P L D 2021 Balochistan 145
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
REHMATULLAH ---Petitioner
Versus
Mst. BIBI ZENORA and 2 others ---Respondents
C. P. No. 335 of 2020, decided on 8th March, 2021.
(a) Family Courts Act (XXXV of 1964) ---
----Ss. 5, Sched. & 14--- Family Courts Rules, 1965, R. 3---Dastoor -ul-Amal Diwani State
Kalat, 1952, S. 24--- Suit for dissolution of marriage ---Appeal ---Scope ---Respondent/wife
filed suit for dissolution of marriage on the ground of cruelty, recovery of dower amount,
custody of minors and return of educational certificates ---Family Court partly decreed the
suit---Petitioner filed appeal before the Member, Majlis -e-Shoora, who returned the appeal
by holding that the court had no jurisdiction to ente rtain the appeal ---Petitioner filed appeal
before the District and Sessions Judge, who dismissed the same being barred by time ---
Validity ---Section 14 of the Family Courts Act, 1964, provided that a decision given or
decree passed by a Family Court shall b e appealable to High Court, where the Family Court
was presided over by a District Judge and to the District Court in any other case ---To define
the words "District Judge", an Explanation was given in R. 3 of the Family Courts Rules,
1965, wherein it was l aid down that "for the purpose of this rule and R. 7, the expression
'District Judge' shall be deemed to include the President of Majlis -e-Shoora, Kalat" ---Section
24 of the Dastoor -ul-Amal Diwani State Kalat, 1952, envisaged that there shall be a Majlis -e-
Shoora comprising of two or more members to decide appeals arising out of the judgments and decrees of the Qazis working under the hierarchy of Dastoor, thus, for all intents and purposes, reference to word 'Majlis -e-Shoora' meant a Court constituted with two members
and a President, whereas the reference to words 'President of Majlis -e-Shoora' was limited
only to President of Majlis -e-Shoora ---Provincial Government while defining the territorial
limits of the various courts of Majlis -e-Shoora had simultaneously declared the respective
District and Sessions Judges as President of different Courts of Majlis -e-Shoora ---Intention
of legislature was clear that in family matters either decided by a Civil Judge or Qazi, the appeal would solely lie before the Dist rict Judge ---Constitutional petition was dismissed
accordingly.
(b) Family Courts Act (XXXV of 1964) ---
----S. 14---Family Courts Rules, 1965, R. 22 ---Appeal ---Limitation ---Condonation of delay--
-Scope ---Respondent filed a suit for dissolution of marria ge on the ground of cruelty,
recovery of dower amount, custody of minors and return of educational certificates ---Family
Court partly decreed the suit ---Petitioner filed an appeal before the Member, Majlis -e-
Shoora, who returned the appeal by holding that the court had no jurisdiction to entertain the
appeal ---Petitioner filed an appeal before the District and Sessions Judge, who dismissed the
same being barred by time ---Validity ---Even the appeal filed before the court of Member,
Majlis -e-Shoora, was barre d by time ---Rule 22 of Family Courts Rules, 1965, provided that
an appeal under S.14 of the Family Courts Act, 1964, shall be preferred within 30 days of the
passing of the decree or a decision excluding the time required for obtaining the certified
copies ---Although it was provided in the proviso to R. 22 of Family Courts Rules, 1965, that
the Appellate Court might for sufficient cause extend the period--- Nothing was available on
record to suggest that any application was filed for extension of time, nor a ny such ground
was taken in the memorandum of appeal ---Constitutional petition was dismissed accordingly.
