P L D 1990 Lahore 158 (PLP)

The relevant facts which gave rise to the present writ petition arc that on 28‑9‑1977 Daood Ahmad petitioner and Mst. Sabira Moqaddas respondent were married at Mawza Sumara, Tehsil Lodhran, District Multan. Rukhasti did not take place and therefore, the parties never lived together as husband and wife. On 13‑5‑1986 the respondent brought a suit for dissolution of marriage against the petitioner in the Court of Family Judge, Bahawalpur on the ground of Khula. It was alleged that there was acute disparity in the social status of the parties inasmuch as the respondent was an educated lady while the petitioner was a semi literate man. She maintained that they could not live happily together. The petitioner contested the suit and raised preliminary objection that the Court had no territorial jurisdiction. On the pleading.‑, of the parties the following issues were framed: 1) Whether this Court has no territorial jurisdiction to try the suit? (2) Whether the plaintiff is entitled for Khula divorce? If so, on what terms. (3) Relief. Whether the plaintiff is entitled for Khula divorce? if so, on what terms and conditions? The parties led their evidence on the above issues. The learned trial Court after considering the said evidence and hearing the parties' counsel decreed the suit on 15‑1‑1989. Both the issues were found in favour of the respondent and against the petitioner.

2. Feeling aggrieved the petitioner has invoked the Constitutional jurisdiction of this Court for a declaration to the effect that the judgment and decree dated 15‑1‑1989 were without lawful authority, without jurisdiction, ineffective and inoperative against his rights. 3. 1 have heard the parties' counsel and have also perused the material available on record.

4. Learned counsel for the petitioner has assailed the impugned judgment and decree firstly on the ground that the trial Court had no territorial jurisdiction to hear the' respondent's suit for dissolution of marriage. His main grievance is that there. was ample evidence on record to establish that the respondent did not reside in Bahawalpur and was a permanent resident of Tehsil Lodhran District Multan but the learned trial Court did not properly appreciate the said evidence and thus reached incorrect conclusion. In fact, the learned counsel urges this Court to reappraise the evidence led by parties which in my opinion is not possible and is beyond the, scope of writ jurisdiction. However, in order to find out if there has been any misreading or non‑reading of evidence I have very minutely gone through the evidence on record but have not been able to detect any such defect or error. It is a common ground between the parties that the respondent belongs to Tehsil Lodhran. She has her ancestral house in Mauza Sumra where she is listed as a Voter. She is also employed as a teacheress ‑in a school at Lodhran. The respondent's case is that she ordinarily resides in. Bahawalpur and daily goes to Lodhran and comes back. The evidence led by her shows that her two brothers Asim and Sadiq are studying in Bahawalpur and, therefore, she alongwith them and her parents lives in the quarter of the house of Noor Muhimmad PW.3 situated in Canal Colony. Conversely, the petitioners evidence is to the effect that the respondent lives in Mauza Sumra and does not reside in Bahawalpur. The learned lower Court has taken into consideration the evidence, of both the parties and after discussing its merits and demerits has concluded that the respondent ordinarily resided in Bahawalpur and therefore, her suit for dissolution of marriage was validly instituted in a Family Court, Bahawalpur which had the jurisdiction to hear it. This finding cannot be interfered with in writ jurisdiction because. the conclusion drawn by the learned trial Court was neither perverse nor the result of misreading or non‑reading of evidence.

5. Learned counsel for the petitioner has also criticized the findings of the trial Court on the issue of Khula but half‑heartedly. He has contended that from the evidence on record it is not established that there was any serious rift between the parties which could not be removed. It is a common ground between the parties that Nikah between the parties was performed in the year 1977 but Rukhsati has not taken place as yet. Had there been no dispute between the parties Rukhsati would not have been postponed for such a long time. It is also an admitted fact that the respondent is an educated lady and holds BA & B.Ed. degrees while the respondent is educated up to the 8th Class only. This fact is sufficient to establish that there is an acute disparity of social and intellectual. status between the spouses and it also gives rise to a strong apprehension that the parties would not be able to live happily together. The respondent in her statement before the trial Court has very clearly stated that in view of the said disparity she could not live with the petitioner. In this view of the matter it would be unjust to force the respondent to live with the petitioner. It would amount to forcing her to a hateful and an unhappy union. I am satisfied that it would not be possible for the parties to live happily together in this situation. As such this was a fit case of dissolution of marriage on the basis of Khula. The conclusion drawn by the learned trial Court is unexceptionable.

6. As Rukhsati has not taken place the parties have no claim against each other and that is the reason why the learned trial Court had not passed any order in this regard.

7. In view of the above discussion there is no merit in this writ petition which is dismissed with costs. M.B.A./D‑53/L, Petition dismissed