Through this Constitutional petition, the petitioner has challenged the judgment and decree dated 21-1-1996 passed by learned Additional District Judge, Mailsi whereby petitioner's suit for restitution of conjugal rights filed against respondent No.2 was dismissed and the suit for dissolution of marriage filed by respondent No.2 was decreed.
2. Brief facts leading to the filing of the above noted petition are that respondent No.2/plaintiff filed a suit for dissolution of marriage on 5-7-1993 on the basis of option of puberty and also on the ground that petitioner-defendant is of a bad character. The petitioner also filed a suit for restitution of conjugal rights on 2-7-1993. Both the suits were consolidated.
3. In terms of the respective pleadings of the parties, the learned trial Court framed the following issues:---
(i) Whether the plaintiff is entitled to get a decree for dissolution of marriage on the basis of option of puberty? If so, on what terms and conditions? OPP
(ii) Whether the defendant is entitled to get a decree for restitution of conjugal rights? OPD.
(iii) Relief.
The respondent-plaintiff produced the following evidence: -
(i) She herself appeared as P.W.1,
(ii) Affidavit of Nizam Din was produced as Exh.P.I
(iii) Affidavit of Ahmad Yar was produced as Exh.P.2,
(iv) Birth certificate of Mst. Maqsood Mai was produced as Exh.P.3 according to which her date of birth is 30-1-1975 and
(v) Nikahnama was produced as Exh.P.4 The petitioner in defence produced the following evidence:----
(i) He himself appeared as D.W.1 and
(ii) Produced affidavits of Muhammad Bakhsh Exh.D1 and Muhammad Iqbal as Exh.D2.
4. The learned trial Court vide its judgment dated 9-7-1995 dismissed respondent-plaintiff's suit for dissolution of marriage and decreed the suit for restitution of conjugal rights filed by petitioner on the ground that the marriage should have been repudiated by the respondent No.2/plaintiff during the age between 16 to 18 years. At the time of her statement in Court she was 25/26 years of age and according to her, she had repudiated her marriage two years prior to the said date. In that view of the matter, it was held that the respondent-- plaintiff had failed to prove its case. In appeal, this judgment of the learned trial Court was set-aside on the ground that the evidence of the petitioner-defendant was discrepant; that there is no evidence that the consumation of marriage had taken place and that the respondent No.2/plaintiff had repudiated the marriage during the period stipulated in law.
5. Learned counsel for the petitioner while assailing the impugned judgment has submitted that the judgments of the learned Courts below are at variance, that the judgment of the learned appellate Court is against the weight of evidence and that the factum of consummation of marriage has not been denied by respondent-plaintiff in her plaint.
6. I have heard learned counsel for the petitioner and have also gone through the impugned judgment, certified copies of which have been appended with this petition.
7. It is admitted that the Nikah took place when the respondent-plaintiff was minor. Her date of birth as per Exh.P3 is dated 30-1-1975. Neither in the plaint nor in her statement in Court she admits consummation of marriage. On the contrary, she in her statement has specifically denied the same. Her statement was recorded in Court on 21-3-1994 wherein she stated that she had repudiated her Nikah with petitioner-defendant two and a half years prior to the afore-referred date. That being so, the repudiation of the Nikah. By respondent---plaintiff was well within 16/18 years of age and the finding of the learned trial Court is against the evidence on record. The affidavits of Ahmad Yar and Nizam Bakhsh which are Exh.Pl and Exh.P2 respectively, have further corroborated the statement of respondent-plaintiff on the point of repudiation of marriage on attaining puberty and that no consummation had taken place.
8. The respondent was well within her right to exercise her-right of option of the puberty which she exercised in accordance with law. The finding of the learned appellate Court is well reasoned and does not reflect any misreading of evidence or misapplication of law.
9. It is also in evidence that the respondent-plaintiff was a second wife of the petitioner but this fact was neither mentioned in the Nikahnama (Exh.P4) nor any permission was obtained from the concerned union council. This may not be a ground to justify dissolution of marriage but it does reflect adversely on the conduct of the petitioner who is seeking relief in equitable jurisdiction of this Court.
10. There is yet another aspect of the matter. This Constitutional petition is addressed against a judgment and decree for dissolution of marriage against which the law does not provide a right of appeal except in matters specified in subsection (2) of section 14 of West Pakistan Family Courts Act. The wisdom for dispensing with right of appeal in such like matters was that the Legislature wanted an early dispensation of justice for those broken spouses particularly the females where there was evidence to the effect that marriage could not remain intact or did not exist under the law. In a Division Bench judgment of this Court i.e. Sh. Qudrat Ullah v. Mst. Iqbal Begum and others PLD 1968 Lah. 309 at page 310 it was observed as under:--- "---------.It appears, that Legislature clearly intended that there should be no revival of any controversy with regard to the existence of conjugal relations between the parties."
This was to shorten the agony of a woman who having successfully proved that marriage warranted dissolution or that it never existed, wanted a new lease of life in a short span provided by the Providence i.e. From womb to tomb. The legislative intent cannot be stultified by taking recourse to the Constitutional jurisdiction of this Court. The powers of the High Court under Article 199 of the Constitution are distinct from the powers of an appellate Court or a revisional Court. The- question of the jurisdiction of this Court under Article 199 has come up for consideration in several cases and it has been held that if the Court or the tribunal decides a particular matter, then the High Court sitting in Constitutional jurisdiction, has only to see whether the said Court or the tribunal, has in deciding the matter, acted in accordance with law and if the answer is in the affirmative, then the order may not be interfered with. In Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 at page 527 after discussing the case law, it was observed as under:--- "The legal position in respect of the limits of High Court's Constitutional jurisdiction in cases where the order or judgment has been passed by the final Tribunal or Court having jurisdiction are quite clear from the abovementioned judgments. We may observe that all that the High Court can do while interfering in such matters is to see whether the Tribunal or the Court in question has acted without jurisdiction or acted in violation of the relevant statute or the law as, laid down by the superior Courts."
For what has been discussed above there is no illegality, jurisdictional defect or an earnest call of equity to warrant interference in the Constitutional jurisdiction of this Court. The petition is therefore, dismissed in limine