Syed Abu Talib Shah VS Mst: Bibi Rukhsar Azhra

2012 C L C 1272 [Peshawar]

Before Miftahuddin Khan and Waqar Ahmed Seth, JJ

Syed ABU TALIB SHAH and 9 others----Petitioners

Versus

Mst. BIBI RUKHSAR ZAHRA and 2 others----Respondents

Writ Petition No.1840 of 2010, decided on 13th March, 2012.

(a)West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan Art.199---Constitutional petition---Suit for recovery of maintenance allowance and dower was decreed concurrently by courts below---Husband (petitioner) contended that the wife had herself left the house and was not entitled to maintenance---Validity---Husband was bound to maintain his wife and he was not absolved of his liability to maintain her even though she was no longer residing with him; provided that the wife had a lawful excuse or legal right to refuse to live with her husband on account of non- payment of prompt dower---Dower, in the present case, had not been paid to the wife, and therefore, she was justified in living apart from the husband---Constitutional petition was dismissed.

(b)Constitution of Pakistan---

----Art. 199---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitutional jurisdiction, exercise of---Scope---When the courts below, had the jurisdiction and lawful authority to decide a matter on merits; same was not open to interference by the High Court in its constitutional jurisdiction, unless and until, miscarriage of justice was established by the party in the constitutional petition---High Court would not interfere in judgment and decree passed by court of competent jurisdiction for the reason that when the matter was within the exclusive jurisdiction of the Family Court, and the Judge Family Court was to believe and disbelieve the evidence and give reasons to support a conclusion---Constitutional petition was not competent where the evidence had been properly appreciated and analyzed.

Zeeshan Ali Kiyani for Petitioners.

Malik Jarar Hussain for Respondents.

Date of hearing: 13th March, 2012.

JUDGMENT

WAQAR AHMAD SETH, J.--- Petitioners have challenged the concurrent findings of Family Court in judgments and decrees dated 15-12-2008 and the appellate court dated 10-2- 2010 whereby three suits filed by respondent No.1 were decreed in her favour and she was held entitle to maintenance allowed @ Rs.2000/- per month since the month of November, 2002, decree for the return of dowry articles as per list Exh.P.W. 2/1 and a preliminary decree for the partition of the suit house to the extent of 2/15 shares.

2.Learned counsel for the petitioners, while referring to the evidence contended that respondent No.1 herself left the house of the husband/petitioner and as such she is not entitle to the maintenance, secondly it was contended that respondent No.1 is no doubt entitle to the house as dower but in the inherited house of her father-in-law and the particulars given in the plaint are of different house.

3.As against this the learned counsel for the respondents contended that there is no illegality and irregularity in the concurrent findings of the two courts below nor the petitioner has pointed out any non-reading and misreading of evidence.

4.Arguments heard and record perused.

5.The learned counsel for the petitioners agitated that since respondent No.1 has left the house at his own, therefore, she is not entitled to the maintenance. In this respect, it is well- established law that it is incumbent upon, the husband to maintain his wife and he is not absolved of his liability to maintain her even though she be not residing with him provided she has a lawful excuse or a legal right to refuse to live with her husband on account of non-payment of prompt dower. In the instant case it is on record that dower has not been paid to the respondent/wife, thus she is justify in living apart from the petitioner/husband.

6.As regarding the decree of house which is not in accordance with the original house given to the wife by the husband, it is observed that the decree: of the trial court, to this effect is a preliminary decree and during the execution proceedings the court has the power to give the alternate one and even if it is mistake it can be rectified during the execution proceedings. Moreso, when the petitioner/husband has contacted second marriage and the respondent/wife is not asking for divorce.

7.It is settled proposition of law that courts below when they have the jurisdiction and lawful authority to decide the matter on merits, it is not open to interference in constitution jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional Petition.

8.High Court would not interfere in judgment and decree passed by court of competent jurisdiction for the reasons that it was within the exclusive jurisdiction of Judge Family Court to believe and disbelieve the evidence and that the Judge has given reasons in support of conclusion. No Constitutional Petition lies when evidence in the case has been properly appreciated and analyzed.

9.For the afore-stated reasons, the Writ Petition has no force and is dismissed, with no order as to costs.

K.M.Z./106/P Petition dismissed.