' MUHAMMAD ANWAR KHAN KASI, C.J.---The petitioner has challenged the Judgments and Decrees dated 12-4-2013 and 20-6-2013 passed by Mr.Muhammad Inamullah, learned Judge Family Court- West, Islamabad and Raja Asif Mehmood, learned Addl. District Judge-VII (West) respectively whereby they dismissed the claim of the petitioner to the extent of judicial separation.
2. Brief facts of the case are that the petitioner was married to respondent No.2 on 27-4-1998 according to the Christian rites. The two daughters namely Zoya Zafar and Eliza Zafar were born. In the year, 2007 their relations became strained and on 22-11-2010 she left the house of respondent No.2 along with daughters. On 29-11-2010 she instituted petition for judicial separation and maintenance of minor daughters under Christian Divorce Act which was dismissed to the extent of judicial separation.
3. Learned counsel for petitioner submits that the judicial separation can be granted on the sole ground of cruelty which includes mental as well as physical torture and the evidence produced by the respondent No.2 also establishes the grounds for seeking judicial separation. He added that respondent has got registered F.I.R. No.24, dated 3-4-2013 under sections 338-A(i) and 506, P.P.C.
With allegation of adultery and abortion against the petitioner.
4 . It is next submitted that the learned Family Judge did not discuss the issues at length and thereby violated the dictum laid down by the Hon'ble Superior Courts, whereby a Family Court is bound to grant the decree for judicial separation because petitioner cannot be forced to continue matrimonial life with a person like respondent No.2.
5. On the other hand, learned counsel for respondent vehemently opposed the petition by stating that Under Section 3(2) and (3), as well as under section 45 of Divorce Act, 1869, forum for proceedings is Civil Court and Civil Procedure Code, 1908 regulates the procedure of the said Court, therefore, after dismissal of appeal from learned. District Court, petitioner had alternate remedy of civil revision instead of availing the said remedy, while the present constitutional petition is not maintainable. He added that the actual intention behind filing this petition is the fact that limitation period for filing Civil Revision has expired. Learned counsel placed reliance on case titled as Mrs. Daphne Joseph v. Malik Eric Roshan Khan (PLD 1971 Karachi 887) which is on the point that provisions of Family Court Act are inapplicable where specific provisions are available in special law i.e. Divorce Act, 1869.
6. It is next submitted that the concurrent findings of learned trial as well as appellate court on the question of fact cannot be interfered by this Court in Constitutional Jurisdiction where such findings do not suffer from mis-reading or non reading of evidence. In support of his . Argument learned counsel placed reliance on case-laws titled as Arshad Mehmood v. Additional District Judge Rawalpindi (2001 SCM R 516), Ghulam Nabi v. ADJ Jehlum and 47 others (2001 SCM R 683).
7. It is further submitted that petitioner is a disobedient wife with questionable character, however, he alway's tried to maintain rightly dismissed by the learned Subordinate Courts. He finally mentioned that he has paid maintenance.
8. It is lastly submitted that marriage under Christian faith is a permanent bond and mere incompatibility, unwillingness of Christian wife to live with her husband is no ground for judicial separation. Ground of cruelty does not arise by mere allegation of misconduct and same is required to be proved according to standard set by criminal law i.e. Beyond shadow of any doubt.
In this respect learned counsel placed reliance on case-laws Inayat Bibi v. Harbans Lal (PLD 1966 West Pakistan Peshawar 13), Mrs. Avis Katherine Niblett v. Howard Niblett AIR 1935 Oudh 133), Heather Ussher v. Thomas Ussher AIR 1941 Rangoon 221, C. Solomon v. Josephine AIR 1959 Madras 151, Dr. Tha Mya v. Ma Kin Pu (AIR 1941 Rangoon 81), Dr. Dawarka Bai v. Professor Nainan Mathews AIR 1953 Madras 792, Mrs. LJ Swaine v. Mr. D.H. Swaine AIR 1932 Rangoon 73, Noor Jehan Begum v. Eugene Ticenko [AIR 1941 Calcutta 582), Ma Dun May v. Saw James AIR 1941 Rangoon 110), Mst. Perveen Emanuel v. Additional District Judge-III Rahim Yar Khan and 2 others PLD 2009 Lahore 213 and G.C.