(c) Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2--- Suit for
dissolution of marriage ---Ground for dissolution of marriage ---Cruelty ---Scope ---Respondent
filed a suit for dissolution of marriage on the ground of cruelty, recovery of dower amount, custody of minors and return of educational certificates ---Family Court partly decreed the
suit---Petitioner filed appeal before the District and Sessions Judge, who dismissed the same
being barred by time ---Validity ---Statement of respondent/wife and her witnesses showed
that there was maltreatment both physically and mentally from the side of pet itioner, that was
why the petitioner had to give surety that next time there would be no beatings ---Petitioner,
on the other hand, had failed to give substantiating evidence to prove that the respondent willingly left him and refused to rejoin him ---Petiti oner had also failed to maintain the
respondent for several years during her stay with her parents ---Cruelty was not limited to
physical bearing rather it could either be mental or even by conduct ---Respondent had taken
shelter in her parent's house for se veral years and in such a situation the respondent had
sustained acute mental anguish and suffering by the reckless and careless attitude of the petitioner, which compelled her to approach the trial court for dissolution of marriage ---
Constitutional petiti on was dismissed accordingly.
(d) Interpretation of statutes ---
----Proviso to section---Construction--- Proviso is to be restrictively construed.
(e) Family Courts Act (XXXV of 1964)---
---S. 14 ---Appeal ---Dissolution of marriage ---Scope ---Logic behind non- provision of appeal
in the dissolution of marriage case is to protect the underprivileged and generally oppressed section of society i.e. wife, from costly and prolonged litigation---Lawmakers have put a clog on the righ t of a husband to file appeal in case of dissolution of marriage, keeping in view
the peculiar circumstances prevailing in the society.
(f) Family Courts Act (XXXV of 1964)---
----S. 14---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)(d) ---Appeal ---
Dissolution of marriage ---Scope ---Section 14 of the Family Courts Act, 1964, contemplates
appeal from the decision of the Judge Family Court to be competent before the District Judge
but with a bar that no appeal shall lie from a decree passed by a Family Court dissolving the
marriage on any other ground or grounds specified therein except on the ground mentioned in S.2(viii)(d) of Dissolution of Muslim Marriages Act, 1939, which relates to the disposal of
property of wife preventing her from exerci sing her legal right over it.
(g) Administration of justice ---
----No one can claim benefit of his own wrong.
(h) Limitation Act (IX of 1908)---
----S. 14 ---Exclusion of time of proceeding bona fide in Court without jurisdiction ---Scope ---
Where a litigant has not acted in a bona fide manner or he has acted without due diligence in
prosecuting remedies before a wrong forum, he cannot be benefitted under S.14 of the Limitation Act, 1908.
Muhammad Ishaq v. Province of the Punjab 1998 SCMR 9; Abdul Ghani v. Ghulam
Sarwar PLD 1977 SC 102 and Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259 rel.
(i) Constitution of Pakistan ---
----Art. 199--- Constitutional jurisdiction---Laches ---Scope ---No period of limitation is
prescribed for filing a constitutional petition under Art.199 of the Constitution, but it has to
be filed within a reasonable time---Reasonable time means time requisite for filing of appeal/
revision, which is normally three months.
Khali Khan v. Haji Nazir and 4 others PLD 1997 S C 304 ref.
Abdul Ahad Kakar for Petitioner.
Miss Sarwat Hina for Respondent No.1.
Date of hearing: 24th February, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---Facts necessary for adjudication of this case are, that
the respondent No.1 Mst. Zenora, daughter of Sheikh Hussain Khan, filed a suit for dissolution of marriage on the ground of cruelty, recovery of dower amount, custody of minors and return of educa tional certificates against the petitioner in the Court of Family
Judge Muslim Bagh (hereinafter "the trial Court") with the prayer that the suit may be decreed with the relief of dissolution of marriage, provision of Haq Maher, custody of children and del ivery of educational certificates.
2. The petitioner being the defendant in the suit, contested the suit by way of filing a
written statement before the trial court wherein he raised certain legal objections and denied
the claim of respondent No.1 on the facts. In light of divergent pleadings of the parties, the
trial court framed four iss ues, including relief. Thereafter parties adduced their respective
evidence in support of their respective claims. On conclusion of the trial, the trial court vide impugned judgment dated 20.12.2018 partly decreed the suit of the respondent.
