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Civil Petition No. 25 of 1985, decided on 7th April, 1986.

‑‑ Ss. 2(ii) & 7‑‑West Pakistan Family Courts Act (XXXV of 1964), S. 5‑Divorce‑Wife asserting that her husband pronounced Talaq three times at her parents' residence‑Family Court, for cogent reasons, disbelieving wife's witnesses and highlighting material discrepancies in their statements in its judgment which was concurred by Appellate Court‑Finding of Family Court that Talaq was not proved corroborated by factor of non‑service of notice under S. 7 of Ordinance VIII of 1961‑Findings of Courts below that Talaq was not proved based on cogent reasons ‑ Finding maintained in circumstances.

(b) Provisional Constitution Order (t of 1981)‑

Art. 9‑Muslim Family Laws Ordinance (VIII of 1961), Ss. 2(ii) & 7‑West ‑‑Pakistan Family Courts Ordinance (XXXV of 1964),

S. 5‑Constitutional jurisdiction ‑Mere facts that High Court might have taken' a different view on basis of evidence on record and view of Courts below was erroneous, held, would, not warrant exercise of constitutional jurisdiction‑Competent Court or a forum having jurisdiction to decide a question of fact could decide it rightly or wrongly so long as such decision was not perverse or contrary to evidence on record or was not based on misreading of evidence and High Court would not interfere with finding of fact recorded by such Court or forum.

Muhammad Hussain M, nir and others v. Sikandar and others P L D 1974 S C 139; Sub. Muhammad Asghar v. Mst. Safia Begum and another P L E 1976 S C 435; Aslam Chughtai v. Civil Judge and another 1984 C L C 822

Ghulam Sarwar v. Mst. Muniran and others 1984 C L C 1688 and Mst

Seema Ashfaq v. Vlth Additional District Judge and others 1985 C L 878 rel.

(c) Provisional Constitution Order (1 of 1981)‑

‑‑ Art. 9 ‑Muslim Family Laws Ordinance (VIII of 1961), Ss. 2 & 7‑West Pakistan Family Courts Act (XXXV of 1964), S. 5 Constitutional jurisdiction‑High Court can interfere with a finding of fact of a Family Court in exercise of writ jurisdiction if it is based on misreading of evidence or contrary to evidence on record.

Mst. Shahida Khan v. Abdul Rahim Khan and 1.others P L D 1984 Lab 365 ref.

(d) Muslim Family Laws Ordinance (Vill of 1961)‑

‑.‑ Ss. 2(ii) & 7‑West Pakistan Family Courts Act (XXXV of 1964). S. 5‑Divorce‑Procedure for effecting Talaq by husband stated Intention of legislature in providing S. 7 of Ordinance was to discourage Talaq and in case a Talaq was pronounced to make efforts for bringing about reconciliation between spouses‑Non. service of notice in terms of S. 7 of Ordinance, held, would be a material circumstance which would corroborate other evidence on record in support of fact that factually no Talaq was given by husband.

‑‑ S. 7‑West Pakistan Family Courts Act (XXXV of 1964), S. 5 Divorce‑Proof‑ If on basis of evidence on record there existed doubt as to factum whether factually Talaq was given or not, doubt, held, was to be resolved by Court in favour of maintaining marriage rather than dissolving it High Court, would not lend its discretionary constitutional jurisdiction to dissolve a marriage in case judgmant of Family Court declining relief of dissolution of marriage was supported by some material on record.

‑‑ S. 7‑West Pakistan Family Courts Act (XXXV of 1964),

Ss. 10 & 12‑Divorce‑Reconciliation‑Contention that no effort . was made by Family Court to bring about reconciliation or com promise at stage of pre‑trial and after closing of evidence of parties No such plea was urged before Family Court and even otherwise record showed that efforts were made by Trial Court to bring about compromise settlement‑Contention repelled.

‑‑ Art. 9‑Muslim Family Laws Ordinance (VIII of 1961), S. 7 West Pakistan Family Courts Act (XXXV of 1964), Ss. 10.& 12 Divorce‑Reconciliation‑Object of providing Ss. 10 & 12 of Act to bring about reconciliation or compromise between spouses‑Non compliance of such provisions of law, in a case in which Court granted a decree for dissolution of marriage held, might be a serious irregularity in view of mandatory nature of said provisions but in a case in which Family Court had declined to grant a decree for dissolution of marriage, irregularity might not be so serious as to warrant to set aside judgment of Family Court in exercise of cons titutional writ jurisdiction.