Foster v. A.B. Foster AIR 1928 Oudh 114.
9. In rebuttal, learned counsel for petitioner clarified that respondent has paid maintenance to minor children only and that also after a gap of three years.
10. Heard and record perused.
11. Respondent challenged the maintainability of the petition on the following two grounds.
(i) that the petitioner has relied on Family Courts Act, 1964 which is not applicable in cases to be dealt under Divorce Act, 1869.
(ii) that the petitioner has not availed alternate remedy of civil revision,
12. There is no cavil to the proposition that provisions contained in West Pakistan Family Courts Act, 1964 do not have overriding effect over the Divorce Act, 1869 because the former is a provincial legislation which cannot oust the explicit provision of a Central Statute i.e. Divorce Act, 1869) guidance is solicited from case of Mrs. Daphne Joseph supra and Sultan Ahmed v. Mst. Mehr Bhari and another (PLD 1982 FSC 48) wherein the Hon'ble Federal Shariat Court while applicability observed as following; "Christian Marriages Act, 1872, Christian Divorce Act, 1869 and other of such nature being Centeral Acts cannot be
13. It is, however worthmentioning that West Pakistan Family Courts Act, 1964 is a beneficial legislation object whereof is to provide faster remedy in nuptial disputes. The Preamble of the West Pakistan Family Courts Act, 1964 reads as following; "Whereas it is expedient to make provision for the establishment of family Courts for the expeditious settlement and disposal of disputes related to marriage and family affairs and for matters connected therewith"
14. Scope of Act given in preamble no where makes it inapplicable to non-Muslims. Similarly Section 5 of the Act wherein jurisdiction has been laid down does not curtail jurisdiction upon non- muslims. In this regard case of Mrs. Daphne Joseph v.. Malik Eric Roshan Khan AIR 1957 Mad. 236 wherein the Hon'ble Sindh High Court held as following: "The words 'subject to the provisions of in section 5 of the West Pakistan Family Courts Act, 1964 can be effective in those circumstances only in which the provisions to which the reference is made in the section may be applicable. They are not effective for purposes of West Pakistan Family Courts Act, 1964. In respect of all cases that can fall within its scope because for instance, the Act applies in terms of the schedule, to which reference is made in the section, to guardianship matters also, but those matters are not governed by the Muslim Family Laws Ordinance, 1961, and are on the contrary governed by the Guardians and Wards Act, 1890 in terms of Section 25 of the West Pakistan Family Courts Act, 1964. It is, therefore, not possible to argue that owing to the words 'subject to the provisions of every case which falls within the scope of West Pakistan Family Courts Act, 1964, must also fall within the four corners of Muslim Family Laws Ordinance, 1961. Since there are exceptions there should be some other person, if any, for coming to the conclusion that the West Pakistan Family Courts Act, 1964, excludes from its ambit cases relating to the marriage and family affairs of non-Muslims. It is true that in all the three subsections of section 21 of the Act there are references to Muslim Family Law Ordinance, 1961, but there is nothing in any of them to indicate that the Act of 1964, is applicable exclusively to all those matters which fall outside the scope of that Act. There is, therefore, nothing in the West Pakistan Family Courts Act, 1964, by which it can be said to be inapplicable to Christians." (Emphasis added).
