MUHAMMAD SADIQ HUSSAIN vs Mst. KHURSHID FATIMA AND Another

ORDER

1. DORAB PATEL, J.-The petitioner married the first respondent in 1969 but their marriage was not successful and it would appear that they had been living apart since 1971. Further according to Mr. Akhtar Ali, the first respondent had unsuccessfully filed several suits against the petitioner in order to harrass him but all those suits were dismissed. Be this as it may, in 1976 the first respondent filed a suit in the Court of the Family Judge. Campbellpur for the dissolution of her marriage with the petitioner. Although the petitioner contested this suit, he admitted that be and his wife had lived apart for almost five years. And he did not allege that be had ever paid her any maintenance allowance. In these circumstances and in view of the evidence of the first respondent, the learned Family Judge decreed the suit and granted the first respondent the divorce sought by her. And as the first respondent had claimed Rs. 10,000 as the dower amount, the learned Family Judge pointed that the petitioner had admitted that Its. 10.00 bad been fixed as the dower but contended that the first respondent had relinquished bar claim to it and as he was not impressed by the petitioner's evidence, he decreed the dower amount also in favour of the first respondent, therefore, the petitioner filed a writ petition in the Lahore High, Court to challenge the Family Court's judgment.

2. But as this writ petition was dismissed in limime on 6.6-1977, he had filed this petition for leave.

3. Mr. Akhtar Ali's first submission was that the Family Court's judgment was without lawful authority because it had not followed the procedure prescribed under the West Pakistan Family Court Act, 1964 (hereafter called the said Act) for pro-trial conciliation proceedings. This submission cannot be examined without the record of the Family Court and as that is not available, we invited learned counsel to assist us on this aspect of the case, especially with reference to the observations of the High Court on the fact that the petitioner's 'case was being defended at all stages by the petitioner's father.Mr. Akhtar Ali was not' able to challenge the, High Court's finding that the first respondent---s snit "was being defended on behalf of the petition by his father, and that the Family Court had tried to effect a conciliation between the parties required under the said Act, by Questioning the petitioner's father on the petitioner's behalf. As the petitioner does not appear to, have shown interest in the suit against him, the fact that his father was questioned on his behalf at the pro-trial stage would, at the highest, an irregularity, which has not in any way affected the out- come of the suit therefore the High Court- would not have been justified in interfering with the Family Court's judgment .On this ground in its limited constitutional jurisdiction.

4. Mr. Akhtar Ali's second submission had reference to the fact that tile Family Court had decreed the first respondent's claim for dower in the sum of Rs. 10000. As an issue had not been framed separately on the question of the quantum of dower, the submission was that the failure to frame such an issue had led to injustice which warranted interference by the High Court even in its limited constitutional jurisdiction. The argument is totally misconcieved because as pointed out by the learned Single Judge in the High Court the petitioner was given full opportunity to produce evidence on the question of the amount of the dower, but he did not and admitted; that the dower had been fixed at Rs. 10,000. And the claim for dower way decreed because the Family Court held that the petitioner's uncorroborated word vas not sufficient to prove his plea that the first respondent had relinquished her claim for dower. Clearly, therefore, the finding of the Family Court was based on evidence, and the High Court rightly held that it could not interfere with .In its limited constitutional jurisdiction.

5. Mr. Akhtar Ali's only other submission was that the first respondent's claim for a divorce by 'Khula' was barred by res judicata in view of the" dismissal of her earlier suits against the petitioner.

6. Although this point was not raised in the High Court, the Family Court has painted out that the petitioner had not pleaded the bar of res judicata in his written statement and farther that "He never produced any copy of any judgment in the previous suite". In these circumstances, the Family Court rightly rejected the; pica of res judicata.

7. No other argument was raised. The petition is without merit and is dismissed.