ALI JAN vs Mst. AKBAR and others
This constitutional petition was filed under Article 199 of the Constitution of Pakistan 1973, challenging the judgment and decree passed by the Family Court, Rohri, which dissolved the marriage of the private parties on the ground of Khula'. The core legal question was whether the High Court, in the exercise of its constitutional writ jurisdiction, could interfere with a finding of fact regarding the dissolution of marriage on the basis of Khula' where relations between the spouses were severely strained and no appeal is provided under family law. The court dismissed the petition in limine, holding that findings of fact recorded by competent inferior courts cannot be interfered with in writ jurisdiction unless shown to be mala fide, arbitrary, perverse, or in excess of jurisdiction, and that exercising writ jurisdiction to review factual appreciations in family matters would frustrate the legislative intent behind barring appeals. The key principles laid down are that writ jurisdiction is discretionary and cannot take the place of an appeal, and that courts will not compel spouses to live together when relations are irreparably broken down.
- Whether the High Court can interfere with a finding of fact recorded by a Family Court in the exercise of constitutional writ jurisdiction?
- Can the constitutional jurisdiction take the place of an appeal in family matters where appeals are barred by law?
- Is a constitutional petition maintainable against a judgment and decree dissolving a marriage on the ground of Khula' based on severely strained relations?
- Article 199, Constitution of Pakistan 1973
ORDER
1. This Constitutional petition was fixed on 29-5-2000 when neither the petitioner nor his counsel was present and the matter was dismissed for non-prosecution.
2. Today I have, heard Mr. Mughal Mumtaz Ali Khan learned counsel for the petitioner and by consent of the parties restored the petition at its original position and heard the counsel at length.
3. The petitioner has sought the following reliefs in this Constitutional petition:-- "(a) To allow this petition by setting aside the impugned judgment and decree, dated 30-6-1999 and 30-6-1999 passed by the learned Family Court, Rohri and to dismiss the suit of the respondent as not maintainable.
4. (b)To refer the petitioner for medical check-up to any authorised medical officer.
5. (c)To restrain the respondent No.1 not to contract the marriage till the decision of this petition.
6. (d)To grant the cost of the petition.
7. (e)To grant any other equitable relief as deemed fit by this Honourable Court in circumstances of the case."
8. The facts in brief as narrated in the plaint are that the petitioner had married with respondent No.1 and after few days of the marriage, she left the house of the petitioner as she found him impotent.
9. Further she averred in her plaint that the attitude of the petitioner towards her was very harsh and cruel. He used to maltreat her and was addict of intoxication. The respondent No.1 therefore, developed intense hatred against the petitioner and she asserted that it would not be possible for the parties to live as husband and wife within the limits prescribed by Allah the Almighty. She therefore, filed the suit for dissolution of her marriage on the ground of Khula'.
10. The defendant/petitioner was served and denied the allegations levelled by the respondent No.1 in her suit. It was pleaded by the petitioner that she completely severed her relations with defendant/petitioner and his family members and after some time, she left the house of the petitioner.
11. The parties adduced their evidence in support of their pleas. Ultimately the suit filed by the respondent No.1 was decreed and the marriage of the spouse was dissolved on the ground of Khula'.
12. The instant petition is directed against the impugned judgment and decree, dated 30-6-1999 passed by Family Judge, Rohri, whereby he granted dissolution of marriage to the respondent No.1.
13. The appeal is not provided under the Family law, the petitioner has, therefore, invoked the writ jurisdiction. The impugned judgment is being attacked on the grounds that the evidence recorded by the trial Court is not appraised in right directions. It is pleaded that the evidence is misread, as the petitioner was neither impotent nor he maltreated and caused any torture to her. It is argued that the judgment may be set aside and the respondent No.1, may be directed to live with the petitioner as his wife.
14. It appears from the evidence adduced by the parties that the relations of young spouse are so severely strained that they cannot live together as husband and wife and cannot pass happy life with each other. It would, therefore, be futile to grant relief as prayed, in exercise of writ jurisdiction, as no fruitful result is expected to come out.
15. The object of taking away right of appeal under family matters specially against dissolution of marriage is meaningful. If the Constitutional jurisdiction takes place of appeal, then the intent and purpose of Legislature would be frustrated. The young spouse, under the circumstances, who seek separation should find out its new ways for passing happy life, in early days, after the divorce.
16. Relief cannot be granted in writ jurisdiction touching contractual elements. Finding of the fact recorded by the competent inferior Courts would not be open to interference by High Court in exercise of its writ jurisdiction. The Court which has jurisdiction in the matter can decide the matter rightly or wrongly and that order cannot be interfered with in writ jurisdiction, unless the same is mala fide, arbitrary, perverse or the Court has acted in excess of its jurisdiction.
17. Execise of writ jurisdiction is discretionary which is to be used in good faith having look to all the attending circumstances and relevant factors! of the case in hand. The same is to be used in just, fair and reasonable ways.
18. In the instant case Family Judge has dissolved marriage of respondent No.1 (Mst. Akbari) on the ground of Khula' as the relation of young spouse is so severely strained that they cannot live together as husband and wife.
19. Under such circumstances this Constitutional petition cannot be maintained and stands dismissed in limine, with no order as to cost.
Cited by 3 cases
- Naseem Akhtar D/o Muhammad Aslam vs Naveed Ullah S/oHaneef Khan 2014-PHC
- NASEEM AKHTAR vs NAVEED ULLAH 2015 PLJ Peshawar 136
- NASEEM AKHTAR vs NAVEEDULLAH 2017 CLC 269