1984 PLP 1688 (CLC)

‑‑ S. 8‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2 Provisional Constitution Order (1 of 1981), Art. 9‑Khula'‑Wife foregoing her right to claim dower‑‑Husband contending that he had paid amount to parents of wife at time of marriage and same be considered for grant of decree on ground of Khula'‑Plea, held, had no validity as amount was not paid to wife and thus could not be treated as gift/benefit received by wife at time of marriage. (b) Provisional Constitution Order (1 of 1981)‑ Art. 9 read with Muslim Family Laws Ordinance (VIII of 1961), S. 8‑Question whether or not re union of spouses was possible‑Satisfaction/judgment of Family Judge on question even if erroneous cannot be interfered with in writ jurisdiction. Muhammad Ashraf v. Safia Negum P L D 1976 S C 435 ref. Ghulam Sarwar petitioner has filed this constitutional petition challenging the validity of order dated 17‑2‑1983 passed by Family Court, Pakpattan, whereby the learned Court dissolved the marriage of the petitioner with Mst. Muniran respondent/plaintiff: (1) Whether the present suit is not maintainable is view of preliminary objection No. 1 of the written statement? O. P. P. (2) Whether the defendant treated the plaintiff with habitual cruelty? O. P. P. (3) Whether the defendant deprived the plaintiff from golden ornaments and prevented her to exercise her legal control over them? O. P. P. (4) Whether the plaintiff is entitled for khula divorce, if so on what terms and conditions? O. P. P. (5) What are the marriage benefits derived by the plaintiff from the defendant at the time of marriage which she is bound to return as consideration of khula? O. P. D. (6) Whether the dower was Ghair Mooajjal, if so whether the plaintiff is entitled to recover the dower amounting to Rs. 6,000? O. P. P. (7) Relief. Both the parties examined 3 witnesses each and the learned Family Judge on consideration of material on record found all the issues against the petitioner and proceeded to dissolve the marriage now being challenged in this writ petition. During the pendency of this writ petition the petitioner chose to file an appeal against the finding on the issue of dower in the Court of District Judge and abandoned attack thereon in this Court. It may also be stated that the finding on issue No. 3 is appealable before the District Judge but the petitioner instead of filing appeal has challenged the finding in this Court through this constitutional petition.

3. Learned counsel appearing on behalf of the petitioner has submitted that the observation made by learned Family Judge that the petitioner handed over the respondent (his wife) to his brother Muhammad Anwar who committed rape with her is imaginary and, therefore, liable to be set aside for want of evidence. It is true that there is no evidence on record that the respondent wife was subjected to rape by the brother of the petitioner but the learned counsel has missed to note that the learned Family Judge while deciding issue of cruelty appears to have been influenced by the fact that she was recovered on 16‑12‑1980 from petitioner's house by the police in obedience to a search warrant issued by Ilaqa Magistrate on the application of her father made under section 100, Cr. P. C. therefore, the finding on issue No. 2 based on no evidence.

4. Further contended that the finding on issue of "Khula" that "respondent had developed aversion towards the petitioner" is not supported by evidence on record the decree of Khula` also suffers from legal infirmity since it has been granted in consideration of respondent's foregoing her right to claim dower completely ignoring the established fact that the petitioner had paid a sum of Rs. 10,000 at the time of marriage to the parents of the respondent wife. Learned Family Judge, in my view, rightly repelled this argument for this amount was not paid to the wife. Obviously, therefore, it cannot be treated as gift/benefit received by the wife at the time of marriage and cannot be legally made as consideration for "Khula". Whether or not reunion of spouses is possible depends on the satisfaction/judgment of the Family Judges, which I am afraid cannot be interfered with in writ jurisdiction only because the view taken by him on the evidence is erroneous. Reference in this behalf may be made with advantage to Muhammad Asghar v. Safia Begum (PLD 1976SC435).

5. Lastly, it is contended that issue No. 3 is foreign to the pleadings of the parties and not a single witness including the respondent‑wife had stated that her ornaments of gold were ever misappropriated by the petitioner or that he prevented her from maintaining the control over them. `It is, therefore, urged that the finding on this issue in the absence of any support ing evidence is without lawful authority and this Court in exercise of the constitutional jurisdiction is well within its power to strike it down. I need not express on this issue for even if the petitioner succeeds on this score it shall not disturb the decree of dissolution of marriage in view of my above discussion.

6. In result this petition fails and is dismissed. The parties are left to bear their own costs. M. B. A. Petition dismissed.