1999SCMR2631 (PLP)

IRSHAD HASAN KHAN, J.

This petition for leave to appeal is directed against the judgment dated 23-9-1998, passed by Lahore High Court, Lahore in Writ Petition No. 18086 of 1996, arising out of a family cause for Khula, filed by respondent No. 2 herein against the petitioner.

2. A suit was filed by respondent No.2, for dissolution of marriage on the ground of cruelty, non-payment of maintenance and Khula. The learned Judge, Family Court, Lahore, in view of the pleadings of the parties, issues framed thereunder and the evidence led by them, dismissed the suit vide judgment dated 1-10-1996.

3. Being aggrieved with the above judgment and decree, respondent No.2 moved a Constitutional petition before the High Court. The learned Judge in Chambers, after reappraising the evidence came to the conclusion that the learned Judge, Family Court, completely ignored the evidence, which clearly established that the parties could not live within the limits prescribed by Allah Almighty. The grounds, which weighed with the learned Judge in Chambers in accepting the constitutional petition, are reflected in paragraph 5 of the impugned judgment, which reads thus:-- "In this view of the evidence on record, which was completely ignored by the learned Judge Family Court, it could not be said that the parties could live within the limits prescribed by Allah Almighty. If the relations are spoiled to this extent that the wife appearing in the Court expresses hatred against the husband and demonstrates her feelings by deposing that she would spit on the face of the husband then it cannot be assumed that there would be any possibility of the two to live together within the limits prescribed by God Almighty. The marriage having been under suspense for the ' last more than three years, all efforts for re-conciliation, at pre-trial conciliation and post-trial conciliation having remained unsuccessful, the parties having not been able to enter into any compromise even during the last two years during which this writ petition remained pending, any attempt to direct the petition to live with the respondent would result in unhappy union. This being so, it will be appropriate if the marriage is dissolved, to save the parties from violating the limits prescribed by God Almighty."

4. Learned counsel for the petitioner vehemently argued, that the High Court, in exercise of its Constitutional jurisdiction, was not competent to substitute its own findings for that recorded by the trial Court even if it comes to the conclusion, after appraisal of evidence, that the trial Court had misread the evidence. There is no cavil with the proposition canvassed by the learned counsel for the petitioner. Ordinarily, we would have remitted the case for decision afresh by the trial Court but we are not persuaded to do so: firstly because the respondent No.2, expressly stated before the learned Judge in Chambers that she has developed hatred against the petitioner. Secondly, at the request of the learned counsel for the petitioner we issued notice to respondent No. 2 with a view to explore the possibility of reconciliation between the parties. An undertaking was given by the learned counsel for the petitioner that if respondent No.2 again makes a statement with regard to her hatred against the petitioner he will not press the petition. We have examined respondent No. 2 at some length and found her sticking to her earlier position referred above. In view of the above, this is not a fit case for interference with the impugned judgment of the High Court, which though suffers from the defect mentioned above but as respondent No. 2 is sticking to her guns, we are not f'` inclined to perpetuate the hateful union between the estranged spouses.

5. Resultantly; the petition is dismissed and leave declined. H.B.T./A-158/S Petition dismissed.