P L D 1975 Lahore 1136 (PLP)

MUHAMMAD AKRAM, J.-This is a letters patent appeal before us under section 3(2) of Act (VIII of 1972) and is directed against the judgment dated the 21st of February 1975, whereby a learned Single Judge of this Court dismissed in limine Writ Petition No. 353 of 1975, filed by appellant.

2. Briefly the facts are that the appellant and respondent No. 2 were married together. After sometime disputes and differences arose between them. In the course of time the appellant then filed a suit against respondent No. 2 for restitution of conjugal rights. It was decreed ex parte by the Judge, Family Court at Jamesabad, Taluqa Digri, District Mirpur Khas, on the 31st of October 1972. In the meantime on the 26th of April 1972, respondent No. 2 filed her suit against the appellant for the dissolution of her marriage before the Judge, Family Court at Daska, District Sialkot. It was inter alia alleged in the plaint that the appellant had failed to maintain her for more than two years and was guilty of having made false imputations (lian) against her. She also claimed divorce on the grounds of khula`. The defendant denied these allegations and also inter alia raised an objection in his written statement to the effect that the suit of the plaintiff respondent No. 2 was not competent in the presence of the decree already passed in his favour by the Judge, Family Court, Jamesabad on the 31st of October 1972. The pleadings of the parties gave rise to a number of issues framed by the trial Court. Eventually on the 6th of February 1975, the Judge, Family Court, Daska decreed the suit of respondent No. 2 against the appellant and dissolved the marriage between them on the ground of khula` alone. He was of the opinion that the ex parte decree dated the 31st of October 1972, obtained by the appellant against her for the restitution of conjugal rights did not operate as a bar to her suit for the dissolution of their marriage.

3. In these circumstances the appellant filed W. P. No. 353 of 1975, against the respondents under Article 199 of the Constitution of Islamic Republic of Pakistan questioning the validity of the decree dated 6th February 1975, for the dissolution of marriage between the two contending parties. At the preliminary hearing before the learned Single Judge of this Court the only contention raised in support of the writ petition was to the effect that the second suit brought by the respondent No. 2 for the dissolution of her marriage against the appellant was barred by res judicata because of the decree dated 31st of October 1972, already obtained by him for the restitution of conjugal rights against her. But this contention was repelled by the learned Judge in Chambers who dismissed the writ petition in limine on the 20th of February 1975, with the following order :

"Contends that the suit for dissolution of marriage was barred by at least constructive res judicata since a decree for restitution of conjugal rights, though ex parte, had been passed against the respondent No.

2. He argues that the ground of attack in a suit for dissolution of marriage is a valid ground of defence in a suit for restitution of conjugal rights. This principle is not applicable to the present case since the issues of non-payment of maintenance for a period of two years and of lian have been decided against respondent No.

2. The Court has granted her khula' only which question could not validly be raised in a suit for restitution of conjugal rights."

4. Dissatisfied the appellant has come up in appeal before us against the judgment of the learned Single Judge passed in Chambers. On the face of it this appeal is barred by time and the appellant has made a belated application (C. M. No. 1 of 1975), under section 5 of the Limitation Act for the condonation of the delay in filing the appeal. The order in the writ petition was passed in limine in the presence of the learned counsel on the 20th of February 1975. It is admitted that application for the copy of the order was made on the 27th of February 1975, which was delivered to the clerk of his former counsel on the 7th of March 1973. It is, however, alleged that the copy of the order was made available to the petitioner appellant on 21st of April 1975 at 4-00 a.m. by him. He then filed the appeal in this Court on the 22nd of April 1975. It was submitted that the appellant was living in a far-flung district of Sind when his case was heard at Lahore in absentia. It is further alleged that the delay in filing the appeal was not intentional but accidental over which the appellant had no control.

