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Constitutional Petition No.6 of 1987, decided on 3rd May, 1987.

---Art.199--Constitutional petition--Disputed question of fact High Court, held, could not sit as a Court of appeal on disputed questions of facts in its constitutional jurisdiction.

---Art.199--West Pakistan Family Courts Act (XXXV of 1964), S.5- Constitutional petition filed against orders of Family Court--Petitioner also agitating in the constitutional petition his cause of action against dismissal of his application under S.476, Cr.P.C. by Additional District Judge--Held, that alleged cause of action against dismissal of petitioner application under S.476, Cr.P.C. could not be joined in constitutional petition which was directed against judgment of family Court.

Ishaque Ahmad for Petitioner.

Respondents in person.

Date of hearing: 3rd May, 1987.

The petitioner through this petition has prayed for the following reliefs. "To set aside the impugned order dated 29-3-1986 decree as prayed and or remand F. A No.121 of 1983 for decision on merits or decide it itself."

2. The brief facts leading to the filing of the above constitution petition are that the petitioner filed Family Suit No.1196 of 1981 for a decree of:

(i) Rs.11,000 being the amount of dower.

(ii) Return of bridal gifts mentioned in Annexure 'B' to the plaint or in lieu thereof Rs.20,000.

(iii) Maintenance allowance amounting to Rs.14,567, for the period commencing from 15-2-1980 and expiring on the expiry of Iddat period after the divorce.

3. The above suit was resisted by the respondent/ husband. The Family Court on the basis of the pleadings of the parties framed the following four issues:-

"(1) Whether the plaintiff .had forgiven her dower debt

(2) Whether the defendant had treated the plaintiff with love and affection and the apology dated 26-11-1979 was deceitfully obtained by the plaintiff from the defendant, when they were in joking mood

(3) Whether the plaintiff is entitled to maintenance allowance from 15-2-1980 up to the period of 'IDDAT' at the rate of Rs.1,000 per month

(4) Whether the plaintiff is entitled to a decree "

After recording the evidence the Family Court decreed the suit to the extent of Rs.11,000 being the dower amount and Rs.3,000 for the Iddat period towards the maintenance. The petitioner being aggrieved by the above judgment filed Family Appeal No.121 of 1983, which was dismissed by the learned IVth Additional District and Sessions Judge, Karachi West by judgment dated 29-3-1986. The petitioner being aggrieved by the above two judgments has filed the present petition.

4. In support of the above petition Mr. Ishaque Ahmed learned counsel for the petitioner has urged as follows:

(1) That since it was held by the Family Court that the respondent No.1 was maltreating the petitioner, it should have awarded the decree for maintenance from the date when the petitioner was forced to leave respondent No.1's house on 15-2-1980.

(2) That the learned two Courts below without any justification have declined to grant decree in respect of bridal gifts or value in lieu thereof namely Rs.20,000.

(3) That the learned Additional District Judge has wrongly declined the petitioner's

application u/s 476, Cr. P . C . by his order dated 24-5-1986.

5. On the other hand the respondent No.1 who has argued the case in person submitted as follows:

(1) That he has sufficient evidence to show that even after 15-2-1980 the petitioner was on good terms with him inasmuch as she attended certain family functions and that he had never forced the petitioner to leave the house.

(2) That the gifts were returned by mutual agreement at the intervention of the mutual friend.

In support of the above first contention Mr. Ishaque has referred to Ex-8, in which he had promised not to maltreat the petitioner henceforth, it has, therefore, been contended by him that in view of the above documentary evidence the maltreatment on the part of the respondent No.1 has been proved. It must, therefore, follow that the petitioner was forced to leave the house on 15-2-1980. It will suffice to observe that it is a disputed question of fact, whether the petitioner had justification to leave the house on 15-2-1980 as the above note is of November, 1979. In constitutional petition this Court cannot sit as a Court of appeal on facts. The learned Family Court on the basis of the evidence found the petitioner entitled to Rs.3,000 as maintenance charges for the Iddat period. In Constitutional petition the above amount of the decree cannot be increased or the period cannot be increased.

The second contention of Mr. Ishaque also involves a disputed question of fact. The respondent No.1 has referred to Ex.9 which is a list of the items, which were returned to the petitioner at the intervention of the mutual friend. However, it was submitted by Mr. Ishaque that the above list relates to 'Jehaz' and not gifts. Suffice to observe that this is a disputed question of fact, and, therefore, cannot be gone into in this 'constitutional petition.

Adverting to the third contention that the learned Additional District Judge has declined the petitioner's application under section 476, Cr.P.C. by his order dated 24-5-1986, it may be observed that besides the fact that no relief in respect of the above order has been prayed for in the prayer of the petition, quoted hereinabove, I am also inclined to take the view that the alleged cause of action against the dismissal of the petitioner's above application a/s 476, Cr.P.C. cannot be joined in this petition which was directed against the judgments of the Family Courts.

The petition has therefore no merits and it is dismissed but there will be no order as to costs.

M . Y . H . / N-54/ K Petition dismissed.

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