The petitioner has challenged the judgment dated 5-2-1981 passed .By the Additional D1strict Judge, Hyderabad in Family Appeal No. 169/78, whereby the marriage between the petitioner and respondent No. 1 was dissolved and has prayed that the said judgment be declared as without lawful authority.
2. The brief facts of the case are that the petitioner and respondent No. 1 were married in the year 1974 at Hyderabad and prompt dower was fixed at Rs.5,000. After about 5 months of the marriage the relationship between the parties became strained and according to the respondent No. 1 the petitioner started maltreating her over petty household matters.The respondent No. 1 further alleged that the petitioner sold away her ornaments and spent away the money on gambling- drinking and associating with the women of ill-repute, and that the dowry of about Rs.6,500 given to her by her father was also spent away by the petitioner. According to respondent No. 1 she was beaten by the Petitioner and that after about 5-6 months of the marriage, she was driven out by the petitioner from his house in three clothes and that since then the petitioner has failed to provide any main--tenance to her. She is living with and maintained by her parents in their own house. On the aforementioned pleas, amongst others, respondent No. I filed Family Suit No. 767 of 1977 in the Court of the joint Civil Judge and Family Court, Hyderabad, praying therein for the dissolution of her marriage with the petitioner. The petitioner contested the said Suit and filed his written statement and denied the allegations made by respondent No. 1.
3. On the pleas of the parties the learned Family Court framed the following issues "(1) Whether the defendant treated the plaintiff with cruelty of conduct ?
(2) Whether the defendant has disposed of the properties of plaintiff without her consent ?
(3) Whether the plaintiff has not been maintained by the defendant for two years?
(4) Whether the plaintiff is entitled to dower amount?
(5) What should the decree be?
4. (i) Parties led their evidence on the aforementioned issues and after hearing their Advocates, the learned Family Court by judgment passed on 2-4-1978 dismissed the said suit.
(ii) Against the aforesaid judgment respondent No. 1 filed Family Appeal No. 179/78 which was heard by the learned IV Additional D1strict Judge, Hyderabad who by his judgment passed on 5-2- 1981 allowed the said appeal and decreed the suit, whereby the marriage between the parties was dissolved.
The Petitioner has now filed the present petition under Article 199 of the Constitution of Pak1stan and challenges the aforesaid Judgment whereby the marriage between the parties was dissolved.
5. It may be mentioned here that on 13-9-1981 the case was fixed for hear--ing of C. M. A. No. 98/81, which is an application under Order XXXIX, rules 1 and 2, C. P. C. Filed by the petitioner praying therein that respondent No. 1 be restrained from re-marrying with any other person till the decision of the petition. The Petition was admitted on 8-3-1981 when ad interim order was passed for maintaining status quo and notice was ordered to be issued to respondent No. 1.
At the time of hearing of the above application on 13-9-1981 it was conceded by the learned counsel for both the parties that the decision on this application would involve decision of the main case as well. They, there--fore, requested that arguments may be heard on the main Petition as well as on the application. In the circumstances. I have heard the learned counsel for both the parties and by this judgment, the application and the petition both shall stand disposed of.
5. (a) The learned counsel for the petitioner argued that the respondent No. 1 had left the house on her own accord and that the petitioner had never refused to take her back and that in fact on 15- 12-1976, he sent a notice, wherein while denying his liability to pay for her maintenance he called upon respondent No. .1 to return to him and to enable her to do so he also sent her Rs.5 as rickshaw hire charges by money order. In the circumstances the learned counsel submitted that the petitioner could not be held guilty for not providing maintenance to respondent No. 1.
It was also argued that in case of divorce by Khula the were can obtain such a divorce-only on the condition of restoration of what she received in consideration of marriage and as there was nothing on record to show what benefits respondent No. 1 had received from her husband, the Appellate Court should have remanded the case to the trial Court to decide the question of those benefits. The learned counsel relied upon the case (Mst. Hakimzadi v. Nawaz Ali) (PLD 1972 Kar.
540) and also cited other case reported in PLD 1971 SC 192 and PLD 1967SC97.
6. I have carefully considered the arguments of the learned counsel for the petitioner. In the present case it is admitted that the impugned orders have been passed by a Court of competent jurisdiction and that in the exercise of its Constitutional Jurisdiction the High Court cannot convert itself into an Appellate Court and reappraise evidence of the case.
With the ass1stance of the learned counsel for the parties I have gone through the impugned judgment and the record of the case and find that the learned Appellate Court on the evidence and material on record before him arrived at the following findings of fact, while considering the question of maintenance or otherwise of the respondent No. 1 (were) by the Petitioner (husband)
"There is no denial of the fact that over the past almost six years the appellant is living away from the respondent in the house of her parents and the respondent clearly failed to maintain her nor there is any evidence to show that he made any such efforts in that respect."
The learned Court in the circumstances of the case and after a detailed reasoned order in the light of the evidence, finally concluded and held :- "In the result, I set aside the impugned judgment and decree. The Suit of the appellant in respect of dissolution of her marriage with the respondent is decreed whereby the marriage is dissolved. This appeal is allowed accordingly, however, with no order as to costs."
Having come to the above conclusion the learned Family Appellate Court further directed that the decree shall be sent to the concerned Court exerci--sing the power of the Chairman within a period of 7 days under section 21 (2) of West Pak1stan Family Courts Act, 1964 and that the decree shall become absolute after the expiry of 90 days of the receipt of the copy of the decree in case no reconciliation is effected by the Chairman.
7. The learned Advocate for the petitioner was unable to point out that the findings of facts arrived at by the learned Family Appellate Court were not based on the evidence or are in violation of any provisions of law or that the said Court in any manner acted without lawful authority whereby its order was rendered as of no legal effect. He however submitted that it has been laid down' in the case of Mst. Hakim Zadi v. Nawaz AU that the respondent No. 1 could obtain divorce on the condition that she restores benefit received by her from her husband, and that in this case the learned Family Appellate Court has not passed any order to that effect. Basing his argument on the above principle, it was argued that the impugned order is vitiated and the case should be ordered to be remanded. This argument of the learned counsel however cannot be accepted as in this case (unlike in the case of Mst. Hakimzadi) the dissolution of the marriage between the parties has taken place not on the ground of Khula but the marriage has been dissolved on the basis of non- maintenance of Respondent No. 1 (were) by the petitioner for more than two years for no fault on her part.
The findings of the fact given by the learned Family Court acting within his jurisdiction, based upon evidence on record, cannot be impugned in this Court in the exercise of its Constitutional Jurisdiction as a tribunal- having jurisdiction to decide the matter is competent to decide it rightly or wrongly and the fact that the decision is stated to be incorrect could not render the same as without lawful authority and of no legal affect.
8. For the reasons stated above, I find that the impugned order passed by the learned Family.
Appellate Court in Family Appeal No. 169 of 1978 is based upon correct appreciation of evidence and law and that the same cannot he assailed or re-agitated in this Court in the proceedings under Article 199 of the Constitution of Pak1stan (1973).
This petition as well as application (C. M. A. No. 98/81 are accordingly dismissed, and order passed on 8-3-1981 for maintaining status quo is vacated.
There shall however be no order as to costs.