15. It is thus clear that West Pakistan Family Courts Act, 1964 is Pr subject to the condition that the Act under which they are claiming their relief is not inconsistent with the provisions of Family Courts Act, 1964 and on the same analogy where a specific provision is available in the Divorce Act, 1869 the same shall prevail in case of being'in conflict with provisions of Family Court Act. There is nothing in the Divorce Act, which specifically excludes the forum of Family Court and the argument that the Divorce Act, 1869 specifically provides Civil Court as forum for C determination of disputes is misconceived because Family Court Act does not conflict with either powers of the Civil Court or procedure laid down in C.P.C., rather it gives a separate forum for early disposal and speedy mechanism to adjudicate the matrimonial disputes. The case-law referred by the learned counsel \ addresses petition for dissolution of marriage under section 10 of Divorce Act, 1869, but the present petition relates to dissolution of marriage under section 22 of the said Act and unlike section 10, it does not provide restriction of the forum.
16. Adverting to the objection qua availability of alternate remedy in the shape of Civil Revision, the remedy of Civil Revision is illusionary as the same has not been specifically provided in the Divorce Act, 1869 while only the remedy of appeal has been provided in section 55 of Divorce Act, 1869. It is settled principle that constitutional remedy can be exercised only in exceptional circumstances where no alternate remedy is available, but at the same time neither nature of dispute nor the efficaciousness of alternate remedy can be ignored outrightly. Had D this not been the case pertaining to matrimonial relationship of the parties or had the Divorce Act, 1869 specifically provided the remedy of Civil Revision the argument could have survived, but in the present case it is a matter of continuation of matrimonial relationship and the alternate remedy referred to has not been directly provided in the Divorce Act, 1869 and limitation period has lapsed, therefore, the objection is held to be untenable. Guidance in this respect is sought from the case of "Messers Pak.
Saudi Fertilizers Ltd. v. FOP etc: (2002 PTD 679 Karachi) wherein Hon'ble Sindh High Court held as following;- "Rule of availability of .Alternate remedies in non suiting, a petitioner in writ-jurisdiction is not an absolute rule, but merely a procedure through which the superior Courts regulate .Their jurisdiction.
Normally, a writ-petition is not maintainable where efficacious and alternate remedies are provided under a statute. Remedies should be specifically provided under law and not based upon any general principle of law, e.g. Where the statute does not provide for an appeal, the petitioner could not be non suited on the ground of availability of alternate remedy on the general hypothesis that some representation could be filed."
17 Attending the facts separation was filed on the ground of cruelty. Learned Trial Court framed issue No. I in this respect which reads as under;-- "1. Whether the petitioner is entitled to the decree for judicial separation of marriage on the basis of cruelty as prayed for? OPP
18. Petitioner and respondent No.2 got married on 27-4-1998. Respondent No.2 the husband was Assistant Director, Administration in ZTBL wherefrom he got retired under Golden Handshake scheme whereas petitioner/wife is also an educated woman having masters degree and working as Manager of a private bank. It transpires from the record that relationship between the spouses remained cordial for couple of years and two daughters were born out of wedlock. The strain in relationship started from the year, 2000 which culminated upon petition for judicial separation filed by the present petitioner on the sole ground of cruelty. In order to examine this ground, it would be pertinent to mention some of complaints which parties have spoken against each other in order to analyse the status of relationship in correct perspective. Respondent No. 2, the husband has voiced mainly following complaints:--
(i) He alleged that in the year, 2000, a woman, namely Seema Siddiqui contacted him and while informing about relationship of petitioner with her husband Mohin-ul-Islam Siddiqui. She requested him to reign his wife, so that their matrimonial life can be saved. Whereupon he inquired from petitioner who pleaded innocence and they served a legal notice upon Seema Siddiqui for false allegations,
(ii) In the year, 2007 respondent No.2 alleges that he found text conversation of petitioner with one Sajid Ishaq which showed her illegal relationship and upon his questioning she pleaded forgiveness on which he forgave.
(iii) He is offended with way of life, dressing of the petitioner and alleges that she used revealing dresses whereupon he asked her to use veil [Burqah), but she disobeyed and refused.
