1987 PLP 253 (MLD)

S.2--West Pakistan Family Courts Act (XXXV of 1964), S.14--Constitution of Pakistan (1973), Art. 199--Khulal--Dissolution of marriage on ground of cruelty--Plea of Khula' taken as an alternate remedy--Findings of Trial Court that cruelty of conduct was proved against petitioner--Framing of issue in respect of Khula' in such case was not necessary--Allegation of cruelty made by wife having been supported by her brother in his deposition, case was not one of no evidence--Fact that an Appellate Court might have taken a different view of evidence led by wife, held, was not sufficient to entertain petition in extraordinary constitutional jurisdiction--Petition found to be unsustainable was dismissed in limine. Abdul Karim Siddiqui for Petitioner. Date of hearing: 1st February, 1987. The petitioner has called in question the consolidated judgment and decree in suits Nos.701/85, 702/85, one was filed for dissolution of marriage and other was filed by the petitioner for restitution of conjugal rights. Issues had been framed and the parties had examined themselves. The respondent had also examined her brother in support of her contention. The suit for dissolution of marriage was ultimately decreed and suit for restitution of conjugal rights was dismissed. Mr. Abdul Karim Siddiqui, learned counsel for the petitioner submitted that since Khula' has been granted to the respondent, therefore, it was essential that there should have been an issue in respect of the Khula' and the Court should have gone into question of the restoration of benefits. I find that it was only an alternate plea of Khula which the respondent had taken. Otherwise, she had based her case on cruelty and cruelty of conduct is one of the ground which is available to a wife for dissolution of marriage under the Dissolution of Marriage Act. In fact the findings of the learned Civil Judge is that, cruelty of conduct was proved against the petitioner. This being the position the contention of the petitioner's counsel that framing of issue in respect of the Khula' was necessary is unfounded. The learned counsel, thereafter, proceeded to attack the findings in respect of cruelty, I have gone through the evidence of the respondent Mst. Mehtab Mahmood and the elaborate cross examination directed by the petitioner against her. I find that there is an allegation of cruelty made by women and of course, the same has been challenged in the cross-examination. Her deposition could be relied upon by the original Court which was considering her evidence. She had also foregone her dower in the alternative and the same has been noted in the impugned judgment. The Allegations of Mst. Mehtab Mahmood was also supported by her brother Rizwan in his deposition, therefore, it is not a case of no evidence in respect of allegation of cruelty. It is a different matter that an Appellate Court may have taken a different view of the evidence which had been led by the respondent Mst. Mehtab but that is not sufficient for me to entertain this petition in the extraordinary constitutional jurisdiction. Since there is some evidence to support the finding on the point of cruelty, therefore, the petition is found to be not sustainable and is hereby dismissed in limine. S . Q . M-67 / K Petition dismissed.