The petitioner was married with Mst. Naseem Mai respondent No,1 about 22 or 23 years before the litigation started between them. After marriage, the aforesaid respondent lived with the petitioner as his wife and bore nine children to him. Out of those children, a son and a daughter had already been married. The trouble between the spouses started about 2 to 2 1-2 years prior to the institution of the suit for dissolution of marriage. That suit was filed on 24-11-1988 in the Family Court at Shujabad and after the filing of written statement by the petitioner, the same was dismissed as withdrawn on 25-6-1989.
2. The petitioner filed a suit for restitution of conjugal rights but the respondent i,e, wife did not turn up to contest the aforesaid suit although her service was ultimately effected through proclamation in the newspaper. The suit of the petitioner was accordingly decreed ex parte on 12-2-1991.
3. In the back-ground of the above litigation, the respondent Mst. Naseem Mai filed a suit for dissolution of marriage in the Family Court at Alipur in which she took up a number of grounds inter alia pleading that the treatment of the defendant/petitioner towards the plaintiff/respondent was cruel; that the defendant/petitioner failed to provide maintenance to the respondent/plaintiff for a period of more than two years without any lawful excuse; that the defendent/petitioner failed to perform marital obligations towards the plaintiff/respondent for a period of more than three years without lawful excuse; that the defendant/petitioner was a man of immoral character and associated with women of evil repute; that the defendant/petitioner compelled the plaintiff/respondent to indulge in immoral corruption; that the petitioner/defendant levelled false charge of adultery against the plaintiff/respondent and as such, she was entitled to the dissolution of marriage on the principle of 'Khula' as limits of God could not be observed between the spouses.
The suit for dissolution of marriage was resisted by the petitioner/defendant on the grounds that the Family Court at Alipur had no jurisdiction because a similar suit for dissolution of marriage was dismissed by a Family Court at Shujabad; that the suit was not properly valued for the purposes of court-fee and jurisdiction; that the suit was not filed by the plaintiff/respondent and the same was filed by some other party and as such, was not maintainable.
4. The learned trial Judge framed issues on the aforesaid controversial points and came to the conclusion that the petitioner/defendant failed to maintain the respondent/plaintiff for more than two years and also failed to perform marital obligations towards her for more than three years without any lawful excuse. The learned Judge also held that the petitioner was guilty of levelling false charge of adultery against the respondent/plaintiff. After taking into consideration the aforesaid findings in the light of evidence brought on record, it was held by the learned trial Court that the spouses were more than 60 years of age and have levelled serious allegations against each other which have forced them to remain apart from each other and as such, they cannot observe the limits of God. It was also found that the respondent/plaintiff was entitled to a decree for dissolution of Khula on the payment of Rs,10,000 to the defendant as benefits of marriage. The question of territorial jurisdiction was also decided in favour of the respondent/plaintiff, as it was held that the plaintiff could bring a suit at the place where she was presently residing. The ex parte decree for restitution of conjugal rights in favour of the petitioner against the respondent/plaintiff did not allegedly bar the present suit and as such, the suit for dissolution of marriage was decreed.
5. Feeling aggrieved of the judgment and decree, this writ petition has been instituted inter alia alleging that the findings of the learned Court below were not based on the evidence examined at the trial; that the obligations to maintain and to perform conjugal rights on the part of the petitioner/defendant could not be performed as whereabouts of the respondent/plaintiff were not known; that the respondent/plaintiff had mischievously chosen the forum at Alipur so that a decree passed against her in the suit for restitution of conjugal rights be defeated easily. In this regard, it was alleged that the Family Court at Shujabad had the plenary jurisdiction to try the case because the respondent/plaintiff ordinarily resided in that area, however, after being unsuccessful in the first round of litigation in her suit for dissolution of marriage, she shifted elsewhere and filed the instant suit at Alipur to earn the impugned judgment and decree from a Court which in fact had no territorial jurisdiction.
6. Learned counsel for the petitioner also advanced arguments that in view of presence of ex parte decree for restitution of conjugal rights, the respondent/plaintiff could not file the suit for dissolution of marriage being barred by the principle of res judicata, particularly so when her previous suit was dismissed as withdrawn.
