ABDUL AZIZ vs Mst. MALIKA And Another

ABDUL HAFEEZ MEMON, J.---This petition is directed against the judgment passed by the learned High Court of Baluchistan declining to exercise jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in the petition filed by the petitioner against the judgment and decree of the Family Court.

2. The respondent No. 1, lady filed a suit for dissolution of marriage against the petitioner on the grounds of cruelty and attempt by the petitioner to persuade the lady to lead immoral life. The suit was contested by the petitioner and evidence was led by the parties. The learned Family Judge, after hearing them parties, decreed the suit by his judgment dated 31-12-1995, and dissolved the marriage between the parties. The petitioner thereupon filed Constitutional Petition in the High Court which was dismissed under the impugned judgment.

3. Mr. Tahir Muhammad Khan, learned counsel for the petitioner contended that the respondent No. l had, in her suit, made serious allegations against the petitioner but had failed to prove the same and, therefore, the Family Court was not justified in decreeing the suit filed by her. Learned counsel also argued that the suit was decreed on the basis of the solitary statement of respondent No. 1, whereas the other evidence also ought to have been led by her to substantiate her plea. He also argued that in the suit for dissolution of marriage she should have asked for Khula.

4. We find no force in either of the contentions. Indeed, proof depends on quality, and not quantity, of evidence. The learned Family Judge in considering the evidence adduced by the respondent No. l was convinced that the parties would not be able to lead a happy and harmonious life, and decreed the suit filed by the respondent No. 1. Thereafter, the learned High Court in the petition, filed by the petitioner against the judgment and decree passed by - learned Family Judge, after perusal of the evidence on record, dismissed the petition with the following conclusion:-- "Besides, the exercise of Constitutional jurisdiction is discretionary with the Court. We have perused the statement of respondent No. 1. The petitioner has not denied that he was already married and he has got a wife besides respondent No.1 was separately living for 2 months. Prior to the filing of suit she` clearly stated that she cannot perform marital obligations any more within the parametres as ordained by Almighty God. No evidence has come that there was any amount given in Haq-e-Mehr which could be returned. If a lady does not want to live with her husband who is already married and whose attitude is inimical and crual towards the second wife then the Court may not force the second wife to live with him. In such circumstances we are not inclined to exercise our discretion in favour of the petitioner."

5. Indeed, the judgments by the Courts below and the evidence on record would show that the respondent No. l had sufficiently proved her case. Thai being so, Family Court was well within its jurisdiction and was justified in 18 decreeing the suit and the learned High Court acted rightly in declining to interfere with the judgment and decree of the trial Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution. We, therefore, find no merit in this petition which is, accordingly, dismissed and leave is refused.