(iv) She refused to perform matrimonial relationship with him since 2007 and levelled allegation upon him that he .Wants a male issue which was not true.
(v) She indulged in obnoxious activities at his house in his absence and later, she became ill whereupon he came to know that she performed abortion. Although she had no physical relationship with him since 2007. He alleges that in 2009. He had gone to England, when she developed illicit relationship with Asad Noon and Sajid Ishaq..
(vi) She embezzled amount from his accounts and spent it on her brothers.
(vii) She does not let him meet his daughters.
19. On the contrary, petitioner/wife had voiced following complaints during the course of proceedings;--
(i) She alleged that he used to torture her mentally by demanding to give birth to male issue;-
(ii) He demanded from her to use veil [Burqah] and to quit job.
(iii) He used to make false allegations against her character to his colleagues at work place.
(iv) He did not pay her maintenance for children also.
(v) He used to note mileage meter of her car to torture her.
(vi) He asked her to take loan for spending on construction of his house, but did not contribute for instalments.
(vii) He was not dutiful husband.
20. The cruelty comprises physical torture and mental torture. Regarding physical torture, during evidence petitioner admitted that she was never subjected to beating. As far as the mental torture is concerned, the same pertains to subjective condition and is to be corroborated with condition of wife or her statement in the Court. At the sametime, the nature of allegations levelled by the husband cannot be ignored lightly. He has categorically admitted to have suspicion about the character of petitioner and has also admitted to inquire into the character and discussing the same with other people. F.I.R. No.24 was registered on the instance of respondent with serious allegations on the character of petitioner. He has admitted to have asked her to change her ways of dressing and to quit job which is sufficient to prove that petitioner was undergoing a lot of mental stress during the days in the company of her husband. In this respect, guidance is solicited from case of "Shuba Rani v. Madhukar Reddy (AIR 1988 SC 121) wherein Hon'ble Supreme Court of India has held as following;- "Cruelty has not been defined. Indeed, it could not have been defined. It has been used in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other, The cruelty may be the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the inquiry must begin as to the nature of cruel treatment and the impact of such treatment in the mind of the spouse whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference, to be drawn, by taking into account, the nature of conduct, and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful and illegal. Then the impact or injurious affect on the other spouse need not be enquired into are considered. In such cases, the cruelty will be established, if the conduct itself is proved or admitted."
21. In Christian faith, though wedlock is a bond of permanent nature yet in the matter of judicial separation, Court is required to determine the controversy according to section 22 of the Divorce Act, 1869 and while deciding relationship of the parties its status is to be seen in entirety as held by the Hon'ble Supreme Court of India in case of Mst.Mayadevi v. Jagdish Parasad (AIR 2008 SC 1426) by observing that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven" but where the distrust between spouses reach an extent of hatred and they feel unable to live together, law provides a course and the aggrieved party can approach for redressal.
22. In the present case, cruelty for mental torture is made out from the nature of allegations and admissions made by the respondent No.2, therefore, ground of cruelty is made out and judgments of learned Trial Court as well as learned Appellate Court are held to be based on misreading and non-reading of evidence, therefore, not sustainable.
23. It is observed that under Section 22 of Christian Divorce Act, 1869, desertion of a spouse for two years without reasonable excuse is a valid ground for grant of decree for judicial separation and in this case, it is admitted position from both sides that petitioner left the house of respondent No.2 on 22-11-2010 and since then no cohabitation is existent between the parties while the cruelty for desertion has been declared to be existent. The serious allegations regarding illicit relations of wife with other men are sufficient proof, of mental torture and cruelty against wife by the husband. In order to circumvent the second round of litigation, the petition for judicial separation is decreed on the basis of cruelty as well as admitted desertion of the spouses for a period of more than two 24.
In view of above, the petition for divorce is decreed and it is made clear that this decree shall have the effect of divorce a mensa et thoro. No order as to costs.