1991 PLP 962 (CLC)

‑‑‑ S. 8 ‑‑‑ Constitution of Pakistan (1973), Art.199 ‑‑‑ Khula'‑‑‑Constitutional jurisdiction, exercise of ‑‑‑ Suit for dissolution of marriage on ground of Khula' filed by wife was dismissed and suit for restitution of conjugal rights filed by husband was decreed ‑‑‑ Appellate Court reversed the finding of Trial Court and passed decree of dissolution of marriage on the basis of Khula in favour of wife‑‑ Appellate Court below took into account entire evidence on record and after having appreciated same came to the conclusion that parties could not live together as husband and wife within limits prescribed by God ‑‑‑ No justification thus existed for interference with judgment of Court below in exercise of Constitutional jurisdiction. S. Pervaiz Akhtar for Petitioner. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a family dispute. Petitioner was married to Mst. Naseem Bano, respondent No.1, on 2001 July, 1984 and out of this wedlock, a son was born. Unfortunately, disputes and differences occurred between the spouses. On 29th May, 1986, the petitioner riled a suit for restitution of conjugal rights against the respondent. Subsequently, on 15th July, 1986, she also instituted a suit for the dissolution of her marriage against the petitioner on the grounds of cruelty, bad character of the respondent, misappropriation of the goods etc. Khula' was also pleaded as a ground for dissolution of marriage. Both the suits were tried together by the learned Judge Family Court. On 18th April, 1990 he dismissed the suit for dissolution of marriage and decreed the suit for conjugal rights.

2. Aggrieved by this decision, respondent No.1 filed two appeals which were heard together by Additional District Judge, Faisalabad. The lower Appellate Court came to the conclusion that the petitioner was entitled to dissolution of marriage on the basis of Khula. He, therefore, proceeded to set aside the decisions of the trial Court, decreed the suit for dissolution of marriage and dismissed the suit for restitution of conjugal rights on 7th December, 1990.

3. Mr. S. Pervaiz Akhtar, learned counsel for the petitioner contended that there was no justification for the Additional District Judge to have set aside the decrees and judgments of the Family Court. It was further argued that the finding of the Additional District Judge that respondent No.1 was entitled to Khula', is not based on any evidence.

4. There is no force in the contentions raised by the learned counsel. From the perusal of the judgment of the Additional District Judge it becomes apparent that he took into account the entire evidence on the record and after having appreciated the same, he came to the conclusion that it was not possible for the parties to live together as husband and wife. While coming to this finding, the learned Additional District Judge relied upon the statement of respondent No.1 while appearing as P.W.3 and noted that respondent No.1 had gone to the extent of relinquishing the custody of the minor son in case she was granted Khula. It is also noticed that the parties were living separately for the last rive years and refusal to dissolve the marriage in such circumstances, would be forcing the parties to live in a hateful union. No exception can, be taken to the findings of the Additional District Judge that the parties cannot live together as husband and wife within the limits prescribed by God. There is no justification for interference with the judgment of the Additional District Judge in the exercise of the Constitutional jurisdiction of this Court. The petition fails and is dismissed in limine. H.B.T./M‑2739/L Petition dismissed.