P L D 1997 Karachi 325 (PLP)

The petitioner has assailed the judgment and decree of VIIth Extra-Joint Civil Judge and Family Judge, Hyderabad decreeing Family Suit No.42 of 1995 dissolving the marriage of the respondent with the petitioner by way of Khula' dated 4th December, 1996 and 6-1-1997. The petitioner was married to the respondent No. l on 24-9-1991 and the parties lived at Taluka Golarchi, District Badin. According to the petitioner that on 24-8-1994 the parents of the respondent No.l came to the house of the petitioner and took her away on the ground of Khairat has been arranged by her parents at their house and her participation required. It is alleged that the respondent No. l took away ornaments and other valuable articles as well as cash amount. According to him she filed a suit for dissolution of marriage through Khula' and the grounds urged in the pleadings are that the petitioner is involved in bad habits and he brings women of ill-repute in the house and at the objections of respondent No. I used to beat and maltreat her. She further allegee that even the father of petitioner filed cases against her father. She further stated that the family members of the petitioner used to beat her and on 4-1-1994 they forcibily turned out the respondent No.1 of her house. She further alleged that she is not being maintained by her husband. The allegations were denied. Jurisdictional objections were raised and compensatory costs were demanded to the extent of Rs.50,000 from the respondent No. l in the written statement. The Court framed the following issues:-- (1) Whether this Court has jurisdiction to entertain this suit? (2) Whether plaintiff was married with defendant on 5-1-1993 at Goth Urs Malah, Taluka Tando Muhammad Khan against the dower amount of Rs.32.50? (3) Whether the plaintiff was taken away by her parents from the house of defendant on 24-8-1994 in his absence on the pretext to Khairat? (4) Whether the defendant turned out the plaintiff from his house on 4-7-1994? Is the plaintiff entitled for dissolution of marriage on the ground of Khula' ? (6) What should the decree be? In her deposition she stated that she was married to the petitioner. after marriage the petitioner used to beat her. He tortured her severely . He indulged into bad activities and he had illicit relations with his brother's wife and on her objections he used to beat and threatened her of killing. The petitioner had also beaten her father. The petitioner newer maintained the respondent No.,l nor he paid even a penny towards her maintenance. She further stated that "I won't like to live with the petitioner as his wife at any cost." She prayed for divorce. She further deposed that she has filed the suit on her own accord, wishes and without any force from any side. She was cross-examined. Many suggestions were put to her to which she denied. The petitioner examined himself and Arbab son of Muhammad Hashim who is the brother of the petitioner. He also examined Umaid Ali son of Mian Wassayo as well as Ghulam Nabi son of Taj Muhammad. All these witnesses deposed that the petitioner and the respondent No. l had cordial relation and that she demanding divorce under the influence of her parents. All witnesses deposed that the dowry articles are with the respondent No.

