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Constitutional Petition No. S‑1 of 1985, decided on 30th September, 1986.

‑‑‑S. 14‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii) (a)‑‑Constitution of Pakistan (1973), Art. 199‑‑Expression "without lawful authority and of no legal effect"‑‑ Inerpretation‑‑Dissolution of marriage on ground of cruelty‑‑Jurisdiction of Family Court‑‑Family Court, a Special Tribunal working under special Law‑‑High Court, in exercise of its writ jurisdiction, does not sit as Court of appeal or Court of revision‑‑Jurisdiction of High Court to interfere on point of fact is limited‑‑Order of Family Court neither without lawful authority nor without jurisdiction‑‑Mere fact that decision was erroneous or incorrect would not call for interference by High Court in exercise of its writ jurisdiction.‑‑[Interpretation of statutes].

Muhammad Hussain Munir v. Sikandar and others P L D 1974 SC 139 and P L D 1973 S C 236 rel.

N L R 1986 Civil 345 cited but not examined.

Akhlaq Ahmad Siddiq for Petitioner.

Farman A. Hashmi (absent) for Respondents.

Date of hearing: 29th September, 1986.

In this petition the petitioner is aggrieved by the judgment and decree of the learned Family Judge/Family Court No. XXI, Karachi, dated 20‑8‑1984 and prays for declaration, that the said judgment and decree be declared unlawful, not accordance with law and to have no legal consequence.

The brief facts leading to these proceedings are, that the petitioner was married with respondent No.l on 16‑11‑1979. On 24‑9‑1983 respondent No.l filed a suit for dissolution of her marriage on the ground of non‑maintenance and cruelty of conduct. The suit was contested by the petitioner, who denied the allegations. The learned Family Judge on the pleadings of the parties framed the following Issues:‑

(1) Whether the defendant has failed to maintain the plaintiff and children

(2) Whether the defendant had maltreated the plaintiff and turned out from his house

(3) Whether the husband is entitled for restitution of conjugal rights

(4) Whether the plaintiff is entitled for dissolution of marriage

(5) What should the decree be

By the impugned order, the learned Judge dissolved the marriage of the petitioner with the respondent. As this decision was not appealable the petitioner filed this petition.

3. I have heard the learned counsel for the petitioner and perused the relevant documents filed by the parties. The respondent No.l as well as her Advocate were called absent. Respondents Nos. 2 and 3 are formal respondents and no relief is claimed against them.

4. In the proceedings before the learned Family Judge the respondent No.l examined herself and also her father P.W. Saidur Rehman, her brother P.W. Hasibur Rehman and neighbour P.W. Abid Ali. In rebuttal, the petitioner examined himself, his father P.W. Muhammad Allauddin and P.W. Abdul Jabbar. The learned Family Judge has considered the evidence led by the parties and have decided Issues Nos. 1 and 2 in favour of respondent No.l. The relevant part of the findings of the Family Judge may be reproduced as under:‑

"I have very carefully perused the evidence led by the parties. Father of the defendant has admitted, that he told the plaintiff to resign the service or otherwise no need to return back. The defendants' father has alleged that he was maintaining whole family alongwith parties in suit. This above statement neither deposed by the father nor by D.W.3. It is also a point of consideration when defendants father was convicted in jail, then who provided the maintenance to the plaintiff and children. While D.W.3 has deposed that for the last two years pan cabin is closed, according defendant litigation is pending about it. The defendant could not produce any documentary proof regarding the payment of maintenance and dower to the plaintiff. There is many contradiction is found in defendants statement. At one stage he deposed that tenament No. 33/C/D.H.S. was obtained from Mr. Minhaj at rate Rs.300 by him. Again says his father had obtained it at rate Rs.275 per month. The defendant stated he used to give maintenance Rs.500 to Rs.700 to the plaintiff while D.W.3 deposed maintenance was given Rs.700 to Rs.900 while defendants father has deposed that there is joint family system in his family. It seems very strange that does not know amount is given by the defendant while according to him defendant used to manage the book and business accounts. The defendant denied, that behaviour of his parents was not cruel with her. This statement of the defendant is proved false and baseless, if admission of his father that he told her to resign from the service, otherwise no need to return to the house. From this it is clear that his family members behaviour was cruel with the plaintiff and she was turned out by his father that is admitted position. The defendant could not produce any receipt of payment of delivery charges that was paid by him. No documentary proof is produced of alleged Rs.600 which was paid to the defendant by his father. In Exh.5‑E, defendant mentioned his address S‑2/463, Saudabad, Malir, Karachi, in fact this is the address of plaintiff's parents. It means in 1982, the defendant was residing with plaintiff's parents. It is clearly mentioned in Exh.5‑D, that defendant will search any job as soon as possible and will btain a separate house on rent. He has failed to comply the promise which he had done before Chairman. It. is also stated by D.W.2 that defendant did not obtain house on rent. The behaviour of defendant and his parents with the plaintiff is amounted in mental cruelty which is explained in section 2 clause (viii)(a) that husband treats with her cruelty, habitually assaults on her make her life miserable by cruelty of conduct even if such conduct does not amount to physical ill‑treatment. The plaintiff was forced to live away from the husband, and her life was being made miserable by reason of the fact, that a return to her husband's house was out of question as it meant submission to condition impossible to tolerate for a self‑respecting women. Admittedly, she was forced to cruelty of conduct within the meaning of section 2, clause (viii)(a) of Dissolution of Muslim Marriage Act,1939."

5. The learned counsel for the petitioner has submitted that the evidence produced by respondent No.l is inconsistent and self contradictory and as such the findings arrived at by the learned Family Judge are not correct. He has relied upon NLR 1986 Civil 345 wherein a learned Single Judge of Lahore High Court, in a Revision Application, has held, 'that the finding which is recorded against evidence and is based on misreading/ Misconstruction of evidence was open to interference in the revision as such finding would be suffering material irregularity'.

6. It may be pointed, that Family Court is a Special Tribunal working under Special Law. This Court, in exercise of its writ jurisdiction, is not sitting as Court of Appeal or Court of Revision. Its jurisdiction to interfere on the point of fact is limited. The petitioner seeks declaration that the impugned judgment was without lawful authority and of no legal effect. This expression has been dealt with by their Lordships of Supreme Court in case of Muhammad Hussain Munir v. Sikandar and others P L D 1974 S C 139. It is held as under:‑

"'Without lawful authority and of no legal effect' was an expression of art and refers to jurisdictional defects as distinguished from a mere erroneous decision whether on question of fact or even of law‑‑High Court, in exercise of its writ jurisdiction, concerned only with question whether Court or Tribunal below had acted within its competence to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as 'without lawful authority'‑‑High Court, in writ jurisdiction, not competent to interfere with order of Tribunal on purely equitable considerations."

In P L D 1973 S C 236 their Lordships have considered the distinction between an incorrect decision and void decision and the resulting consequences. It has been observed as under:‑

"It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and mere a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non‑existent in the eye of law; that is to say it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction."

7. Keeping in view the law laid down by the Supreme Court in above decisions the order of the learned Family Court cannot be considered as without lawful authority even if it is erroneous and on the basis of evidence on record a contrary decision could have been arrived at. The mere fact, that the decision is erroneous or incorrect would not call for interference by this Court in exercise of its writ jurisdiction, as order is neither without lawful authority nor without jurisdiction. I find no merit in this petition which is dismissed with no orders as to costs.

The petition was dismissed by a short order on 29‑9‑1986. The above are the reasons in support of the said order.

S_Q. Petition dismissed.

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