-Marriage not consummated---Petitioner was ex-husband of respondent and he after Nikah, did not get Rukhsati of respondent for 13 years--

 2020 Y L R 1586

[Sindh]

(a) Islamic law---

----Maintenance for wife and children---Principles---Husband is under obligation to maintain his wife and children.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 132--- Affidavit-in-evidence---Failure to cross-examine---Effect---Affidavit-in-evidence/Written statement does not constitute or otherwise cannot be treated as a legal and valid evidence---Affidavit-in-evidence/Written statement if not cross-examined has to be excluded from consideration.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Concurrent findings of two courts below---Scope---High Court under Constitutional jurisdiction cannot interfere in concurrent findings of two courts below otherwise it may go beyond scope of Art. 199 of Constitution.

(d) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Maintenance, recovery of---Concurrent finding of facts by two courts below---Marriage not consummated---Petitioner was ex-husband of respondent and he after Nikah, did not get Rukhsati of respondent for 13 years---Respondent sought Khula and suit for past maintenance was decreed in her favour by Family Court---Judgment and decree passed by Family Court was maintained by Lower Appellate Court---Validity---Rukhsati of respondent since her Nikah on 24-12-1999 till her Khula on 10.04.2013 under decree of court had not taken place and marriage was also not consummated as such---Respondent was entitled to claim for her maintenance as upon performance of her Nikah, she had attained status of wife and remained in such capacity till 10-04-2013 when she was granted Khula by Family Court---Such release of respondent did not affect liability of husband during subsistence of marriage---Petitioner did not take any positive/concrete steps for taking Rukhsati of respondents---Respondent was not only subjected to 'cruel behavior' but was also deprived for almost 13 years to enjoy a happy married life---Both courts below had rightly observed that a great injustice was caused to respondent who waited for Rukhsati for a long time of almost 13 years and got married at the age of 36 years but only after passing of decree for Khula---High Court declined to interfere in concurrent judgment and decree passed by two courts below as same were not suffering from any illegality, irregularity, infirmity, misreading or non-reading of evidence/ materials available on record---Petition was dismissed in circumstances.

Mst. Rubina Bibi v. Muhammad Bashir Ahmed 2006 YLR 633; Syed Rashid Ali Shah v. Mst. Haleema Bibi and 2 others PLD 2014 Pesh. 226; Mst. Farhat Jabeen v. Muhammad Safdar 2011 SCMR 1073; Muhammad Ilyas and others v. Muhammad Sharif and others 2001 CLC 1194; Messrs Society Oil Dealers, Karachi v. District Judge, Karachi and another 2003 MLD 205; Abdul Majeed v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391; Hakim-Ud-Din through L.Rs and orthers v. Faiz Bakhsh and others 2007 SCMR 870; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 and Muhammad Sardar and 3 others v. Federal Land Commission through the Chairman Inland and 27 others 2004 YLR 1689 ref.

Khudinoor v. District Judge Pashin and 2 others 2017 YLR 2349; Mst. Shamim Akhter v. Additional District Judge, Sialkot and another 1991 CLC 1142 and Mst. Farah Naz v. Judge Family Court Sahiwal and others PLD 2006 SC 457 rel.

(e) Family Courts Act (XXXV of 1964)---

----S. 19---Appeal---Court-fee, non-affixation of---Effect---Petitioner did not pay requisite court fee on memo of appeal and same was dismissed by Lower Appellate Court--- Validity--- Lower Appellate Court had rightly dismissed appeal in circumstances.

Hameeda Begum v. First Additional District Judge and another 1988 CLC 1645 rel.