2019 PLP 34 (CLCN)

MUHAMMAD FAISAL KAMAL ALAM, J.

Through the present petition, the petitioner has partly challenged the Judgment and Decree dated 20.01.2017 passed in Family Appeal No. 11 of 2016. The present petitioner was the husband of present respondent No.3 (Mst. Noureen Khan), Official respondents Nos.1 and 2 are the Presiding Officers of the learned Courts who have passed the Judgment and Decree in respect of dissolution of marriage by way of Khula, maintenance for the Iddat period and return of dowry articles.

2. Mr. Tarique G. Haneef Mangi, Advocate, representing the petitioner, has argued that he has partly questioned the impugned decision (of 20.01.2017) handed down by the Appellate Court in the above Family Appeal to the extent of dowry articles as per the list Exh.P.1(T). Per learned counsel the impugned decision is a result of non-application of judicial mind, particularly in respect of the evidence led by the parties. It has been further argued that both the decisions of learned Trial Court/Family Court as well as the appellate Court did not consider the material evidence on record and thus both the decisions have resulted in non-reading and mis-reading of the evidence.

3. On the contrary Mr. Hamayoun Shaikh learned counsel for the respondent No.3 (plaintiff in Family Suit No.41 of 2014) has controverted the arguments of petitioner's side. The main contention of learned counsel for private respondent is that the Courts below while granting the decree of Khula and awarding maintenance of Rs. 15,000/- per month for the iddat period, return of gold ornaments and dowry articles as mentioned in paragraph No.3 of the plaint, have properly appreciated and evaluated the respective testimonies of the contesting parties.

4. Rival submissions have been taken into the account and record considered.

5. Admittedly, the petitioner has not challenged the awarding of maintenance as well as the dissolution of his marriage by way of khula but the main grievance of the petitioner is that while partly upsetting the finding of fact of the learned Trial Court to the extent of Issue No.2, by excluding the return of gold ornaments, the criteria invoked by the learned Appellate Court in this regard was not applied properly. As per the petitioner's side, if the learned Appellate Court has disallowed/overruled findings of learned Family Court about return of the jewelry/gold ornaments to respondent No.3, that is, when it has been held by the learned Appellate Court that the latter (respondent No.3/plaintiff) is not entitled to recover jewelry gold ornaments then the Exh.P.1(T) since does not contain the receiving signature of the petitioner, therefore, this document should also have been excluded from the consideration of the Appellate Court and directions to return the dowry articles should not have been given. Entire evidence of the Family Court about return of dowry articles as well as jewelry/gold ornaments should have been set aside instead of partly modifying the Order of learned Family Court to the extent mentioned above.

6. It is also an admitted fact which has surfaced during the course of arguments that the present petitioner has already filed a F.C. Suit No.66 of 2016 against the present respondent No.3, for recovery of dowry articles and gold ornaments/jewelry and cash of Rs. 75,000/-; it was though dismissed by the Judgment dated 17.05.2017, but the learned counsel for the petitioner has made a statement at Bar that on his application the said judgment which was given under Order XVII, Rule 3 of C.P.C., has been set aside/recalled and the above suit has been restored to its original position. In this view of the matter, any observation or finding on the main contention of the petitioner's side would prejudice the proceedings of the F.C. Suit No.66 of 2016, which is sub judice before the Court of learned 1st Senior Civil Judge, Sukkur.

7. Secondly, the scope of writ jurisdiction in disputes of the nature is quite limited. The Court while exercising writ jurisdiction is not supposed to go into the question of appraisal of the evidence; in fact, this is what the petitioner side is trying to achieve in the present proceedings, which is not permissible: The perusal of the impugned decision of the learned Appellate Court shows that it has examined the evidence in detail while handing down its findings.

8. Thirdly, the learned counsel for the petitioner has failed to point out any jurisdictional error or material irregularity floating on the surface or perversity in the impugned decisions and particularly in that of the learned Appellate Court, which can justify any interference in the present proceedings. The reported decision - 2004 CLC 1545 (Lahore) [Mirza Shahid Baig v. Mst. Lubna Riaz and 2 others] is of relevance here, which has been cited by the learned Counsel for the private Respondent No.3. After considering various Judicial pronouncements on the subject, it has been held in the above reported decision that the West Pakistan Family Courts Act, 1964 is not only a special law but is of remedial nature and thus is on a higher pedestal than an ordinary statute. It would be advantageous to reproduce the relevant portion of the above decision herein under-- "The plea raised by the learned counsel of the petitioner qua considering the documents cash memos by the Karachi High Court in Syed Munir Hussain v. Shamsa Safdar PLD 2003 Kar. 519 and laid down the following principle:- "The only grievance of the appellant is that Jahaiz list was not signed by the appellant. That is not customary in our society to get the Jahaiz list signed by bridegroom so as to avoid the controversies on the very first day of marriage. The cash memos, list of Jahaiz and the oral evidence by respondent have been appreciated by the two Courts below and the findings are concurrent."

9. Accordingly for the above reasons present constitutional petition is devoid of merits and is dismissed. Parties to bear their costs. MH/M-64/Sindh Petition dismissed.