7. I have considered the foregoing submissions and find that the parties were married about 2/1-2 decades back and have nine children out of the wedlock, out of whom a son and a daughter had already been married. It is unfortunate that after such a long union, the parties fell apart after levelling heinous charges against each other. The wife i,e, respondent/plaintiff contended in her suit for dissolution of marriage that the petitioner/defendant was man of immoral character as he mixed up with the women of evil repute. On the contrary, the petitioner levelled charge of adultery against his wif, i,e, respondent by stating that she had illegitimate pregnancy which he had observed when the spouses were given an opportunity to sit together for conciliation during the suit for dissolution of marriage. After the conciliation meeting, the petitioner had moved a petition before the Court that the wife i,e, respondent he proceeded under Islamic law for adultery and commission of offence of Zina. However, that application was dismissed by the learned trial Court.
Apart from that, it was held by the learned trial Court, and rightfully so after taking into consideration the evidence brought on record that the petitioner/husband had failed to maintain the respondent i,e, his wife for more than two years and also did not perform conjugal rights qua her for a period exceeding three years. The decision on those two issues entitled the respondent/plaintiff to the dissolution of marriage apart from the principle of 'Khula' because it had rightfully been observed by the Court below that the parties could not live together after raising nasty allegations against each other. On going through the evidence and the pleadings, it follows that the parties have falsely levelled charges against each other of immoral corruption which leads to the belief that they cannot observe the limits of God while living together as husband and wife. In such a situation, the conclusion of the learned trial Judge that the marriage is liable to be dissolved on the principle of Khula' remains unexceptional. Likewise, the principle of res judicata will not apply even if an ex parte decree for restitution of conjugal rights had already been passed against the respondent/wife. The cause of action relating to non-maintenance and non- performance of conjugal rights is a continuing wrong thereby rendering the principle of res judicata inapplicable in family cases. It was so held in Shamsoo v. Mst. Tahira and another reported as 1983 CLC 133 (Karachi). It is, thus, obvious that in the instant case, the previous suit for dissolution of marriage was dismissed as withdrawn whereas, the petitioner obtained the decree for restitution of conjugal rights against the respondent ex parte. Since there was a continuing cause of action with the respondent/plaintiff, therefore, her subsequent suit for dissolution of marriage was not barred by the principle of res judicata. Likewise, there is no force in the plea that since previously respondent resided in the area of Shujabad, therefore her suit at Alipur was not maintainable. It has been held by the learned lower Court that though the respondent/plaintiff (wife) was previously residing at Shujabad but she had shifted her residence for the last many years to Mauza Kach Pak, Tehsil Jatoi and as such, the Family Court at Alipur had jurisdiction to try the matter. That finding of the learned trial Court is based on the evidence brought before it which consisted of the statement of the respondent/plaintiff. The finding is based on a question of fact and cannot be interfered on the Constitutional jurisdiction, particularly when the same does not appear to be perverse or extraneous to the facts on record. It may be pointed out here that there are instances where the High Court had travelled in the realm of facts in exercise of its Constitutional jurisdiction but those are the rare occasions. The interference by the High Court was made in cases where finding was based on insufficient evidence, mis-reading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent error of law, consideration of inadmissible evidence, excess of abuse of jurisdiction, arbitrary exercise of power or when unreasonable or conjectural view had been taken by the Court below. However, in the family cases, the High Court, on its Constitutional jurisdiction is not supposed to act as a Court of appeal and taken upon itself the duty to decide the controversial questions of facts under writ jurisdiction. The scheme of Family Courts makes it crystal clear that the family disputes are to be decided quickly and without being burdened with strict technicalities of law. It is for that reason that the Law of Evidence (Qanoon-i-Shahadat Order, 1984) has not been made applicable nor the technicalities applicable to the civil suits under Civil Procedure Code have been applied to the proceedings before the family Courts. The only requirement under the law is that a proper procedure should be adopted by a Family Court to decide the matter pending before it expeditiously and after hearing both the sides. In fact, the family Court possesses a real inquisitioned jurisdiction to settle the matter between the parties on the principle of substantive justice. Hence, the finding on facts arrived at by a Family Court cannot be interfered by the High Court as it does not act as a Court of fact. It has also been repeatedly held by the Hon'ble Supreme Court of Pakistan that if a Court or Tribunal set-up under the ordinary law has the jurisdiction to decide it rightly or wrongly, and the fact that the decision is incorrect does not render the decision without jurisdiction unless it is shown that the decision is patently wrong. In the instant case no such conclusion can be drawn qua the impugned judgment, which remains unexceptional.
8.The writ petition being without merits, is dismissed in limine. C.M. No,1/98.
9.Disposed of with the disposal of the main petition.