Syed MUHAMMAD MASHOOQ vs Mst. NAFIS FATIMA AND OTHERS
This matter arises from a petition for leave to appeal against the dismissal of a Constitution petition by the Sind High Court, which had upheld concurrent findings of the lower courts granting a divorced wife decrees for dower and maintenance during the Iddat period. The core legal questions involved whether concurrent factual findings regarding dower and maintenance could be interfered with in constitutional jurisdiction, and whether pleas regarding the legality of the marriage, raised for the first time without being pleaded in the petition, could be considered. The Supreme Court held that findings of fact based on evidence by the lower courts are unexceptionable and cannot be challenged in a Constitution petition, and that pleas not raised in the petition or in the original family proceedings cannot be entertained. The key principle laid down is that constitutional jurisdiction cannot be invoked to reopen concurrent findings of fact based on evidence, nor to entertain new factual pleas not raised in the pleadings below.
- Can concurrent findings of fact regarding dower and maintenance be challenged in a Constitution petition?
- Whether a party can raise new pleas regarding the legality of a marriage for the first time in a Constitution petition without pleading them in the petition or before the trial court?
- Are findings of fact based on evidence by lower courts open to interference under constitutional jurisdiction?
ORDER
1. ' S. A. NUSRAT, J.-By the impugned order, dated 27-11-1983 a Constitution petition of the petitioner was dismissed by the Sind High Court which has given rise to this petition for leave to appeal.
2. ' The facts of the case are that the first respondent, who is the divorced wife of the petitioner, filed suit for the recovery of Rs, 11,000 on account of dower, return of bridal gifts worth Rs, 20,000 and maintenance allowance of Rs, 14,567 in the Court of XXIII Civil and Family Judge, Karachi. The suit was, however, decreed for Rs, 11,000 for dower amount and Rs, 3,000 on account of maintenance for the Iddat period on 27-4-1983. The petitioner's appeal challenging the judgment and decree of the trial Court was dismissed by the Additional District Judge, Karachi, on 8-10-1983. The said two judgments were challenged by the petitioner in the Sind High Court by filing a Constitution petition which was dismissed as per impugned judgment.
3. ' According to the petitioner, who appeared in person, the respondent was not entitled to any decree for dower amount because she had allegedly given up her claim in respect of the same by an oral agreement. It was further contended by the petitioner that the decree for Rs, 3,000 on account of maintenance for the Iddat period was excessive as it was disproportionate to his monthly income.
4. Both the above contentions were rejected by the learned High Court, and rightly so, on the ground that the findings of the two Courts granting relief on the claim of the respondent were based on evidence and were one of fact which could not be challenged in a Constitution petition.
5. ' Besides the above contentions, it was also urged by the petitioner before the High Court that the marriage was illegal and the dissolution of marriage was obtained on bilateral basis on certain terms. The learned High Court refused to go into these questions on the ground that the petitioner had not raised any such plea in his Constitution petition and the decree passed in the suit, atone had been challenged. Even otherwise such questions were not open for consideration which should have been raised by the petitioner either in the proceedings for the dissolution of marriage or in the Court of the Family Judge who had passed the decree. The findings of the learned High Court are unexceptionable.
6. ' We find no substance whatsoever in this petition which is accordingly dismissed.
Cited by 3 cases
- MUHAMMAD ASHAQ vs AZIZURRAHMAN and 2 others 1993 CLC 2293
- GHULAM DASTGIR vs MUHAMMAD ZAKRIA JAVED And Other 1987 SCMR 796
- MUHAMMAD ZAKRIA vs Mst. KHAIRUNNISA and 3 others 1987 CLC 422