2007 PLP 551 (MLD)

IJAZ-UL-HASSAN KHAN, J.

Mst. Nizakat, Bibi, respondent, filed suit on 29-6-2004, before Judge, Family Court, Malakand at Dargai, against her husband Rehman Gul, petitioner, for dissolution of marriage, recovery of dower, maintenance and return of dowry articles. It was averred in the plaint that petitioner married respondent in consideration of gold ornaments, weighing 3 Colas as dower. At the time of marriage, parents of the respondent had given her dowry articles valuing Rs.20,

000. After marriage, the relations between the couple were not cordial due to ill treatment of the petitioner and his parents. After about one month of the marriage, petitioner expelled the respondent out of his house, depriving her of her gold ornaments and dowry articles. The respondent came hack to the petitioner's house due to efforts of the elders of the locality. She was again kicked out of the house. During the period of separation, she has not been looked after and paid maintenance.

2. The suit was resisted and the allegations of the respondent were denied. Relevant issues were framed and the parties were allowed to adduce evidence in support of their respective contentions. At the conclusion of trial, learned Judge, seized of the matter, partially decreed suit vide judgment and decree, dated 30-3-2006, qua dissolution of marriage, recovery of gold ornaments weighing two tolas, recovery of dowry articles, valuing Rs.5000 and maintenance for the past 24 months at the rate of Rs.1000 P.M.

3. Feeling aggrieved, the petitioner has filed instant writ petition, which is before us for consideration.

4. Learned counsel for the petitioner contended that judgment of the trial Court suffers from serious infirmities and the trial Court has not considered the legal and factual aspect of the case and has misread and non-appraised the evidence. He also contended that respondent left the house of the petitioner of her own and, as such, she was not entitled for maintenance. The finding recorded on issue No.7, regarding cruelty, were also brought under challenge. To substantiate the contentions, reliance was placed on the following citations: Mst. Bushara Nazneen v. Allah Ditta and 2 others (2004 CLC 1700), Muhammad Asad Khan. v. Mst. Sadaf Niaz and another (2005 CLC 1881), Muhammad Zafar, v. Judge, Family Court and another (2005 CLC 1844), Abdul Rauf v. Mst. Raffia Gul and 2 others (2003 YLR 3047), Mst. Hanifa Bai v. Muhammad Moosa and another (PLD 1998 Karachi 234) and Dr. Anees Ahmad v. Mst. Uzma (PLD 1998 Lah. 52).

5. Jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is completely discretionary in nature and may be declined in appropriate cases. While exercising constitutional jurisdiction, this Court has to see, if the Tribunal or Court acted without jurisdiction or in violation of any relevant statute or law and High Court in such cases cannot embark upon a reappraisal or evidence and proceeded as if it was hearing an appeal from a subordinate Court. It is the job of the appellate Court to appraise the evidence and same has been done in the instant ease in accordance with law. No irregularity or jurisdictional defect has been pointed out by the learned counsel for the petitioner inviting interference of this Court.

6. No doubt, it is true that a husband is not bound to maintain his wife who refuses herself to him or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty, but in the instant case situation is altogether different. It stands established from the material on record that after marriage, the relations between the spouses were not cordial due to ill treatment of the petitioner and his parents, which led the respondent to leave the house of the petitioner and take abode in the house of her parents. It is also evident from the record that dower amount has not been paid by the petitioner to the respondent and dowry articles of the respondent are in possession of the petitioner. There is no evidence on the record to suggest that after marriage the relations between the couple were cordial but the respondent left the house of the petitioner of her own without any fault on the part of the petitioner. The impugned judgment and decree is supported by actual evidence on the file and hardly calls for interference of this Court in its constitutional jurisdiction. The authorities cited on behalf of the petitioner are distinguishable and do not promote case of the petitioner in any manner. The writ petition is devoid of force. The same is dismissed in limine. H.B.T./21/P Petition dismissed.