2003 PLP 370 (CLC)

(2) Whether this Court has got no jurisdiction to try the suit? OPD (3) Whether the plaintiff has got no cause of action to file this suit? OPD (4) Whether the plaintiff is entitled to the decree for dissolution of marriage, on the grounds of Khula' as prayed for? OPD (5) Relief.

5. The plaintiff/respondent No.1 herself appeared as P.W.1 and got recorded her statement. In rebuttal, the defendant/petitioner appeared as. D.W.2 and produced certified copy of Nikahnama Exh.D.1, permission for second marriage Exh.D.2 and the statement of the plaintiff in the previous suit for dissolution of marriage on the basis of Khula' as Exh.D.3.

6. After recording and appreciating the evidence of the parties, the learned Judge Family Court vide his judgment and decree, dated 30‑10‑2001 decreed the suit, which has been assailed through the instant writ petition by the petitioner who himself appeared and argued his case.

7. The petitioner has argued that the woman who will get divorce from her husband on the basis of Khula' would not be entitled to enter into Paradise and the woman who claims divorce from her husband would be deprived of the fragrance of Paradise. He further contended that the act of divorce is most disliked act by the Almighty Allah.

8. I have heard the arguments of the petitioner Mst. Jamila Pirzada plaintiff herself appeared in evidence as P.W.1. She stated that due to difference of temperament, she would not be able to lead life with her husband/petitioner. The petitioner. appeared to controvert the allegation levelled by the plaintiff but due to his unpleasant behaviour, he was expelled from the trial Court during his evidence, as a result of which his evidence was closed. The petitioner has argued that his wife, respondent No.1 had already filed a suit for dissolution of marriage on the ground of Khula', which was dismissed as withdrawn and the present suit was hit by, the principle of res judicata. It is settled proposition of law by the apex Court of this country that the wife can again and again take the plea of Khula' if she establishes a case for the grant of dissolution of marriage.

9. The marriage is a civil contract between the two opposite sex for procreation of children and for social set‑up and any condition imposed on the wife restraining her from exercising her right of claiming divorce would be void ab initio. No restriction B can be imposed on the wife contrary to the principles of Islam and Surma. The Holy Prophet (p.b.u.h.) had directed the Muslim women to get divorce on the basis of Khula' if the woman would not be able to lead her present life within the limits prescribed by Almighty Allah.

10. The plaintiff/respondent had deposed in her statement that she wanted divorce even at the cost of her life, meaning thereby that she would rather prefer to die than to go and live with her husband/ petitioner, therefore, in view of the above circumstances and unhappy relations between the petitioner and the respondent No.1, there existed genuine cause for their separation on the basis of (Khula'. In such an eventuality, the spouses cannot be forced to lire together in a hateful union and within the limits ordained by Almighty Allah and in such a situation, Qazi is bound to terminate the marriage‑tie between the husband and wife. The petitioner has not been able to point out any illegality or jurisdictional defect in toe impugned judgment and decree, passed by the learned trial Court, therefore, the same is maintained.

11. Since the marriage of the parties has been contracted under the impression of some dreams to carry nut the mission of their predecessor Baba Jee (Pir Al‑Haj Abdul Mabood Jilanee) but they are unable to continue their mission for which the parties had contracted the marriage. Also, there is difference of temperaments between them, therefore, it would be better for them to separate from each other and dissolve the marriage than to continue the same to lead the critical and unpleasant life.

12. For the foregoing reasons, the present writ petition having no force is dismissed in limine. So far the other prayers of the. petitioner contained in the writ petition that respondent No.1 be restrained from re‑marrying with any other person and respondents Nos.4 to 7 be directed not to marry her with any other person, the direction sought for cannot be given as it is against the principles of Qur'an and Sunna and Almighty Allah has given the right to everybody to contract the marriage. H.B.T./G‑202/L Petition dismissed.