2005 PLP 579 (MLD)

The brief facts out of which present writ petition arises are that petitioner and respondent No.1 solemnized marriage according to the injunction of Islam in the year 1993. Subsequently, the relationship of the spouses became strained. The respondent filed a suit for maintenance along with maternity expenses in the Court of Judge Family Court, Jhang on 29-11-2001. The contents of plaint reveal that the behaviour of the petitioner with respondent was very cruel since beginning of the marriage as he used to give severe physical beating to the respondent. Resultantly, the petitioner kicked the respondent out of his house after giving severe beating and snatching ornaments/garments from her. The contents of plaint further reveal that at the time of desertion, she was pregnant for two months and thereafter she gave birth to a child through operation in the Fatima Memorial Hospital and due to such complications, the child was kept in I.C.U. of the said Hospital for two months and later on, he died. The contents of plaint further reveal that due to mental psychological effect, the delivery took place after seven months of conception. The petitioner had divorced her on 30-1-2001 and solemnized second marriage, therefore, the respondent has filed aforesaid suit to get expenses of maternity and also maintenance till the period of Iddat from the petitioner-defendant. The income of the petitioner-defendant is Rs.25,000/Rs.30,000 per month, therefore, the respondent (wife) is entitled to get total Rs.2,09,224 including the expenses of maternity and other maintenance till the period of Iddat.

2. The petitioner-defendant filed written statement controverting the allegations levelled in the plaint by raising the following preliminary objections:-- (i) No cause of action accrued to the respondent-plaintiff to file said suit. (ii) The respondent-plaintiff is estopped by her act and conduct to file the suit. (iii) The conduct of the respondent-plaintiff remained objectionable. (iv) The respondent-plaintiff remained admitted in the Fatima Memorial Hospital, Lahore and a child was born through operation, but all the expenses were borne by the petitioner-defendant (husband). (v) The petitioner has also admitted that he has divorced the respondent-plaintiff and had solemnized second marriage. Out of pleadings of the parties, the following issues were framed by the learned trial Court:-- ISSUES (1) Whether the plaintiff is entitled for the decree of maintenance allowance and expenses incurred by her on medical treatment, if so, on what ground? OPP (2) Whether the plaintiff is not entitled to file this suit? OPD (3) Whether plaintiff is estopped by her words and conduct? OPD (4) Whether the suit is based on mala fide and has been filed just to harass the defendant? OPD (5) Relief. The learned trial Court decreed the suit vide impugned judgment and decree dated 5-7-2003 amounting to Rs.1,79,224 along with costs of the suit. The petitioner-defendant being aggrieved filed an appeal before the learned Additional District Judge, Jhang, who dismissed the same vide judgment and decree dated 24-2-2004, hence, the present writ petition.

3. The learned counsel of the petitioner submits that the respondent-plaintiff admitted in her cross-examination that she is residing at Lahore and the petitioner is also residing at Lahore. She had gone from Lahore to appear before the Jude Family Court, Jhang, therefore, Judge Family Court, Jhang has no jurisdiction to take the cognizance of the matter in view of Rules 6 of West Pakistan Family Court Rules, 1965 which criteria prescribed in the following terms:-- The Court shall have jurisdiction to try a suit within territorial local limits in the following effect:-- (1) Cause of action wholly or in part has arisen or. (2) Where the parties reside or last resided together. (3) Provided that in suit for dissolution of marriage or dower the Court divorced within the local limit of which the wife ordinary resides shall also have jurisdiction. He further submits that the respondent-plaintiff is not even ordinary residing in local limit of Judge Family Court at Jhang, therefore, the assumption of jurisdiction by Judge Family Court at Jhang is without lawful authority. He further submits that the First Appellate Court did not consider this fact, therefore, the judgment of both the Courts below are without lawful authority. He further submits that respondent No.1 in her statement has stated that she (wife) had given expenses of maternity qua the delivery of her child to her sister-in-law (Bhabi). She did not produce her sister-in-law in the witness-box, meaning thereby, she has with-held best evidence, therefore, both the Courts below erred in law to accept the oral as well as documentary evidence of the respondent-plaintiff. In support of his contention, he relied upon "Muhammad Luoman v. Bashir Ahmad" (PLD 1994 Kar. 492). He further submits that both the Courts below have misread the evidence on record by fixation of maintenance without determining the income of the petitioner. The income of the petitioner is Rs.6,000 per month; whereas maintenance has been fixed at Rs.1,000 per month in spite of the fact that respondent No.1 did not produce single witness to prove the income of the petitioner. He further submits that the documents relied by the Courts below were not proved in accordance with law and respondent No.1 has with-held best evidence and case was decided against the petitioner by Judge Family Court by misreading and non-reading of the record on the basis of evidence produced by respondent No.1. The witnesses produced by respondent No.1, are interested witnesses, but this fact was not considered by both the Courts below. He summed-up his arguments that the documentary evidence produced by respondent No.1 was not proved on record in accordance with law, therefore, judgments of both the Courts below are the result of misreading and non-reading of the record.

4. The learned counsel for the respondent submits that both the Courts below have concurrent findings of facts against the petitioner after proper appreciation of evidence, therefore, the Constitutional petition is not maintainable. He further submits that this Court has no jurisdiction to substitute its own findings in place of findings of Court below, while exercising power under Article 199 of the Constitution. He further submits that the petitioner has not raised preliminary objection qua assumption of territorial jurisdiction by the Judge Family Court at Jhang on the ground of territorial jurisdiction in view of rule 6 of West Pakistan Family Court Rules, 1965.

5. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.

6. It is pertinent to mention here that the petitioner has not raised preliminary objection in the written statement on the basis of rule 6 of West Pakistan Family Court Rules, 1965 and also did not agitate this ground in the memorandum of grounds of appeal, therefore, the petitioner is not within his right to raise this objection in the contents of writ petition on the well known principle that the parties are bound by their pleadings as per law laid down by the Honourable Supreme Court in "Mst. Murad Begum and others v. Muhammad Rafique and others" (PLD 1974 SC 322). It is settled principle of law that objection about the lack of jurisdiction of Court or Tribunal should be first raised before First Appellate Court or Tribunal seized with the matter. In case, objection has not been raised at proper time, then it cannot be made basis of invocation of exercising of writ jurisdiction. In arriving to this conclusion, I am fortified by "Nawab Din and others v. Muhammad Salim Aamer and others (1994 PCr.LJ 1831). It is admitted fact that the petitioner-defendant did not raise any objection about the jurisdiction to hear the case or about the maintainability of the suit, therefore, now it does not lie in his mouth to say that Judge Family Court, Jhang had no authority at all to hear and decide the case. The question of law raised with regard to territorial jurisdiction, has finally been decided by the Honourable Supreme Court in "Javaid Akhtar's case" (1988 SCMR 1751).

7. In view of the aforesaid circumstances, the contention of the learned counsel of the petitioner that assumption of jurisdiction in view of rule 6 of West Pakistan Family Court Rules, 1965 has no force. In my opinion the question as to the rates at which maintenance was allowed by the Courts below, cannot be agitated in this Court in Constitutional petition. The rates at which maintenance have been allowed, were fixed by the two Courts below, after taking into consideration the evidence produced by both sides and that concurrent findings of facts, thus rates reached by the said Courts of competent jurisdiction, cannot be challenged by invoking the Constitutional jurisdiction of this Court on the plea that the rates of maintenance so fixed are excessive as per law laid down by the Honourable Supreme Court in "Fazal Khitab v. Mst. Naheed Akhtar and another" (PLD 1979 SC 864). The relevant ratio of that cases is as follow:-- "That matters of controversy are concluded by findings of facts reached by the Family Courts, which are well supported by the evidence on record and such findings do not fall for any interference either by the High Court in its writ jurisdiction or by filing of petition by civil petition for leave to appeal before the Honourable Supreme Court." The aforesaid view was also taken by the Honourable Supreme Court in "Syed Muhammad Mashooq's case" (1984 SCMR 1138). It was held that concurrent findings of two Courts below granting the relief on the claim of the respondent based on evidence are findings of facts, which could not be challenged in Constitutional jurisdiction. The aforesaid proposition of law is supported by the following judgments:-- "Muhammad Sharif's case" (2000 MLD 2030). "Sohail Muhammad's case" (1998 MLD 182). "Rukhsana Tabassum's case (1999 CLC 878). "Ehsan-ul-Haq's case" (1991 SCMR 362). "Dawood Abdul Khaliq's case" (2000 CLC 1823). It is settled principle of law that where Courts possess the jurisdiction, findings recorded by the tribunals below would not disturb simply on the ground that another issue was possible on same evidence. This Court has no jurisdiction to substitute its own findings in place of findings of tribunals below while exercising powers under Article 199 of the Constitution, as per law laid down by D.B. of this Court in "Mussadaq's case" (PLD 1973 Lahore 600). Coupled with the facts that both the Courts below have given its concurrent findings of facts against the petitioner after proper appreciation of evidence, therefore, the Constitutional petition is not maintainable as per law laid down by the Honourable Supreme Court in the following judgments:-- "Khuda Bukhsh v. Muhammad Sharif and others". (1974 SCMR 279). "Muhammad Sharif and others v. Muhammad Afzal and others (PLD 1981 SC 246). "Abdul Rehman Bajwa v. Sultan Ahmad and others (PLD 1981 SC 522). It is pertinent to mention here that the provisions of C.P.C. and Qanun-e-Shahadat Order, 1984 in the family matter, are not applicable in stricto-senso. The documentary evidence was duly supported by the stand of the respondent-plaintiff. The documents were also proved by producing Sarfraz Khan P.W.2 and Doctor Masood Ahthar P.W.3 apart from herself. The petitioner-defendant did not produce any oral as well as documentary evidence to discard the stand of the respondent-plaintiff. It is settled principle of law that man can tell a lie, but documents cannot. Both the Courts below have given concurrent findings of facts, coupled with the facts that petitioner has admitted in written statement that he had divorced respondent No.1 (wife) and had solemnized the second marriage. The birth of child was also not denied by the petitioner in his written statement. The learned counsel of the petitioner failed to point out any piece of evidence, which was non-read and misread by both the Courts below, therefore, I am not inclined to interfere in the concurrent findings of the facts of the Courts below, which have been given after proper appreciation of evidence on record. In view of what has been discussed above, I do not find any force in this Constitutional petition; therefore, the same is dismissed with no order as to costs. M.H./M-804/L Petition dismissed.