1983 PLP 2400 (CLC)

Dates of bearing : 28th, 29th November and 6th December, 1982: This petition under Article 9 of the Provisional Constitution Order, 1981 calls in question the judgment dated 29th March, 1982, passed by the learned Judge Family Court, Jaranwala, District Faisalabad.

2. The facts necessary for the purposes of this petition briefly stated, are that the petitioner was married with respondent No. 1 on 15th April, 1976 and out of the wedlock a daughter was born. The sister of the petitioner was married with the father of respondent No. 1 and the marriage of the petitioner with respondent No. 1 was, therefore, of Walla Salta. After sometime, the spouses fell out with the result that respondent No. 1 started living with her father and ultimately instituted a suit for dissolution of her marriage against the petitioner before the Judge Family Court, Jaranwala, District Faisalabad. The petitioner also instituted a suit for restitution of conjugal rights against respon dent No.

1. Both these suits were consolidated and on the divergent pleadings of the parties, nine issues including that of the relief were framed which read as under :‑

3. The learned Judge Family Court found issues Nos. 2, 4, 5, 6 and 7 in favour of respondent No. 1 whilst on issues Nos. 1 and 3 he recorded a finding in favour of ‑ the petitioner. Issue No. 7‑A was, however, decided against the petitioner. As a result, the suit of A respondent No 1 was decreed whilst that of restitution of conjugal rights was dismissed leaving the parties to bear their own costs. Feeling dissatisfied, the petitioner has come up in the present Constitutional petition.

4. The learned counsel for the petitioner contended :‑ FIRST, that Talaq could not be granted to respondent No. 1 on the basis of non‑maintenance or for that matter non‑performance of matri monial duties as the non‑maintenance and non‑performance of matri monial duties respectively for 2 and 3 years was not established which was required under section 2 of the Dissolution of Muslim Marriages Act, 1939; SECONDLY, that the marriage could not be dissolved on the basis of khula until the Court had arrived at a specific conclusion as to what was being foregone by respondent No. 1 in favour of the petitioner for obtaining Khula. He submitted that it is the fundamen tal requirement for grant of Talaq on the basis of Khula that such a determination should be made and the wife directed to surrender something in lieu of grant of Khula. He in this regard relied on Mst. Khurshid Bibi v. Babu Muhammad Amin (PLD 1967SC97), and LASTLY, that the learned trial Judge misread the evidence and without justification gave credence to the witnesses of respondent No. 1.

5. The learned counsel for respondent No. 1 on the contrary, made the following submissions :‑ (i) That even if it be assumed that some of the grounds taken by respondent No. 1 for obtaining Talaq had not been established, the learned Judge Family Court could grant Talaq on the basis of khula alone. Reliance was placed in this regard on Muhammad Sadiq v. Mst. Aisha and others P L J 1975 Lah. 215, (ii) that it is in evidence which has been duly considered by the Court below that respondent No. I was surrendering dower, the maintenance and the dowry in lieu of the grant of Khula. It was urged that in the context of this evidence, the learned. trial Court was justified. in granting Khula on the basis of respondent No. 1 giving up her right for dower, maintenance and dowry. Reliance in support of the above contention was placed by the learned counsel on Bilqis Fatima v. Noor Muhammad and two others, P L D 1978 Lah. 1109 (iii) that the learned trial Court had gone through the evidence minutely and after detailed discussion of the evidence come to the conclusion that, the witnesses of respondent No. 1 were credit worthy and as Constitutional such no exception to this can be raised in a Petition ; and (iv) that finding on issue No. 4 as to habitual cruelty has been returned by the learned trial Court after due consideration and and decree ~f the this issue alone is sufficient to sustain the judgment he trial Court.

6. I have given earnest consideration to the controversy involved. The contentions raised on behalf of the petitioner have obviously no force. I am in respectful agreement with the principle laid down in Muhammad Sadiq V. Mst. Aisha, and others (1) that even if the wife on technical grounds fails to prove any of the issues on which she is claiming divorce it would not necessarily mena disproof of circumstances entitling her to dissolution of marriage on the basis of Khula. Therefore assuming that respondent No. 1 had not been able to establish her non-maintenance by the p[etitioner and the failure of the petitioner to perform the marital obligations, the divorce could be granted if a case is made out on the basis of Khula, or for that matter on the bgasis of any other ground on which respondent NO. 1 had claimed divorce. On issue No. 4 there is a positive finding after discussion of the evidence that the petitioner (husband) had been treating respondent No. 1 (wife) with cruelty and was habitual in doing so. This finding has not been even assailed by the petitioner before me. That being so, the Talaq could be granted by the trial Court on this grounhd alone as section 2 of the Dissolution of Muslim Marriages Act, 1939, clearly provides that a woman under Muslim Law shall be entitled to obtrain a decree for the dissolution of her marriage on any one or more of the grounds mentioned in the section. It is thus manifest that even if one of the grounds as given in this section is established that will entitle the wife to obtain a decree for dissolution of marriage.

7. As .regards the contention of the learned counsel for the petitioner that the learned Judge Faanily Court gave credence to the testimony of witnesses of respondent No. 1 without justification, I may observe that apart from the fact that this is not a, question which could be legsomately raised in a Constitutional petition, this contention otherwise, also has no force. The learned Judge Family Court. has given due consideration to, the evidence of both the parties and then arrived at a finding that the testimony of the witnesses of respondent No. 1 is more creditworthy in Muhammad Hussain Munir v. Sikandar and others (P L D 1.974 S C 139) it has also been held that even wrong decision on points of fact is not open to question in a petition before the High Court under its Constitutional juriIl4iction.

8. Reverting now to the contention about . the non‑determination of the consideration which respondent No. 1 is giving in lieu of grant of Khula, it may, at tile outset be stated , that the three things which are being foregone by respondent No. 1 have been specifically mentioned in the impugned Judgment and those are dower, the maintenance and the dowry. It is in evidence of respondent No. 1 appearing as P. W. 3 that the dowry was worth about Rs.. 5000/6000 which was retained by the petitioner. 4n this point respondent No. 1 was not even cross examined by the Petitioner. It cannot., therefore, be legitimately urged that there was no determination as to what was being foregone by respondent No. 1 for obtaining Khula. It is well settled that Khula is effected by giving the dower alone or a portion thereof or sometime by giving more than that. Now in the case in hand, the learned Judge Family Court has clearly found that the petitioner had not been pay ing any maintenance to respondent No. 1 while recording his findings on issues Nos. 4 and 5 and thereafter ordered under issue No. 7 that respondent No. I shall be entitled to Khula on the basis of her not claiming dower, the maintenance and the dowry It has also been held in the earlier .portions of the impugned judgment where discussion has been made on issues Nos. 2, 6 and 7 that between the spouses there is a stage where it is impossible for them to live within the limits, of Allah. In the context of the above situation, it can hardly be said that no basis for Khula existed or for that matter the grant of Khula is without determining the consideration which the wife has foregone in favour of the husband.

9. In view of the foregoing discussion, I find no merit in this petition which is, accordingly, dismissed with no order as to costs. K.M.A. Petition dismissed.