3. The petitio ner feeling aggrieved and discontented with the impugned judgment and
decree passed by the trial court, filed an appeal before the Member Majlis -e-Shoora Killa
Saifullah on 02.02.2019 bearing No.03/2019, which remained subjuclice before till
21.10.2019. On 21.10.2019, the learned Member Majlis -e-Shoora returned the aforesaid
appeal by holding that the said court has no jurisdiction to entertain the appeal rather, the jurisdiction lies with the District and Sessions Judge in the matter. Hence, the appeal was
returned to the petitioner for the presentation of the same before the court of competent jurisdiction. Accordingly, the petitioner filed a Civil Appeal bearing No. 01 of 2019 under Section 14 of the West Pakistan Family Courts Act 1964 ("the Act") agains t the impugned
judgment and decree dated 20.12.2018 passed by the trial court before the learned Additional District Judge Muslim Bagh ("appellate court"). After hearing arguments of learned counsel for the parties, the appeal was dismissed on 12.03.2020 b y the appellate court being barred
by time. Thereafter the instant constitutional petition has been filed.
4. We have heard the learned counsel for the parties and have gone through the available
record with their able assistance.
5. The suit for dissoluti on of marriage filed by respondent No.1 was decreed by the trial
court against the petitioner, and the marriage between the parties was dissolved on the basis of cruelty. The petitioner/husband preferred an appeal under section 14 of the Act before the appellate court, and the same was dismissed being barred by time. Now the question arises
here that whether, in the case of dissolution of Marriage on the basis of cruelty, an appeal is entertainable by the husband in spite of the bar contained in Section 14 of the Family Courts Act, 1964?
It will be useful to reproduce section 14 of the Act ibid which reads: --
"14. Appeal.--- (1) Notwithstanding anything provided in any other law for the time
being in force, a decision given or a decree passed by a Family Co urt shall be
appealable;
(a) to the High Court, where the Family Court is presided over by District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; an d
(b) to the District Court, in any other case.
(2) No appeal shall lie from a decree passed by a Family Court --
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act,
1939;
(b) for dower or dowry not exceeding rupees thirty thousand;
(c) for maintenance of rupees one thousand or less per month.
(3) No appeal or revision shall lie against an interim order passed by a Family Court.
(4) The appellate Court referred to in subsection (1) shall dispose of the appeal within
a period of four months."
Clause 'd' of section 2 of the Dissolution of Muslim Marriages Act, 1939 is
reproduced herein under:
"disposes of her property or prevent s her from exercising her legal rights over it; or"
6. A bare reading of section 14(1) reveals that decision is given or decree passed by a
Family Court shall be appealable. So far, sub -section (2), which put embargo coming in the
way of appeal in the circ umstances (a) to (c) that is in the nature of the proviso to sub- section
(1). It is settled law that the provision of proviso is to be restrictively construed. The logic behind non- provision of appeal in the dissolution case is to protect underprivileged a nd
generally oppressed section of our society, i.e. wife, from costly and prolonged litigation. Rather in clear words, the lawmakers put a clog on the right of a husband to file an appeal in case of dissolution of marriage, keeping in view the peculiar cir cumstances prevailing in our
society.
7. Section 14 of the Family Courts Act, 1964 contemplates appeal from the decision of
the Judge, Family Court to be competent before the District Judge but with a bar that no appeal shall lie from a decree passed by a family court dissolving the marriage on any other grounds or grounds specified therein except on the round mentioned in section 2(viii)(d) of Dissolution of Muslim Marriages Act, 1939, which relates to the disposal of property of wife preventing her from e xercising her legal right over it. From the above, it is manifest that
except on the ground mentioned above, if marriage is dissolved by the family court on any
other ground, the appeal would not be competent.
8. In the case in hand, the appellate court wa s not vested jurisdiction to entertain the
appeal with respect to dissolution of the marriage on the basis of cruelty by the husband. The appeal was not competent before the Additional District Judge, who erroneously entertained the same. However, the rema ining portion pertaining to the impugned judgment, i.e. recovery
of dower amount etc, the appellate Court (District and Sessions Judge) is vested with the jurisdiction.
