1991 PLP 1419 (MLD)

Allah Wasaya Malik for Respondent No.1. Nemo for Respondent No.2. Date of hearing: 26th February, 1991. This case has chequered history. Mst. Azeeb Akhtar was married to Mangta Khan about 27 years ago and out of this wedlock three children were born who are living with the petitioner. Subsequently, respondent No.2 filed a suit for dissolution of marriage against the petitioner which was decreed ex parte against him on 12th December, 1974. Thereafter, on 26th of March, 1975, the respondent entered into a marriage with Suleman. Subsequently, on an application made by the petitioner, the ex parte decree was set aside by him on 31st January, 1975. It appears that thereafter, the suit of the respondent was dismissed in default. She applied for restoration but that too was dismissed in default of appearance on 29th September, 1977. Some criminal proceedings are also pending between the parties.

2. The suit out of which the present petition has arisen was filed by respondent No.2 on 30th May, 1979, in which she claimed dissolution of marriage inter alia on the ground of Khula`. This suit was dismissed by the Family Court on 8th May, 1982 on the finding that the conduct of the petitioner in living with Suleman, as his wife, disentitled her for the grant of Khula`. Reliance in this respect was placed on a judgment of this Court in Sadiq v. Mst. Sharfan P L D 1968 Lah. 411.

3. Aggrieved by this order, respondent No.2 filed an appeal which was accepted by an Additional District Judge at Lahore, vide his impugned judgment, dated 8th November, 1982. The learned Additional District Judge was of the view that as there was a serious rift between the parties, who were involved in criminal litigation it was obvious that they could not live together as husband and wife within the limits prescribed by God. It was also noticed that respondent No.2 had re-married Suleman and out of that wedlock, a child has also been born.

4. Ch. Nabi Ahmad Cheema, learned counsel for the petitioner relying upon the judgment of this Court in Sadiq v. Mst. Sharfan P L D 1968 Lah. 411, contended that the petitioner was living in adultery with Suleman and she was not entitled to grant of Khula`. Learned counsel emphasized that the grant of Khula` in such circumstances, would tantamount to placing premium upon the immoral activities of the respondent.

5. It is not denied by the learned counsel for the petitioner that the first suit filed by respondent was decreed ex parte by the Family Court on 12th December, 1974, whereafter the respondent married Suleman and out of this wedlock, a child was also born. This decree was subsequently set aside on 31st February, 1975, and the suit filed by the petitioner was dismissed for non-prosecution. All efforts made by her to have the suit restored also failed. It was subsequently that she filed the present suit with the prayer that the marriage be dissolved on the ground of Khula`.

6. The contention of the learned counsel that the conduct of the petitioner was such that she was disentitled to the grant of Khula`, cannot in the circumstances of the case, be accepted, for admittedly at the time when the petitioner had married Suleman, her marriage with the petitioner stood dissolved through the ex parte decree of the Family Court. After having married Suleman, she was placed in a great predicament when the ex parte decree was set aside by the Family Court, with the result that her previous marriage with the petitioner stood revived. Keeping in view the fact that out of marriage of respondent No.2 with Suleman, a child was also born and further that the parties are locked in criminal litigation, the Additional District Judge was amply justified in dissolving the marriage on the ground of Khula`. In such like circumstances, to refuse Khula` would not only be cruel to the respondent and her child from the second marriage, but it would also amount to force the parties to live in hateful union without there being any chance or possibility of reconciliation. (See Mst. Fazal Bibi and others v. Settlement Commissioner and others P L D 1983 S C

163. In view of what has been said above, there is no merit in this petition. It is accordingly dismissed, leaving the parties to bear their own costs. H.B.T./M-2850/L??????????????????????????????????????????????????????????????????? Petition dismissed.