Maintenance for herself if she was forced to live apart from the husband

بیوی کو نان و نفقہ دینا شوہر کی ذمہ داری ہے، لیکن اگر بیوی بغیر کسی وجہ کے شوہر کے ساتھ رہنے سے انکار کر دے تو شوہر اسکی نان و نفقہ کی ذمہ دار نہ ہوگی

2004 CLC 1700 Peshawar High Court 

Mst. BUSHRA NAZNEEN VS ALLAH DITTA

2004 C L C 1700

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

Mst. BUSHRA NAZNEEN --- Petitioner

Versus

ALLAH DITTA and 2 others---Respondents

W. P. No. 107 of 2003, decided on /01/.

th May, 2004.

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

----S. 5 & Sched---Constitution of Pakistan (1973),Art.199---Constitutional petition---Suit for maintenance---Suit of plaintiff for past maintenance was concurrently dismissed by two Courts below---Wife was entitled to claim maintenance for herself if she was forced to live apart from the husband on account of the acts of cruelty attributed to husband---Maintenance was neither in the nature of gift nor benefit, but an undeniable legal obligation of the husband to maintain his wife when she was not staying away from him without just cause---If a wife refused without any lawful justification to live with her husband, she was not entitled to any maintenance---Plausible reasons had been given by Courts below in support of the conclusions and no case of misreading or non reading of evidence had been made out---Evaluation of evidence usually was not made out in Constitutional petition, but such exercise was essentially undertaken by Trial Court---Object of taking away right of appeal under family matters was meaningful---If Constitutional jurisdiction would take place of appeal, then the intent and purpose of Legislature would be frustrated---Plaintiff wife had not been able to successfully demonstrate the existence of circumstances justifying interference of High Court in its Constitutional jurisdiction-- Constitutional petition by plaintiff having been found destitute of force, was dismissed.

Khalil Ahmad v. Allah Rakhi and another 1994 MLD 119 and Muhammad Ibrahim v. Mst. Farzana and another PLD 1994 Kar. 255 ref.

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

----Ss. 5 & Sched & 11---Constitution of Pakistan (1973), Art. 199--- Constitutional jurisdiction--- Scope--- Appreciation of evidence ---Jurisdiction of Family Court---Appraisal of evidence was the function of Family Court which had exclusive jurisdiction in the, matter---Finding of fact recorded by. Family Court could , not be interfered with in Constitutional jurisdiction of High Court where it was not shown to be based on misreading or non-reading of material evidence and reasons had been given in support of the conclusion arrived at-- Courts below when had the jurisdiction and lawful authority to decide the matter on merits, it was not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice was established by the party in Constitutional petition---High Court would not interfere in judgment and decree passed by Court of competent jurisdiction for the reason that it was within exclusive jurisdiction of Judge Family Court to believe or disbelieve the evidence---Family Court had given reasons in support of conclusion---Constitutional petition would not lie when evidence in case had been properly appreciated.

Noor Gul Khan Marwat for Petitioner.

ORDER

IJAZ-UL-HASSAN KHAN, J.--------Precise facts giving rise to the filing of instant Constitutional petition are, that Mst. Bushra Nazneen, petitioner, was married to Allah Ditta, respondent on 12-10-1998. Unfortunately, relations between the spouses became strained which led the petitioner to file suits before Judge, Family Court, D.I. Khan for recovery of maintenance, dissolution of marriage and recovery of dowry articles and gold ornaments valuing Rs.55,000. The respondent filed written statement and denied the allegations. The suits were consolidated. On the basis of the pleadings between the parties, following issues were framed for trial:--

(1)Whether the plaintiff has got a cause of action?

(2)Whether the plaintiff has been treated cruely and was turned out from his house by the defendant?

(3)Whether the plaintiff herself took the dowry articles and gold ornaments front the house of the defendant with the help of her brother?

(4)Whether the Haq Mehr has been paid to the plaintiff?

(5)Whether the plaintiff is entitled to the decree for the dissolution of Nikah?

(6)Whether the plaintiff is entitled to recovery of dowry articles, gold ornaments and her previous maintenance?

(7)Relief.

After recording evidence of both the parties, by judgment dated 12-11-2002, learned trial Judge proceeded to hold that the petitioner is entitled for dissolution of marriage on the basis of Khula and recovery of Rs.55,000 as price of dowry articles and gold ornaments. However, suit of the petitioner for past maintenance was dismissed and the petitioner was found to have left the abode of the respondent of her own accord.

2. Feeling aggrieved, both the parties filed appeals before learned District Judge, D.I. Khan which were entrusted to learned Additional District Judge-I, D.I. Khan for disposal. Vide judgment, dated 24-4-2003 the appeal of respondent-husband was accepted whereas appeal filed by petitioner-wife was dismissed and decree granted to her for recovery of dowry articles, was set aside. The prayer of petitioner-wife for recovery of maintenance was not allowed with the exception that she was held entitled to recovery of maintenance at the rate of Rs.1,000 per month for three months i.e. "Iddat" period.

3. Mr. Noor Gul Khan Marwat, Advocate for the petitioner-wife questioned the impugned judgments on the ground that the findings recorded against the petitioner-wife are not in consonance with the material on record that sufficient evidence was available on the file to prove that petitioner-wife was compelled to leave the house of respondent-husband on account of his cruel treatment and live apart and that respondent-husband was not at all interested in the rehabilitation of the petitioner-wife but the matter has been dealt with in a cursory and slipshod manner which has resulted in manifest injustice.

4. A perusal of the impugned judgments reveal that plausible reasons have been given in support of the conclusions arrived at and no case of misreading or non-reading of evidence has been made out. It needs no reiteration that appraisal or evaluation of evidence usually is not made in Constitutional petition. Such exercise is essentially undertaken by trial Court as held in Khalil Ahmad v. Allah Rakhi and another 1994 MLD 119 (Lahore) and Muhammad Ibrahim v. Mst. Farzana and another PLD 1994 Karachi 255.

5. The object of taking away right of appeal under family matters is meaningful. If the Constitutional jurisdiction takes place of appeal, then the intent and purpose of Legislature would be frustrated. A wife is entitled to claim maintenance for herself if she is forced to live apart from the husband on account of the acts of cruelty attributed to the husband. The maintenance is neither a nature of gift nor a benefit but is an undeniable legal obligation of the husband to maintain his wife when she is not staying away from him without just cause. It is well-settled law that if a wife refuses without any lawful justification. to live with her husband, she is not entitled to any maintenance. So far as the question regarding appreciation of evidence is concerned, it needs no reiteration that appraisal of evidence is the function of the Family Court which is invested to it with exclusive jurisdiction. Finding of fact recorded by it cannot be interfered with in writ jurisdiction where it is not shown to be based on misreading or, non-reading of material evidence and reasons have been given in support of the conclusion arrived at.

6. 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 Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition.

7. 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 conclusions. No Constitutional petition lies when evidence in the case has been properly appreciated. In the instant case, the petitioner-wife has not been able to successfully demonstrate the existence of circumstances justifying interference of this Court in its Constitutional jurisdiction. The writ petition having been found destitute of force, is hereby dismissed in limine.

H.B.T./185/PPetition dismissed.