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Date of hearing : 21st April, 1986.

AMIR‑UL‑MULK MUNICIPAL,

J.‑This constitutional petition is directed against the judgment and decree passed by the District Judge, Sibi on 26‑6‑1986 whereby the judgment and decree of the Family Judge Sibi dismissing the family Suit No 50 of 1983 was set aside and the suit for restitution of conjugal rights was decreed.

Briefly stated the facts leading to this petition are that the respondent No. 1 Noor Muhammad filed a suit in the Court of this Civil Judge/ Family Judge, Sibi for the restitution of conjugal rights. It was the case of the said respondent that he contracted a second marriage about 5 years back with the consent of the petitioner. Both the spouses lived a peaceful marital life for about 41 years, whereafter the petitioner's father took the petitioner to his house at Sibi to see her. The respondent No. 1 waited for about one month, but the petitioner did not return home and sub sequently refused to join her husband, as a result of which the suit was filed inter alia, mainly on the allegation the petitioner took alongwith her some ornaments. The detail of which, is contained in para. 8 of the plaint, as follows :‑

"That the defendant took alongwith her the above‑mentioned children and besides that took with her one pair of ear‑ring, 3 Tolas made of gold, one Hansi (Tauq) of silver about 50 tolas, 60 tolas silver Maras which come to Rs. 2,450 apart from wearing cloths."

The suit was contested and all averments were denied by the petitioner in her written statement. The fact of‑ taking away of the ornaments was refuted in para. 8 of the written statement which is hereby reproduced :‑

"That the contents of para. were wrong so far as the taking of ornaments is concerned. The defendant was neither given any ornaments by the plaintiff nor she brought any such thing from his house."

Out of the pleadings, the following issues were framed :‑‑

(1) Whether the plaintiff treated the defendant with habitual cruelty

(2) Whether the plaintiff has turned the defendant out of his house

(3) Whether the plaintiff has not treated the defendant equally to his second wife

(4) Whether the defendant had taken alongwith her the ornaments as mentioned in para. 8 of the plaint

(5) Whether theaplaintiff is entitled to the decree as claimed for

(6) Relief

As many as 5 witnesscs were examined by the plaintiff/respondent including his own statement. The petitioner on the other hand examined only 3 witnesses and also recorded her statement in rebuttal. The suit was dismissed by the Family Judge on 29‑2‑1985. An Appeal (No. 711984) was filed before the District Judge Sibi against the judgment and decree dated 29‑2‑1984. The learned District Judge Sibi, accepted the appeal set aside judgment and decree passed by the Family Judge and decreed the suit for restitution of conjugal rights,

Mr. Iftikhar Muhammad, learned counsel for the petitioner urged before us the following points :‑

(1) That no consent for the second marriage was obtained by the respondent No. 1 from the petitioner, hence the solemnization of marriage becomes irregular. While explaining this point he complained, that no issue was, framed on this important controversy to the detriment of the petitioner;

(2) That the petitioner was maltreated and the relations of the spouses were much strained, hence, lie concluded that the petitioner has lawful excuse not to join the respondent No. 1.

(3) That the suit for restitution of conjugal rights was filed with the mala fide intentions. The respondent had no respect and love for the petitioner; otherwise he would not have alleged taking away of ornaments by the petitioner, which he failed to prove.

(4) That the respondent No. 1 had clearly stated before the trial Court that he would take the petitioner back only when she brings the said ornaments.

Mr. Abdur Rehman Brbhi, learned counsel for the respondent No. 1, on the other hand tried to rebut the said averments submitting as under :‑

(1) That the appellate Court had got jurisdiction and decided the appeal on merits after taking into consideration the evidence. The inferences drawn were not contrary to the evidence on record.

(2) That it is wrong to hold that by contracting a second marriage, the respondent No. 1 has violated any provision of law.

(3) Lastly it was argued that the petitioner had conceded in her own statement before the family Court stating that she would be prepared to live with respondent No. 1 only if he was willing to remain as KHANA DAMAD.

Both the learned counsel relied on various authorities to substantiate their submissions, which will be discussed at the relevant stage.

Mr Iftikhar Muhammad emphatically urged that the second marriage was contracted without the prior permission of the petitioner. The marriage, therefore, was irregular according to him, thus a valid ground for refusing a decree for restitution of conjugal rights. He complained that since no issue on this important controversy was framed, hence a gross illegality, calling for interference by this Court. It is pertinent to note that no application was ever made to the trial Court for framing of issue with that effect nor any objection was taken before the trial Court in respect of issues already framed. Hence ‑the petitioner cannot be allowed at this belated. stage to assail the proceedings on this technical) ground.