‑‑ S. 5‑Civil Procedure Code (V of 1908), O. XIV, R. 5‑Dissolu tion of marriage‑Grounds of non‑maintenance and cruelty ‑Wife though making averment in plaint in respect of non‑maintenance and cruelty but failing to insist on framing of any issue on above question by filing an application in terms of O XIV, R. 5; Civil Procedure, Code‑Wife also not raising any such plea before appellate Court Wife, held, could be said to have given up said plea as it was her duty to have got included an issue on said allegation if she was serious about it.

Tahir Muhammad Khan.for Petitioner.,

Amanullah Khan for Respondent No. 1.

Date of hearing : 7th April, 1986.

AJMAL. MIAN, ACTG. C. J.‑This petition is directed against the judgments dated 29‑8‑1983 and 23‑2‑1985 passed in Family Suit No. 20 of 1982 and Family Appeal No. 20 of 1983 by the .learned Family Court at Khuzdar, and the learned District Judge Khuzdar respectively.

2. The brief facts leading to filing of the above petition are that the petitioner filed a suit on 8‑12‑1982 for declaration and confirmation of the alleged Talaq given by the respondent No. 1 alleging therein, that res ondent Nn. I before 5/6 days of the filing of suit had pronounced Talaq three times at her parents house in presence of the witnesses. It was also alleged that respondent No. 1 had not maintained her and that he also administered cruelty to her.

The above suit was resisted by respondent No. I inasmuch as he denied the factum of giving any Talaq or that he had not maintained the petitioner or had been cruel to her. The learned Family Court on the basis of pleadings of the parties framed the following two issues :‑

The parties bad examined themselves and also produced other witnesses, the petitioner examined four witnesses namely (i) Khatu son of Shah Murad, (ii) Maula Bakhsh son of Feroz Khan, (iii) Muhammad Alam son of Nabi Bakhsh and (iv) Amir Bakhsh son of Rahim Bakhsb whereas, respondent No. 1 produced five witnesses i. e. (i) Agha Abdul Zahir son of Sultan Ibrahim Khan, (fi) Sufi Ahmad Khan son of Rehmatullab, (iii) Mir Muhammad Karim son of Jamadar Khan Muhammad, (iv) Aleeja Ghous Bakhsh son of Rais Muhammad Umer Khan and (v) Nabi Rakhsh son of Khamisa.

The learned Family Court after hearing the parties by the above impugned judgment dated 29‑8‑1983 dismissed the petitioner's aforesaid suit holding that Talaq was not proved The petitioner being aggrieved by the above judgment filed aforesaid Family Appeal No. 20 of 1983, which was dismissed by the above impugned judgment dated .23‑2‑1985. The petitioner being not satisfied by the above two judgments has filed the present petition.

2‑A (a) In support of above petition Mr. Tahir Muhammad Khan, learned counsel for the petitioner has urged as follows :‑

(i) That since tae petitioner's evidence on the question of talaq remained unrebutted. the Courts below should have granted the declaration sought.

(ii) That non‑service of a notice under section 7 of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as the Ordinance) was of no consequence as the Talaq had taken place upon pronounce ment of the same by respondent No. 1 three times.

(iii) That though the petitioner had urged non‑maintenance and cruelty in the plaint but no issue was framed.

(b) On the other hand Mr. Amanullah Khan, learned counsel for the respondent No. 1 has contended as under :‑

(i) That there is a concurrent finding of the two Courts below on the question of fact, whether Talaq was given by the respondent No. I or not and this Court cannot interfere, with the above concurrent finding of fact in exercise of constitutional writ jurisdiction.

(ii) That the concurrent finding is supported by material on record.

(iii) That non‑service of a notice under section 7 of the Ordinance was fatal to the legality of the Talaq.

(iv) That the petitioner did not press any issue on the question of non‑maintenance and cruelty before the two Courts below and, therefore, she cannot raise the same in this petition.