9. In view of the contention raised by the learned counsel for the petitioner about the
maintainability of the appeal before the Member Majlis -e-Shoora Killa Saifullah, a query
was posed to learned counsel for the petitioner that how the appeal was competent before the learned Meinber Majlis -e-Shoora Killa Saifullah to the extent of recovery of dower amount.
He responded that the impugned judgment was passed by the court of Qazi Killa Saifullah, therefore, the appeal was competent before the Majlis -e-Shoora. For the sake of argument if
the contention of learned counsel for the petitioner is a ccepted, it will diminish the whole
scheme of West Pakistan Family Courts Act, 1964.
10. In the instant matter, a crucial point arose; as to which would be an appellate Court in
family matters, where the case has been tried and adjudicated by the Court of Civil Judge
established and Civil Courts Ordinance, 1962 (in short "Ordinance" and the Courts of Qazis,
established under Dstoorul -Aural Diwani Kalat (in short "Dastoor") and Balochistan Civil
Dispute (Shariat Application) Regulation, 1976 (in short "Regul ation").
11. Before proceeding to dilate upon this question, it may be seen that in view of
omission of Article 247 and amendment in Article 246 of the Constitution of Islamic Republic of Pakistan, 1973 and applicability of the Balochistan Civil Courts Ordinance, 1962 in tribally administered areas of the Province of Balochistan, the Regulation is no more on statute books; thus appropriate remedy of appeal in a family matter decided by a Court of Qazi, established by Regulation need not to be discussed and determined.
Section 4 of the Family Courts Act, 1964, qualifies a Civil Judge or a Qazi to act as
Family Court under the Act. For the sake of convenience the relevant section is reproduced herein -below:
4. Qualifications of Judge: No person shall be appointed as a Ju dge of a Family Court
unless he is or has been [10][or is qualified to be appointed as] a District Judge, an Additional District Judge, [11] [a Civil Judge or a Qazi appointed under the Dastur -
ul-Amal Diwani, Riasat Kalat]
12. Section 14 of the Act deals w ith the subject of the Appeal, and it says that a decision
is given or decree passed by a Family Court shall be appealable to the High Court, where the Family Court is presided over by a District Judge or an Additional District Judge and to the District Co urt in any other case.
13. To define the words "District Judge", an explanation has been given in Rule 3 of the
West Pakistan Family Courts Rules, 1965, framed in exercise of power conferred by section 26 of the Family Courts Act, 1964, wherein it has been laid down that "for the purpose of
this rule and rule 7, the expression 'District Judge' shall be deemed to include the President of Majlis -e-Shoora, Kalat". Here the critical line which needs to be drawn is the understanding
of the distinction between the Majis -e-Shoora constituted under Dastoor -and "President of
the Majlis -e-Shoora - defined under Dastoor. On this behalf, section 24 of the Dastoor may be
examined, which envisages that there shall be a Majlis -e-Shoora comprising of two or more
members, to decide appeals arising out of the judgments and decrees of the Qazis working
under the hierarchy of Dastoor. It further states that if there will be difference of opinion between the Member and the President of Majlis -e-Shoora, the decision of the President
would prevail, and if there is a difference of opinion ,between the two members of Majlis -e-
Shoora, the opinion of the President or third member would be taken, and the decision would be that of the Majority.
14. A bare perusal of these provisions of Das toor makes it crystal clear that for all intent
and purposes, a reference to word 'Majlis -e-Shoora' would mean a Court constituted with two
members and a president, whereas the reference to words President of Majlis -e-Shoora'
would be limited only to the P resident of Majlis -e-Shoora, as given in Explanation to Rule 3
of the West Pakistan Family Courts Rules.
15. It may be seen that the Government of Balochistan, while defining the territorial
limits of the various court of Majlis -e-Shoora in Balochistan, ha d simultaneously declared
the respective District and Sessions Judges as President of the different Courts of Majlis -e-
Shoora. For the sake of reference, two of the said Notifications of the Government of
Balochistan dated 3rd July, 1988 and 20th September , 1994 are reproduced herein- below:
"Notification No. Legis. 6 -63/Law/80- IV(1).