1. The Court came to the conclusion that it had the jurisdiction, on issue No.2, the Court observed that the marriage had taken place and the dower amount was fixed on 24-9-1991. The dower amount (Rs.8,000) was prompt dower. Learned trial Court held that the marriage had not taken place on 5-1-1993 nor the dower amount was Rs.32.50. (in Issues Nos.3 and 4 the Court held that the respondent No.1 was not turned out forcibly from her house but she went alongwith her parents, in view of Khairat arranged by her parents. On Issue No.5 the learned trial Court held as follows: "In my humble view the case of plaintiff that it is not possible for her to live as wife with the defendant happily, is not untrue. Hence, at the time of pre-trial and post-trial, the plaintiff has a fixed aversion against the defendant, and she has got hatred against the defendant, though, this Court made best efforts for reconciliation but plaintiff was not agreeable. In a case reported in 1969 SCMR 118 it has been laid down that:-- 'Family Court dissolved marriage holding that the wife had developed intense dislike for her husband and in such circumstances she would certainly be transgressing the limits of Allah Almighty if forced to live with the husband, Held that the order passed by the Court was proper." The right of Khula' is the privilege of women conferred on her under the Injunction of Holy Qur'an in verses 2-229:-- It has been translated as:-- divorce must be pronounced twice, then either retain them in honour or release with kindness, And it is not lawful for you that you take back from woman anything out of what you have given them unless they both fear that they cannot observe the limns imposed by Allah. But if you fear that they cannot keep within limits prescribed by Allah, then it is no sin for either in what she gives up to be free (i.e. ransoms herself)- These are the limits imposed by Allah. Transgress them not, for who transgressed Allah's limits it is they who are the wrongdoers' On the subject of Khula' there is a decision of Full Bench of Five Honourable Judges of Supreme Court of Pakistan cited in PLD 1967 SC 97 wherein it has been laid down that: Marriage among Muslims is not a sacrament, but in the nature of civil contract, such a contract undoubtedly has spiritual and moral overtones and undertones, but legally in essence it remains a contract between the parties, which can be the subject of dissolution for good cause. The Qur'an also declared women have right against men similar to those that men have against them according to the well-known Rules of equity. Thus, it is clear that if men have right to divorce, so women have similar right of seeking divorce. Shah Waliullah of Delhi in Al-Nusawa Hadit-at-Muta, Vol. II, nose 160. goes to the length of saying:-- "Even if she obtained 'Khula' without any reason apart from personal dislike, it is lawful but not approved. The reason is that the Prophet (peace be upon him) and the companions never enquired from her the reasons for her (seeking) 'Khula'." It would be not out of place to refer to PLD 1975 Lahore 805, in which case, the issues of cruelty, non-maintenance and desertion etc., were found against the wife. Decree of dissolution of marriage, none less, was granted on the basis of Khula'. It was held: V ' Wife is entitled to Khula' if she satisfied the conscious of the Court that it will otherwise mean forcing her into hateful union, when conscious of Court satisfied no procedural technicalities are in hindrance - parties not reconciling differences throughout protracted. litigation despite efforts made by Court - Grant of decree for dissolution of marriage through Khula justified - Wife, to return to husband benefits received from him, husband however, should not only demand but must also insist. for return of benefits - Consent of husband in matter of Khula' is not necessary'. Since there is nothing in rebuttal evidence, for the defendant on this issue. I am of the opinion, in view of the strong allegations against the defendant that the spouses cannot remain in harmony in peaceful condition within the prescribed limits of the Almighty Allah. So, my answer on this issue is in affirmative. " Concluding, therefore, the suit was decreed and it was ordered that the respondent No. l shall pay the sum of Rs.8,000 which was the prompt dower received by her, being the consideration of dissolution of her marriage. The petitioner wants from the Court to exercise the Constitutional jurisdiction and set aside the judgment and decree passed by the competent Court, and has relied upon the following judgments: (1) Muhammad Abbasi v. Mst.Samia Abbasi and others 1992 CLC 937. (2) Mst. Aslam Khatoon v. Muhammad Shafiq 1994 CLC 1320. Both judgments cited by the learned counsel are distinguishable as there is evidence of the respondent No 1 that she does not want to live with the petitioner at any costs and that in view of the findings of the trial Court quoted (supra). The jurisdiction of this Court under the Constitutional scheme to interfere with the decisions of Tribunal are well-settled. Firstly the Tribunal should have no jurisdiction or should have usurped the jurisdiction not possessed by it and such is not the case before me. Secondly, the Tribunal should have exceeded the authority in deciding the case or the Tribunal should decide the case based upon no evidence and such is also not the case before me. The learned trial Court while deciding Issue No.5 repeatedly stressed that the Court made attempts for conciliation which failed. In the instant case in spite of repeated efforts on the part of the Court the differences between the parties were deep-rooted and particularly the respondent No.1 said that at any cost she did not want to live with the petitioner. Matrimonial relations are basically human relation. Matrimony is a contract between the parties to live together and abide the laws ordained by Allah Almighty and within the limits prescribed by Him when there is distrust between the parties and particularly the wife does not want to live and abide by the contract, more particularly within the limits ordained by Allah, therefore, in such eventuality the orders of the Courts cannot help the parties to live together. Living together as husband and wife is not regulated by the orders of the Court but by mutual wish and consent of-the parties. Once the gulf of distrust becomes wider between husband and wife and when the wife goes to the Court and deposes on oath that she will not live with the husband at any cost such deposition itself, coupled with other circumstances, such as cruelty, would be enough to dissolve the marriage through Khula'. The volcano of distrust or gulf in the relations between the parties does not erupt-or widen over might. There must be series of acts of commission and omission leading to such volcano or the gulf and finally matures when the woman (a weaker part in the contract) goes to the Court and pleads for dissolution of marriage and states on oath that the contract of marriage is not workable. Since there is no jurisdictional error and the order of the Court was valid and sustainable in law and based upon evidence coupled with the conduct whereby the respondent No. l repeatedly refused to live with the petitioner, were sufficient reasons for the grant of decree of dissolution of marriage. The order of dissolution has been passed by the trial Court after appraising entire evidence in mind and has also dissolved the marriage on ,the payment of Rs.8,000 being the prompt dower received by the respondent No.

1. Under the circumstances the judgment and decree of the trial Court does not call for any exception. After hearing the parties in the open Court I dismissed the Constitution petition in limine with no order as to costs for the reasons to be recorded separately, these are the reasons for such order. A.A./B-17/K Petition dismissed.