' MRS. IRSHAD QAISER, J.---Shoaib petitioner seeks the constitutional jurisdiction of this Court praying that:- "It is, therefore, humbly prayed that this Honourable Court be pleased to declare the judgment and decree of respondents Nos.3 and 4 i,e, for granting decree of jactitation of marriage in favour of respondent No,1 and dismissing the suit of petitioner for restitution of conjugal rights as illegal, without lawful authority and this Honourable Court may be pleased to grant a decree of restitution of conjugal rights and dismissing the suit of respondent No,1 for jactitation of marriage and as well declaring the second marriage of respondent No,1, if any, as null and void."
2. The brief and essential facts leading to the present petition are that the petitioner has filed Suit No,474/FC on 12-12-2005 against respondent Mst. Sadia Altaf praying for restitution of conjugal rights and cancellation of second Nikah of respondent No,1. It was 'averred in the plaint that the marriage of petitioner was solemnized with respondent No,1 on 16th April, 2004 and the dower in shape of gold ornaments was paid and as a result of wedlock between the parties, they were blessed with a son. After two months of the marriage, respondent No,2, father of respondent No,1 started interference in the family affairs of the spouses and he used to take respondent No,1 to his home once or twice in a week or used to direct the petitioner on telephone to bring her to her parent's home. Respondent No,1 went to the house of her parents 6/7 months earlier in the morning by saying to the petitioner that he would return in the evening. However, she did not return and when the petitioner convened Jirga, respondent No,2 refused to send respondent No,1 with the petitioner. As a result of conduct and behaviour of respondent No,1, the petitioner sent notice of 'Talaq-e-Rajhi' on 3-9-2005 and later on 14-11-2005 through a writing dated 14-11-2005 revoked said Talaqe-Awal' . After revocation and revival, respondent No,1 became the wife of the petitioner and he went to the house of respondents along with Obaid-ur-Rehman to take his wife back but respondent No,2 refused to send respondent N6.1 with the petitioner and informed him that respondent No,1 has contracted second 'Nikah'. The petitioner prayed for restitution of conjugal rights.
3. The respondents contested the said suit of the petitioner by filing written statement. On the other hand, Mst. Sadia Altaf also filed Suit No,473/FC of 2005 on 17-12-2005 praying for jactitation of marriage, recovery of dower, maintenance allowance, birth expenses of minor child and recovery of dowry articles. Both the suits were consolidated and based on the contesting pleadings of the parties, the learned Judge Family Court framed the following eleven consolidated issues:-
(1) Whether plaintiff has got cause of action to file suits?
(2) Whether plaintiff husband Muhammad Shoaib in Suit No,474/FC revoked the divorce vide notice dated 14-11-2005?
(3) Whether the defendant Mst. Sadia contracted a second marriage during subsistence of first marriage?
(4) Whether plaintiff-husband in Suit No,474/FC is entitled to decree for restitution of conjugal rights and a decree for holding second Nikah of the plaintiff as null and void?
(5) Whether plaintiff wife in Suit No,473/FC is entitled to a decree for jactitation of marriage?
(6) Whether plaintiff wife in Suit No,473/FC is entitled to a decree for maintenance allowance?
(7) Whether plaintiff wife in Suit No,473/FC is entitled to a decree for maintenance allowance? (sic)
(8) Whether defendant-husband in Suit No,473/FC has already paid dower in the form of golden ornaments?
(9) Whether plaintiff wife in Suit No,473/FC has self-deserted the house of her husband?
(10) Whether the minor/plaintiff in Suit No,473/FC is entitled to a decree for recovery of maintenance?
(11) Relief?
4. The learned Judge Family Court, Abbattabad after recording evidence of both the parties and hearing the learned counsel for the parties, passed a decree in favour of respondent No,1, for jactitation of marriage and maintenance for Iddat period @ of Rs,2,000 per month, while her rest of the claim in Suit No,473/FC along with suit filed by the present petitioner for restitution of conjugal rights was dismissed vide judgment and decree dated 12-2-201Q.
5. Aggrieved thereof, both the parties preferred their respective Appeals before the learned Additional District Judge-IV, Abbottabad. The said appeals came up for hearing before the Appellate Court on 26-4-2010 and were dismissed vide judgment and decree of even date.