3. Mr. Tahir Muhammad Khan in furtherance of his above first submission that the petitioner's evidence on the question of Talaq remained unrebutted has referred to the above petitioner's evidence.

4. We have gone through the evidence produced by both the parties.

We have also read the judgment of the Family Court as well as of the Family Appellate Court and we find that the learned Family Court for cogent icasons ha, :'.isbeheved the statements of the petitioner's witnesses.

The material discrepancies in their statements have been highlighted by the learned Family Court in the judgment. The above judgment has been concurred with by the learned Family Appellate Court. The finding recorded by the two Courts below that the Talaq was not proved, in our view is based on cogent reasons. Even otherwise, the mere fact that this Court might have taken a different view on the basis of the evidence on record, would not 'warrant exercise of writ jurisdiction nor the fact that the view of the two Courts is erroneous. A competent Court or a forum having jurisdiction to decide a question of fact may decide rightly B or wrongly so long as such decision is not perverse or contrary to the evidence on record or is not based on misreading of the evidence, the. High Court would not interfere with a finding of fact recorded by such Court or the forum. Reference may be made in this behalf to the following cases :‑

(i) Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139. while construing‑Article 98(1)(a)(ii) of the late Cons titution of Pakistan. 1962 their Lordships pointed out that the Expres sion "without lawful authority and of no legal effect" are expres sions of art and refer to jurisdictional defects as distinguished from mere erroneous decision whether on a question of fact or even of law. It was also held that it is a well‑settled principle of law that where a Court or a tribunal has jurisdiction and it determines that questions it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law.

(ii) Sub. Muhammad Asghar v. Mst. Safia Begum and another P L D 1976 S C 435, in this case the Hon'ble Supreme Court of Pakistan reiterated its earlier above view and held that the High Court in exercise of writ jurisdiction under Article 98 of the late Constitution of Pakistan 1962, was not justified in interfering with discharge of functions entrusted to Collector under law. It was further held that the Court or tribunal having jurisdiction to determine a question cannot be said to have acted illegally or with material irregularity merely for the reason that having come to an erroneous decision on a question of fact or even of law.

(iii) Aslam Chughrai v. Civil Judge and another 1984 C L C 822 in which a learned Single Judge of the Sind High Court while dismissing a constitutional petition against the judg vent of the Family Court, held that the Family Court was the sole tribunal to decide the issue of fact on the basis of the evidence produced before it and that the High Court in constitutional jurisdiction would not disturb finding of fact so recorded and would not constitute itself an appellate Court.

(iv) Ghulam Sarwar v. MsI. Muniran and others 1984 C L C 1688. The above case was heard by a learned Single Judge of the Lahore High Court, while dismissing a constitutional petition against the judgment of the Family Court held that the question, whether or not reunion of spouses was possible was a question to be decided by the Family Judge and even ‑if which is erroneous it cannot be interfered with in writ jurisdiction.

(v) Mst. Seenia Ashfaq v. Vlrh Additional Distrtct Judge and others 1985 C L C 878. In this case a learned Single Judge of the Sind High Court while dismissing a constitutional petition held that where a Cou:t or a tribunal having jurisdsction to determine a question of fact or law having decided erroneously, it cannot be said that such Court/tribunal has acted illegally or with material irregularity and the High Court would not interfere to such a decision in its constitutional jurisdiction.

5.There cannot be any cavil to the propositions of the law propounded by the Honourable Supreme Court of Pakistan in the above‑cited cases and followed by the High Courts. However, at the same time it may again be observed that the High Court can interfere with a finding of fact of a Family Court in exercise of writ jurisdiction if it is based on misreading of evidence or contrary to the evidence on record. In this regard reference may be made to the case of Mst Shahida Khan v. Abdul Rehim Khan and z others (P L D 1984 Lab. 365 ), in which a writ .petition was allowed by a learned Single Judge of the Lahore High Court on the ground that the Family Court had not adverted to a material question of fact.

6. As regards Mr. Tahir Muhammad Khan's second contention that non‑service of notice under section 7 of the Ordinance is not fatal once the Talaq is pronounced, it may be advantage to reproduce the above ection 7 which reads as follows:--

"7. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever, contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rup:es, or with both.