While pressing his argument that without prior consent the second marriage has become irregular Mr. Iftikhar Muhammad placed reliance on the case of Ghulam Muhammad v. Shah Jiran Khanum (P L D 1959 Lah. 1014). The marriage in the said case was solemnised during the period of Iddat and this fact was known to Ghulam Muhammad appellant. It was observed, therefore, that :‑

"In my view, the marriage of Ghulam Muhammad plaintiff with Mst. Shah Jirn Khanum was irregular as it took place during the period of date and this must have been known to Ghulam Muhammad also. Irregularity of the marriage is a good defence, to a suit for restitution of conjugal rights as it is necessary, in my view, for a marriage to be valid according to Muslim Personal Law before the Courts can grant a decree for restitution of conjugal rights. The learned counsel for the appellant frankly conceded that he could produce no authority to the contrary,. In view of the authorities which I have mentioned above, there is no alternative bu_t to hold that the plaintiff is not entitled to a decree of restitution of conjugal rights against Ust. Jiran Khanum ,as his marria a with the defendant /respondent was irregular under the Muslim PIrsonal Law."

The facts of the aforesaid case are quite distinguishable. The learned counsel tried to make us believe that since the petitioner's content had not been obtained hence the marriage was irregular. If that conclusion is arrived at, he argued, the suit for restitution of marriage could not have been decreed. To appreciate this averment, it is to be seen firstly as to whether consent was obtained and secondly if not, what would be the effect Obviously there was no issue on this point, hence the respondent No. 2 did not give any finding: Even otherwise had there been any such finding, it would have served no useful purpose, because in our view, this fact alone would not have rendered illegal or even irregular the second marriage, if otherwise contracted validly according to Muslim Personal Law. Section 6 of the Muslim Family Laws Ordinance, 1961 (hereinafter called the Ordinance) will be much relevant in this respect which is hereby reproduced :‑

"Section 6(1). No man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitra tion Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordi nance.

(5) (a) Pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue, and

(5) (b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees or with both."

The import of section 6 of the Ordinance is to provide penal action against a man who violates the provisions laid therein. Clauses (a) and (b) of subsection (5) of section 6 of the Ordinance, being substantive in nature, provide for punishment and rules 7 and 21 of the Muslim Family Laws, 1961 (hereinafter called the Rules) prescribe the procedure for such punishment. The said rules are quoted for the sake of convenience :‑

"Rule 7(i). Any person competent to solemnize a marriage under Muslim Law may apply to the Union Council for the grant of a licence to act as Nikah Registrar under section 5.

7(2)

7(3) .

7(4) If any person to whom a licence has been granted under this rule contravenes any of the conditions of such licence, he shall be punishable with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees or with both.

Rule 21. No Court shall take cognizance of any offence under the Ordinance or these rules, save on a complaint in writing by the Union Council, stating the effects constituting the offence." .

It may be observed that nowhere in the Ordinance nor in the Rules made there under, there is any mention ‑ that non‑observance ,of the said provision of the Ordinance or Rules, would render the second marriage irregular nor such a non‑compliance would adversely affect the validity of a second marriage.

Mr. Iftikhar Muhammad, next contended that the petitioner was maltreated by the respondent No. 1 after the solemnization of second marriage and the relation of the spouses were very much strained. To substantiate his argument he referred to depositions of the D. Ws. Mr. Abdur Rehman Brohi, on the other hand, strenuously urged that all such averments, being question of facts have been finally decided by the appellate Court after due appparisal of the evidence and evaluating the evidentiary value thereof. This Court, therefore, he stressed; will not interfere on such findings of fact. He relied on the following cases :‑

(i) Aali v. Additional District Judge Quetta and others 1986 C L C 27, in which the D. B. of Baluchistan High Court has held that Family Appellate Court was a Court of competent jurisdiction to, re‑appraise evidence recorded by trial Court and take a contrary view to that what was .recorded by trial Court. High Court could not re‑appraise evidence in constitutional jurisdiction.

