Mst. ZEBA Versus ABDUL ALI

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition for leave to appeal has been filed against the judgment, dated 3 rd January, 2002 passed' by High Court of Balochistan, Quetta whereby Constitutional petitions filed by respondent have been dismissed with modification in the relief granted to petitioner-lady by learned Family Judge, Quetta and Additiorlal District Judge-II,, Quetta.

2. Pzecisely stating the facts of the case are that petitioner-lady Mst. Zeba got married with respondent Abdul Ali about twenty-six years back. She filed a suit against respondent Abdul Ali in May, 1997 for recovery of maintenance allowance for the period commencing from 1st May, 1994 till 30th April, 1997 and for future maintenance, in the Court of Family Judge, Quetta, with the averments that he failed to maintain her. However, she claimed maintenance allowance for three years, on the ground that maintenance allowance could be claimed beyond the period of three years. The suit was contested by the respondent Abdul Ali by filing written statement, wherein he denying the allegations and took the. plea that he had already divorced her on 26th August-, 1996, in presence of two witnesses and sent to her written divorce with a copy to Chairman, Municipal Committee. Learned trial Court, after hearing both the parties framed issues including the one that "Whether defendant has divorced plaintiff on 26th August, 1996"?. Both the parties produced evidence in support of their respective contentions and the learned Family Judge, after taking into consideration all attending circumstances, and evidence available on record, vide judgment; dated 24th March, 1999, decreed the suit in favour of petitioner, directing the respondent to pay maintenance allowance w.e.f. 26th August, 1996 till the passing of decree and future maintenance at the rate of Rs.900 per month. Respondent being aggrieved from the judgment of the learned Family Judge, Quetta filed an appeal before learned Additional District Judge-11, Quetta which too was dismissed vide judgment dated 27th July, 1999. Respondent feeling dissatisfied from the judgments of trial and Appellate Courts, filed two Constitutional petitions before High Court of Balochistan, Quetta. A Division Bench of learned High Court, after hearing both the parties and taking into consideration the judgments of trial and Appellate Court dismissed the Constitutional petition but modified the judgments impugned before it, to the extent that petitioner-lady shall be entitled to get maintenance allowance from the respondent for only three months (Rs.2,700). As such, petitioner-lady, feeling aggrieved from the judgment of the High Court, has filed instant petition for leave to appeal.

3. Learned counsel appearing for petitioner, inter alia, contended that according to Shia School of thought, respondent Abdul Ali did not pronounce Talaq in Arabic (ﻪﻐﻴﺼ) in presence of two witnesses. To substantiate his contention, he referred to para. 2517 (page 377) of the book (ﻞﻋﺎﺳﻤﻠﺍ ﺢﻳﻀﻮﺗ). He also relied upon the cases of Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousaf (PLD 1963 SC 51) and Mirza Qamar Raza v. Mst. Tahira Begum and 14 others (PLD 1988 Kar. 169).

4. It was argued by the learned counsel that the Family Court decided the issue "whether defendant, has divorced plaintiff on 26-8-1996?" against the respondent, after having appreciated the available evidence on record, according to the principle of Qanun-e-Shahadat Order, 1984, but learned High Court in its Constitutional jurisdiction under Article 199 of the A Constitution of Islamic Republic of Pakistan disturbed the findings of the fact contrary to the settled law that the findings of facts are intervened very rarely unless it is established that the trial Court has recorded the perverse findings and had drawn conclusion which is contrary to law.

We have heard the learned counsel appearing for petitioner and have also gone through the judgment cited by him as well as the book "(ﻞﻋﺎﺳﻤﻠﺍ ﺢﻳﻀﻮﺗ)" . In our opinion, the contention raised by the learned counsel needs examination in depth. As question of public importance is involved in, instant petition as such leave to appeal is granted.

Q.M.H./M.A.K./Z-105/S

Leave granted