1991 PLP 759 (MLD)

MUNAWAR AHMED MIRZA, J.--This Constitutional petition has been filed by petitioner under Article 199 of the Constitution of Pakistan, 1973.

2. Facts briefly stated arc, that towards 29-3-1989 petitioner filed a suit seeking dissolution of her marriage on the grounds of non-maintenance. cruelty and exercising right of Khula. Besides past maintenance was also claimed. Respondent No. 3 (Muhammad Maroof) filed detailed written statement on 22-5-1989, repudiating the claim. Simultaneously request concerning direction to petitioner for joining him and performing marital obligations was also made. Petitioner apart from herself examined her two brothers namely P.Ws. Abdur Rehman and Abdul Ghaffar to substantiate claim for dissolution and past maintenance. Respondent in rebuttal adduced D.W. Abdul Hameed Hashmi, besides himself. Learned Civil Judge-III-cum-Family Court on appraising facts and consideration of law, dismissed the suit by means of judgment dated 16-5 1990. Petitioner being dissatisfied from above decision preferred Civil Appeal No. 48/90 under section 14 of Family Courts Act, 1964 before Additional District Judge-II, Quetta. which was eventually rejected on 5-9-1990. Present Constitutional petition challenges the validity and propriety of both the judgments referred above. Mr. Gohar Yakub Yousufzai, learned counsel for petitioner strenuously contended that Family Court as well as Appellate authority, seriously erred in law, by declining to grant decree for dissolution' on the ground of cruelty and Khula` specially when petitioner had expressly pleaded hatred. Learned counsel maintained that principle of law discussed in (i) Bibi Anwar Khatoon v. Gulab Shah and 2 others PLD PM Karachi 602 and; (ii) Rashiddan Bibi v. Bashir Ahmed etc. PLD 1983 Lah. 549, was ignored by both the Courts, whereby decree for dissolution of marriage has been wrongly denied, to petitioner. Whereas on the other hand Mir Aurangzaib learned counsel for respondent, emphatically argued that petitioner had failed to substantiate her claim in suit. According to him, there did not exist even an iota of evidence, to support right of Khula allegedly claimed by petitioner. Learned counsel argued that Courts below had properly exercised jurisdiction lawfully vested in them. Thus in the absence of patent illegality or glaring impropriety, constitutional remedy could not be invoked. Reliance was placed on the observations in (i) Lal Muhammad v. Gul Bibi and another PLD 1986 Quetta 185, and (ii) Aali v. Additional District Judge-I. Quetta and another 1986 CLC

27. We have given our anxious thought to the arguments advanced by learned counsel for parties in the light of available record and case-law quoted by the parties. It may be seen that both the Courts below have thoroughly evaluated evidence adduced by the parties and by making independent observations have concluded that petit ioner'% claim for dissolution of marriage was not established. However to further scrutinize correctness, validity and propriety of impugned judgments, it is pertinent to mention here, portion from cross-examination of petitioner's statement:-- No doubt during examination-in-chief petitioner vaguely mentioned about developing hatred against respondent and compelling circumstances for residing with her brothers at Quetta. Record is however silent about reasonable cause for alleged hatred. Learned counsel for petitioner emphasised that mere assertion of hatred against the husband should be deemed sufficient, otherwise refusal to dissolve marriage would mean, forcing a woman to a hateful union contrary to tenets of Islam. We are not persuaded to agree with the contention raised by learned counsel for petitioner. In our considered opinion mere unsupported vague expression by a woman about hatred against husband motivated by extraneous factors, cannot legitimately cause dissolution of marriage. Principles regarding grant of Khula` have been authoritatively discussed in following reported judgments:-- (i) Mst. Sayeda Khanum v. Muhammad Sali PLD 1952 Lah. 113; (ii) Balqis Fatima v_ Najamul Ikram etc. PLD 1959 Lah. 566 and (iii) Ramzan Bibi v. District Magistrate etc. PLD 1967 SC

97. A Division Bench of this Court in two different cases, while considering question of Khula` and following ratio decidendi of above reports, have opined that relief for dissolution can be granted only when judicial conscience is fully satisfied about serious discord, extreme hatred and intense disliking constituting aversion to the extent which may cause living together of the spouses absolutely impossible. We are thus inclined to follow the principle discussed in PLD 1986 Quetta

185. We further observe that views expressed in Lahore and Karachi judgments relied by petitioner in the peculiar circumstances of this matter are distinguishable. Learned counsel for petitioner could not show us any mis-exercise of jurisdiction, excess of authority, material irregularity, glaring illegality in the impugned judgments. We are accordingly persuaded to hold that both the Courts below have validly exercised jurisdiction vested in them. In such circumstances it is well-settled that constitutional remedy cannot be invoked. The petition has no merits, therefore, is directed to be dismissed. This petition was decided by short order of even date and here are reasons for the same. A.A./364/Q Petition dismissed.