Constitutional Petition in a Christian Divorce Case

PLJ 2013 Quetta 101 (DB)

Present: Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ.

QAMAR GILL--Petitioner

versus

IRAM NATHANIEL and 2 others--Respondents

Const. P. No. 233 of 2011, decided on 26.12.2012.

Divorce Act, 1869 (IV of 1869)--

----Ss. 36 & 3(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Christian divorce--Suit for recovery of maintenance allowance (alimony) for wife and minor was decreed concurrently--Contention of 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 instant case, whereby the suit could be tried by a Civil Court in the area where the spouses resided or had been residing together--Since the parties belonged to the christian faith, the grant of maintenance (alimony) to wife was covered under provisions of the Divorce Act, 1869, and 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--Petition was dismissed.          [P. 104] A & B

Mrs. Syeda Tehmina Samad, Advocate for Petitioner.

Mr. Ghulam Mustafa Butt, Advocate for Respondents.

Date of hearing: 13.11.2012.

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-I, Quetta and judgment and decree dated 22nd February 2011, passed by the Additional 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 allowance (alimony) for herself and for minor son namely Raheel Qamaragainst 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 respondent 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 her 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-I, 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 aggrieved 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 true 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 of 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 instant 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 jurisdiction 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 contention 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, perusal 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 only) 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 allowance 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 17th 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 below 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 Constitutional jurisdiction.

12.  Resultantly, this writ petition is dismissed with no order as to costs.

(R.A.)  Petition dismissed

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