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Civil Petition No. 124‑R of 1986, decided on 25th June, 1986.

(On appeal from the judgment, dated 23‑2‑1986 of the High Court of Sind at Karachi in Constitutional Petition No. S‑9 of 1986).

‑‑‑Art. 199‑‑Writ jurisdiction‑‑Raising of new point for first time before High Court, disallowed‑‑Order dismissing Writ Petition maintained‑‑Held: Petitioner could not be allowed, while invoking High Court's constitutional jurisdiction, to raise a completely new point for first time before it.

‑‑‑Arts. 199‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss.5 20‑‑Writ jurisdiction, exercise of‑‑Order of Family Court against which appeal could be preferred in law, not challenged in appeal and allowed to become final‑‑Writ petition challenging said order dismissed‑‑Held: Attempt to re‑open said determination of matter by collateral proceed could not be countenanced.

‑‑‑Ss. 5 & 20‑‑Suit for maintenance‑‑Decree became final‑‑Challenged in Constitutional jurisdiction‑‑Pleas that petitioner husband being Qadiani his marriage with Muslim woman was void and he was not liable to maintain respondent‑wife, a Muslim lady, and Family Court had no jurisdiction, repelled, firstly, because this objection was taken for first time before High Court and secondly because petitioner had earlier described himself as Sunni Muslim by faith‑‑Supreme Court agreeing that in writ jurisdiction petitioner could not be allowed to raise completely new point for first time before High Court, refused leave to appeal.

Choudhry Brothers Limited v . Jahranwala Central Co‑operative Bank Limited 1968 S C M R 804 ref.

Sardar M. Ishaq Khan Saddozai, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th June, 1986.

This petition is directed against the judgment, dated 23‑2‑1986 passed by a learned Single Judge of the High Court of Sind at Karachi in Constitutional Petition No. S‑9 of 1986.

The respondent, Mrs. Nahid A. Shaikh, was married to the petitioner on 5‑2‑1958 in accordance with Sunni Hanafi Law. She claims that the petitioner was merely a cadet in East West Steam Ship Company getting Rs.150 per month at the time of marriage but after she married him she took him to England, got him enrolled at the Merchants Marine Academy, paid for his education and otherwise helped in myriad, ways and on account of her efforts he became something in life and rose to become a Captain in the Merchant Navy of Ghana with a very substantial salary. But after 20 years of married life he took another wife on 22‑2‑1979 and even neglected to maintain her. She, therefore, filed Family Suit No. 996 of 1979 for maintenance in the Court of XXIX Civil Judge/Family Judge, Karachi.

On 15‑3‑1982, the learned Family Court passed a decree in her favour holding her entitled to a sum of Rs.2,500 per month from July, 1978 until the marriage subsisted. No appeal was filed by the petitioner against the above judgment.

The wife (respondent, however, filed an execution application to execute the above decree. The petitioner now began to take more interest in the matter. He filed objections to the execution application which, however, were rejected. His appeal against the rejection of his objections was also dismissed by the order of the District Judge, Karachi, dated 20‑1‑1985. The petitioner did not challenge this order but instead filed an application before the Judge, Family Court, for setting aside the earlier judgment passed on 15‑3‑1982. This application too was dismissed on the ground that no fraud was established. An appeal was preferred against the above order which was heard by the Second Additional District Judge (East) Karachi. This appeal was dismissed on 11‑1‑1986. The last‑mentioned order was challenged by the petitioner by a Constitutional Petition in the High Court. Herein, he took the plea that he was an Ahmadi by faith and, thus, was not a Muslim for the purposes of the Constitution or law in view of the amendment made in the Constitution by the Constitution (Second Amendment) Act, 1974. Accordingly, the respondent's marriage with Mm was void because a Muslim lady could not get married to a non‑Muslim and the Family Court had no jurisdiction to entertain the suit filed by her under the West Pakistan Family Courts Act, 1964 for grant of maintenance.

This plea was rejected by the High Court on the ground that the objection being raised before it was not taken by the petitioner in the written statement filed by him in the family suit filed by the respondent wife. Instead herein he had pleaded:‑

"That the plaintiff was married to the defendant on 5‑2‑1958 at Karachi according to Muslim Sunni Law. A copy of the Nikahnama is filed herewith and marked as 'A'."

In the same strain, in the said suit, the documents attached thereto showed that the petitioner had described himself as Hanafi (Sunni Muslim) by faith. The learned Judge in the High Court, therefore, observed that the pleas now taken before him that his marriage was not valid as he was an Ahmadi; that the suit against him was not maintainable under the West Pakistan Family Courts and that he was not liable to maintain respondent‑wife, a Muslim lady, for the reason that his marriage with her was not valid, were pleas that could not be raised for the first time before the High Court. In this connection, reliance was placed on this Court's judgment in Choudhry Brothers Limited v. Jahranwaia Central Co‑operative Bank Limited 1968 S C M R 804. The petition on this view of the matter was dismissed by the High Court vide order, dated 23‑2‑1986. Hence this petition for leave to appeal.

We completely agree with the High Court that the petitioner could not be allowed, while invoking its constitutional jurisdiction, to raise a completely new point for the first time before it. In fact, the constitutional petition was liable to be dismissal on the short ground that the order of the Family Court, dated 15‑3‑1982 passed in the family suit against which an appeal could be preferred under the law was not challenged in appeal and allowed to become final. The attempt to re‑open the said determination by the collateral proceedings could not be countenanced.

No ground for interference with the impugned order of the High Court exists. This petition, therefore, fails and is dismissed hereby.

M.I Petition dismissed

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