1986 PLP 1418 (MLD)

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑ ‑‑‑S .14‑‑No appeal filed against finding of Trial Court decreeing suit for restitution of conjugal rights‑‑Decree in suit for restitution of conjugal rights in absence of appeal, held, would attain finality‑‑Such finding being based on evidence on record could not be deemed to be based on no evidence‑‑Finding of Court which had attained finality in absence of appeal and being based on evidence, held, could not be declared as without lawful authority in. constitutional jurisdiction of High Court. Abdul Rahim v. Shahida Khan P L D 1984 S C 329 distinguished. A. Majeed Khan for Petitioner. Rafiq Khanzada for Respondents. Date of hearing: 23rd April, 1986. This petition under Article 199 of the Constitution is filed by the petitioner to challenge the judgments of the trial Court, dated 12‑10‑1978 and that of the first appellate Court,. dated 13‑4‑1980 passed in Family Suit No.60 of 1978 refusing to dissolve the marriage of the plaintiff/ petitioner with defendant /respondent No.

1. The petitioner has also challenged the subsequent decree of the Family Court in Suit No.404 of 1978 instituted by respondent No.1 against the petitioner for restitution of conjugal rights. Learned counsel for the petitioner contends that the first appellate Court did not properly consider the contention of the petitioner for dissolving her marriage with the defendant /respondent No.1 on the ground of Khula. It is contended that from the evidence on record it is quite clear that the petitioner had expressed her extreme hatred to live with the respondent No.1 and in such circumstances, it was impossible for the parties to live within the limits prescribed by God. It is accordingly contended that the learned Court while dismissing the appeal of the appellant failed to exercise the jurisdiction, which was vested in the Court in the circumstances of the case to dissolve the marriage of the petitioner with the defendant/ respondent No.1 by way of Khula. With regard to judgment and decree in Suit No.404 of 1978 instituted by respondent No.1 against the petitioner claiming restitution of conjugal rights which was also decreed in favour of respondent No.1 by the Family Judge, the contention of the learned counsel for the petitioner is that the judgment and decree is based on no evidence and is liable to be declared as without .lawful authority on that ground. After hearing the learned counsel for the petitioner and respondents at length, I am of the view that no case for interference with the orde of respondents Nos. 2 to 4 is made out by the petitioner. In the suit instituted by the petitioner for dissolution of her marriage, with respondent No.1 originally no plea of dissolution of marriage by way o Khula was made in the suit. However, at the appellate stage a contention was raised on behalf of the plaintiff /petitioner that in view of the evidence brought on record which discloses extreme hatred of plaintif for respondent No.1 it was not possible for the parties to live within the limits prescribed by the God and as such marriage between the should be dissolved by way of Khula. This plea raised by the petitioner was considered by the trial Court under issue No. 6 although the judgment does not show that the trial Court was conscious of the plea of 'Khula'. Nevertheless the conclusion recorded by the trial Court under issue No.6 is that the petitioner failed to substantiate her allegation against respondent No.1. The learned 1st appellate Court, however, specifically examined the plea of Khula raised by the petitioner and reached the conclusion that no case for grant of 'Khula' is made out by the petitioner. The learned first appellate Court after examining the evidence in the case reached the conclusion that none of the allegations made by the plaintiff /petitioner against the respondent No.1 in her suit for dissolution of marriage could be substantiated by any evidence and further found that the circumstances of the case were not such as would lead to the conclusion that it is impossible for the Parties to live as husband at wife within the limits prescribed byr the God. The learned first appellant Court also reached the conclusion that the suit for dissolution of marriage was instituted by the plaintiff /petitioner at the behest and instigation of her parents and accordingly the learned Court reached the conclusion that it was neither reasonable nor justified in the circumstances of the case to dissolve the marriage between the plaintiff /petitioner an respondent No.1 by way of Khula. The fact that there existed circumstances in a case which justified dissolution of marriage between the spouse by way of 'Khula' solely depended on a positive finding b the Court that the parties could not live as husband and wife within the bonds prescribed by God which in turn would be principally question of appreciation of evidence and circumstances in each case. In the case before me both the Courts below after analysing the evidence led in the case by the parties reached the