1986 PLP 237 (MLD)

Aftab Ahmad Shaikh for Respondent No.1. Nemo for Respondent No.2. Date of hearing: 2nd March, 1986. Respondent No.1, wife of the petitioner filed a suit for dissolution of marriage on the ground of cruelty, non‑maintenance and bad character of the petitioner husband and she also, in para. 11 of the plaint, alternatively prayed for Khula'. Evidence was recorded by the Family Court and by judgment, dated 23‑12‑1984, Khula' was granted subject to the respondent No.1 giving up her claim of 88.5,000 as dower amount. It may be observed that as far as the question of cruelty non‑maintenance and bad character is concerned, the trial Court came to the conclusion, that these allegations made by respondent No.1 had not: been established. The impugned judgment, dated 23‑12‑1984 has been as challenged in the present Constitutional Petition. I have heard Mr. Ghulam Moinuddin Baloch, learned counsel for the petitioner and Mr‑Aftab Ahmad Shaikh, learned counsel for respondent No.1.

2. In' the evidence of the respondent No.1/wife, she has stated as follows: ‑ "I have developed hatred for him and I am not prepared to live as a wife with him in future. I forego my dower of Rs.5,000." On the state of evidence on record, the Family Court was satisfied that a case for Khula' had been made and accordingly the union between the petitioner and the respondent No.1 was dissolved by way of Khula'. Learned counsel for the petitioner has referred to a decision of a learned Single Judge of the Lahore High Court in the case of Kaura v. Mansab Bai P L D=1981 Lah.

335. On the other hand, learned counsel for the respondent No.1 had argued that the Supreme Court has laid down the principles about the termination of the marriage by way of Khula' and the right of the wife to a dissolution of marriage on the ground of Khula in the case of Khurshid Bibi reported in P L D 1967 SC 97.

3. The trial Court, on the evidence, on record, has observed that he was satisfied that if these two parties are to live together, it will be a hateful union. The Family Court was satisfied that the parties could not live together as husband and wife. There is some evidence on record, on the basis of which this finding has been reached. I am not sitting in First Appeal. This is a constitutional jurisdiction. In my view, no case has been made out for interference with the judgment, dated 23‑12‑1984 of the Family Court under the constitutional jurisdiction of this Court. Khurshid Bibi's case decided by the Supreme Court supports the case of the wife. The case cited by the learned counsel decided by a learned Single Judge of Lahore High Court was decided on the facts of that case.

4. Constitutional Petition No. S‑12 of 1985 is accordingly dismissed but there will be no order as to costs. H.B.T Petition dismissed.