1992 PLP 937 (CLC)

2. The facts necessary for the disposal of this petition are that respondent No.l was married to the petitioner on 4th December, 1985 in consideration of Rs.1,00,000 two squares of agricultural land and half share in Dilkusha Manzi situated at Bahawalpur, as dower. On 13th September, 1986, she filed a suit for dissolution of marriage on the grounds that she had been treated with cruelty by the petitioner and Khula. The suit was contested by the petitioner who raised various pleas. The learned Judge Family Court framed. the following nine issues out of the pleadings of the parties:‑ (1) Whether the suit is not maintainable? OPD. (2) Whether the plaintiff has no eau, y of action? OPD. (3) Whether the plaintiff has not come with clean hands in the Court? OPD. (4) Whether the defendant has paid dower to the plaintiff? OPD. (5) Whether the suit has been filed just to harass the defendant and with mala fide intention? OPD. (6) Whether the defendant has been treating the plaintiff with cruelty? OPP. (7) Whether the defendant is intoxicant? OPP. (8) Whether the plaintiff is entitled to the decree of dissolution of marriage on the basis of Khula? If so on what terms and conditions? OPP. (9) Relief. In support of her case, respondent No.l examined Muhammad Batalvi, her maternal uncle as P.W. 1 and appeared herself as P.W.

2. On the other hand, the evidence produced by the petitioner comprises of the statement of Muhammad Zia Ullah Bhatti, D.W. 1, Manzoor Ahmad son of Mubarik Ali D.W. 2, and the petitioner himself as D.W.3, In addition to this oral evidence, the petitioner produced an audio cassette, allegedly containing, conversation between him and respondent No.l as Exh.D.l and a photograph as Exh.D.2.

3. By its impugned judgment, dated 30th November, 1989, the Family Court proceeded to dissolve the marriage on the grounds of cruelt; as also Khula. As regards consideration, it was directed that respondent No.l shall not claim either maintenance or any share in one square of land situated in Mauza Shokal Ruba. This judgment of the Family Court has been assailed by the petitioner in this petition.

4. Mian Israr‑ul‑Haq, learned counsel for the petitioner has vehemently argued that the impugned judgment suffers from misreading of evidence as also non‑consideration of vital material on the record, which has rendered the judgment of the Family Court to be without any lawful authority. The learned counsel has relied upon various judgments including Lal Muhammad v. Mst. Gul Bibi and another PLD 1986 Quetta 185, and Kaura v. Mst. Mansab Mai and another PLD 1981 Lahore 335, to contend that in such a situation, the error committed by the Family Court is liable to be corrected by this Court through judicial review.

5. Rana Aish Bahadur, learned counsel for respondent No.l has, on the other hand, defended the impugned judgment and decree and has also objected to the maintainability of this petition on the ground that the findings of fact recorded by the Family Court are not challengeable before this Court in the exercise of its Constitutional jurisdiction. He has referred to Muhammad Yasin v. Mst. Razia Begun and others 1986 CLC 1996 and Muhammad Aslam v. Kausar Parveen and another 1987 CLC 256.

6. After having heard the learned counsel for the parties and perused the record, I find a great deal of force in the contentions of the learned counsel for the petitioner. The Family Court has dissolved the marriage on the grounds of cruelty and Khula. As regards cruelty, according to section 2 of the Dissolution of Muslim Marriages Act, 1939, a wife is entitled to have the marriage dissolved, if she is treated with habitual cruelty by her husband. Although cruelty can be physical, mental or even by conduct, but it has to be proved as a matter of fact before the Court. While proceeding to decide issue No.5, the Family Court has relied upon the statement of PW 1 Majid Batalvi, who is the maternal uncle of the plaintiff. However, the cross‑examination of the witness was not taken into consideration by the Family Court by observing that the witness has stood the test of cross‑examination. Unfortunately, the evidence produced by the petitioner which comprises of statements of two witnesses as well as the casette Exh. D.1 and photograph Exh.D.2 was neither referred to nor discussed. It needs no gainsaying that the Family Court was under a legal obligation to have decided the issue after discussing the entire evidence produced by the parties and by failing to consider the evidence of the petitioner, it has acted illegally. The significance of the photograph explained by the learned counsel is that according to the statement of Majid Batalvi P.W.1 he had after one month of the marriage brought the plaintiff to Lahore, photograph shows that respondent No.1 had celebrated her birthday on 2nd February, 1986 in the house of the petitioner at Bahawalpur. Similarly, according to the learned counsel the conversation in the cassette Exh.D.l between the petitioner and respondent No.1 proves that the petitioner has never treated respondent No.1 with cruelty.

