P L D 2009 Lahore 213 (PLP)

SYED SHAHEEN MASUD RIZVI, J.

Mst. Parveen Amanual, the petitioner filed a suit for dissolution of her marriage before the learned Judge Family Court, Rahimyarkhan under the Divorce Act, 1869, which is applicable to the persons professing the Christian religion. The suit was contested by Respondent No.3, Razzaq Shakir, the husband. The case was still at the initial stage when on 4-10-2005, the learned Judge Family Court recorded the better statement of the petitioner-plaintiff, wherein she stated that:-- After recording the above said statement, the suit of the petitioner-plaintiff for dissolution of marriage was decreed.

2. Respondent No.3, the husband, feeling aggrieved by the above said order and decree dated 4-10-2005, filed an appeal before the learned District Judge, Rahimyarkhan, which was decided by Mr. Wajahat Hussain, Additional District Judge, Rahimyarkhan, who vide his judgment dated 16-11-2005 remanded the case to the learned Judge Family Court, Rahimyarkhan on the ground that the dissolution of marriage was not in accordance with the provisions of the Divorce Act, 1869, applicable to the parties and directed the learned Judge Family Court to decide the suit for .dissolution of marriage of the petitioner-plaintiff afresh, keeping in view the provisions of the Divorce Act, 1869. Hence, this writ petition.

3. I have heard the arguments of the learned counsel for the parties and have perused the record.

4. The order dated 4-10-2005 of the learned Judge Family Court reads as under:-- "The plaintiff has specifically deposed on oath the she is not ready to live with the defendant at any cost. In view of statement of plaintiff, the present suit for dissolution of marriage is hereby decreed in favour of the plaintiff and against the defendant. There is no order as to costs. File be consigned to record room after its due completion."

5. The perusal of the above order dated 4-10-2005 reveals that the learned Judge Family Court was influenced by the provisions of the Muslim family Laws Ordinance, 1961 while deciding the case of the petitioner-plaintiff. There is no provision in the nature of `Khula' in the Divorce Act, 1869 and as such the mere statement of the petitioner that she was not willing to live as a wife with respondent No.3, is not sufficient for the purpose of dissolution of Christian marriage. In this regard reference is made to section 10 of the Divorce Act, 1869, which relates to the grounds when wife may ask for the dissolution of marriage and further reference is also made to section 22 of the same Act, which lays down the grounds when judicial separation is obtainable by wife.

6. The bond of marriage between Christian husband and wife is of a permanent nature and as such the wife has to prove her case on the concrete facts after leading reliable and cogent evidence to the facts on which the claim of dissolution of marriage is based. Only then the Court can grant a decree for a judicial, separation within the meaning of section 22 of the Divorce Act, 1869 or to dissolve the marriage under section 10 of the same Act. Therefore, mere assertion of the wife that she is not ready to live with the husband is not sufficient for dissolving the marriage between the petitioner and respondent No.1. The learned Additional District Judge has rightly remanded the case to the learned Judge Family Court. The instant writ petition has no force and the same is dismissed. The case shall stand remanded to the learned Judge Family Court Rahimyar Khan who shall proceed with the case from the stage on which the petitioner made better statement and after framing the issues and recording evidence regarding those issues, shall decide the matter, after issuing notice to the parties to appeal before it. The case be decided preferably within three months from the date of receipt of this order. H.B.T./P-18/L Petition dismissed.