6. Valuable arguments of learned counsel for the parties heard and available record of the case thoroughly perused.
7. The most crucial and essential Issue involved in the present petition is regarding 'Talaq-e-Rajhi' pronounced by the present petitioner to his wife Mst. Sadia Altaf, respondent No,1 vide deed dated 1-9-2005 copy (Exh.P.W. 1/1) and its revocation by him through affidavit dated 14-11-2005 copy (Exh.P.W.1/2) . The petitioner has pronounced 'Talaq' to his wife Mst. Sadia Altaf, respondent No,1 through 'Divorce Deed' dated 3-9-2005, where in, the last four lines seem to be of much significance, which reads that:- {{URDU TEXT}} It may be mentioned that no witness of said 'Talaq' has been cited in the said 'Divorce Deed'
(Exh.P.W.1/1). Thereafter, the petitioner allegedly revoked said 'Talaq' thereby made 'Ruju' to his wife by scribing affidavit dated 14-11-2005 copy (Exh .P.W.1 /2) , which reads that:- {{URDU TEXT}} It is also important to note that no witness of said return ('Ruju') to his wife has been cited in the said affidavit Ex.P.W.1/2. So far as the evidence produced by the present petitioner to prove the factum of 'Ruju' is concerned, both the two Courts below have considered the said evidence and concluded that the factum of 'Ruju' as incorporated in affidavit dated 14-11-2005 was never brought to the notice of respondents in particular respondent No,1 Mst. Sadia Altaf. Respondent No,1 after completion of 'Iddat' contracted second marriage/Nikah on 4-12-2005. The present suit was filed by the present petitioner Shoaib after the expiry of said 'Iddat' period on 10-12-2005. As such, it is obvious and evident from the record that petitioner had never made any contact with respondent No,1 during the period of 'Iddat'. Now, when respondent No,1 has children from second husband and at this belated stage after lapse of about nine years, how plea of petitioner in respect of restitution of conjugal rights could be accepted. Even otherwise, respondent No,1 due to peculiar facts and circumstances existed at that very crucial time was not ready to perform conjugal rights with the present petitioner and for that very reason she had filed suit for jactitation of marriage. Thus, the petitioner is estopped to call in question the concurrent findings of the two Courts below. It appears that the petitioner with mala fide intention and the obvious object to harass and tease respondent No,1 has filed the suit and pursuing his cause up to this Court. This conduct of the petitioner is not only against the teachings Islam but also embarrassing attitude towards the respondents. Had the petitioner been interested to settle the matter with respondent No,1, he would have brought the present suit before expiry of 'Iddat' period. The alleged effort of the petitioner in respect of 'Ruju' towards respondent No,1 was not sufficient. He could have cited the intellectuals as witnesses of the affidavit (Exh.P.W.1/2) to whom, as per assertions of the petitioner, he had earlier consulted for advice in respect of 'Talaq' as mentioned hereinabove. In this regard much emphasis has been given in the Holy Quran and Sunnah. It is clearly ordained in Holy Qur'an that:-- {{URDU TEXT}} The petitioner has absolutely failed to render any reason for non-associating of two righteous persons as witnesses on two occasions i,e, at the time of scribing of 'Divorce Deed' (Exh.P.W.1/1) and affidavit (Exh.P.W.1/2) in respect of his alleged 'Ruju'. This Court is of considered opinion that in this particular and current era, when Muslims are collectively going far away from teachings of Islam, in such like matters like 'Talaq' and 'Ruju' etc, the condition of associating two righteous persons as witnesses to the said events take much significance and the two Courts below have rendered correct findings in this regard. The religious verdicts rendered in Fatawa-e-Alamgiry"Jild' No,2, Chapter-6 Pages 478 and 482 regarding 'Ruju', referred to in Ground
(g) of the present writ petition cannot be pressed into service, as the peculiar facts and circumstances of the present case do not justify to break the tie between respondent No,1 and his second husband or to separate the-children from their parents.
8. The learned two Courts below, while passing decree for jactitation of marriage in favour of respondent No,1 and dismissing the suit of the present-petitioner for restitution of conjugal rights 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.
9. Accordingly, for the reasons stated hereinabove, the present petition being devoid of any factual or legal grounds is dismissed. While keeping in view the peculiar facts and circumstances of the present case and the conduct of the present petitioner, this Court deems it appropriate to burden the petitioner with costs of Rs,10,000- to be paid to the respondents.