1988 PLP 1801 (CLC)

‑‑S. 12(2)‑‑Constitution of Pakistan (1973), Art. 199‑‑Concurrent findings of fact‑‑Constitutional jurisdiction, exercise of‑‑Petitioner's successive two suits for dissolution of marriage on basis of Khula' dismissed‑‑Former and subsequent suits were tried by different Courts and appeals against same were also heard and decided by two different Courts thus, there were four concurrent findings of different Courts against petitioner on her plea of Khula'‑‑Concurrent and consistent findings, held, could not be interfered with. (b) Muhammadan Law‑‑‑ ‑‑Khula'‑‑Right of Khula' when not to be treated as recurring cause of action‑‑Wife, after her failure in first round of litigation never lived together with her husband to give her fresh cause for claiming dissolution of marriage on plea of Khula'‑‑No new circumstances or developments came into existence after ending of first round of litigation, so as to entitle her to claim Khula' on plea of recurring cause of action‑‑Plea of abduction by wife was not proved and subsequently she admitted Nikah against wishes of her parents‑ Successive round of litigation seemed to have been initiated on pressure of wife's parents who were not reconciled to her marriage with her husband‑‑Petitioner apparently had never filed such suits against her husband of her own free will‑‑With passage of time wrath of elders would cool down and they might allow petitioner and respondent to settle down as wife and husband‑‑No grounds for allowing dissolution of marriage on ground of Khula' therefore existed in circumstances. Ghulam Muhammad v. Mst. Rashida Bibi and 2 others P L D 1983 Lah. 442 ref. Mirza Anwar Baig for Petitioner. The petitioner filed a suit on 25‑3‑1984 for a declaration (Jactitation of marriage) that she was not a legally wedded wife of respondent No.3 and in the alternative claimed dissolution of marriage on the basis of Khula. She had alleged that she had been abducted by respondent No.3 and was forced to thumb‑mark a document, i.e. Nikahnama. However, during the proceedings of that suit the factum of Nikah was admitted. Her plea for Khula was not accepted and the suit was dismissed on 18‑4‑1985. She filed an appeal which was dismissed on 9‑2‑1986. Just after a month and 8 or 9 days she filed another suit on 18‑3‑1980" for a similar purpose and prayed that it may be declared that she was not the legally wedded wife of respondent No.3 and in the alternative again prayed for dissolution of marriage on the basis of Khula. The said suit was also dismissed by the learned Family Judge, Jhelum vide judgment dated 21‑3‑1987. An appeal filed by her was dismissed by the learned Additional District Judge, Jhelum vide judgment dated 5‑3‑1988. This writ petition has been filed to challenge the said judgments, dated 21‑3‑1987 and 5‑3‑1988. I have perused the record and have heard the arguments.

2. The factum of Nikah, as already said, was disputed in the earlier suit but then it was conceded that the Nikah had taken place and this is why the alternative prayer for dissolution of marriage on the basis of Khula was pressed in service. The petitioner was unsuccessful in the previous round of litigation and she did not challengg the decision through any writ petition or otherwise. Then she filed the present suit just after a month and 9 days of the final decision of the appellate Court but she still maintained that she was not a legally wedded wife of respondent No.

3. However, she also claimed dissolution of marriage on the plea of Khula. The plea that she was not legally wedded wife was again not pressed and is not pressed before me. It is to be seen whether the petitioner is entitled to dissolution of marriage on the basis of Khula. As mentioned above she was unsuccessful in her first suit in respect of the plea of Khula in both the Courts. Similarly, she has been unsuccessful before both the learned Courts below on the said plea. Incidentally the two suits were tried by different Judges and similarly the appeals were A heard by two different Additional District Judges. This means that there are four concurrent findings of different Courts against the petitioner on the plea of Khula. Ordinarily the concurrent and consistent findings cannot be interfered with. The learned Counsel for the petitioner has referred to Ghulam Muhammad v. Mst. Rashida Bibi and 2 others (P L D 1983 Lah. 442). In that case' there were three successive suits but ultimately she succeeded in the third one. However, there is a marked difference in that case and the case in hand because in that case after an adverse decision the wife started living with the husband and then they separated once again, it was on account of the last separation that the Courts found that the parties could not live together. The learned counsel for the petitioner has also contended that the plea of Khula furnishes a recurring cause of action and repeated suits can be filed by a wife solely on the plea of Khula. Sometimes such an argument can hold good but not always and surely not in this case. After her failure in the firs round of litigation the parties never lived together to give the petitioner fresh cause for claiming dissolution of marriage on the pie of Khula and no new circumstances or developments came into existence after the ending of first round of litigation so as to entitle the petitioner to claim dissolution of marriage on the basis of Khula' on account of recurring cause of action. The circumstances in the present case are peculiar. The case of the petitioner had been that she had been abducted by respondent No.3. However, the record does not support this plea. There was no report about the abduction and no evidence was led in respect thereof either in the first suit or in the present suit. What it appears from the record is that the petitioner: married respondent No‑3 against the wishes of her elders and they got infuriated and then created hurdles between their marital relations.1 In the present case when the petitioner appeared as P.W.3 on 20‑1‑1987, in the examination‑in‑chief itself she said that she does not remember whether she filed any suit against respondent No.3 previously. She has made a correct statement because it appears that she never filed the first suit of her own and she never filed the second suit, 'the present suit, of her own free will. Her elders coerced her to file the previous suit for the so‑called face saving of family and they have repeated the same thing through the present suit. According to her own statement she is not now virgo‑in‑tacta and respondent No.3 had had sexual intercourse or intercourses with her. With this background I believe that if the parties are allowed to live together they will live together happily as wife and husband of course if the elders somehow stay away and do not interfere. Apart from that I feel that with the passage of time the wrath of the elders might cool down and they may allow the petitioner and respondent No.3 to settle down as wife and husband.

3. In these circumstances there are no grounds for allowing the dissolution of marriage on the basis of Khula. The findings of the learned Courts below are correct. The writ petition is dismissed in limine. A.A./T‑43/L Petition dismissed.