MUHAMMAD ASHRAF vs ARSHAD MAHMOOD and others
This matter concerns a petition for leave to appeal against the dismissal of a constitutional petition by the Lahore High Court, which had upheld concurrent findings of lower courts regarding a family maintenance decree. The petitioner, a former husband and father, challenged an ex parte decree for maintenance awarded to his minor son and former wife, claiming lack of service of summons. The trial court had rejected his application to set aside the ex parte decree as time-barred under the Family Courts Rules, a decision affirmed by the District Judge and subsequently the High Court. The Supreme Court examined whether the High Court erred in refusing to exercise its discretionary constitutional jurisdiction. The Court held that the lower courts had correctly adjudicated the factual dispute regarding service and maintenance. It emphasized that jurisdiction under Article 199 of the Constitution is discretionary and should be exercised cautiously. Finding that the petitioner had failed to provide maintenance for his minor son for four years, the Court concluded the High Court exercised its discretion judiciously in refusing relief, and consequently dismissed the petition.
- Is the exercise of jurisdiction under Article 199 of the Constitution of Pakistan 1973 discretionary in nature?
- Can a High Court interfere with concurrent findings of fact by lower courts in a constitutional petition?
- Does the failure to provide maintenance to a minor child influence the court's exercise of discretionary relief?
- Rule 13, Family Courts Rules 1965
- Article 199, Constitution of Pakistan 1973
ORDER
1. ' USMAN ALI SHAH, J.--The petitioner seeks leave to appeal in a family matter, against the dismissal of his writ petition No,269 of 1985 vide impugned judgment.
2. ' The petitioner was married to Mst. Nasrin Begum on 13-2-1972 and he being an employee of the Railway, was living in the Railway Quarters with his wife. Respondent No,1 the only male child was borne from this marriage. A case under Offence of Zina (Enforcement of Hudood) Ordinance 1979 was registered against Mst. Nasrin Begum for helping her brother to entice the daughter of her next door neighbour in the railway quarters in which the petitioner was harassed by the police to produce his wife Mst. Nasrin Begum. In these circumstances the petitioner was allegedly constrained to divorce Mst. Nasrin Begum on 16-8-1980. This divorce was processed by the Union Council which awarded Rs,600 as maintenance allowance for the period of Iddat which was paid by the petitioner.
3. ' On 26-6-1982 after about two years of divorce the brother of Mst. Nasrin Begum instituted a suit before the Judge Family Court, Jhelum for the recovery of Rs, 2400 at the rate of Rs, 800 per month as maintenance for Iddat period and Rs,500 per month for the minor child Arshad Mahmood respondent No, 1 for three years. The said suit was decreed in favour of the defendants/respondents as an ex parte, vide judgment, dated 21-3-1983. An application was filed by the petitioner on 20-1(1-1983 for setting aside the ex parte decree on the plea that he `tad not been served with summons. ' The respondents also resisted the application. The learned Judge Family Court found the application as time-erred under Rule 13 of the Family Courts Rules and rejected the application ide his order, dated 7-11-1984. His appeal before the learned District Judge, ielum also failed vide judgment, dated 5-6-1985.
4. ' Being aggrieved the petitioner filed a Constitutional petition in the hore High Court, Rawalpindi Bench, Rawalpindi. A learned Single Judge of Lahore High Court declined to interfere with the findings of the Courts ow, vide impugned judgment. Hence this petition for special leave before this art. ' After hearing the learned counsel for the petitioner and perusal of the ings of the Courts below, we are not satisfied that a case for interference by High Court in the constitutional petition, with the findings of the Courts w was made out. As the case of the petitioner was based on facts which in our on the learned lower Courts have rightly adjudicated and concurrently tcl at a correct conclusion. Seeking interference under Article 199 of the itution is a discretionary one and always being used by the High Court pusly. A perusal of the record shows that in this case the petitioner has not single penny to the respondent No,1 who is his minor son, for the last four Under the circumstances, we think that the learned Single Judge of the .Ourt has used its discretion judiciously to refuse the relief prayed for by itioner.
5. The result is that this petition has no merit and accordingly is dismissed. Leave to appeal is refused.