family appeal

IN THE COURT OF DISTRICT & SESSIONS, JUDGE HYDERABAD

Family Appeal No:     of 2009




SHRIMATI AAMIYA D/o Satto
W/o Laloo adult, Hindu by Caste
Kohli R/o Village Raees Ahmed
Khan Zour UC: Lakhat Taluka &
District Tando Muhammad Khan
P.S Tando Muhammad Khan    - - - - - - - - -Appellant/Plaintiff


V E R S U S


Laloo S/o Ajo adult, Hindu
By caste Kohli R/o Village Khamoon
Sand Near Dando Town Taluka Tando
Ghulam Haider District Tando
Muhammad Khan            - - - - - - -Respondent/Defendant


APPEAL UNDER SECTION 14
OF FAMILY COURT ACT, 1964

        Being aggrieved & highly dissatisfied with the impugned judgment decree dated: - 16-04-2009 passed by the learned Civil & Family Court, No. II Tando Muhammad Khan in family suit no. 38/2008 (Shrimati Aamiya V/s Laloo) where by suit of the appellant dismissed with no order as to cost, therefore appellant respectful refer this appeal & pray that record & proceeding may be summoned from learned lower court after hearing the parties finding illegalities & irregularities set aside the impugned judgment decree (Annexure: - A & A/1.) & decreed the suit of the appellant in her favour by dissolving the marriage of appellant with respondent under west family court act on the ground/point cruelty, maltreatment, compelling to leave the immoral life, rough attitude & harassment are pass any other relief which this Honourable court deem fit & proper looking the circumstances, inter alia on the following facts & grounds.
(2)
FACTS
        Brief facts of the suit as stated by the plaintiff are that she married with defendant four yeas back at Village Raees Ahmed Khan Zanour according to Hindu religion, rites and customs. At the time of marriage parents of plaintiff according to hindu rites and customs gave dowry articles such as gold and silver ornaments, precious cloths worth Rs.20,000/- to the plaintiff  which are still in possession of defendant. The marriage was duly consummated. After marriage plaintiff started living with the defendant as his residence as his legally  wedded wife. After one month of marriage plaintiff realized that the defendant is a men of questionable character. It is alleged that the defendant used to bring unknown male and female at the house and whenever plaintiff forbade him not to do so he severely maltreated the plaintiff. It is further alleged that the defendant used to insist the plaintiff to give company to stranger and on her refusal he used to maltreat her mercilessly. After one year of the marriage plaintiff gave birth to a male issue namely Rajo how is now aged about 02 years and in custody of the defendant. It is further alleged that about one year back defendant started quarreling with the plaintiff, snatched her child and turned her out of home without any reason since that she has been living with her parents. It is stated that a long time of one year has passed but the defendant has not yet come to settle the dispute not sent a single panny towards maintenance of plaintiff. The parents of plaintiff have made several attempts to resolve the rift between spouse but all in vain. It is further stated that irresponsible and immoral behavior of defendant has created immense hatred in the mind of plaintiff and the present situation in that she prefers to die rather than to live with the defendant as his wife, therefore appellant/plaintiff filed suit before learned Family Court.

        In response to summons issued by the Court defendant alongwith his advocate Mr. Nasir Khan made his first appearance before the Court on 11-02-2009, filed Vakalatnama and sought time for filing written statement. Time was granted, therefore six adjournments were given but the defendant failed to file written statement resulting the case was ordered to be proceeded ex-parte against the defendant on 27-03-2009. Simultaneously plaintiff was directed to file affidavit in ex-parte proof. In obedience of the order of this court, the appellant/plaintiff filed her affidavit  in ex-parte proof placed at Ex-04 and also appeared in person to
(3)
supporter case, the learned  trial court passed the impugned judgement and decree without applying of the judicial mind and dismissed the suit of the appellant, hence this appeal on following grounds:-

G R O U N D S
1-        That, judgment & decree of the learned trial Court is based on surmises, conjecture and same are liable to be set aside consequently the suit of the appellant may be decreed. Learned trial court/family court passed finding on point No.1 but there is no point determined by the trial court. It is clear that, the judgment of the learned trial court is passed by over looking the documents, pleadings of the appellant/ all contention of the appellant had gone unchallenged and un-rebutted yet the suit of the appellant was surprisingly dismissed.

2-        That, it is settled law that, while dissolution of the marriage or judicial separation it is enough that, lady appear before the Court and sworn affidavit or verity the contents of pliant. No one can compel to lady for residing against her will, wish or accord but learned trial court while passing the judgment & decree ignore this principle and even has not given due consideration to the affidavit in evidence.

3-        That, according to section 5 of the Family court act the Hindu lady is also competent to file suit for dissolution of marriage on the ground of Khulla. Section 5 is fully applicable to non-muslim according to provision of West Pakistan Family Court Act, 1964.

4-        That, learned trial court has not give the due consideration and passed the judgment decree by ignoring the principles, by misreading the evidence, non-reading the documents and dismissed the suit in filmsy manner. The judgment & decree are not passed properly.

5-        That, appellant specifically and categorically stated that, she doesn’t want to live with respondent yet the observation of learned trial court that, appellant failed to discharge her duty is against the law, justice and equity. Direct evidence of appellant against the respondent was available but learned trial Court miserably failed to consider it.

6-        That, observation of the learned trial court by giving advice is beyond the jurisdiction of Family Court. Thus, it seems that, learned trial court traveled beyond its jurisdiction and scope.

7-        That, learned trial court miserably failed to give due consideration to the evidence of appellant. It is clear that, judgment & decree of learned trial court is based on surmises and conjecture.

8-        That, much and more legal grounds will be argued at the time of argument of this appeal with the permission of this Honourable Court.

9-        That, appeal is in time.