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Constitutional Petitions Nos. S‑113 and 114 of 1982, decided on 12^th March. 1983.

‑‑ Art. 9‑Constitutional jurisdiction‑‑Petitioner challenging decree of dissolution of marriage by invoking constitutional jurisdiction High Court, held, in constitutional jurisdiction not sitting in appeal and its jurisdiction limited to see whether impugned order Passed without authority or without jurisdiction.

‑‑ S. 7‑Dissolution of marriage‑‑Appraisal of evidence‑ Finding of Court based on assessment of evidence of parties and not result of misreading of or non‑reading of evidence‑Not possible to conclude that on basis of evidence recorded finding given by trial Court cannot be reached‑Contention that evidence of respondent not properly recorded not substantiated and no such question raised before trial Court‑Contention, held, without force.

‑‑ S. 7‑Khula'‑Cruetly‑Wife, held, entitled to claim dissolution of marriage by way of Khula and also on any grounds recognised as valid under Dissolution of Muslim Marriages Act (VIII of 1939) which includes cruelty and non‑maintenance‑Court coming to conclusion that wife has been subjected to cruelty or she is not being maintained as provided by Act, held, can lawfully pass decree for dissolution of marriage‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2.

Muhammad Jamil v. Sarwar Jehan 1982 C L C 655 ref.

Khurshid Bibi's case P L D 1967 S C 97 rel.

Mrs. Salima Nasiruddin for Petitioner.

M. Zarif Arif for Respondents.

Date of hearing : 22nd February, 1983.

These are two petitions challenging the order of the Family Court, whereby the petitioner's suit for restitution of conjugal rights was dismissed and respondent's suit for dissolution of marriage was decreed.

The respondent No. 2 had filed a suit for dissolution of marriage on the ground of cruelty. She was married with the petitioner on 22nd May, 1978. On the same day when respondent No. 1 brought all the ornaments, valuables and clothes, petitioner took hold of all these articles and did not allow her to use them. It was alleged that the petitioner forced the respondent No. 1 to bring the original Nikahnama which contained list of dowery of articles and scored it off. It was alleged that the petitioner fell into bad company did not have means of liveli hood, used to come late in the house and whenever questioned used to maltreat the respondent No. 1. It is specifically pleaded that after about a month from marriage the defendant and his mother accused the respondent No. 2 to be pregnant and took her for medical examination to Hyderabad but their apprehension turned out to be incorrect. It has been stated that the petitioner‑accused the respondent No. 2 of adultry questioned her chestity alleging that the child she gave birth was of her nephew. The respondent No. 2 also stated that since July, 1978 she is living with her father and has neither been maintained nor taken by the petitioner. The petitioner has denied all the allegations. In his suit for restitution of conjugal rights he has alleged that the petitioner had given gifts jewellery, watches and clothes to the respondent No. 2. In the year 1978 the father of respondent No. I took her on the pretext of celebrating Eid and after that he did not allow her to come. He has alleged that the respondent No. 2 while going with her father had took away all the ornaments valuables jewellery valuing Rs. 10,000. As the respondent No. 2 did not return the petitioner and his father approached the father of the respondent No. 2 and asked him to allow the respondent No. 2 to come to the petitioner, but without any result. The learned trial Court framed issues as follows :‑

(1) Whether the husband treated his wife with cruelty

(2) Whether the husband had misappropriated the dowery of his wife

(3) Whether the husband bad accused his wife falsely of having illegitimate child in her womb

(4) Whether the wife is residing separate from husband without just cause

(5) What should the decree be

The respondent No. 2 examined herself, her father and two others namely Habib Ahmed and Bundu. The petitioner examined himself and two other witnesses. On assessment of evidence, the learned Trial Court cause to the conclusion that the petitioner had treated the respon dent No. 2 with cruelty and she was justified in staying away from the petitioner. The suit for dissolution of marriage was decreed and peti tioner suit for restitution of conjugal right was dismissed.

Mrs. Salima Nasiruddin, the learned counsel for the petitioner has contended that finding of the learned Trial Court is not based on evidence on record and further that the evidence has not properly been recorded. She has further contended that as the respondent No. 2 has nowhere stated that she cannot live with the petitioner within the limits of God no case for Khula has been made out and the respondent No. 2 is not entitled to the dissolution of marriage. The present proceedings have been initiated by invoking constitutional jurisdiction and while dealing such matter, the Court does not sit in appeal. Its jurisdiction is limited to see, whether the impugned order has been passed without authority or is without jurisdiction. Mrs. Salima Nasiruddin has taken me through the evidence, however it is not possible to conclude that on the basis of evidence recorded, the findings given and conclusion as drawn by the learned Trial Court cannot be reached. The finding is based on the assessment of evidence of the parties, and does not seem to be a result of misreading of evidence, or that the finding is based on no evidence at all. The question, whether the evidence of the respondent No. 2 was not properly recorded has been not substantiated as the learned counsel for the petitioner has not been able to point out in what manner it was not recorded properly. No such objection seems to have been raise before the trial Court and, therefore, this contention has no force.

Mr. Zarif has referred to the case of Muhammad Jamil v. Sarwaa Jehan 1982CLC655 where a suit for dissolution of marriage on the ground of cruelty and non‑maintenance was decree which was challenged in a constitution petition, and the following observation was made :‑

"The finding of fact given by the learned trial Court acting within the jurisdiction, based on evidence on record, cannot be impugned in this regard in the exercise of its constitutional jurisdiction as the Tribunal having jurisdiction to decide the matter is competent to decide it rightly or wrongly and on fact could not render the same as without lawful authority or of no legal effect." , _

This observation completely applies to the present case.

The contention of the learned counsel that as a case for Khula has not been made out, the respondent No. 2 is not untitled to a decree for dissolution of marriage is devoid of any force. A wife is entitled to claim dissolution of marriage by way of Khula and also on any grounds recognised as valid under the Dissolution of Muslim Marriages Act, 1939 which includes cruelty and non‑maintenance. If a Court comes to the conclusion that the wife has been subject.‑d to cruelty, or she is not being maintained as provided by the Act, then it can lawfully pass a decree for dissolution of marriage. Reference can be made to Khurshid Bibi's case PLD1967SC97.

In view of these reasons both the petitions were dismissed by a short order dated 22nd February, 1983.

M. Y. H. Petitions dismissed.

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