1998 PLP 182 (MLD)

The petitioner has assailed the judgment dated 26-10-1995 and decree passed by respondent No.2 decreeing suit for Dissolution of Marriage filed by respondent No.l and dismissing the suit for restitution of conjugal rights filed by the petitioner.

2. The petitioner has alleged that he was married to respondent No.l on 10-1-1990. Respondent No.l is his first cousin. The parties knew each other before marriage. The respondent No. 1 under the influence of her parents sought dissolution of marriage through the suit filed by her, inter alia on the grounds that her consent was obtained by fraud. The petitioner is nearly fifty years while respondent No.l is 26 years old. She is post-graduate while the petitioner is Intermediate. The petitioner is already married and has five children from his first wife. It is alleged that the petitioner believes in evil spirits and, therefore, it is impossible to live with such character within the limits ordained by God Petitioner also filed suit for restitution of conjugal rights. Both suits were consolidated. The parties filed their written statement and the respondent No.2 (hereinafter referred, to as trial Court) framed the following issues:-- "(1) Whether the defendant gave physical and mental torture to the plaintiff? (2) Whether the plaintiff is entitled to dissolution of marriage by way of Khula' , if so, what terms? (3) Whether the plaintiff in Family Suit No.400 of 1994 is entitled to the decree of restitution of conjugal rights? (4) What should the decree be?

3. In support of their suits the respondent No. 1 examined herself and was cross-examined while the petitioner examined himself and was cross-examined. The trial Court examined the evidence and on issue No.2 held the respondent No.l was entitled to the dissolution and after holding on issue No.3 that the petitioner is not entitled to the relief of restitution of conjugal rights decreed the suit of respondent No. 1 and dismissed the suit of petitioner, which judgment is assailed in this petition.

4. Chaudhry Abdul Rashid learned counsel appearing for the petitioner urged that the suit filed by respondent No.l for dissolution of marriage is not maintainable as the respondent No.l claimed that fraud has been committed on her and her signature on Nikahnama was obtained through fraud as such no grounds mentioned in Dissolution of Muslim Marriages Act, 1939 have been made out and that the trial Court exceeded jurisdiction in granting the relief. He has relied upon the case of Mst. Nighat Aijas v. Muhammad Jamil (PLD 1994 Karachi 46) in which a learned Single Judge expressed the view that suit for jactitation of marriage should have been filed, instead of dissolution of marriage.

5. Mr. M. Zia Qureshi, learned counsel for the respondent No.l on the other hand contended that the marriage had taken place in a manner which does not exclude the element of fraud. Consent of respondent No.l was obtained by fraud. No woman would, in proper senses marry a man who is father pf five children of whom eldest son was 17 years and a student of First Year College. The marriage has taken place in a taxi driver's house of which even the parents of respondent No. 1 had no knowledge. No Rukhsati took place. The petitioner is 52 years old while the respondent is half of his age. The petitioner believes in black magic and evil spirits. In such circumstances a God-fearing home could not come into existence which is the ultimate purpose of. a marriage in a pre dominant religious society.

6. I have given my anxious consideration to the pleas argued by the parties and have gone through the record with the assistance of learned counsel. One of the grounds on which the Muslim marriage can be dissolved is prescribed by section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 which reads as under: "

2. A woman married under Muslim Law shall be entitled to obtain a decree for dissolution on any one or more of the following grounds, namely: (ix) On any other ground which is recognized as valid for the dissolution of marriage under Muslim Law