5. This appeal as filed on the 22nd of April 1975, was barred by 28 days. The Memo. of appeal was accordingly returned to the appellant with this objection. Eventually the appellant re-filed the appeal on 11-5-1975, along with the application for the condonation of the delay. The impugned order dated the 20th of February 1975, dismissing the writ petition ire limine was passed in the presence of the learned counsel for the appellant. In this application it is admitted that as application for the certified copy of the judgment under appeal was made on the 27th of February 1975. After the copy was ready, it was delivered to the clerk of the former counsel of appellant on the 7th of March 1975. But this appeal was not filed in Court until after 11 months, on the 24th of April 1975. There is no satisfactory explanation for this delay. All that has been vaguely stated in his application is that the certified copy was made available by the clerk of the former counsel to the petitioner on the 21st of April 1975. Nothing has been disclosed as to what exactly happened between them from 7th of March 1975 to 27th of April 1975, and prevented the appellant to file this appeal within time. It is mentioned in this application that the appellant is residing in a far-flung district of Sind. But even then there was nothing to prevent the appellant to reach Lahore within time with all the means of communication so easily available from the remotest corner of the country to Lahore. We have therefore, no hesitation in finding that there is no sufficient cause ` disclosed by the appellant due to which he failed to file this appeal within time.

6. Even on the merits we are inclined to agree with the learned Judge in Chambers in holding that this plea for the dissolution of her marriage on the ground of "khula"' was not available to her in defence to the suit of the husband for the restitution of conjugal rights. It may be seen that B the right of the wife for the dissolution of her marriage on the ground is no :an unqualified and an absolute right. In this connection it was laid down yin Mst. Balqis Fatima v. Najm-u1-Ikram Qureshi (P L D 1959 Lab. 566) that it is only if the Judge apprehends that the limits of God will not be observed, that is, in their relations towards one another the spouses will not obey God, that a harmonious married state as envisaged by Islam, will not be possible that he will grant a dissolution. The ratio in the case was approved by their Lordships of the Supreme Court in Khurshid Bibi v. Muhammad Amin (P L D 1967 S C 97) .and it was held that under Muslim Law the wife is entitled to khula', as .of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union. From this it is evident that the right of the wife to the dissolution of her marriage becomes absolute and takes effect only under the decree of the Court and the Judge is entitled to pass the order even against the consent of the husband. It is, therefore, clear that in the instant case in the absence of any such decree of a Court in her favour, this defence was not, in fact, available to her at the time in reply to the husband for the restitution of conjugal rights against her. As such her later suit against the husband for the dissolution of her marriage on the ground of khula' was not at all barred by res judicata.

7. The Judge, Family Court, Daska has dissolved her marriage on the ground of khula'. In other words on the evidence before him he was satisfied that it had become impossible for the couple to lead a harmonious, marital life within the limits of God. On these findings even otherwise it is not a fit case for interference by the High Court in the exercise of its extraordinary jurisdiction vested under Article 194 of the Constitution. The equities of the case are against the appellant and this Court cannot interfere merely to give effect to the technical plea of res judicata set up by him in reply to her suit.

8. Under somewhat similar circumstances this Court in the reported case of Muhammad Younas v. Nargis Sultana (P L D 1970 Lah. 41) in this very connection observed :

"It will be further noticed that the respondent has claimed dissolution of marriage between the parties on the ground of khula` because the parties allegedly cannot live within the limits of God as husband and wife. The question whether the respondent is entitled to dissolution of marriage on this ground cannot be taken as a defence or considered in the suit for restitution of conjugal rights. This is entirely a new ground and a decision on this point in favour of the respondent will finally seal the relations between the parties. I am, therefore, of the view that the learned District Judge, Sialcot, was perfectly justified in holding that the provisions of section 11 of the Code of Civil Procedure are not attracted to the suit filed by the respondent for dissolution of marriage." 'We respectfully agree with these observations.

9. For the foregoing reasons, it is not possible to hold that this suit of the respondent for the dissolution of her marriage against the appellant was constructively barred by the principles of res judicata. There is thus no force in this letters patent appeal which is dismissed in limine. K. M. A.???????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismiss