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Petition No. 373 of 1971, decided on 5th October 1973.

Art. 98‑Laches‑Other remedy open‑Ex parte decree for restitu tion of conjugal rights passed against petitioner (wife)‑Petitioner not filing any appeal under S. 14, West Pakistan Family Courts Act, 1964, but moving petition for writ in High Court after a period of more than 2 years complaining that her own subsequent suit for dissolution of marriage could not be dismissed on ground that decree had been passed in her husband's favour for restitution of conjugal rights‑Held: Petitioner, in circumstances, was not entitled to invoke discretionary jurisdiction of High Court‑Petition dismissed‑West Pakistan Family Courts Act (XXXV of 1964), S. 14.

Mrs. Salima Nasiruddin for Petitioner.

Nemo for Respondents.

Just after two or three months of the marriage held on 22nd May 1960, the petitioner Mst. Anwari left her husband Dawood Khan respondent, and is said to be residing with her mother. The parties have been involved in series of cases against each other, the relevant ones are two suits, one filed by the husband on 23rd September 1968, being First Class Suit No. 892 of 1968, and the other initiated by the wife, being Family Suit No. 292 of 1969 in the Court of Second Civil Judge, First Class and Family Judge, Karachi on 17th March 1969. The suit filed by the husband was decided ex parte on 5th February 1969, with the result that decree for restitution of conjugal rights was passed in his favour. Armed with this decree, he resisted the suit filed by his wife on the ground, inter alfa, that she had filed it as a counter blast after the decree had been passed against her. This plea prevailed with the learned Judge and the peti tioner's suit was dismissed on 28th November 1969. The petitioner had also made an application requesting that the ex parte decree passed against her be set aside, this request was rejected on 10th January 1970. It is against both the orders that these two Constitution petitions have been filed.

The learned counsel for the petitioner, relying on the decision in the case of Muhammad Younis v. Nargis Sultana (P L D 1970 Lah. 41), vehemently contended that petitioner's suit for dissolution of marriage could not be dismissed on the ground that decree had been passed in her husband's favour for the restitution of conjugal rights because the question whether or not she was entitled to the dissolution of marriage on the basis of principle of khula was neither raised as an issue in the earlier suit, nor was it consi dered or decided in the earlier suit.

Even if this plea be available to the petitioner, we find that she had accepted the fate of her suit and the decree passed against her in the suit filed by her husband, for a period covering more than two years before she approached this Court for relief by means of these Constitutional proceed ings. She could have very well assailed the decree passed against her for restitution of conjugal rights by way of an appeal under section 14 of the Family Courts Act, 1964, but she did not choose to have recourse to this remedy provided by the Statute itself. There is categorical finding of fact that she had filed the suit as a counter‑blast to the decree having been passed in her husband's favour for the restitution of conjugal rights. This is what the learned civil Judge has observed:

"The evidence of defendant Dawood Khan reveals that after last compro mise the plaintiff came and lived with him and both were living in the house of plaintiff's parents. The mother of the plaintiff demanded money from him and when he showed his inability he was turned out. His evidence shows it is on this account that the plaintiff lived separately. Consequently, he filed the suit for restitution of conjugal rights being No. 892 of 1968. It was decreed by this Court on 18‑2‑69. Ex parte judgment was passed in that suit and the plaintiff had filed an application to set aside the ex parte decree. The plaint for restitution of conjugal rights was filed by the defendant on 21‑9‑69 and ex parte decree was passed on 5‑2‑69 in favour of the defendant. This present plaint for divorce has been filed on 17‑3‑69 by the plaintiff. Therefore, it appears to me that this present suit has been filed because the defendant has obtained ex parte judgment in his favour for restitution of conjugal rights. This is the only reason that this present suit for divorce has been filed. One Muhammad Din Exh. 5 has been examined by the defendant. He states that he is neighbour of the defendant. Once the defendant had taken him to the house of in‑laws of the defendant for bringing his wife but they did not permit her to go with the defendant. His evidence remains unrebutted on this point."

It was more than two years after this order was passed that the petitioner chose to approach this Court; the laches on her part have not even been explained. On the facts and circumstances of this case, we are not inclined to invoke the constitutional jurisdiction of this Court, which is of discre tionary nature, and dismiss both these petitions, with no order as to costs. The learned counsel for the petitioner requested that it may be clarified that this order would not prevent the petitioner from seeking relief by way of a fresh suit for dissolution of marriage on any ground that may be avail able to her under the law. No such clarification is necessary because it is open to the petitioner to seek the remedy that may be available to her under the law at any time.

K. B. A.

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