P L D 2013 Balochistan 59
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
QAMAR GILL ---Petitioner
Versus
IRAM NATHANIEL and 2 others ---Respondents
Constitutional Petition No.233 of 2011, decided on 26th December, 2012.
Divorce Act (IV of 1869) ---
----Ss. 36 & 3(2) ---Constitution of Pakistan, Art.199 ---Constitutional petition ---Christian
divorce ---Suit for recovery of maintenance allowance (alimony) for wife and minor was decreed
concurrently ---Conten tion of the husband (petitioner) was that Trial Court had no jurisdiction in
the matter and courts below had not considered evidence in its true perspective ---Validity ---
Husband had not raised the question of jurisdiction in his written statement, as such husband
could not go beyond his pleadings and the provisions of S.3(2) of the Divorce Act, 1869 would
apply to the present case, whereby the suit could be tried by a civil court in the area where the
spouses resided or had been residing together ---Since th e parties belonged to the Christian faith,
the grant of maintenance (alimony) to wife was covered under provisions of the Divorce Act,
1869, and the quantum of the maintenance allowance was to be in conformity with the
provisions of S.36 of the Divorce Act, 1869 ---Findings of courts below could not be
interfered with ---Constitutional petition was dismissed, in circumstance.
Syeda Tehmina Samad for Petitioner.
Ghulam Mustafa Butt for Respondents.
Date of hearing: 13th November, 2012.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. ---This Constitution Petition is directed against
the judgment and decree dated 31st August, 2010, passed by the Senior Civil Judge -1, Quetta
and judgment and decree dated 22nd February 2011, passed by the Addit ional District Judge -II,
Quetta.
2. The brief facts giving rise to the filing of this Constitution Petition under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973 are that respondent No.1 filed a suit for
recovery of maintenance allo wance (alimony) for herself and for minor son namely Raheel
Qamar against the petitioner before the District Judge, Quetta, who transferred the same to the
Court of Senior Civil Judge -I, Quetta. It was contended in the suit that she was married with the
petitioner in the year 2006 and after marriage she joined the petitioner. She averred in the plaint
that out of wedlock a son was born and initially the relations between the parties were cordial.
After some time the petitioner started maltreating the respon dent and on 17th December 2007
she was turned out by the petitioner in wearing apparels with minor son and retained her dowry
articles and thereafter she took shelter in the house of her parents. It was further averred in the
plaint that during this period the petitioner did not maintain her as well as her minor son. In the
last she prayed that defendant may be directed to pay maintenance allowance to the plaintiff @
Rs.5,000/ - (Rupees five thousand only) per month with effect from 17th December 2007 with
periodical enhancement and Rs.3,000/ - (Rupees three thousand only) per month to the minor
from same date. The respondent No.1 also filed an application for interim maintenance for
herself and minor, which was allowed and petitioner was directed to pay Rs.2, 000/- (Rupees two
thousand only) per month to the respondent No.1.
3. The suit was contested by the petitioner by filing his written statement, whereby factual
and legal objections were raised. Out of the pleadings of the parties, following issues were
framed:
"(1) Whether the plaintiff herself left the house of defendant and took all her belongings
including the golden ornaments the suit is not maintainable?
(2) Whether the plaintiff is entitled for Rs.5000/ - for her maintenance and Rs.3000/ - for
maintenance of minor?
(3) Whether the plaintiff is entitled to the relief claimed for?"
4. Thereafter, the parties were called upon to produce their evidence. Accordingly the
respondent No.1 in support of her case produced two witnesses and she recorded h er statement.
In rebuttal the petitioner produced two witnesses and lastly recorded his statement. After hearing
the learned counsel for the parties, the learned Senior Civil Judge -1, Quetta vide impugned
judgment and decree dated 31st August 2010 directed the petitioner to pay Rs.5,000/ - (Rupees
five thousand only) as maintenance to the respondent No.1 and Rs.2,000/ - (Rupees two thousand
only) for child from 17th December 2007 and to keep continue the said alimony in future.
5. The petitioner being aggri eved from the above judgment and decree, filed an appeal
before the District Judge, Quetta, who transferred the same to the file of Additional District
Judge -II, Quetta, who after hearing the parties dismissed the same by means of judgment and
decree dated 22nd February 2011, hence this petition.
6. Syeda Tehmina Samad, learned counsel for the petitioner contended that the learned trial
Court had no jurisdiction to try the suit. She further contended that section 36 of the Christian
Divorce Act, 1869 only stipulates that alimony pending the suit in no case will exceed one fifth
of the petitioners average of net income for 3 years. She further contended that the learned trial
Court as well as the appellate Court has failed to consider the evidence in its t rue perspective.
She further contended that the appellate Court has not considered the real controversy between
the parties, thus the impugned judgments and decrees are liable to be set aside.
7. On the other hand Mr. Ghulam Mustafa Butt, learned counsel for the respondent No.1 has
defended the judgments and decrees passed by the Courts below.
8. We have heard the learned counsel for the parties and have also gone through the record
including the impugned judgments passed by Courts below.
9. Perusal o f the written statement filed by the petitioner shows that question of jurisdiction
has not been raised by the petitioner, as such, the petitioner cannot go beyond his pleadings.
Even otherwise, the provisions of Divorce Act, 1869 would apply in the instan t case. The
relevant provisions of the Act are reproduced hereunder:
"Section; 3(2). "Civil Judge" "Court of Civil Judge" means, in the case of any petition
under this Act, the Court of the Civil Judge within the local limits of whose ordinary jurisdict ion
the husband and wife resided or last resided together; "
From the above provisions of law, it clearly means that the suit can be filed in the Court
of Civil Judge, where the spouses resided or had been residing together.
10. Coming to the next con tention of learned counsel for the petitioner that under section 36
of the Christian Divorce Act, 1869 the alimony shall in no case exceed one fifth of the husbands
average net income for the three years next preceding the date of the order is concerned, p erusal
of the impugned judgment shows that the learned Senior Civil Judge, who after taking into
account pay slip of the petitioner held that the children is entitled to Rs.2,000/ - (Rupees two
thousand only per month as alimony and wife is entitled for Rs. 5,000/ - (Rupees five thousand
on1y) per month. The impugned judgment and decree was challenged by the petitioner in appeal
before the Additional District Judge -II, Quetta and the appellate Court after taking the provisions
of law reduced the maintenance al lowance of the petitioner from Rs.5,000/ - (Rupees five
thousand only) to Rs.3,000/ - (Rupees three thousand only) per month and maintenance of minor
was fixed at Rs.2500/ - (Rupees two thousand five hundred only) per month with periodical
enhancement since 1 7th December 2007.
11. Since both the parties belong to the Christian faith and the grant of maintenance
(alimony) to wife is covered under the Divorce Act, 1869, therefore, the maintenance allowance
of the respondent No.1 as determined by the Courts bel ow are in conformity with the provisions
of section 36 of the Christian Divorce Act, 1869, as such, we see no illegality or jurisdictional
defect in the judgments and decrees of the Courts below, cannot be interfered with in the
exercise of the Constitutio nal jurisdiction.
12. Resultantly, this writ petition is dismissed with no order as to costs.
KMZ/25/Bal Petition dismissThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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