1991 PLP 972 (CLC)

Both the suits were consolidated and the parties led evidence in support of their respective contentions in Suit No.791/85 after the framing of appropriate issues. The trial Court, on assessment of the evidence on record, dismissed the suit for dissolution of marriage and decreed the suit for conjugal rights. The first respondent went in appeal. The Additional District Judge relying on the cases of Khurshid Bibi reported in P L D 1967 SC 97 and Muhammad Siddique v. Ghafuran Bibi reported in P L D 1971 SC 192 set aside both the judgments as remanded both the suits to Family Court with a direction to allow the parties to amend their pleadings for raising specific issue with regard to the question of 'Khula' and to determine the same by adducing the evidence, if necessary. After remand of the suits, additional evidence was adduced by both the parties and following additional issues were settled by the Family Court:‑ "(1) Whether the defendant on‑ 15‑4‑1983 misbehaved and gave severe beating to the plaintiff and turned her out of his house? (2) Whether the plaintiff operated the joint locker No.125 on 19‑4‑1983 in absence of the defendant and removed precious articles worth Rs.1,33,200? (3) Whether the plaintiff is liable to return/refund the said valuable articles already removed from the locker in absence of the defendant, if Khula is granted? If so, to what extent? (4) Whether plaintiff is entitled for Khula? (5) What should the decree be?" The Family Court on assessment of the evidence on record answered issues Nos.1 and 4 in the negative, issue No.2 in the affirmative while issue No.3 was not decided in view of the findings on the above issues.. In consequence the suit for dissolution of marriage was dismissed while the suit for restitution of conjugal rights was decreed. The first respondent preferred separate appeals before the District Judge, Karachi, East. The learned District Judge, on re‑assessment of the evidence on record, came to the conclusion that there is no truth in the allegation of the first respondent that she was maltreated or subjected to mis-behaviour or turned out of the house on 15‑4‑1983 as repeatedly claimed by her because on her own admission the petitioner had left for Saudi Arabia on 2‑4‑1983 and returned back on 18‑4‑1983. He came to the conclusion that the first respondent left the flat of her own accord and ignored the desire of the petitioner to live with his sisters in the flat at Burns Road. He also found that the other instances quoted by her tending to show the cruel conduct, misbehaviour and ill‑temperament on the part of the petitioner are also completely false, fabricated and baseless to her own knowledge and belief. On issue No.2, he held that in the absence of any conclusive evidence, it would suffice to say, that though the first respondent had operated the locker on 19‑4‑1983, it is difficult to say that she had removed precious articles including cash amount, prize bonds and ornaments worth Rs.1,34,000 as alleged. On the most crucial issue i.e. dissolution of marriage on the ground of Khula', the trial Court came to the conclusion that the first respondent had failed to satisfy the conscience of the Court to establish a case of 'Khula'. The first appellate Court did not subscribe to this view. He held that "in fact the pleadings of the appellant, her evidence and the circumstances of the case clearly indicate that she developed a sense of aversion and complete hatred for her husband irrespective of any reason or logic." The first respondent has categorically stated that she is not prepared to live with her husband at any cost. The circumstances that the 'parties are living separate from each other since April, 1983 speaks for itself and there is enough evidence on record that the parties can no more live a happy and harmonious married life. On the basis of this evidence, the learned District Judge came to the conclusion that the protracted litigation and contest over the issues regarding maltreatment, usurpation of property and the oral pronouncement of 'Talaq' leads him to an irresistible conclusion that the first respondent cannot be forced to live together with the petitioner in view of the cheque history, of her case. In that view of the matter, he held that it is abundantly clear that the spouses would not be in a position to observe the limits prescribed by God by continuing in the marriage tie which is virtually broken for the last more than seven years. The first respondent stated that she had not received the dower amount worth Rs.25,000 which remains unpaid. In that view of the matter, he decreed the suit of the first respondent for dissolution of her marriage on the ground of 'Khula' on the condition that she would not claim the dower amount and the maintenance from the petitioner. Consequently, the suit brought by the petitioner for restitution of conjugal rights was dismissed. The pre‑trial and post‑trial proceedings were held and failed. The learned District Judge in a matter involving a matrimonial dispute was convinced after considering all the circumstances of the case that the existing unhappy relations between the parties, who are involved in litigation for more than six years, held no hope for their living together within the limits prescribed by God Almighty and held that the wife could legitimately ask for 'Khula'. He also noted that she was prepared to give up her claim of dower amount of Rs.25,000 and the maintenance. In this view of the matter, the dismissal of the *suit for dissolution of marriage on the ground of 'Khula' was set aside and the same was decreed by the learned first appellate Court. He referred to the decision of the Hon'ble Supreme Court in the case of Abdul Rahim v. Mst. Shahida Khan reported in P L D 1984 SC