" And one such ground so recognized is that "the parties cannot live as husband and wife within the limits ordained/prescribed by God. " (i) Marriages are made in heaven and on earth they are manifested. The institution of marriage was created and ordained by God Almighty Himself and blessed the first couple to be fruitful and multiply. It is, therefore, essential purpose of marriage in a religious society such as ours that Umat should be fruitful and multiply according to God's command as God Himself creates a new home. (In the Constitution it has been declared that the Islam shall be the State religion and the Objectives Resolution are adopted in terms of Article 2A, and also as per our Constitution God is ultimate sovereign, therefore, such provisions in the Fundamental Law characterises the society at large as religious). (ii) I have used the word home, and not house. House is made of bricks (and now perhaps with R.C.C. and cement blocks) while the home is made of love. For the loving couple created through the institution of marriage as husband and wife, if wife should seek dissolution of marriage; inter alia, on the grounds of fraud would suggest that the element of love was lacking at the inception. (iii) Another essential for a home is that there should be mutual trust 8 amongst the partners. Apart from trust, compatibility of minds is another element, for a home seeking blessing of God the parties-should be God-fearing and God-honouring, such a home is the basis of the society. When a ground is urged for dissolution of marriage that "parties cannot live as husband and wife within the limits prescribed by God" the Court has to judge the case (of course, based on evidence) that the minimum standards (some of them stated above) could be held in tact if the marriage is allowed to stay and not dissolved. If not then it will be better to bring an end to such an institution which apparently was not made in heaven, but the marriage has taken place to satisfy the wordly pleasure and lust of eyes and flesh which are earthly reasons. (iv) Reverting to the case of Mst. Nighat Aijaz (PLD 1994 Karachi 46) a learned Single Judge of this Court held that where the marriage is challenged on the grounds of fraud, forgery or misrepresentation then the suit for jectitation for marriage could be filed. In that case Nikah Khawan had testified that the lady alleged to have been married did not sign Nikahnama as such there was no Nikah and, therefore, no marriage and Family Court would obviously have no jurisdiction to dissolve the marriage, as a matter of fact there was no marriage at all. In this case factum of marriage is not denied. Dissolution of marriage has been sought by the wife for other grounds, than fraud. As such the judgment relied upon by the counsel for the petitioner is not apt, and does not support him. (v) On the above criteria, from the evidence on record I find that specific allegations have been levelled against the petitioner by the respondent No.

1. The respondent No. 1 entered in witness-box and deposed on oath the reasons which according to het would not permit her to live with the petitioner as husband and wife within the prescribed limits ordained by God. Her deposition was not shaken in the cross-examination. The respondent No. I accused the petitioner for having extra marital affairs with other women. Apart from that one element of fraud was that the petitioner told her that petitioner has obtained permission of his first wife which according to respondent No. 1 was a false statement. Marriage has taken place in dubious circumstances i.e. at taxi driver's place for which even the elders of the family (as the parties are grand children of same grandfather) did not know nor they participated and blessed the couple. Even if I were to ignore the vital age difference between the parties, circumstances which have come in evidence would reveal that the marriage had taken place in dubious circumstances (to satisfy worldly lust and not for seeking heavenly blessings), therefore, the order passed by the trial Court is just and proper. (vi) Writ jurisdiction can only be exercised once the Court comes to the conclusion that the lower tribunal has exceeded its jurisdiction, travelled beyond its jurisdiction, or acted without jurisdiction. If the Court possesses jurisdiction (which in this case it does possess) the findings of the fact recorded by the tribunal may not be disturbed simply on the grounds that another view is possible on the same evidence. Unless this Court comes to the conclusion that the findings of the tribunal are based on no evidence, or such findings are fanciful or I arbitrary or based on fantasy, in such eventuality, such findings can be disturbed because they will be no findings in law, the Constitutional jurisdiction may not be available. Such is not the case here. The Family Court examined and assessed the evidence. The findings are based on evidence as such I decline to exercise the Constitutional jurisdiction. (vii) There is yet another reason which compels me to hold that the order of dissolution of marriage was valid. Petitioner (husband) filed report with police. Police dragged the respondent No. 1 and her father, humiliated and insulted them. Is it humanly possible for a wife to live with such husband? Human nature is vindicative. Humanly it may not be possible, i but divinely yes as to forgive is device. (viii) The writ jurisdiction in matrimonial matter would be exercised in only rare circumstances. Such matrimonial matters involve delicate human relations. They are emotional issues as well. These relations should not be judged on legal factors alone. The Court should keep in mind the entire fabric of society while deciding the human issues involved in matrimonial matters, and the conclusions of the Courts should benefit the society as whole. In other words in such matters the concept of social justice rather than legal justice be advanced. Such is also the obligation of State under the Principles of Policy of the Constitution which charges the executive to advance social justice and eradicate evil, and protect weaker section of the society. One such Article 35 provides as follows: "

35. Protection of family, etc.--The State shall protect the marriage, the family, the mother and the child." The Courts may not enforce principles of policy but can lay broader contours for dispensation of justice.

7. After hearing the parties in Court, I dismissed this petition with costs by short order. These are the reasons for passing such order. A.A./S-86/K Petition dismissed.