Muhammad Ahmad vs Adj etc.

2019 C L C 89

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan, J

MUHAMMAD AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No. 7054 of 2017, heard on 12th September, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of dower---Nikanama showed that Rupees 100,000/- were incorporated in column 17 as compensation in case of divorce---Invoking constitutional jurisdiction on factual controversy---Scope---Petitioner/ex-husband contended that both the Courts below wrongly passed decree in favour of respondent/ex-wife as she filed the suit at the instigation of her new husband and entries in the Nikahnama had been made in connivance with Nikah Khawan and witnesses---Respondent contended that petitioner had divorced her without justification---Validity---Stance of the respondent/plaintiff had been supported by witnesses---Courts below had passed the impugned judgments after fully appreciating evidence on record---High Court in its extraordinary jurisdiction could neither substitute findings of facts recorded by Family Court, nor could give its opinion regarding quality or adequacy of the evidence ---Assessment and appraisal of evidence was the function of Family Court--- Constitutional petition was dismissed accordingly.

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Perveen Umar and others v. Sardar Hussain and others 2003 YLR 3097; Muhammad Ashiq v. Additional District Judge Okara 2003 CLC 400; and Aqil Zama v. Mst. Azad Bibi and others 2003 CLC 702 and Waqar Haider Butt v. Judge, Family Court and others 2009 SCMR 1243 ref.

Amjad Pervaiz Qureshi for Appellant.

Ghulam Murtaza Wahga for Respondents.

Date of hearing: 12th September, 2018.

JUDGMENT

JAWAD HASSAN, J.---Through this Constitutional Petition, the Petitioner has called in question judgments and decrees dated 15.11.2016 and 25.04.2017 (the "impugned judgments and decrees"), passed by Judge Family Court, Minchanabad and learned Additional District Judge, Minchanabad, whereby suit filed by the Respondent No.3 was

decreed and appeal filed by the Petitioner against judgment and decree of Family Court was dismissed. These concurrent findings of fact have been assailed through this constitutional petition.

2.Facts briefly for the disposal of this Constitutional Petition are that the Respondent No.3 Mst. Balqees Bibi solemnized marriage with the Petitioner Muhammad Ahmad. It was agreed vide column No.17 of their Nikahnama that in case of divorce the Petitioner would pay her Rs.1,00,000/- as compensation. After their marriage, she performed matrimonial obligation however, the Petitioner pronounced Talak Salasa without justification and dissolved their matrimonial tie on 3.1.2012. The divorce subsequently became effect ive. She requested the Petitioner to pay her above-mentioned amount of Rs.1,00,000/- but he refused. Feeling aggrieved, the Respondent No.3 filed a suit for recovery of Rs.1,00,000/ - before Judge Family Court Minchanabad. The said suit was contested by the Petitioner by filing his written statement. Out of divergent pleadings of the parties, issues were framed. In support of their respective claim and pleas both the parties produced their oral and documentary evidence. Consequently, the learned Judge Family Court, Minchanabad, decreed the suit vide judgment and decree dated 15.11.2016, whereby the Respondent No.3 was entitled to receive Rs.1,00,000/- from the Respondent. The said judgment and decree was assailed by the petitioner through an appeal before the learned Additional District Judge, Minchanabad, which was dismissed vide judgment and decree dated 25.04.2017, whereby the impugned judgment and decree was upheld. Hence this constitutional petition.

3.Learned counsel for the Petitioner has argued that while passing the impugned judgments and decrees both the courts below have not applied their judicious mind and in a slipshod manner have passed the impugned judgments and decrees which are liable to be set aside. He further argued that the Respondent No.3 herself without any legal justification, refused to perform matrimonial obligations. He argued that the Petitioner tried his best for compromise and for restoration of conjugal rights but his efforts proved abortive and in vain. The Petitioner divorced her on her forceful demand in the presence of respectable of family including Ahmad Yar their maternal grandfather. He further argued that their material contradictions in the testimonies of the PWs, which have been overlooked by both the Courts below, therefore, the impugned judgments and decrees are liable to be set aside.

