1989 PLP 5005 (MLD)

‑‑‑S.8‑‑Dissolution of marriage on ground of Khula'‑‑Question of grant of Khula, has to be considered independently of other grounds on which dissolution of marriage is sought‑‑Where wife had committed some offence by producing fabricated and forged evidence on other issue like issue of option of puberty, she was liable to be dealt with separately, but if circumstances otherwise justified dissolution of marriage on basis of Khula' relief could not be refused to her, on that ground. Sh. Izhar-ul-Haq for petitioner. Jari‑ullah Khan for Respondents. Date of hearing: 3rd May, 1989. This constitutional petition calls in question the judgment and decree dated 22‑12‑1987 passed by Family Court Bhalwal dissolving the marriage between the petitioner and respondent No.1 on the ground of Khula. Mst. Zakia respondent No.1 was married to the petitioner Muhammad Hanif on 12‑3‑1984. She sought the dissolution of her marriage by filing a suit before the Family Court Bhalwal on 12‑1‑1986 against the petitioner. In the plaint it was alleged that at the time of the marriage she was a minor and as the marriage had not been consummated, she was entitled to dissolve the marriage by exercising option of puberty. She also claimed the dissolution of marriage on the basis of Khula'. This suit was contested by the petitioner by filing a written statement in which he denied all the allegations and stated the respondent had been living with him as his wife but was keeping away without any justification. He also filed a suit for restitution of conjugal rights. Both the suits were tried together by the Family Judge, who on 22‑12‑1987 dismissed the suit for restitution of conjugal rights but decreed the suit for dissolution of marriage on the ground of Khula'. The trial Court found that the respondent had been unable to prove that she was minor at the time of marriage and was not entitled to exercise the option of puberty. In this respect it was observed that two documents produced by the respondent in support of her case were forged and fabricated. The Court was minded to proceed against the person responsible for fabrication but accepted their apology and dropped the matter. In this constitutional petition filed by the petitioner/husband, it has been contended that the respondent was not entitled to grant of Khula' in view of her conduct. According to the learned counsel since it was found by the Family Court itself that the respondent had produced fabricated documents, she should not have been granted a decree for dissolution of marriage on the basis of Khula'. In law if the Court after taking into consideration the overall circumstances comes to the conclusion that it is not possible for the parties to live together as husband and wife and perform their marital obligations within the limits prescribed by God, the marriage should be dissolved on the basis of Khula'. The parties should not be forced into a hateful union if reconciliation becomes impossible between them. In the present case, the learned Judge Family Court has recorded a finding that the parties cannot live in harmony and in conformity with their, obligations. In this respect, he relied upon the statement of the respondent while appearing as her own witness in which she expressed extreme hatred to the petitioner, and also took into account the other circumstances which proved that parties cannot live together and lead a harmonious life as envisaged by Islam. The Family Court was therefore amply justified in directing the separation of spouses. The observations of the Supreme Court in Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329 fully support this view. In any event it is not possible to interfere in the finding recorded by Family Court in the exercise of constitutional jurisdiction. Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others PLD 1983 SC 169 referred.

3. As regards the contention of the learned counsel for the petitioner the respondent was not entitled to Khula' as she had produced fabricated evidence on the issue relating to option of puberty, it is to be observed that question of grant of Khula' is to be considered independently of the other grounds on which the dissolution of marriage is sought. If the respondent has committed some offence by producing fabricated and forged evidence on other issue, she is liable to be dealt with separately but if the circumstances otherwise justify dissolution of marriage on the basis of Khula', the relief could not be refused on this ground. Apart from the reasons which prevailed with the learned Family Judge for decreeing the suit of the petitioner, it is also to be noted that out of wedlock between the parties there was no issue.

4. In the written statement, filed by the respondent in the present proceedings, it has been stated that after decree of dissolution of marriage, the respondent has married Malik. Nawab Ali with whom she is living as his wife. This assertion is supported by an affidavit sworn by her, also a copy of Nikah which has been produced by the learned counsel for the respondent. In these circumstances it would be highly inequitable to interfere with the decree of the Family Judge. For the foregoing reasons, this constitutional petition fails and is dismissed leaving the parties to bear their own costs. H.B.T./M‑1583/L Petition dismissed.