In supersession of this Department's Notification of even number, dated 7th October, 1986, the Government of Balochistan is pleased to determine the territorial limits of the Civil Districts of Kalat, Khuzdar, Turbat, Jaffarabad and Sibi and constitute
Majlis -e-Shoora under section 24 of the Dastur -ul-Amal Diwani, Kalat, 1952, at
Kalat, Khuzdar, Turbot, Jaffarabd and Sibi, to exercise civil revisional/appellate jurisdiction wi thin the territorial limits of the above noted District as follows:
Name of Civil
District Name of Majlis -e-Shoora Exercising Civil
Revisional/ Appellate Powers Territorial
Limits
………. ………. ……….
………. ………. ……….
………. ………. ……….
………. ………. ……….
………. ………. ……….
2. The Government of Balochistan is further pleased to appoint the District and Sessions Judge of Kalat, Turbat, Khuzdar, Jaffarabad and Sibi to be Presidents of Court of Kalat, Turbat, Khuzdar, Jaffarabad and Sibi respectively.
BY ORDER OF
GOVERNOR BALOCHISTAN
Notification No.Legis. 6 -63/Law/80- IV/1994.
In supersession of this Department's Notification No. Legis.6- 63/ Law/80 -IV/715,
dated 8th March 1994 the Government of Balochistan is pleased to determine the territorial, limits of the Civil Districts of Kalat, Khuzdar, Turbat, Jaffarabad and Sibi and constitute Majlis -e-Shoora at Kalat, Turbat, Khuzdar, Jaffarabad and Sibi for the
purpose of section 24 of Dastoor -ul-Amal Diwani Kalat 1952, to exercise civil
revisional/appella te jurisdiction within the territorial limits as indicated below:
Name of Civil
District Name of Majlis -e-Shoora Exercising Civil
Revisional/ Appellate Powers Territorial
Limits
………. ………. ……….
………. ………. ……….
………. ………. ……….
………. ………. ……….
………. ………. ……….
2. The Government of Balochistan is further pleased to appoint the District and
Sessions Judges of Kalat, Turbat, Khuzdar, Jaffarabad and Sibi to be Presidents of Courts of Majlis -e-Shura, Kalat, Turbat, Khuzdar, Jaffarabad and Sibi respectively.
BY ORDER OF
GOVERNOR BALOCHISTAN
16. On reading together, the above provisions of law, it explicitly transpires that while
giving an explanation in rule 3 of the ibid Rules, the intention of the legislature was clear that in family matters either de cided by a Civil Judge or a Qazi, the appeal would solely lie
before the District Judge, either he is a District Judge defined by the Ordinance or President of Majlis -e-Shoora, defined by Dastoor and declared by the Government. In a nutshell, it
would sole ly be the respective District Judge of the Sessions Division to decide an appeal
arising out of the judgments passed in family matters by the Civil Judge or a Qazi.
17. The petitioner filed an appeal before the Additional District and Sessions Judge Killa
Saifullah after returning the appeal by the member Majlis -e-Shoora wherein he impugned the
judgment of the court of Qazi to the extent of dissolution of marriage and recovery of dower amount. The appeal to the extent of recovery of dower amount was compete nt to the court of
Additional District and Sessions Judge Killa Saifullah, however the same was barred by time.
In the instant case, the time was consumed by the petitioner in approaching the wrong
forum, i.e. first filing appeal before the learned Member Majlis -e-Shoora Killa Saifullah,
which was returned on 21.10.2019 on the request of learned counsel for the peti tioner that
due to his mistake he filed the appeal before the learned Member Majlis -e-Shoora, the
signature of learned counsel for the petitioner was also obtained by the learned Member
Majlis -e-Shoora on order sheet dated 21.10.2019. Even otherwise, the decree was passed by
the trial court on 20.12.2018 the petitioner applied for the certified copy of the judgment and
decree on 21.12.2018; and the copy was ready and received by the petitioner on 26.12.2018. The appeal was filed before the learned Member Majlis -e-Shoora on 02.02.2019. In the
above circumstances, it can safely be concluded that even the appeal filed before the court of learned Member Majlis -e-Shoora was barred by time.
