' MUHAMMAD DAUD KHAN, J.--- Through this constitutional Petition, the petitioner has challenged the judgments and decrees of Civil Judge-I/Judge Family Court, Karak dated 12.07.2010 and District Judge, Karak dated 21.09.2011 vide which both the learned courts below dismissed suit of the petitioner/plaintiff for jactitation of marriage. However, the claim of dissolution of marriage on the basis of Khula is accepted, whereas the claim of respondent/defendant for restitution of conjugal right was declined.
2. Succinct but necessary facts giving rise to the instant Writ Petition are that petitioner Mst.
Naseem Akhtar instituted a suit against respondent Naveedullah in the Family Court for the jactitation of marriage. The averments made in the plaint are that she was engaged to one Niaz Ali Shah son of Kamal Badshah and her father received Rs,1,50,000/- as "Zar-e-Rasomana" for marriage, however, due to some differences her Rukhsati could not be performed. In the meanwhile she came to know that her father want to marry her to Naveedullah respondent which is not acceptable to her and on this reaction, she at her own will exercising of option of puberty went to the house of Niaz Ali Shah on 03.07.2010 and then to Rawalpindi to contract Nikah, but they were arrested there by the police and registered false case against them. She also averred that the Nikah Nama in favour of .Naveedullah is bogus, fake and forged one. She was not ready to marry with the respondent who is patient of tuberculosis and suffering from epilepsy.
3. Conversely respondent Naveedullah on the other hand also filed a separate suit for conjugal rights against Naseem Akhtar claiming that his Nikah/marriage was performed with her on 28.03.2010 at village Tarki Khel and they used to live together as husband and wife and performed cohabitation. On 03.07.2010, she left his house with one Niaz Ali Shah for illicit relations and also took away 6 Tolas golden ornaments, regarding which a criminal case has already been registered. He claimed that being legally wedded wife, oblige to reside with him and to perform marital obligation, he, therefore, prayed for a decree for conjugal rights.
4. Both the parties contested the suit and submitted their written statements. After failure of compromise and reconciliation between the parties on pretrial proceeding under section 10 of the Act, the learned trial court consolidated both the suits and on divergent pleadings of the parties framed the following issues:-- ISSUES
1. Whether plaintiff has got a cause of action?
2. Whether the relationship of husband and wife exists between the parties?
3. Whether the defendant has got cause of action?
4. Relief.
5. After recording pro and contra evidence in support of their respective stance by the parties, the learned Family Court vide its consolidated judgment and decree dismissed the suit of petitioner for jactitation of marriage as well as suit of respondent for conjugal right whereas marriage was dissolved on the basis of Khula.
6. Aggrieved from the said judgment and decree, both the parties have preferred their appeals before District Judge. The learned Appellate Court after hearing of counsel for the parties, dismissed both the appeals through its consolidated judgment and decree impugned herein.
7. Learned counsel for the parties heard and with their assistance record perused.
8. To prove her case, petitioner Mst. Naseem Akhtar appeared as PW-1 and narrated the same story averred in the plaint but her main stand was breaking of wedlock even if her claim of jactitation of marriage is proved false. She was not ready to live with respondent at any costs. On the other side the respondent produced Ashraf Hussain Nikah Khawan as DW-1, Zahid Iqbal as DW-2, respondent Naveedullah as DW-3, who successfully proved the Nikah of petitioner on 29.03.2010. The statement of lnayatullah son of Aslam Khan. The brother of the petitioner Mst. Naseem Akhtar is worth perusal as the said Witness affirmed marriage of his sister with respondent and left her husband's house for illicit relationship with Niaz All Shah. The witness also supported the lodging of FIR and suit of respondent.
9. Though the claim of petitioner proved false but her refusal to live with respondent at any cost and her desertion as well as registration-of criminal case parties reach to such a climax that they cannot live as husband and wife together. The learned Trial Court/Judge Family Court rightly came to the conclusion that dissolution of marriage was the only just option to part ways between them in shape of Khula. The learned District Judge on reappraisal of evidence by dismissing the appeals of both the parties rightly exercised its jurisdiction according to law. Reliance can be placed on case titled, "Mst. Khurshid Bibi v. Baboo Muhammad Amin" (PLD 1967 SC 97), "Ali Jan v. Mst. Akbar and others" (2001 CLC 507) "Mst. Naseem Akhter v. Muhammad Rafique and others" (PLD 2005 SC 293), "Muhammad Akram v. Senior Civil Judge, Family Court and others" (2006 YLR Lahore 2204)
10. Though the petitioner has not prayed for dissolution of marriage in plaint, but she was not ready to live with him as a wife. In the above circumstances, when petitioner has failed to prove factum of jactitation of marriage and not ready to continue wedlock at any cost, therefore, both the courts rightly dissolved the marriage on the basis of "Khula".
11. In writ jurisdiction, the High Court has to see as to whether the subordinate courts have committed jurisdictional error, un-condonable in nature or in the exercise of jurisdiction committed legal error causing miscarriage of justice, because the Hon'ble superior Courts have consistently held that High court in its constitutional jurisdiction, not supposed to decide such matter as court of appeal by making reappraisal of evidence and to form a different opinion from one concurrently held by the Family Court as special tribunal constituted with the object to decide the same "Muhammad Husain Munir and others v. Sikandar and others" (PLD 1974 SC 139) "Bakht Zada v. Mst.
Joomreza and 2 others" (2007 MLD 570) The learned Family Judge as well as the learned District Judge have attended to all the material aspects of the case and have considered each and every important piece of evidence and after its proper appraisal, rendered concurrent findings.
12. Learned counsel for the petitioner failed to point out any illegality, material irregularity, misreading or non-reading of Material evidence available on the record to call for interference in constitutional jurisdiction of this Court.
13. For the reasons discussed above, the instant Writ Petition, being IE devoid of merit, is hereby dismissed.