(ii) Muhammad Saeed Khan v. Election Tribunal and 11 others 1986 C L C 735, where the orders of the Election Tribunal under the Sind Local Government Ordinance, 1979. unseating the petitioner was challenged. It was observed that constitutional jurisdiction of the High Court cannot be equated with appellate of Provisional jurisdiction on question of fact. Finding of fact of competent tribunal could not be interfered with in exercise of constitutional jurisdiction on the grounds that evidence before the tribunal was not sufficient or quality of the same was not of type which Court of law would have accepted in similar circumstances.

(iii) Mst. Seems Ashfag v. Additional Districi Judge and others 1985 C L C 878. In which it was held by a single Judge of Karachi Bench that question of fact, decided by a competent Court will not be subject to review in a writ petition. To quote :‑

"16. It is well‑settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it came to an erroneous decision on a question of fact or even of law. It would, therefore, be wholly wrong to consider that the constitutional provi sion as contained in Article 199 of the Constitution of Pakistan, 1973 empowers the High Court to interfere with the decision of a Court or a tribunal of exclusive jurisdiction merely because in its opinion the decision is wrong on a point of fact or of law. In that case, it would make the High Court's jurisdiction as that of a Court of 11nd Appeal. which would be against the underling principles of the provisions of Article 199 of the Constitution."

No different view can be taken in this respect. It may be observed that it is now a well‑established rule of law that in constitutional. jurisdic tion, the High Court will not resolve controversial question of fact nor in such capacity it will disturb the inference drawn by competent Courts tribunals, having jurisdiction, and based on some evidence. Such matters are not amenable to writ jurisdiction of the High Court. In the instant case in respect of maltreatment, .the conclusions reached and inferences drawn by the appellate Court are thus not subject to interference by this] Court.

This leads us to the last submission of the counsel for the petitioner. The petitioner's counsel submitted that the respondent No. i had catego rically stated in his cross‑examination that he would not take the petitioner back unless she brings back the ornaments which she had allegedly taken away. Respondent No. 1 further confirmed this statement in reply to a Court question. The learned counsel forcefully urged that this indicates the ulterior motives of the respondent No. 1 and unveils his mala fide intentions. He stressed further that the respondent plaintiff had not come with clean hands and, therefore, was not entitled to a discretionary relief. Mr. Abdur Rehman Brohi, had no plausible answer to this averment. He. however, unsuccessfully tried to meet this situation firstly with the explanation that since the respondent No. 1 filed an appeal, hence he impliedly waived this condition. Secondly he contended that the petitioner stated in her statement that she would live with the respondent No. 1 only if the latter agreed to be KHANA DAMAD.

From the foregoing discussion, two main questions crop up :‑

(1) Whether the mala fides if proved, would disentitle the respondent No. 1 of a decree.

(2) Whether refusal to take petitioner back unconditionally provides a lawful excuse to the petitioner not to join the respondent 7

It may be observed that woman in Islam is not bound in all circum stances to live with her husband. Of course, predominance of a Muslim husband in matrimonial matters in Air recognized, but this in no way means that the husband enjoys unfettered right‑to compel his wife to live with him in all circumstances. The right of the husband is not free from D conditions or limitations. The Islamic injunctions lay down conditions, which if not fulfilled, would absolve the woman from obligation to accom pany her husband or to live with him. To quote from Muhammadan Law (3rd Edition) by Syed Amir Ali, page 463 :‑

"The obligation of *Oman, however to live with her husband is not absolute. The law recognises circumstances which justify her refusal to live with him. For instance, if he has habitually ill‑treated her, if he has deserted her for a long time, or if he has directed her to leave his house or even connived at her doing so, he cannot require her to re‑enter the conjugal domicile or ask the assistance of a Court of justice to compel her to live with him. The bad conduct or gross neglect of husband is, under the Mussulman law a good defence to a suit brought by him for restitution of conjugal rights."

Reverting to the facts of the instance case, the habitual cruelty or maltreatment have not been proved. At the same time the allegation of taking away of ornaments by the petitioner has also not been proved. Incidentally, the trial Court as well as the appellate Court have both concerned in disposing of this issue (Issue No. 4) in negative.

