G. M. KOUREJO, J.-This Constitutional Petition is directed against the judgments and decrees passed by the Senior Civil Judge and Family Court, and the Appellate Court of IInd Additional District Judge, Larkana, dated 12-12-1977 and 30-6-1979, respectively.
2. The petitioner Mst. Subhan Khatoon filed a suit against her husband respondent No. 1, Nazar Muhammad for dissolution of marriage in the Court of Senior Civil Judge and Family Court, Larkana on 7-6-1974. The grounds taken in the suit were, the husband's maltreatment of the petitioner, his bad character, non-maintenance for a period of about 13 or 14 months, his pronouncement of divorce to her and leaving her in the house of her parents, and lastly, the ground of 'Khula' " as the petitioner alleges to have developed fixed aversion towards the respondent No. 1, her husband.
3. The respondent No. 1 Nazar Muhammad, the husband of the petitioner denied all the allegations, contending that the real dispute was over his stay with the petitioner in her parents house as 'ghardamad' which was not one of the terms of the marriage contract, and that in view of the marriage consideration he paid Rs. 2,000, to her parents and also have performed the Nikah of his sister Mst. Zuhra with the brother of the petitioner, but since Mst. Zuhra was minor, there was no consummation of marriage. He has further contended that the petitioner was taken on the pretext of circumcision ceremony of her brother and was detained by her parents who were the main cause of separation between the petitioner and the respondent No. 1, otherwise the marriage was so recent that it was solemnized only about two years prior to the filing of the suit for dissolution of marriage. They have also a child out of the wedlock. He has also controverted the contention that the petitioner has developed fixed aversion and incurable hatred towards him, and that the real trouble was about his stay as 'ghardamad' -which he has declined as he was under no moral or legal obliga--petition to comply with, the consideration for the marriage having been paid already as stated above.
4. The learned trial Court settled the following issues:
(1) Whether the respondent No. 1 maltreated the petitioner by habitually beating her?
(2) Whether the respondent No. 1 is a man of bad character?
(3) Whether the respondent No. 1 divorced the petitioner?
(4) Whether the respondent No. 1 has failed to maintain the petitioner for 13 or 14 months?
(5) Whether the petitioner is entitled to the right of Khula'?
(6) What should be the decree?
5. The learned Family Court recorded the evidence produced by the petitioner and the respondent No. 1, the petitioner having examined herself and her father Din Muhammad only and the respondent No. 1 having examined himself, as would appear from the material on the record. The learned trial Court on the basis of the evidence that was produced held the above-mentioned issues not proved and dismissed the suit of the petitioner.
6. The petitioner filed an appeal in the Court of learned Additional District Judge, Larkana, who also by his judgment dated 30-6-1979 dismissed the appeal.
7. The petitioner has challenged both the judgments and decrees of the Courts below in the exercise of an extraordinary jurisdiction with the prayer that they may be set aside and the suit of the petitioner for dissolution of marriage be decreed in her favour.
8. The learned Advocate for the petitioner, Mr. Muhammad Afgal Soomro, while arguing the petition has pressed the case of the petitioner only on the ground of Khula', the rest of the grounds appear to have been abandoned by him for the purpose of this petition. He has mainly contended that the learned two Courts below have refused to appreciate the evidence for the determination of the claim of the wife on the basis of Khula' and, therefore, there is a clear failure of exercise of jurisdiction and that the case be remanded back for further consideration. In that respect he has relied on the case of Bilqees Fatima v. Noor Muhammad and others (1), and the case of Mukhtar Ahmed v. Ume Kalsoom and another (2).
9. While discussing the issue of Khula' the learned Family Court observed as follows:-- "There is no other overt act attributed to the defendant towards his wife or towards the parents of the plaintiff which can reasonably create the basis for strained relations between the parties to such an extent that it can be said that the parties would not live together a$ husband and wife within the Islamic injunctions. Evidence of the parties show that the difference between the parties is on the question that the defendant should live Ghardamad which defendant is avoiding. On the first place there is no legal enforeability in such contract of Ghardamad. Hence the defendant cannot be empelled to perform his part of agreement and live as Ghardamad in the house of her parents In fact defendant's refusal to live Ghardamad of the plaintiff's parents is main cause of differences between the couple and this cannot be the ground for. Khula' to dissolve the marriage of the parties."
10. The learned Appellate Court agreeing with the findings of the Family Curt on all the issues including the issue on the ground of Khula' observed as under:- "From the above evidence it appears that the parties failed to settle the dispute with each other of petty monetary and matrimonial affairs and there was no serious question of hatred between the spouses. These petty grounds have been exploited by the parents of the appellant in such a way that she is not prepared to perform the conjugal relations. The question of Ghardamad is the main problem between the parties and it is the main cause of confrontation and this Ghardamad affair is being avoided by the respondent and the respondent can--not be compelled to reside as Ghardamad in the house of the parents of the appellant.
