2007 PLP 570 (MLD)

IJAZ-UL-HASSAN KHAN, J.

Mst. Joomreza, respondent, instituted a suit on 7-7-2004, against her husband Bakht Zada, petitioner, for dissolution of marriage, recovery of dower and maintenance and custody of Mst. Hussan Jamala, minor. It was alleged in the plaint that the petitioner married respondent about 10 years prior to the institution of the suit and three children were born out of the wedlock. After six years of the marriage, the relations between the spouses became strained due to stated ill treated of the petitioner and refusal on his party to pay dower of the respondent. It was also asserted that during the period of separation, the petitioner has not cared to pay maintenance allowance.

2. Bakht Zada, petitioner, also filed a suit on 9-8-2004, for restitution of conjugal rights. Both the suits were consolidated. Issues were framed and after recording such evidence as the parties wished to adduce, suit of Mst. Joomreza was partially decreed qua dissolution of marriage and recovery of dower and maintenance allowance, by judgment and decree, dated 15-12-2004, passed by learned Senior Civil Judge/Judge Family Court, Shangla. The prayer of the wife for custody of her minor daughter was declined. The suit of the husband for restitution of conjugal rights was dismissed. An appeal was preferred thereagainst by the husband, which did not succeed. The same was dismissed by learned District Judge/Judge Family, Shangla, vide judgment, dated 27-4-2006.

3. Feeling aggrieved, Bakht Zada, petitioner has approached this Court by way of filing instant writ petition, which is before us for consideration.

4. Learned counsel for the petitioner, contended that judgments and decrees of the forums below suffer from the vice of mis-reading and non-reading of evidence on record. He also contended that sufficient material was available on the file to demonstrate that dower was paid to the respondent-wife at the time of marriage and the respondent-wife left the house of the petitioner-husband of her own and refused to come back despite best efforts of the petitioner-husband, which has not been appreciated in its true perspective and that the document Exh.D.W.1/2 has been ignored without any justifiable reason, which has resulted in complete failure of justice.

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 appreciate 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 of evidence and proceed as if it was hearing an appeal from a subordinate Court. It is the job of the appellant Court to appraise the evidence and same has been done in the instant case 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. Tribunal having jurisdiction to decide a matter is competent to decide. its rightly or wrongly and mere fact that decision is incorrect does not render the decision as without lawful authority, as held in Zulfiqar Khan Awan v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 8 others (PLD 1973 SC 530).

6. The marriage under Islamic law is a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Quran and it is for the comfort, love and compassion. It is the bounden duty of husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live within those bounds and if the parties transgress those parameters, they should relieve each other i.e. they may break matrimonial tie with kindness.

7. 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. It is clear from the material on record that the time of marriage a sum of Rs.10,000 was fixed as dower of the respondent-wife, which has not been paid. There is also evidence on the file to prove that the respondent was kicked out from the house by the petitioner and all throughout the petitioner did not provide any maintenance to her. The record further reveals that the petitioner has contracted second marriage without prior permission of the respondent. The judgments and decrees passed by the Courts below are supported by actual evidence on the file and no material portion of evidence seems to have been mis-appreciated, non-appreciated or kept out of consideration. The writ petition has no force and the same is accordingly dismissed in lilnine. H.B.T./19/P Petition dismissed.