ABDUR RASHEED Versus HAMEEDA BEGUM
1. By this petition the petitioner has challenged the consolidated judgment given by the VII Extra Joint Civil Judge and Family Court Hyderabad, in Family Suit No.11/1987 and 18/1987. Briefly the facts are that the present respondent No.1 (hereinafter referred to as the plaintiff) had filed Suit No.1l/1987 for dissolution of marriage, recovery of dowry and maintenance allowance while the present petitioner (hereinafter referred to as the defendant) filed Suit No.18/1987 for restitution of conjugal rights. The case of the plaintiff is that she was married to the defendant on 29‑7‑1983 subject to the conditions incorporated in a prenuptial agreement dated 25‑7‑1983 in consideration of dower of Rs.2,500 payable on demand. It was also agreed in the said agreement that the defendant will pay Rs.300 per month to the plaintiff as maintenance in case of dispute which may have occurred for any reason on account of husband or wife. It is alleged by the plaintiff that after few months of marriage the defendant became hostile and started assaulting, beating and maltreating her and on some occasions threatened to kill her and even attacked her with open knife but she was rescued by the Mohalla People. At the intervention of respectable people of `bradari' she was sent back to live with the defendant on a number of occasions but the defendant did not show any change or improvement in his behaviour and finally turned her out in three clothes on her persons after giving her beating. At that time the plaintiff was three months pregnant. It is further contended by the plaintiff that the defendant wanted to marry with a daughter of his maternal‑uncle and also that she had objected to his use of narcotics, etc. which gave rise to the dispute and such conduct of the defendant. It was also claimed that the defendant and his father were annoyed because of demand of Rs.15,000 which was advanced to them as loan by the father of the plaintiff. The plaintiff has also contended that the dowry was not paid to her. The plaintiff further stated that she gave birth to a male child on 19‑5‑1984 and that the delivery expenses amounting to Rs.1,500 were all borne by her parents and she therefore filed the said suit for dissolution of marriage, her maintenance at Rs.300 per month till the subsistence of marriage and maintenance for child at the rate of Rs.200 per month and also Rs.1,500 towards delivery charges.
2. The defendant contested the suit and filed written statement denying all the allegations. His case is that the parents of the plaintiff had been visiting her alongwith Muhammad who is neither related to them nor belongs to their `bradari' and that he objected to the visit of the said Muhammad. It is further contended by the defendant that the plaintiff would leave the house and go away to parents without any reasons and even at one time she went away with the said Muhammad but every time at the pursuasion of the Mohalla people she returned to the defendant. It is further claimed by the defendant that the plaintiff had taken away golden ornaments and clothes worth Rs.15,000 and cash Rs.10,000 and she did not come back. The defendant has also claimed that twice he sent money orders of Rs.500 and Rs.400 in the months of June and July 1986 and also paid delivery charges. In the other suit filed by the defendant pleadings of the parties are similar. The two suits were consolidated and the trial Court frame consolidated issues as under:‑
(1) Whether defendant has neglected the plaintiff and failed to provide he maintenance for a period of more than 2 years? If yes, its effect?
(2) Whether the defendant habitually assaulted the plaintiff and made he life miserable by cruelty of conduct? If yes, its effect?
(3) Whether the plaintiff is living separately without just and sufficient, cause?
(4) Whether the plaintiff and her child are entitled to recover from the defendant maintenance allowance? If yes, at what rate and since when?
(5) Whether the defendant is liable to pay to the plaintiff delivery expense of the child Rs.1500 incurred by her parents?
(6) Whether the plaintiff is entitled for dissolution of marriage on the ground of Khula? If yes, on what consideration?
(7) Whether the defendant is entitled to any relief?
(8) What should the decree be?
3. Plaintiff has examined herself as Exh.21. P.W. Muhammad Shakir a Exh.35, P.W. Muhammad as Exh.36. Advocate for plaintiff closed her side a Exh.37. Defendant has examined himself as Exh.64 D.W. Bhory Khan as Exh. 7G DW Jamaluddin as Exh.
71. Advocate for the defendant has closed the side o evidence of defendant as Exh. 72.
4. On 29‑3‑1988 post‑trial proceedings was held but declared failed."
5. The trial Court after hearing the advocates of the parties, decreed the suit of the plaintiff (present respondent No.1) while the suit of the defendant (Petitioner) was dismissed.