(1) PLD 1978 Lah. 1109(2) PLD 1975 Lah. 805 The claim of Khula' is a very intricate and important claim and in the instant case the appellant has not adduced evidence to substantiate the ground of Khula'. No independent person has either been cited or examined by her in support of her ground of Khula' and merely because he is not prepared to remain as Ghardamad cannot form basis of grant of Khula'. The lower Court has given reasons in arriving at a conclusion that she is not entitled to claim of Khula' in the instant case. The perusal of the evidence shows that the reasons advanced by the . Trial Court are legal and proper and I do not see any reason whatsoever to differ with the findings arrived at by the trial Curt. The appellant/plaintiff is thus not entitled for dissolution of marriage on the ground of Khula'."
11. The observations above-mentioned of the learned Courts below make it very clear that the case of the parties, on the basis of the evidence and the material put forth before them, was not only considered serious but the evidence was appreciated appropriately and the conclusions were arrived at after having given them a very serious thought. The case is neither of misreading of evidence nor of mis-appreciating of it, as the learned counsel appearing on behalf of the petitioner has not been able to point out anything on the record in that respect. He has simply impressed upon the contention that there is fixed aversion with the petitioner towards the respondent No. 1 and that it will not be possible for them to live within the limits of God but he has failed to refer to anything substantial in the evidence and the material on the record in respect of his contention to the effect that there is incurable hatred between the petitioner and the respondent No. 1 to the extent that they will not live within the limits of God. The learned Court below have pointed out that she has failed to examine any independence evidence in that respect. They have further observed that on the contrary she appears to have been satisfied with her word and that of her father's only in support of her allegations with regard to the fixed aversion and incurable hatred that she alleges to have developed towards her husband. The learned Courts below have observed very clearly that the real controversy between the petitioner and the respondent No. 1 is over the question of hi staying as 'Ghardamad' with her parents who are responsible mainly for creating trouble between the parties, otherwise there is no real aversion o hatred between them as is alleged on behalf of the petitioner. We, therefore, B find that the contention to the effect that the learned Courts below have failed to exercise jurisdiction in refusing to appreciate the evidence for the determination of the claim of the wife on the basis of Khula' has no substance. The reliance placed by the learned counsel for the petitioner, therefore, on the two authorities above-mentioned is obviously uncalled for.
12. On the other hand, Mr. Illahi Bust Kehar, the learned counsel for the respondent No. 1 has contended that this Court in this Constitutional Petition cannot disturb in exercise of Constitutional jurisdiction findings of facts by the two Courts below. He has placed reliance on the Full Bench decisions of the Supreme Court in the case of Muhammad Munir and others v. Sikandar and others
(1) and the case of Badrul Haq v. The Election Tribunal, Dacca and others (2) and lastly on the recent decision of our High Court in the case of Smith Kline & French of Pakistan' Limited, Karachi v.
A. Rashid Pai and another (3). In Muhammad Hussain Munir v. Sikandar and others Muhammad Gul, J. Defined the, scope of powers of the High Court in the exercise of its Constitutional jurisdiction as follows:
(1) PLD 1974 SC 139 (2) P-L 'I?-1963 SC 704 (3)1'L-D 1979 Katr. 21Z "The High Court's supervisory jurisdiction under Article 98(2)(a)(ii) of the 1962, Constitution (or for that matter under Article 199(1)(a)(ii) of the present Constitution) having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects first; the former jurisdiction being a creation of the Constitution stands in 4 higher pedestal than that under section 115, C. P. C. Second; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However, this may be, it is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the Constitu--petition-makers."
In Badrul Haque Khan v. Election Tribunal Dacca and others Justice Kaikaus, J. Observed as under:- "The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on legal reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fides or a mere colour--able exercise of jurisdiction could be made out the decision would not be without lawful authority."
PLD 1979 Kar. 212) Z. A. Channa, J. Referring to the above-mentioned Supreme Court decisions held that a finding of a Court based on the material properly placed before it, .The same being basically a finding of fact, cannot be disturbed by this Court in the exercise of Constitutional jurisdiction.
13. The irresistible conclusion, therefore, would be that the two Court below having appreciated the evidence properly for determination of the claim of the petitioner on the basis of Khula`, did not fail to exercise jurisdiction which they enjoyed in the instant case; and that, in any case, this Court cannot disturb the concurrent findings of fact arrived at by the learned Courts below, in the exercise of its Constitutional jurisdiction.
14. We, therefore, find no merit in this petition. It is, accordingly, dismissed in the circumstances with no order as to costs.