of the same by an oral agreement. It was further contended by the petitioner that the decree for Rs. 3,000 on account of maintenance for the Iddat period was excessive as it was disproportion ate to his monthly income. Both tile above contentions were rejected by the learned High Court, and rightly so, on the ground that the findings of the two Courts granting relief on the claim of the respondent were based on evidence and were one of fact which could not be challenged in a Constitution petition. Besides the above contentions, it was also urged by the petitioner before the High Court that the marriage was illegal and the dissolution of marriage was obtained on bilateral basis on certain terms. The learned High Court refused to go into these questions on the ground that the petitioner had not raised any such plea in his Constitution petition and the decree passed in the suit, alone had been challenged. Even otherwise such questions were not open for consideration which should have been raised by the petitioner either in the proceedings for the dissolution of marriage or in the Court of the Family Judge who had passed the decree. The findings of the learned High Court are unexceptionable. We find no substance whatsoever in this petition which is accordingly dismissed. M. Z. M. Petition dismissed.