6. I have heard Syed Jehangir Hussain Shah, learned counsel for the petitioner. He has stated that since the respondent No.1 has remarried recend, he would not make his submission with regard to dissolution of marriage but he would press this petition only with regard to the maintenance allowed by the respondent No.2. He has mainly contended that the orders passed by the respondent No.2 are without lawful authority as the respondent No.2 ha; completely ignored the evidence given by the DW Bhory Khan and also the face that earlier the respondent No.1 had moved an application before the Councillor (Exh.67) in which she had not claimed the maintenance charges and therefore she is now estopped from claiming the same. Learned counsel has further submitted that the present petitioner made a number of attempts to pay the delivery expenses to the respondent No.1 and her family but the same were declined or refused by them. Learned counsel has further contended that the respondent No.2 has not applied his mind to the facts of the case. He made efforts to point out certain details from the evidence of the witnesses and has made an endeavour to point out from the evidence that the plaintiff had failed to prove her case. Suffice it to say that I have examined the documents brought on record and the judgment of the Family Court. From the judgment it appears that the respondent No.2 has dealt with the evidence very minutely and the following points stand concluded by the trial Court:‑‑
(i) that the marriage was subject to prenuptial agreement of 25‑7‑1983 which provides for dower of Rs.2,500 payable on demand and maintenance of Rs. 300 per month payable to the plaintiff by the defendant in case of any dispute between the parties which may arise for any reason on account of husband or wife?
(ii) the plaintiff was maltreated and turned out of the house by the defendant and such incident was seen even by witness Muhammad Shakir who had informed the concerned persons;
(iii) that the plaintiff was pregnant at the time she was turned out and has given birth to a male child oh 19‑5‑1984;
(iv) on the petitioner's own admission in cross‑examination he had sent money orders in June and July 1986 i.e. more than two years after turning her out and that three money orders were sent through Bhory Khan in Railway Colony whereas the petitioner in his cross‑examination admits that the respondent No.1 lived in Katcha Oila Hyderabad.
7. From the above conclusions arrived at by the respondent No.2 it is quite clear that the present petitioner who was liable to maintain the respondent No.1 and the child has failed to do so and was liable to pay the same. Learned counsel for the petitioner has placed on record during the course of argument, a copy of application (Exh.67) in support of his contention that in the said application the respondent No.1 had not asked for maintenance and now she cannot claim the same. A simple reading of the said application shows that in the prayer in the said application the petitioner has said (Words missing).
8. This shows that the respondent No.1 in the application also had claimed for her maintenance as well as that of the child.
9. That the learned counsel for the petitioner then argued that the respondent No.2 has wrongly determined the quantum of maintenance which is not in proportion to the earning of the petitioner. With regard to the contention` of the learned counsel it may be observed that the judgment of respondent No.2 on issue No.4 shows that the present petitioner has deposed in his evidence that he is earning Rs.600/700 per month and apart from that he is earning Rs.200/300 A per month from Electrician work. This witness Jamaluddin also stated that the monthly income of the defendant is Rs.800 to Rs.1,000. In my view the payment of Rs.300 per month to the respondent No.1 till subsistence of her marriage and Rs. 100 per month to the child as awarded by the respondent No.2 cannot be said f to be out of proportion.
10. Mr. Raja Khan, learned counsel for respondent No.1 has submitted that this Court in exercise of constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, would not sit as a Court of appeal to sift the evidence but all that this Court has to do is to see as to whether the judgment of the respondent No.2 has been passed in due exercise of its jurisdiction and is not without lawful authority. He has placed reliance on the case of Ali v. Additional District Judge‑1, Quetta and another (1986 C L C 27) wherein it has been held:‑
11. "9. It cannot be urged that there was no evidence on record on the basis of which the decree for dissolution of marriage on the ground of exercising the option of puberty could have been granted. This Court on the basis of the evidence on record might have taken a different view in the matter, or might have held that the evidence produced by the respondent No.2 was not such on which implicit reliance could have been placed. But this fact does not warrant interference by this Court in exercise of constitutional writ jurisdiction. A competent Tribunal may take an erroneous view on a question of fact, but this itself does not attract constitutional writ jurisdiction of the High Court. The High Court's constitutional writ jurisdiction can be pressed into service when a finding of fact is recorded on the basis of no evidence on record, or when it is based on misreading of evidence, namely contrary to what is on record, but the question of appraisal of evidence or the assessment of the evidentiary value of such evidence or drawing of inferences from such evidence is within the competency of a tribunal constituted for the purpose of adjudicating upon a particular dispute. In the above case, the Family Appellate Court was a Court of competent jurisdiction. It had the same power as the Family Trial Court and therefore, was competent to reappraise the evidence and to take a contrary view to what was recorded by the Family Trial Court:'
12. He has also relied on the case of Abdul Rahman Bawaja v. Sultan and 9 others (P L D 1981 SC 522) wherein it was held:‑
13. "11. The question of jurisdiction of High Court under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the Ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction."
14. I agree with the above said contention of the learned counsel for the respondent.
15. From the above discussion I find no force in the present petition which is dismissed. However, there will be no order as to costs.
16. AA./A‑789/K petition dismissed