7. The same position obtains as regards the findings of the Family Court on the issue of Khula. There cannot be any cavil that a wife is entitled to have the marriage dissolved on the basis of Khula, if the conscience of the Court is satisfied that it shall not be possible for the parties to live together as husband and wife within the limits prescribed by Allah Almighty. It is, however, to be remembered that Khula cannot be granted to the wife just for asking and it cannot be equated with the right of husband to dissolve the marriage by pronouncing Talaq. The grant of Khula, as already observed, is dependent upon the satisfaction of the Court that refusal to dissolve the marriage would amount to forcing the parties to live in a hateful union. In the judgment relied by learned counsel for the respondent himself, namely, Muhammaa Yasin v. Mst. Razia Begum and another 1986 CLC 1996 it has been observed that:‑ "It is correct that Khula' cannot be allowed on the mere asking of a wife. She can only succeed if she proves to the satisfaction of the judicial conscience of the Court that there exists an irremediable breach between the parties which makes it impossible for her to perform her part of contract within the limits prescribed by God Almighty." In Lai Muhammad v. Mst. Gul Bibi and another PLD 1986 Quetta 185, a note of caution was given by the Division Bench of the Balochistan High Court that Islamic principle of law enjoins upon the Court a solemn duty to reasonably scrutinize plausibility and desirability of facts and circumstances brought before it and on the basis thereof to arrive at judicious satisfaction to ascertain the entitlement of wife to Khula. Unfortunately, however, no such exercise appears to have been undertaken by the Family Court which has granted Khula to the petitioner, without making any reference to the evidence produced by the petitioner at all. No reason whatsoever has been given by the Family Court in support of the finding that it was not possible for the parties to live together as husband and wife. According to the petitioner, conversation recorded in cassette Exh.D.l shows that even after the filing of the suit, the parties had been meeting together and their relationship has always remained cordial and amicable. On these premises it was argued that they can live together as husband and wife. Unfortunately, as already observed, this evidence as also the testimony of the witnesses produced by the respondent and photograph Exh.D.2 have been completely kept out of consideration.

8. As regards the objection of the learned counsel for respondent No.1 to the maintainability of this petition, although it is correct that this Court cannot interfere with the findings of fact arrived at by the Tribunal below by reappraising evidence, but it is equally well‑settled that if while deciding the case, some important evidence has been kept out of consideration, the power of judicial review can be exercised to correct the error. Reference may in this connection be made to Muhammad Aslam v. Kausar Parveen and another 1987 C L C 256, Lal Muhammad v. Mst, Gul Bibi and another P L D 1986 Quetta 185 and Kaura v. Mst. Mansab Mai and another PLD 1981 Lah. 335, For the reasons aforesaid, this petition is allowed, the decree of the Family Court, dated 30th November, 1989 is declared to be without lawful authority and of no legal effect, with the result that the suit filed by respondent No.1 shall be deemed to be pending before the Family Court and shall be decided afresh after hearing the parties. The parties shall appear before the learned District Judge, Lahore, on 20th November, 1991, who shall entrust the suit to a Court of competent jurisdiction. As the dispute has remained pending for more than five years, it is directed that it shall be re‑decided before 23rd December, 1991. No orders as to costs. H.B.T./Mt‑204/1, Case remanded.