18. Rule 22 of West Pakistan Family Courts Rules, 1965, provides that an a ppeal under
section 14 of the Act, 1964 shall be preferred within 30 days of the passing of the decree or a decision excluding the time required for obtaining the certified copies. Although it is provided in the proviso to Rule 22 of West Pakistan Family C ourts Rules, 1965 that the
Appellate court may for sufficient cause extend the period. But there is nothing on record to suggest that any application was filed along with an appeal for an extension of time, nor any
such ground has been taken in the memo. of appeal as well as in the grounds of the instant
petition.
19. It is stated earlier that the appeal against the judgment and decree of a court of
Qazi/Family Judge was not competent before the learned Member Majlis -e-Shoora. When the
appeal was returned o n the request of learned counsel for the petitioner on 21.10.2019,
according to the record available, it transpires that the petitioner, instead of presenting the said returned appeal before the Additional District Judge Killa Saifullah filed another appea l
on 14.11.2019 with a considerable delay of ten months and 26 days after passing of the
impugned judgment by the trial court.
The moot question for the determination of this court is whether the filing of appeal
before a wrong forum and the time consumed in pursuit of the appeal can be
excluded/condoned from the prescribed period of limitation for filing appeal, in terms of
section 14 of the Limitation Act, 1908.
20. As far as the limitation is concerned, it is settled that a litigant should be vigilant in
this respect. It is the mistake of the petitioner that he had filed an appeal before the learned
Member Majlis -e-Shoora, where it was not maintainable. There is no question about it that
no one can claim benefit on account of his own wrong. For choosing the wrong forum, no
proper explanation was given by the petitioner except that it was a technical mistake. As the
appeal before the wrong forum was filed by a counsel; therefore, it was not simply a technical mistake. The choosing of a wrong forum with the bona fide intention, no doubt, can
be a ground to get the benefit of section 14 of the Limitation Act, but a technical mistake
cannot be termed as a mistake with the bona fide intention, as such it is no ground to press
under section 14 of the Limitation Act, 1908.
21. This has been a consistent view of the Hon'ble Supreme Court that if a litigant has not
acted in a bona fide manner or he has acted without due diligence in prosecuting remedies
before a wrong forum, he cannot be benefited under Section 14 of the Limitation Act. In a case reported as Muhammad Ishaq v. Province of the Punjab (1998 SCMR 9), it was held that prosecuting remedies before the wrong forum hardly amounted to a bona fide mistake and did not constitute due diligence, the essential requ irement of section 14 of the Limitation
Act. Similarly, in the case reported as Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), it was held that defence given by a lawyer that remedy in a wrong Court was prosecuted is not a good ground for exclusion of tim e for limitation either under section 5 or section 14 of the
Limitation Act. In the case of Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others (1975 SCMR 259), it was held by the Apex Court that failure to acquaint himself with relevant provisions of law relating to the jurisdiction of the Court, amounting to negligence
on the part of counsel and hence the delay was not condoned.
22. Now, let us dilate upon the merit of the case to the extent of dissolution of the
marriage between the parties on the b asis of cruelty. Although the re -appreciation of
evidence is not the function of this Court under its constitutional jurisdiction, however, for our own satisfaction, we have perused the record minutely. The arguments agitated by the counsel for the petitioner that factor of cruelty is not proved by the respondent No.1/plaintiff as she herself abandoned her conjugal domicile and deserted the house of the petitioner is unpersuasive and run contrary to the record. The respondent/plaintiff has urged that the attitude of the petitioner has remained toward her, and she has always been kept in stress and
she was forcibly shunted out from his house, and she took shelter to her parent house and did not maintain her.
