ALLAH JIWAYA vs JUDGE FAMILY COURT, AHMADPUR SHARQIA and another

ORDER

' On 23-6-1985 Mst. Ghulam Maryam, respondent instituted a suit for dissolution of marriage against Allah Jawaya petitioner on the grounds of habitual cruelty, misappropriation of her ornaments etc, false charge of adultery and non-maintenance for a period of two years She also alleged that he had divorced her orally. She further alleged that as it had become impossible for her to live happily with him she was entitled to dissolution of marriage on the basis of Khula. The petitioner contested the suit, denied all the allegations leveled against him and maintained that the suit had been filed on the instigation of the respondent's mother.

2. On the pleadings of the parties the following issues were framed.

' ISSUES:

(1) Whether defendant treated the plaintiff with habitual cruelty? OPP.

(2) Whether defendant disposed of plaintiff's ornaments etc.? OPP.

(3) Whether defendant leveled false charges of adultery against the plaintiff? OPP.

(4) Whether defendant has failed in providing the maintenance to the plaintiff for a period of two years? OPP.

(5) Whether defendant had pronounced Talak if so its effect? OPP.

(6) Whether plaintiff is entitled to get decree of dissolution of marriage on the ground of Khula if so on what terms? OPP.

(7) Relief.

3. The parties led their evidence on the above issues. After considering the said evidence and hearing their counsel the learned Judge Family Court decreed the suit finding issues No,1 and 6 in ,favour of the respondent. Issues No, 2 to 5, however, were decided against her.

4. Feeling aggrieved the petitioner has instituted the instant Writ Petition for a declaration that the impugned judgment and decree of the Court below were illegal null, void and without lawful authority.

5. I have heard the learned counsel for the petitioner at length and have also gone through the material available on record.

6. Learned counsel has contended that in the present case the entire evidence was written by the Reader of the lower Court which was an illegality, sufficient to vitiate the trial. The perusal of record reveals that only the statements of Bashir Ahmad and Ghulam Hussain PWs were written in the hand of the Reader but the learned Presiding Officer had given a note to the effect that the said evidence was recorded by the Reader on his dictation. Rule 10-A of the West Pakistan Family Courts Rules 1965 authorizes the Presiding. Officer of the Court to have the evidence of witnesses taken down in writing by someone else in his presence and hearing and under his direction and superintendence. In the present case the statements in question are signed by the Presiding Officer and it is clear from his note that the said statements were dictated by him to the Reader. The proceedings, therefore, do not suffer from any illegality as such.

6-A. Learned counsel further contended that the Court below had decided the case in its capacity as a Civil Court and as such the impugned judgment and decree which could only be passed by a Family Court were illegal and without lawful authority. The record shows that the judgment in question was delivered by Mr. Muhammad Aslam Chaudhry, Civil Judge 1st Class, Ahmadpur East and he had signed the said judgment as Civil Judge. The decree-sheet however, describes the Court passing the decree as: {{URDU TEXT}} Admittedly, Mr. Muhammad Aslam Chaudhry, Civil Judge is also invested with the powers of a Judge Family Court and therefore, misdescription of designation in the present case would not have any effect on the legality of the trial. It would be a misdescription which was demonstrably incorrect, falling within the maxim Falsa Demonstratio Non Nocat i.e a false description does not vitiate (a document). Reliance in this respect is placed on Piao Gul v. The State PLD 1960 SC (Pak)

307).

7. Learned counsel for the petitioner further contended that there was no reliable evidence on record to show that the parties could not live together happily and that the learned lower Court had not correctly appreciated the evidence on record and had placed reliance on untrustworthy witnesses. It is now an established principle of law that in writ jurisdiction findings of fact can only be interfered with if it is shown that the Courts below had misread the evidence or had not taken into consideration any material piece of evidence. Reliance in this regard is placed on the case of M.M. Khan and others v. Chief Settlement and Rehabilitation Commissioner of Pakistan and others PLD 1962 (W.P). Lahore 468 and Habibullah Khan v. The Election Tribunal, Jhang PLD 1962 (W.P) Lah.

797. Learned counsel has not been able to point out any such misreading of evidence. He however, wants this Court to reappraise the evidence on record which is beyond the scope of constitutional jurisdiction. This jurisdiction cannot be substituted for appellate jurisdiction and therefore, I am not persuaded to embark upon any discussion on the question as to whether the trial Court had not correctly appreciated the evidence on record and had placed reliance on untrustworthy witnesses.

8. Learned counsel has vehemently argued that the learned trial Court had wrongly excluded from consideration the statement of Muhammad Anwar DW-1 who being the father of the respondent was a very material and independent witness. This contention has no force. The witness has strained relations with the respondent because she is living with her mother who has instituted a suit for dissolution of marriage against him. It is in the evidence that the respondent is siding with her mother. The respondent has alleged in the plaint as well as in her statement before the trial Court that her father had forcibly given her in marriage to the petitioner. In these circumstances it is not difficult to understand that Muhammad Anwar DW is an interested witness who being the paternal-uncle of the petitioner had a motive to depose in favour of his nephew against her daughter who was opposed to him and was siding with his estranged wife. The learned trial Court, therefore, was right in not placing any reliance on him.

9. After having gone through the parties 'evidence it is not difficult for me to hold that the conclusions drawn by the learned' trial Court were correct and were supported by the material available on record. It can very well be gathered from the said evidence that there was no possibility of the parties living together happily within the limits prescribed by Allah.

10. No other point was raised.

11. In view of the above discussion it is held that the impugned judgment and decree do not suffer from any illegality and are not without lawful authority. The Writ Petition has no merit which is dismissed in limine.