P L D 1994 Peshawar 245 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑The validity of the judgment and the decree dated 18‑2‑1993 passed by the learned Judge, Family Court, Charsadda and that of the learned Additional D1strict Judge, Charsadda dated 6‑1‑1994 has been assailed through the present Constitutional petition.

2. Mst. Gul Raja, respondent No.1, filed a suit for dissolution of marriage against Jan Ali, petitioner. The petitioner, by way of counterblast also instituted a Suit No.24/FC on 3‑11‑1991 for restitution of conjugal rights. It appears that respondent No. 1 withdrew her suit with permission to bring another one and brought Suit No.23/FC on 21‑1‑1992 for dissolution of marriage on the ground of failure to pay the dower debt and for recovery of three tolas of golden ornaments valuing at Rs.12,000, a house by way of dower and Rs.5,000 as maintenance allowance for 20/21 months at Rs.250 per mensum and keeping back his earlier marriage; non‑maintenance and impossibility of congenial matrimonial life between the spouses. Both the suits having been res1sted by the parties, the pleadings gave rise to as many as 12 consolidated issues including the relief, with regard to contracting "second marriage" without the permission of respondent No.1 non‑satisfaction of her dower debt; non‑payment of her maintenance allowance and "her entitlement to dissolution of marriage" and the "entitlement of decree for restitution of conjugal rights of the petitioner". After appraising the evidence adduced by the parties, the learned Judge Family Court took up issue No.2 with regard to the first marriage of the petitioner with one Mst. Sadiqa which he had divulged to respondent No. 1 and held that from the testimony of respondent No. 1 it transpired that Mst. Gul Raja was unaware of the petitioner's first marriage and on getting knowledge thereof she had made it crystal clear to the petitioner that notwithstanding deceptive game played by the petitioner, he had the option to divorce either of the two wives and thus the issue was answered in favour of respondent No.

1. Issues Nos. 1, 7 and 8 were then taken up together. The learned Judge Family Court observed that the petitioner has conceded that at the time of his second marriage, respondent No. 1 was not aware of his first marriage and further that when she came to know of his first marriage she had asked him either to divorce her or his first wife after which she had gone to live, with her parents. From these admissions made by the petitioner the learned Judge reached the conclusion that "at no cost respondent No. 1 was prepared to live with the petitioner." He further held the view that the matrimony from the outset had been marred by foul play; that respondent No.1 was not at all agreeable to live with the petitioner and perform her conjugal obligations in the presence of a (SOTAN) that efforts of reconciliation had failed at every stage including that at Union Council level. From these facts, the learned Judge, Family Court was constrained to apprehend that the spouses would not observe "limits of God" and, therefore, the petitioner was not entitled to a decree for restitution of her conjugal rights but respondent No. 1 was within her rights to claim dissolution of her marriage. The other reliefs viz. dower and maintenance were, however, not granted to her. On appeal filed by the petitioner against the judgment and the decree for dissolution of marriage passed in favour of respondent No. 1, the preliminary objection as to the competency of appeal under section 14(2) of the West Pakistan Family Courts Act (No. XXXV) of 1964 prevailed with the learned appellate Court, holding that no appeal lay `from a decree passed by a Family Court for dissolution of marriage except in the case of dissolution of marriage falling within the ambit of clause (d), item (viii) of section 2 of the Dissolution of Muslim Marriages Act (No.VIII of 1939)" and dismissed it as incompetent.

3. The learned counsel for the petitioner has in this petition raised the following contentions:‑‑ "(a) That no ground for decree in respect of dissolution of marriage as envisaged in section' 2 of the Dissolution of Muslim Marriages Act, 1939 was available to respondent No. 1 nor any such ground was proved in the Court of respondent No. 2. (b) That the so‑called second marriage without the permission of respondent No. 1 was not only misconceived but was also far from proved in that respondent No. 1 admittedly was the second wife of the petitioner and, therefore, neither the question of consent of the first wife was relevant nor the marriage could be dissolved on that score. (c) That the learned Judge, Family Court was not justified in invoking even impliedly the dissolution of marriage through Khula` having been neither claimed nor proved."

4. The learned counsel has not brought on the record copies of the evidence adduced by the parties. The learned counsel, therefore, could not point out any misreading or non‑reading of the evidence. The first ground urged by the learned counsel inherently based on misreading and non‑reading of the evidence was half‑hearted and far from proved in this case.

5. The perusal of the impugned judgment of the learned Judge, Family Court, however, would reveal that he had not granted the decree for dissolution of marriage on the ground of second marriage of the petitioner in contravention of the provisions of the Muslim Family Laws Ordinance (NO.VIII of 1961), namely, contracting second marriage without the consent of the first wife or the permission of the Chairman of Union Council. What the learned trial Judge seems to have held is that there was no possibility of the matrimonial life being carried further because from the outset it was tainted with mala-fide and `foul play'. The institution of marriage is based on mutual confidence, respect and love inter se. When it is shattered by the revelation that the husband was already married, it is bound to have serious consequences on the relationship. Second marriage is of course permissible under the law. Some people even go for second marriage even without either the consent of the first wife or the statutory sanction under the Muslim Family Laws Ordinance, 1961. The deplorable aspect of this case is that the petitioner has conceded that he had not divulged to respondent No. 1 the factum of his first marriage and further that when she came to know about it she at once demanded that she could not live with him as his second wife. It was a clear case of fraud. Respondent No. 1 and her parents have been duped into this very unhappy and sacred relationship. The severity of shock that respondent No.1 might have experienced on knowing that she had been made the victim of fraud by her very `loving husband' is so apparent to warrant any observation. It was one of the grounds that weighed with the learned trial Judge to grant decree for dissolution of marriage on the basis of Khula.

6. The third contention to be addressed is as to whether it is incumbent upon the wife to pray for dissolution of marriage on‑the ground of Khula. The proposition, it may be pointed out, stands resolved by a chain of authorities starting from the monumental judgment in Mst. Balqis Fatima v. Najmul Ikram Qureshi (PLD 1959 (W.P.) Lahore 566) and approved subsequently by the Supreme Court in Mst. Khurshid Bibi v. Raboo Muhammad Amin (PLD 1967 SC 97). In the cited authority of Mst. Balqis Fatima it was laid down that Khula` was a right of the wife and that the wife was entitled to dissolution of marriage on restoration 'of what she had received from husband in consideration of marriage if the Judge apprehends that parties will not observe the limits of God. It was clarified that it was not the right of the wife to come to the Court at any time and obtain Khula` if she was prepared to restore the benefit she had received. There was an important limitation on her right. It was only if the Judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he may grant a dissolution. The Judge has to determine whether the rift between the parties is a serious one though he may not consider the reasons for the rift. In view of the observations made. in the aforesaid Full Bench reference the objection that the ground of Khula` was not taken up is not legally sustainable. It is for the Judge to consider when in the given circumstances even if the grounds on which the dissolution is claimed had not been proved, as has been vehemently urged in this case before us, whether the marriage should be dissolved on the principle of Khula` subject to the important limitation laid down in the said judgment. In Mst.Khurshid Bibi's case cited above, the question that fell again for consideration was whether a wife under the Muslim law, is entitled as of right to claim Khula` despite the unwillingness of the' husband to release her from matrimonial tie if she satisfies the Court that there was no possibility of their living together cons1stently with their conjugal duties and obligations. Their Lordships of the Supreme Court concurred in their opinion and endorsed the view taken in Mst. Balqis Fatima's case that under the Muslim Law the wife was entitled to Khula` as of right, if she satisfies the Court otherwise it would mean forcing her into a hateful union. Again in Mst. Balqis Fatima v. Noor Muhammad and others (PLD 1978 Lahore 1109) the wife failed to make out a case for dissolution of marriage on certain grounds and consequently her suit and appeal there against failed, she filed a writ petition. A case of Khula` was made out on the ground that notwithstanding the failure to prove her allegations through evidence, it could still be looked into for the purpose of dissolution of marriage on the basis of Khula`.

7. It is evident from the impugned judgment of the learned Judge, Family Court that owing to deception practised by the petitioner in his omission to divulge his first marriage; respondent No. 1 had developed an aversion to petitioner inasmuch as she was absolutely not ready to live with the petitioner as his wife at any cost. She was not prepared to even think of joining the‑petitioner as his wife. The learned trial Judge after appraising the evidence as well as the circumstances of the case has come to a definite conclusion that respondent No. 1 has fixed aversion to her husband and that spouses cannot live within the limits of God. In this view of the matter, we are afraid, we cannot substitute our own finding in our writ jurisdiction for the factual finding recorded by the learned trial Court.

8. In view of the above discussion, no case for our interference in the impugned judgment and the decree of the learned Judge, Family Court, has been made out in our Constitutional jurisdiction. This petition having no substance merits dismissal in limine which is ordered accordingly. A.A./1574/P Order accordingly.