(3) Save as provided in subsection (SY Tafaq unless revoked earlier, expressly or otherwise shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman

(4) Within thirty days of the receipt of notice under subsection (I), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in subsection (2) of the pregnancy, whichever later, ends.

(6) Nothing shall debar a wife whose marriage‑ has been terminated by Talaq effective under this section from re‑marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."

7. A plain reading of the above section indicates that it provide the procedure for effecting Talaq by a husband, namely, that a husband after pronouncement of ralaq is required to give the Chairman of the Union Council a notice in writing of his having done so and is also E requited to furnish a copy thereof to the wife. It further provides that unless the Talaq ,s revoked earlier, expressly or otherwise, it shall riot be effective until the expiry of ninety days from the date on which notice under subsection (1) is delivered to the Chairman. It also contemplates the constitution of an Arbitration Council by the Chairman for bringing about reconciliation between the parties. It may also be noted that non‑service of the notice in terms of subsection (1) of section 7 has been made punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupee, or with both. The above section is to be read with rule 6 of the Muslim Family Laws Rules, 1961 (hereinafter referred to as the Rules, 1961), which prescribes the procedure to he adopted by the Chairman on receipt of a notice from a husband. The intention of‑ the Legislature in providing the above section seems to be to discourage, Talaq and in case a Talaq is pronounced, to make efforts for bringing about reconciliation between the spouses. Similar provisions are provided in the Family Courts Act, 1964 (hereinafter called the Act), which in section 10 provides pre‑trial efforts on the part of the Court to bring about compromise or reconciliation, whereas section 12 provides that Family Court shall make another attempt to effect a compromise or reconciliation between the parties after closer of evidence by both sides.

8. In our view, the non‑service of a notice in terms of section 7 ‑ of the Ordinance will be a material circumstance which will corroborate, the others evidence on record in support of the fact that factually no Talaq F was given by the husband. In the instant case as pointed out hereinabove, the learned Family Court for cogent reasons disbelieved the evidence of the petitioner and recorded the finding that there was no Talaq This finding of fact stands corroborated by the additional factor of G non‑service of a notice under section 7 of the Ordinance.

We are also inclined to hold that if on the basis of evidence on record in a particular case, there remains doubt as 'to the factum whether factually Talaq was given or not, the doubt is to be resolved by the Court in favour of maintaining the marriage than dissolving it. Further more, the High Court would not lend its discretionary constitutional jurisdiction to dissolve a marriage in case the judgment or the judgments of the Family Courts declining the relief of dissolution of marriage is supported by same material on record.

9. Mr. Tahir Muhammad learned counsel for the petitioner during the arguments also m.ide an attempt to submit that the Family Court had failed to comply with the provisions of sections 10 and 12 of the Act by not snaking efforts to bring about reconciliation of compromise at the stage of pre‑trial and after the closing of the evidence of the parties. f We find that no such plea was urged before the family appellate Court even otherwise from the record it seems that the efforts were made to bring a compromise settlement. It may be pointed out that the object of providing the above sections 10 and 12 in the Act seems to be as pointed out hereinbefore, to bring about reconciliation or compromise between the spouses. The non‑compliance of the above provisions in a case, in which the Court grants a decree for dissolution of marriage may be a very serious irregularity in view of the mandatory nature of the above provisions but in a case in which the Family Court has declined to grant a decree fo dissolution of marriage, the above irregularity may not be so serious as to warrant to set aside the judgment of the Family Court in exercise of constitutional writ jurisdiction.

10. Adverting to Mr. Tahir Muhammad Khan's next submission that the Family Court failed to frame an issue on the question of non‑mainte nance and cruelty though the petitioner had made averment in para 3 of the plaint, it may be observed that it was the duty of the petitioner to have got included an issue on the above allegation if she was serious about it. The facturn that the petitioner did not insist on framing of any issue on the above question by filing an application in terms of Order XIV, rule 5, C. P. C., indicates that she had given up the above plea. This inference is supported by the fact that no such plea was raised before the learned Family Appellate Court.

11. For the aforesaid reasons the petition is dismissed but there will be no order as to costs. These are the reasons in persuance of a shortlG order of even date.

M. Y.H Petition dismissed.

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