The respondent No. 1 in his cross‑examination stated :‑

In reply to a Court question, the respondent No. 1 said :‑

From the above, we draw the irresistible inference that the re pondent No. 1 is interested more in receiving ornaments than to take the petitioner back home. The intention of the respondent No. 1 in tiling of tile suit seems to be the recovery of ornaments. Since he failed to prove issue No. 4, hence he is not entitled to any such recovery. He simply does not seem inclined to take the 'petitioner to his conjugal domicile. The intention of respondent No. 1, therefore, was male fide. We, tnerefore, agree with the contention of the petitioner's counsel that the respondent No. 1, had filed tie suit with the malafide intention to get the ornaments and not the consortium of the petitioner. Even in the memo. of appeal,' the respondent No. 1 insisted on fact of taking away of the ornaments by the petitioner. The answer of the respondent No. 1 in cross‑examination as well as in reply to a Court question cannot be taken lightly. The contention of Mr. Abdur Rehman Brohi, therefore, is belied that the respondent had waived implied his condition of accepting the petitioner only when she returns the ornaments. All such circumstances in fact, had made it inequitable for the Court to have exercised the discretion in favour of the plaintiff/respondent. Mr. Iftikhar Muhammad, at this stage referred the case of Mst. Mukhan Bib v. Muhammad Wazir Khan (P L D 1959 Lab. 710) relevant observation is on page 715 :‑

"Decree for the restitution of conjugal rights is one which is in the discretion of the Court to grant and the plaintiff must prove in order to entitle him, to such a decree that he has come to the Court with clean hands, and in order to show that, it is for him to prove that he has paid the dower and has been treated his two wives on equal footing. If he fails to do so, then he is not entitled to the discretion being exercised in his favour."

The ratio decidendi in the above‑cited case is that in order to obtain al decree for the restitution of conjugal rights, the plaintiff has to prove that. he has come to the Court with clean hands, failing which he is not entitled to the discretionary relief.

Adverting to the second question, it may be observed that in the peculiar circumstances of the instant case, the conduct of the respondent No. 1 towards the petitioner, his clear statement that he would not accep the petitioner unless she brings back ornaments, the petitioner has go lawful excuse not to join the respondent No. 1. The petitioner had go genuine apprehension that if she joins her husband, without handing over him the alleged ornaments (which were never proved) she would be facing the wrath of the respondent No. 1. She, therefore, stated that she would join her husband when the latter lives as KHANA DAMAD. This indicates that she apprehends insecurity in the house of the respondent No.. 1 but feels protected with, her parents.

The learned District Judge, while adjudicating on this aspect of the matter has stated simply that this alone is not sutficient for refusal of the respondent to join the appellant to perform her marital obligations. as otherwise it would mean forcing the appellant to provide separate mainte nance to the respond without any lawful ground.

Since the matter of maintenance is not before us, therefore, it will be irrelevant and pre‑mature to embark upon this issue. What is to be seen in such a state of affairs is whether the refusal of the respondent No. I

to accept his 1st wife unless she brings ornaments, provides a lawful excuse for her refusal to join or not As observed earlier it does. Because it amounts to bad conduct on the part of the husband to blame his wife by alleging that she had taken away ornaments worth of thousand of rupees, which ultimately be failed to prove. Not only that but his continued insistence that she should bring ornaments back otherwise she would not b acceptable makes it further clear that he had no regards for the honour of his wife, no love or kindness fur her but it reflects his zeal to accept her only when she comes back with material benefits golden ornaments. This conduct is not conducive to the injunctions of Islam and provides a good defence to the petitioner. Reference in this regard is made to Muhammadan Law of Syed Amir Ali (3rd Edn.), pp. 463‑464 :‑

"The bad conduct or gross neglect of the husband is, under the Muhammadan Law, a good defence to a suit brought by him for the restitution of conjugal rights."

The learned appellate Court mainly confined itself to the alleged maltreatment and habitual cruelty. It altogether ignored the conduct to the respondent No. 1. Things would have been different if respondent No. 1 would not have stated before the Court about his intention to accept the petitioner on the condition of giving back ornaments. This he the expressed at three stages. Firstly in the cross‑examination. Secondly in reply to a Court question and lastly at the time of conciliation attempts. The respondent No. 1, therefore, in our view was not entitled to a discre tionary relief. Reliance may be placed to the case of Itwar. v. Smt. Asghari and others (A I R 1960 All. 684 ) relevant page 636 :‑

"It follows, therefore, that, in a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has taken a second, if the Court after a review .of the evidence feels that the circumstances reveal that in taking a second wife the husband has been guilty of such conduct as to make it inequitable for the Court to compel the first wife to live with him, it will refuse relief."

For the reasons stated hereinabove, we accept this petition, and declare' the impugned judgment and decree dated 26‑6‑1986 as being without lawfull authority and of no legal effect. There will be no orders as to costs.

M. Y. H. Appeal accepted.