conclusion that evidence on recode did not justify an irresistible conclusive that the petitioner had developed such hatred for the respondent that it is no more possible for her to live with him as his wife and discharge her marital obligation within the limits prescribed by the God. This conclusion was arrived at by the first appellate Court after examining the evidence led by the parties before the trial Court and I have not been able to discover any misreading of evidence by the Courts below or perverse appreciation of evidence on record. No doubt the plaintiff /petitioner in her evidence stated before the Court that she did not want to live with the respondent /husband any more but this bare statement which did not find support either from the evidence on record or surrounding circumstances, was not sufficient to justify dissolution of her marriage with respondent No.1 on ground of Khula. Apart from it there is also one preliminary objection raised by the respondent No.1 to the maintainability of the petition namely, that subsequent to the dismissal of the suit of petitioner for dissolution of marriage the suit instituted by the respondent No.1 for restitution of conjugal rights was decreed by the family Court and against it no appeal was filed under the ramily Court Act. It is further contended that as no appeal was filed against the judgment in the latter suit instituted by respondent No.1 it has attained finality and it cannot be interfered with in the writ petition. The contention raised by the learned counsel for the respondent No.1 is not without force. The decree in suit No.404 of 1978 instituted b respondent No.1 was passed by the Family Judge for restitution of conjugal rights on 23‑2‑1980. It is not disputed that this order was subject to appeal under the provisions of Family Court Ordinance but no appeal has been preferred. This order has been challenged in this petition as without lawful authority and in support of the contention Mr. Abdul Majid Khan, learned counsel for the petitioner contended that the decree was passed in this case without any evidence of record. I have gone through the judgment passed in Suit No.404 of 1978 by the learned Family Judge and I do not find any such defect in the order. The evidence led by the parties has been referred in the Judgment that there is no reason to conclude that the judgment was based on no evidence. No ground whatsoever is made out to justify declaration of the judgment and decree passed in Suit No.404 of 197 as without lawful authority. Learned counsel for the petitioner contend that as the judgment in the earlier suit instituted by the petitioner for dissolution of her marriage was decided against her by the appellat authority and as such no useful purpose could be served by filing appeal against the judgment in suit No.404 of 1978 before the same Court. This argument has no relevance as the petitioner having failed to avail the statutory alternate remedy by, way of appeal which was much wider in scope could not challenge the judgment and decree in suit No.404 of 1978 under Article 199 of the Constitution. More so, when the judgment and decree did not suffer from any defect o jurisdictional character. Learned counsel for the petitioner has relied on the case of Abdul Rahim v. Shahida Khan P L D 1984 S C 329 t support his contention that in spite of two concurrent findinos by the Courts below the High Court in exercise of his constitutional jurisdiction could reappraise the circumstances in a case and order for dissolution of marriage by way of Khula. The case cited by the learned counsel in quite distinguishable as in that case, the learned judge in Chambers came to positive conclusion after reappraisal of material on record that the wife had expressed her extreme hatred for the husband and it was not possible for her to reconcile with her husband within the limits prescribed by the God and on such consideration the petition failed by the wife was allowed and it was observed that appeal filed by her before the first appellate Court against the dismissal of her suit for dissolution of marriage shall be deemed to be pending and will be disposed of in accordance with law. The above-cited case had its own peculiar and exceptional circumstances. In the present case after examining the evidence on record I do not‑find any case for interference with the findings of the Courts below with regard to the circumstance which justified dismissal of the suit for dissolution of marriage by was of Khula. Apart from it, the suit instituted by respondent No.1 for restitution of conjugal rights was decreed by the Court and the petitioned having failed to challenge the same it has attained finality in law and cannot be interfered within these proceedings now. In these circumstances, interference with the judgment and decree in the suit instituted by the petitioner for dissolution of her marriage cannot b made in these proceedings. No case for interference is made out. They writ petition is accordingly dismissed but there will be no order as to costs. A.A. petition dismissed.