1994SCMR2019 (PLP)

‑‑‑‑S, 5 & Sched: ‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Dissolution of marriage‑‑‑Issues relating to non‑payment of maintenance for over two years; failure to perform marital obligations for over three years; habitual cruelty were decided in favour of wife and decree was passed in her favour on basis of Khula` alone subject to return of land to husband which was gifted to her by her father‑in‑law‑‑‑Decree, so granted was maintained by the Appellate Court‑‑‑High Court in Constitutional jurisdiction, however, while maintaining decree of dissolution of marriage set aside condition attached to the decree for return of land to husband‑‑‑Validity‑‑‑High Court's finding wherein it found that findings of Family Court on questions relating to non‑payment of maintenance, non‑performance of marital obligations, habitual cruelty entitled wife to decree for dissolution of marriage, it was wholly unnecessary for marriage to be dissolved on ground of Khula ; such finding was well reasoned and did not suffer either from any infirmity or legal error‑‑‑Land in question, however, as per entries in "Nikahnama" was gifted to wife by her father‑in‑law in lieu of services rendered by her and not in consideration for marriage‑‑ Leave to appeal was refused in circumstances. Muhammad Munir Peracha, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 27th November, 1993. MUHAMMAD RAFIQ TARAR, J.‑‑‑Abdul Riaz petitioner seeks leave to appeal from the judgment of a learned. Single Judge of the Lahore High Court dated 28‑6‑1993 whereby Writ Petition No. 607/1992 filed by the respondent challenging the condition attached to the decree of dissolution of marriage on the basis of Khula` was allowed and the orders of the Family Court and the learned Additional District Judge directing the return of six Kanals of land by the respondent to the petitioner were declared without lawful authority and of no legal effect.

2. The brief facts of the case are that Mst. Hamidan respondent filed a suit for dissolution of marriage against the petitioner who also filed a suit for restitution of conjugal rights against her. Both the suits were consolidated. Issues relating to non‑payment of maintenance for over two years, failure to perform marital obligations without lawful excuse for over three years, habitual cruelty and Khula` were decided in favour of the respondent. The suit was, however, decreed on the basis of Khula` alone and decree was made subject to return of six Kanals of land to the petitioner which was gifted to the respondent by her father‑in‑law i.e. the father of the petitioner. The respondent challenged the condition through Family Appeal No. 31 of 1992 before the learned Additional District Judge but the same was dismissed vide judgment dated 19‑5‑1992. .

3. Learned counsel for the petitioner contends that the High Court was not justified in disturbing the concurrent determination of compensation for Khula` by the Courts below in its Constitutional jurisdiction: He further submits that the respondent in the grounds of appeal before the learned Additional District Judge did not plead that she was entitled to decree of dissolution of marriage on the grounds other than Khula` and had . such a plea been raised the petitioner might have succeeded in showing that the findings on the other issues were liable to be set aside.

5. Having considered the submissions made by the learned counsel in the light of material available on the record we do not find any infirmity or legal error in the impugned judgment. The learned Single Judge held that "as the findings of the learned Family Judge on issues Nos. 3, 4 and 5 entitled her to the decree for dissolution of marriage, it was wholly unnecessary for the marriage to be dissolved on the ground of Khula". This observation is well reasoned. Furthermore according to the entries in the Nikahnama the land was gifted to the respondent by her father‑in‑law in lieu of services rendered by her and not in consideration for the marriage. There is, thus, no. merit in this petition and the same is dismissed A.A./A‑1112/S Leave refused