' MRS. IRSHAD QAISER, J.---Arshad Habib petitioner has through the instant constitutional petition impugned the judgment and decree dated 31-3-2012 passed by Judge Family Court-II Haripur, in Suit No,30/FC of 2011 for dissolution of marriage under The Dissolution of Muslim Marriages Act, 1939 and also called in question the judgment and decree dated 27-3-2010 passed by Judge Family Court, Haripur in Suit No,130/FC of 2008.
2. The brief and essential facts leading to the present petition are that the petitioner and respondent No,1 entered into marriage bond and their 'Nlikah' was performed on 23-6-2005 and they were blessed with a male child, namely Abdul Mohez. It was alleged in the plaint that petitioner had already performed 'Nikah' prior to his 'Nikah' with respondent No,1, who was divorced by the petitioner and separation between them was due to the conduct of the petitioner. The earlier round of litigation between the petitioner and respondent No,1, before Judge Family Court, was culminated in passing of decree in favour of respondent No,1 for dowry articles, dower amount of Rs,100,000, recovery of possession of dower house, maintenance allowance of respondent No,1 and the minor son of petitioner and decree for restitution of conjugal rights was also passed in favour of the present petitioner subject to deposit of past maintenance allowance, dower amount and delivery of possession of dower house, in Suit No,130/FC decided on 27-3-2010. It was further alleged in the plaint that the said decree has not so far been satisfied till now.
' During pendency of the family cases, petitioner has contracted second marriage with Mst. Asia Bibi against the consent and permission and without the knowledge of respondent. The factum of second marriage was also concealed from the Family Court and Union Council due to which respondent No,1 was shocked, thus, it become impossible for her to live with the petitioner as his wife and prayed for dissolution of marriage.
3. The petitioner Arshad Habib contested the suit by filing written statement. Based on the contesting pleadings of the parties, the learned Judge Family Court framed the following six issues:--
(1) Whether plaintiff has got cause of action? OPP.
(2) Whether defendant has contracted second marriage without the consent and will of plaintiff?
OPP
(3) Whether plaintiff instigated defendant for second marriage and refused vehemently to live with defendant, due to which defendant contracted second marriage? OPD
(4) Whether instant suit is filed with mala fide intention? OPD
(5) Whether plaintiff is entitled for the decree as prayed for?
(6) 'Relief.
4. The learned Family Court, after recording evidence of both the parties and hearing the learned counsel for the parties, passed a decree in favour of respondent No,1, as prayed for and held that respondent is at liberty to contract second marriage after completion of 'Iddat' period. Hence, the present constitutional petition.
5. Valuable arguments of learned counsel for the parties heard and available record of the case thoroughly perused.
6. So far as the prayer of petitioner for setting aside the judgment and decree dated 27-3-2010 in Suit No,130/FC of 2008 is concerned, the said judgment and decree has attained finality, as the petitioner has not challenged the said judgment and decree in appeal before the Appellate A Court. Thus, at this belated stage after lapse of about two years, the petitioner is estopped to call in question the validity of the judgment and decree, which became absolute. The plea of the petitioner in para-6 of the writ petition that he could not have preferred any appeal or revision before District Judge or any other higher forum in good faith, as he intended to bring his wife back, if she had not instituted Suit No,3Q/FC of 2011, is without any legal force for two reasons; firstly, the decree was passed on 27-3-2010 and the execution petition for the satisfaction of said decree was filed on 12-5-2010 and the decretal amount was being paid in installments and till now the execution of the decree could not have fully satisfied and moreso, the subsequent suit for dissolution of marriage was filed on 28-4-2011, after one year of the descision of earlier Suit No,130/FC of 2008. Secondly, the petitioner had contracted second marriage just after about four months of passing of decree on 11-7-2010 and during pendency of execution proceedings. Had the petitioner been any intention to bring respondent No,1 back or to maintain her as his wife, he could not have contracted second marriage and that too without permission and consent of respondent No, 1.
7. Now moving on to the prayer of dissolution of marriage regarding which the learned Judge Family Court has passed a decree in favour of respondent No,1 in Suit No,30/FC of 2011. The respondent Mst. Ghazala Akbar has sought decree for dissolution of marriage under the provisions of the Dissolution of Muslim Marriages Act, 1939, wherein, under section 2 (ii-a), it has been provided as under:-- "2. Grounds for decree for dissolution of marriage. A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: (i).
(ii).
(ii-a) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961."
' The respondent Mst. Ghazala Akbar in order to prove her assertions produced Secretary, Union Council, Sara-i-Nehmat Khan as (P.W.1), Secretary, Union Council North as (P.W.2) and she herself appeared as (P.W.3). The official witnesses produced 'Nikah Namas' (Exh.P.W.1/1 and Exh.P.W.1/2), respectively. The learned Judge Family Court has thoroughly scrutinized the entries of 'Nikah Nama'
Ex.P.W.1/1 pertaining to the second marriage of the petitioner with Mst. Asia Bibi and discussed in, detail the legal implications, in particular relating to columns Nos.21 and 22 of the 'Nikah Nama'. The petitioner has failed to rebut the presumption attached to the entries of 'Nikah Nama' and could not have advanced any cogent and plausible justification for leaving blank Column Nos. 21 and 22 of 'Nikah Nama' (Exh.P.W.1/1) It has essentially established that the petitioner has not taken consent or permission from respondent No,1 to solemnize his second marriage with Mst. Asia Bibi. There was sufficient oral as well as documentary evidence in support of this assertion of respondent No,1 on the record. Moreover, the ground enumerated in section 2(ii-a) of the Dissolution of Muslim Marriages Act, 1939 alone was sufficient to dissolve the marriage between the parties. In this regard, this Court in case titled Aurangzeb v. Ejaz-ul-Hassan Khan and another (PLD 1984 Peshawar 49) has held that:- ' "The only point urged by the learned counsel is that the decree for dissolution of marriage was not justified, for, there was no convincing evidence to prove that the petitioner had contracted the second marriage without the consent of respondent No,2. Similarly, there was no evidence to prove that respondent No,2 was not meted out equal treatment by the petitioner with his second wife and there was no evidence as well, to prove cruelty on the part of the petitioner.
' The question raised by the learned counsel essentially involves an inquiry into the facts of the case. From the judgment of the learned District Judge it is clear that the entire facts and circumstances of- the case were duly taken into consideration. The learned counsel failed to point out any misreading of the evidence. The fact that the petitioner has taken the second wife without the consent of respondent No,2 in contravention of the provisions of Muslim Family Laws Ordinance, 1961, would entitle her to seek dissolution of marria;e under section 2(ii-a) of the Dissolution of Muslim Marriages Act, 1939 (Act VIII of 1939)." (Emphasis provided)
' The learned Judge Family Court, while passing decree for dissolution in favour of respondent No,1 has rightly appreciated the evidence produced by the parties and the law on the subject and taken into consideration all the relevant facts involved in the matter. Learned counsel for the petitioner could not point out any misreading or non-reading of material evidence or any legal defect in the impugned judgment, which warrants interference by this Court in constitutional jurisdiction.
8. Accordingly, for the reasons stated hereinabove, the present petition being devoid of any factual or legal grounds is dismissed.