1993 PLP 48 (CLC)

Date of hearing: 12th May, 1992. This Constitution petition has been filed by Mst. Zainab Bibi under Article 199 of the Constitution of Islamic Republic of Pakistan (1973) in order to challenge the judgment and decree dated 25‑1‑1990, whereby the learned Judge Family Court, Bahawalnagar dismissed the suit for dissolution of marriage brought by the petitioner and also dismissed the suit for maintenance to the extent of the petitioner and allowed the minor, maintenance at the rate of Rs.200 per month from the date of institution of the suit.

2. The few relevant essential facts for the adjudication of this petition are that on 12‑4‑1988, the petitioner filed a suit for dissolution of marriage on the ground of habitual cruelty, association with women of ill‑repute and leading infamous life and casting allegations of immoral nature against the petitioner. It was pleaded that on account of aforesaid circumstances fully embodied in the plaint, the petitioner had developed insatiable hatred towards respondent No.l and was not prepared to live with him within the limits as prescribed by God Almighty. The suit was contested. The petitioner also filed a suit for grant of maintenance for her as well as for the minor. These suits were consolidated. The respondent filed written statement controverting the allegations leveled in the plaints. After abortive reconciliation proceedings, the learned Judge Family Court recorded the evidence of the parties. Thereafter unproductive post conciliation proceedings were held.

3. On the scrutiny of the evidence of the parties, the learned trial Court decided all the issues against the petitioner and dismissed the suit for dissolution of marriage by rendering finding on issue No.4 in following words: ISSUE No.4‑‑As already discussed in the above issues, that neither the plaintiff has maltreated the defendant nor (is) in habit of association with women of ill‑reputation, so in these circumstances, I do not consider that the relations between the spouses had come to such a pass, as to leave little hope for conubial‑bliss. I would, therefore, hold that the plaintiff is not entitled for decree on the basis of khula in the circumstances of instant case. The issue is decided against the plaintiff." The learned trial Court also by the same judgment dismissed the suit for maintenance to the extent of petitioner and decreed the suit with respect to minor. The judgment and decree in respect of the suit for dissolution of marriage is the subject‑matter of challenge in this Constitution petition.

4. The learned counsel for the petitioner made a request for grant of an adjournment which was refused. I, therefore, proceeded to hear the learned counsel for the respondent and have gone through the grounds of this Constitution petition. From their perusal it is evident that the finding of the learned Court below has been challenged on the basis of the rule laid down in the case of Bashiran Bibi v. Bashir Ahmad and two others (PLD 1987 Lahore 376). The learned counsel for the respondent supported the impugned decision.

5. From the perusal of the findings of the trial Court it appears that the learned Judge Family Court had misdirected himself by not following the principle laid down in Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others (PLD 1983 SC 169). It has been held therein that whenever the relations between the two spouses are so strained that it is not? possible for them to live within the limits prescribed by God Almighty, it is better to annul such marriage. This position of law has not been correctly followed by the learned Judge Family Court. This being the legal position, I have no doubt in my mind that the judgment and decree passed by the learned Family Court is illegal and cannot be sustained. In result this Constitution petition is allowed. The judgment and decree passed by the learned Judge Family Court is hereby set aside; the case is hereby remanded to the learned Judge Family Court, who is directed to decide the suit afresh after hearing both the. parties and taking into consideration the evidence already adduced by the parties. There shall be no order as to costs. The parties have undertaken to appear before the Judge Family Court on 6‑6‑1992. AA/Z‑43/1?????????????????????????????????????????????????????????????????????????????????????????? Case remanded