1989 PLP 4518 (MLD)

Through this Constitutional petition Muhammad Razzaq petitioner, wants this Court to declare the judgment and decree dated 26‑3‑1988 passed by the learned Judge Family Court, Chishtian, respondent No.1, to be without lawful authority and of no legal effect.

2. The facts leading to this petition, briefly, are that on 21‑6‑1988 Mst. Robina Yasmeen, respondent No.2 filed suit for dissolution of marriage against Muhammad Razzaq petitioner on various grounds including that of Khula. The suit was resisted whereupon six issues were framed. Mst. Robina Yasmeen appeared as P.W.3. She produced Akhtar Hussain P.W.1 and Muhammad Sarwar P.W.2. In rebuttal Muhammad Razzaq petitioner produced Muhammad Bashir D.W.1 and himself appeared as D.W.2. The learned Judge Family Court, respondent No.1, decreed the suit on 26‑3‑1988 on the ground of Khula, hence this petition.

3. Learned counsel for the petitioner contended that the learned Judge Family Court has failed to appreciate the question of Khula in accordance with the law and the guidelines given by the superior Courts; that the judgment of the trial Court suffers from misreading/non‑reading of the evidence, inasmuch as, it has been observed in the judgment:‑‑ Therefore, from the evidence of the defendant it is not proved that plaintiff had obtained any matrimonial benefit from the defendant, therefore, the plaintiff is granted the decree of dissolution of marriage on the basis of Khula subject to the fulfilment of condition that she will not claim dower and maintenance from the defendant: Whereas Mst. Robina Yasmeen plaintiff has stated:‑‑ and Muhammad Razzaq petitioner stated:‑‑ that the learned trial Court has also failed to take into account written statement which show that Mst. Robina Yasmeen/wife had received benefits from the petitioner; that Mst. Robina Yasmeen plaintiff has neither stated in the plaint nor in her statement before the Court that she was prepared to part with the benefits received by her from the petitioner, as such, the marriage could not have been dissolved on the basis of Khula'; that there was no evidence that the dower was still outstanding; that the amount of dower is also not ascertainable; that on her own showing, the plaintiff had left the house of the petitioner/husband 15 days before the filing of the suit, therefore, she was not entitled to any maintenance, particularly, in the absence of any finding that there was reasonable cause for her living apart from her husband/petitioner and as such, the condition imposed by the trial Court that she will not claim dower and maintenance from the defendant is frivolous. Reliance has been placed on cases `Mst. Shagufta Jabeen v. Muhammad Tariq and others (P L D 1989 Pesh. 1), Mst. Khursheed Bibi v. Babu Muhammad Ameen (P L D 1967 S C 97), Sh. Muhammad Nazir v. Mst. Amina Begum (P L D 1983 Lah. 29) and Muhammad Siddiq v. Mst. Sharifan Bibi (P L D 1968 Karachi 411). Conversely, the learned counsel for the respondent has supported the judgment of the trial Court.

4. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the petitioner. I find that in the plaint as well as in her statement, the plaintiff/respondent No.2 has categorically stated that it was no more possible for her to live with the petitioner/husband and this shows her incurable aversion to the husband. Under the law, she is not obliged to disclose reasons for her hatred towards the husband. The trial Court on its assessment of the evidence and the circumstances appearing in the case, has come to the conclusion that there was no prospect of harmonious life in future between the parties. I do not see any reason to disagree with him. Since the learned counsel' for the petitioner has raised the plea of misreading/non‑reading of evidence by the trial Court, therefore, I have gone through the pleadings and the statements of the witnesses produced by the parties carefully. I find that the judgment of the trial Court does not suffer from misreading/non‑reading of evidence. The learned Judge has observed: From the evidence of the defendant it is not proved that the plaintiff has obtained any marriage benefit from the defendant. An examination of the written statement and the statement of the petitioner as D.W.2, reveals that it has nowhere been stated therein that the plaintiff had obtained any benefit as a consideration for the marriage. In written statement, it has been stated:‑‑ In his statement, the petitioner/defendant has stated:‑‑ It is thus very much clear that the petitioner has simply stated that his ornaments are with his wife, which she took away with her while going to the house of her parents, so it cannot be said that the ornaments, cash, etc. which she took with her, while going to the house of her parents, were the benefits derived by her as a consideration for marriage. No doubt Mst. Robina Yasmeen stated in her statement that; but in the same breath she also stated:‑‑ The statement of Mst. Robina P.W.3, when read as a whole, does not show that she had obtained ornaments as a consideration for marriage and the same were still with her. I find that the learned lodge Family Court has not disregarded the facts on record. He has applied his conscious mind to the evidence record and, f the conclusions arrived at by him. Mst. Robina Yasmeen could claim maintenance for the period after filing of her suit and there is nothing on record to show that the amount of dower was paid by the petitioner to his wife and as such no exception can be taken to the imposition of the condition by the trial Court that the wife will not claim dower and maintenance from the petitioner. The case-law relied upon by the petitioner is a quite distinguishable. H.B.T./M-1230/L Petition dismissed.