1990 PLP 30 (CLC)

Sardar Nasir Aslant Khan for Petitioner. Saleh Mehmood for Respondents. Date of hearing‑ 24th September, 1989. RAZA AHMAD KHAN J.‑‑Petitioner Rafiq Hussain Shah has invoked the Constitutional jurisdiction of this Court to call into question the decision of the learned Judge Family Court, Haripur, whereby, the suit for the dissolution of marriage filed by respondent No1l against the petitioner was decreed vide his judgment dated 31‑5‑1989 on the ground of `Khula'.

2. The petitioner and respondent No.1 entered into wed‑lock about 16/17 years ago. The wife bore 5 children to the petitioner out of whom 3 are alive. Two of them are staying with the petitioner while the third one, a daughter, reportedly aged 6/7 years, is in the custody of the mother. From the pleadings of the parties, it appears that after some time of the marriage, relations of the spouses started getting strained and finally respondent No1 filed two suits on 17‑8‑1987 against the petitioner before the Family Judge on inter‑alia the ground of `Khula' as also claiming the maintenance for their child in her custody. It appears that the petitioner also filed a suit for the restitution of conjugal rights on 7‑12‑1987 i.e. after the suits of the respondent No

1. All the three suits were consolidated.

3. Finding the parties at variance on a number of issues, the learned Judge, Family Court, recorded such evidence as was produced by the parties in support of their respective pleadings and as per his impugned single judgment at as conclusion that the parties can no longer live within the limits of God and consequently granted a decree in favour of respondent No1l and against the petitioner on the basis of 'Khula' and also awarded maintenance allowance at the rate of Rs.200 per month for the child who was in custody of the mother. The suit of the petitioner was, however, dismissed.

4. We have heard Sardar Nasar Aslam Advocate learned counsel for the petitioner and Mr. Saleh Mahmood Advocate, learned counsel for the respondent and also perused the record of the case with considerable degree of care.

5. It is contended on behalf of the petitioner that the decree for the dissolution of marriage on ground of `khula' could not be granted by the trial Court if the husband had not agreed thereto. 1t is also argued by the learned counsel that all allegations averred in the pleadings of respondent No1, having been found by the learned trial Court as not substantiated, the decision arrived at by the learned Judge, Family Court, to dissolve the marriage solely on the ground of `Khula' is not well founded. He, therefore submitted that the judgment and decree of the learned Judge Family Court is liable to be declared without lawful authority and of no legal effect.

6. As against this, the learned counsel for the respondent maintained that once the Judge Family Court is satisfied that not to dissolve the marriage would mean forcing the wife to a hateful union with the husband, it is rather imperative for the trial Judge to declare the marriage as dissolved following the principle of `Khula'; with the only condition that the wife shall stand disentitled to claim any monetary benefits which she was otherwise entitled to and that the question of the consent of the husband, in such circumstances, shall not be relevant. He also contended that in the limited Constitutional jurisdiction of this Court, the disputed questions of fact cannot be entered into and the interference with the decisions of a Court or Tribunal is permissible only when it is suffering from any jurisdictional infirmity.

7. We have given our serious consideration to the submissions made by the learned counsel in support of their respective pleas.

8. We do not find ourselves in agreement with the proposition that the right of the wife to seek divorce on the principle of `Khula' is contingent on the consent of the husband though we feel that it is not uncontrolled one either. The success of her pressing this right into service in favour of her own cause of dissolving her marriage, is dependent upon reaching a conclusion on the part of the Judge that the spouses can no more live within the limits of God. Towards achieving this end, grounds mentioned in section 2 of the Dissolution of Muslim Marriage Act A 1939; can be taken by a wife besides the ground of her aversion against the hushand and in case she fails to substantiate such grounds, still her plea of aversion cannot be brushed aside on that score alone. Rather it is for the Judge to arrive at a conclusion as to whether, in the circumstances of the case, the husband and wife can or cannot live together in harmony or conformity with their obligations and as such within the limits of God. Once the answar is in negative, the Judge can order separation of spouses by `Khula', the disagreement of the husband to such a course notwithstanding.

9. Again under the law the judgment and decree of the learned Judge, Family Court, attains finality and the mere fact that on re‑appraisal of the evidence, the High Court, may come to a different conclusion, would not make the decision of the trial Judge without jurisdiction and, as laid down by the Supreme Court in the case of Abdur Rehman Bajwa versus Sultan and others B (P L D 1981 SC 522), the High Court in writ jurisdiction would only interfere when the Court or Tribunal "acted without jurisdiction or in violation of relevant statute or law as laid down by the Superior Courts." In the instant case the learned counsel for the petitioner could not point out any such infirmity and could not persuade us to interfere with the impugned judgment accordingly.

10. In the case in hand, we also find that at no cost is the wife prepared to live with her husband, the petitioner, which fact by itself is sufficient to manifest the extreme dislike for, and aversion towards, him. In such a situation when it is C evident that their living together will be a cause of grave torture for both of them, the only course which could be, and has rightly been, followed was an order of separation by `Khula' which, the learned Judge Family Court, basing on the evidence, has made by way of his impugned judgment.

11. For the reasons foregoing, we have no hesitation in holding that the finding recorded by the learned Judge, Family Court, in the present case is in accord with the principle of `Khula' and does not merit any interference much lets in the limited Constitutional jurisdiction of this Court.

12. Resultantly, finding this writ petition devoid of any force in the point of fact as in law, we hereby dismiss the same with no order as to costs. A.A./912/P Petition dismissed.