329. The ground of 'Khula' can be invoked by a wife on proving that in the light of her relations between the spouses she developed an aversion to her husband so much that it was impossible for them to live within the limits of God. This view is finally settled in the cases reported in P L D 1959 Lah. 566, P L D 1967 SC 97 and P L D 1984 SC

329. In the present case the first respondent sought dissolution of her marriage on the ground of 'Khula'. It was accepted by the learned District Judge that the relations between the parties were strained to such an extent that there was no likelihood of their coming back to happy position. She deposed that she, under no circumstances, was inclined to restore relations with the petitioner. The finding of the learned District Judge was based on the re‑assessment of evidence on the record and for cogent reasons. In case 'Khula' is not invoked, the result will evidently be disastrous in the sense that Mst. Tahsin lqbal will never agree to go back to the petitioner and this may turn up a cause to flout limits of God. One thing that goes to the credit of women of the area is that they live with all the miseries as an obligation to parents and husband. Courts are approached as a last resort. Once parties are in Court, it is very rare that they come to settlement and restore their matrimonial relations. In the present case, parties are going through litigation for the last more than seven years. There was no reconciliation between the parties during that period. Therefore, at this stage of the litigation, it is not reasonable to believe that good sense will prevail and the parties shall come to reconciliation. Under these circumstances, the finding of the learned District Judge finds full support. With the decision of the Hon'ble Supreme Court in the case of Abdul Rahim v. Mst. Shahida Khan (P L D 1984 SC 329), the impugned judgment could legitimately be passed by the learned District Judge. It has been found as facts in the case that the protracted litigation and contest over the issues regarding maltreatment, usurpation of property and the oral pronouncement of 'Talaq' lead him to an irresistible conclusion that the first respondent cannot be forced to live together with the petitioner in view of the chequered history of her case. He also found that "it is abundantly clear that the spouses would not be in a position to observe the limits prescribed by God by continuing in the marriage tie which is virtually broken for the least more than seven years." With these findings of fact established before him, the learned District Judge cannot be said to have given an arbitrary decision. It is to be understood that he has not transgressed the limits of his jurisdiction. This Court is not sitting in appeal against his judgment. Therefore, I am confident to say that the petition under Article 199 of the Constitution is not entertainable. In Nimat Ali v. Hafeez Bibi and others (1988 S C M R 1283 (1), the Hon'ble Supreme Court while refusing leave to appeal observed as under:‑ "After hearing the learned counsel, we do not think that this is a fit case where leave should be granted. Even if for some reason the orders of the Additional District Judge and the Judge Family Court are set aside, the circrumstances are such that 'Khula would be granted to respondent No.1. No purpose would be served by driving the parties to another round of litigation." The principle laid down in the above case is applicable to the facts of the instant case. In these circumstances, the learned District Judge has tightly ordered dissolution of marriage of first respondent with the petitioner by way of 'Khula'. No case for interference is made out. It is, therefore, evident that no sufficient grounds have been made out for exercise of powers conferred by Article 199 of the Constitution. The very C plentitude of these powers requires a cautious exercise of it. I would, therefore, hold that the petition is not maintainable and should be dismissed. 1, therefore, dismiss the same accordingly. In the circumstances of the case, the parties are directed to bear their own costs. A.A./M‑1369/K?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.