4.On the other hand counsel for the Respondents No.3 has supported the impugned judgments and decrees and contended that both the Courts below have concurrently passed the impugned judgments and decrees, therefore, no exception can be taken to it in constitutional jurisdiction. Lastly, he prayed for dismissal of the writ petition.

5.Arguments heard and record perused.

6.From the perusal of record it reveals that in order to prove her case, the Respondent No.3 herself appeared as PW-1 and supported the stance taken in the plaint. She clearly deposed that at the time of her nikah it was agreed that the Petitioner would pay Rs.1,00,000/- to her in case of divorce. This condition was clearly written in their Nikahnama dated 07.02.2011 (Exh.P-1). She stated that she has been performing matrimonial obligations in the house of the Petitioner but he divorced her on 3.1.2012 without any

justification. The said stance of the Respondent No.3 has been supported by PW-2 and PW-3 in toto. On the other hand, the Petitioner himself appeared as DW-1 and deposed that they are, cousin/Khalazad. He deposed that Mst. Balqees was firstly engaged with one Irfan Ghani but her engagement was broken. Subsequently, with mutual consent of their families he solemnized marriage with her in a very simply manner without any dowry articles etc. After that she developed illicit relations with above said Irfan Ghani as a consequence whereof with the consent of elders he divorced her. After that she solemnized marriage with Irfan Ghani her Khalazad. He stated that the above suit was filed at the instigation and abetment of Irfan Ghani and entries in Nikahnama Ex.D-9 have been made in connivance with Nikah Khawan/Registrar as well as the witnesses.

7.From the perusal of record it reveals that both the Courts below have carefully examined and meticulously gone through the record for forming its opinion on issue No.1. No convincing arguments have been advanced by the learned counsel for the Petitioner to convince the Court that both the courts below have committed any illegality while passing the impugned judgments and decrees. From the perusal of impugned judgments it reveals that both the courts below have passed the impugned judgments and decrees after fully appreciating evidence on record.

8.The High Court in its extra ordinary jurisdiction can neither substitute findings of facts recorded by Judge Family Court, nor can give its opinion regarding quality or adequacy of the evidence. The assessment and appraisal of evidence is the function of the Family Court, which is vested with exclusive jurisdiction in this regard. Reliance in this regard is placed upon the case of Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522), Perveen Umar and others v. Sardar Hussain and others (2003 YLR 3097), Muhammad Ashiq v. Additional District Judge Okara, (2003 CLC 400) and Aqil Zama v. Mst. Azad Bibi and others (2003 CLC 702). Furthermore when a factual controversy had been settled by the two courts below unless and until there were compelling reasons shown for mis-reading and non- reading of evidence in the said order passed by courts below, or was without jurisdiction or there was a visible irregularity while deciding the same, High Court might interfere. Regarding concurrent findings reliance is also placed upon Waqar Haider Butt v. Judge, Family Court and others (2009 SCMR 1243), wherein it has been held as under: - "Suit filed by wife and minor children was decreed in their favour and appeal filed by husband was partly allowed by Lower Appellate Court and monthly maintenance of minors was reduced. High Court in exercise of constitutional jurisdiction declined to interfere in judgment and decree passed by Lower Appellate Court Validity. Petition under Art. 199 of the Constitution was not maintainable against concurrent findings of Tribunals below. Both the Courts below had given findings of fact against husband, therefore, High Court was justified to dismiss constitutional petition and the same was in accordance with law laid down by Supreme Court. Normally Supreme Court did not meddle with findings of fact reached at by primary Courts or High Court when it was satisfied that finding of Courts below were reasonable and were not arrived at by disregarding any of the provisions of law or any accepted principle concerning appreciation of evidence, notwithstanding that a different view might also was possible. The High Court, while exercising constitutional jurisdiction had rightly refused to interfere with findings of fact recorded by Courts of competent jurisdiction.

Supreme Court did not find any infirmity or illegality or any misreading of evidence on record by the Courts below. Leave to appeal was refused."

No illegality or irregularity had been pointed out in the concurrent findings of fact recorded by two courts below and impugned judgments and decrees do not suffer from any legal discrepancy or infirmity.

9.In view of above, this writ petition being devoid of force is dismissed.

MQ/M-142/L Petition dismissed.