HIDAYATULLAH vs AMNA BIBI and another

ORDER

' IJAZ-UL-HASSAN KHAN, J.--- Shortly narrated the facts relevant for the disposal of instant writ petition are, that Mst. Amna Bibi, respondent No,1, instituted suit (No,25/FC of 2001) on 20-9-2001 before learned Senior Civil Judge/Judge, Family Court, D.I. Khan against Hidayatullah petitioner, for dissolution of marriage. The suit was resisted by the petitioner. He also filed Suit (No,26/FC) on 18- 8-2002 against Mst. Amna Bibi for restitution of conjugal rights. Both suits were consolidated, appropriate issues were framed and after recording pro and contra evidence of the parties, learned Civil Judge/Judge, Family Court, D.I. Khan, who tried suits, through her judgment and decree dated 3-2-2003 dismissed suit for dissolution of marriage and decreed suit for restitution of conjugal rights. Mst. Amna Bibi, feeling aggrieved, filed appeals in the Court of learned District Judge, D.I. Khan which were entrusted to learned Additional District Judge, D.I. Khan for adjudication. The appeals were accepted, impugned judgment and decree of the trial Court was set aside. Suit for dissolution of marriage was allowed and counter-suit for restitution of conjugal rights was dismissed, vide judgment dated 16-7-2003.

2. Mr. Kalim Arshad Khan, Advocate for the petitioner has mainly contended that Appellate Court has totally ignored the evidence of the parties and has passed her judgment on conjectures and surmises which has resulted in manifest injustice. The submission of the learned counsel does not carry weight. A perusal of the impugned judgment reveals that plausible reasons have been given in support of the conclusions arrived at and no case of misreading or non-reading of evidence has been made out. A wife cannot be forced to live with her husband without her consent and liking.

She need not come out with logical objective and sufficient reasons regarding her claim of Khula. It is enough to show that A she had developed a fixed aversion for her husband and the parties cannot live together within the limits prescribed by God, which is the most important ingredient for grant of Khula.

3. Power of High Court in Constitutional jurisdiction are not analogous to those of an Appellate Court. Constitutional jurisdiction can only be exercised, if the lower Court has exceeded its jurisdiction or acted without jurisdiction. When a Court possesses jurisdiction finding of fact recorded by it cannot be disturbed merely on the ground that another B view is possible on the same evidence, unless that finding is based on no evidence, is fanciful or arbitrary. The object of taking away right of appeal under family matters is meaningful. If the Constitutional jurisdiction takes the place of appeal, then the intent and purpose of Legislature would be frustrated.

4. In the instant case, we find that the Appellate Court acted within the ambit of law and thus, judgment sought to be declared void from this Court was passed within the competence and jurisdiction conferred on the Court of law, that the same cannot be adjudged in Constitutional jurisdiction of this Court. Finding no merit in this writ petition, we dismiss the same in limine.