23. She has also urged that for the last many years , she has been shunted out by the
petitioner from her house in her one way she is residing with her parents. During this period, the petitioner has never bothered to abide about her. She also urged that she was turned out from the house of the petitioner. In such circumstances, she was compelled to take shelter at her parent's house. Upon the intervention of some elders, the arbitrator was appointed who gave their decision on 02.06.2015 and took assurance from the petitioner for keeping the good behavior wi th respondent No.1/plaintiff in future and also undertook to abide by all
mental obligations, but the defendant/petitioner did not mend his ways and again started and
continued torture and inhuman behavior towards the plaintiff without any justification and reason. Once the area notables resolved out the matter through reconciliation and prohibited the petitioner through surety of not extending any type of misbehavior. In spite of the settlement, the petitioner once again initiated oppression and misbehavior against the
respondent, yet the respondent, despite all this, had been bearing the petitioner's oppression
owing to her children's future because she never wanted to destroy her house and put the
children at the mercy of the others. However, under compel ling circumstances, she took
shelter in her parent's house. Respondent No.1/plaintiff further urged that she filed a complaint against the petitioner before the learned Judicial Magistrate on 09.11.2016. In support of her claim, she produced Muhammad Hussa in PW1 and Zainuddin PW -2, who
fully supported the statement of the respondent.
From the above statement of the respondent/plaintiff and her witnesses, it can be
easily stated that there was maltreatment both physically and mentally from the side of the defendant/petitioner; that is why the petitioner gave surety that next time there will be no
beatings. On the other hand, the defendant/petitioner failed to give substantiating evidence to prove that the plaintiff willingly left him and refused to rejoin him.
24. From the above, it is manifest that the petitioner has failed to maintain the
plaintiff/respondent for many years who is residing with her parents. Dissolution of Muslim Marriages Act, 1939 provides recognized grounds for dissolution of marriage, ac cording to
which neglecting or non- maintaining the wife for a period of two years will entitle the wife
for seeking dissolution of marriage on the ground of cruelty.
25. As discussed above, in the instant case, it is proved on record that the
respondent/pl aintiff has taken abode and inhabited in her parents' house for many years, and
the petitioner has neglected her. The cruelty is not limited to physical bearing rather that can be either mental or even by conduct. In the case in hand, the petitioner has ta ken shelter in her
parents' house for the last many years, and in such a situation the plaintiff/ respondent has sustained acute mental anguish and suffering by the reckless and careless attitude and conduct of the petitioner, which compelled her to approa ch the trial Court for dissolution of her
marriage.
26. The trial court has evaluated the evidence to conclude that the wife/respondent No.1
was entitled for the dissolution of marriage on the ground of cruelty. Normally this court does not appraise the evidence to come to its own conclusion; nonetheless, after going through the evidence, we are satisfied that the ground of cruelty has been established.
27. The petitioner had challenged the judgment and decree dated 20.12.2018 passed by
the trial court at f irst before the learned Member Majlis -e-Shoora Killa Saifullah, and
thereafter when the appeal was returned for want of jurisdiction, the same was again filed before the appellate court despite that the appeals filed by the petitioner before the learned Member Majlis -e-Shoora Killa Saifullah as well as appellate court were not competent. The
petitioner challenged the impugned judgment of the trial court before this court on 15.04.2020 through the instant constitution petition after a lapse of one year, thre e months
and sixteen days.
28. Apparently, the petition is also suffering from laches. There is no period of limitation
prescribed for filing a constitutional petition under Article 199 of the Constitution of Islamic
Republic of Pakistan 1973, but it has t o be filed within a reasonable time. What is the
reasonable time has been interpreted by the superior judiciary of the country as time requisite for filing of appeal/revision before this court, which is normally three months. The petition is also hit by the principle of laches because the petitioner did not file any application for
condonation of laches by giving reasons; hence, inordinate and unexplained delay in approaching this court could not have been condoned. Reference in this behalf can be made to the judgment of Hon'ble Supreme Court in the case of Khali Khan v. Haji Nazir and 4 others
(PLD 1997 SC 304).
In view of the above, this petition has no merits, which is accordingly dismissed.
SA/86/Bal. Petition dismissed.This 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,
let us know.