1984 PLP 1389 (CLC)

(a) Muslim Family Laws Ordinance (VIII of 1961)‑ ‑‑S. 8‑Provisional Constitution Order (I of 1981), Art. 9‑Dis solution of marriage‑Khula`‑Appellate Court (Additional District Judge) while allowing dissolution of marriage applying mind to factual and legal aspects of matter and giving reasons in support of judgment‑Questions of Khula' and benefit received by wife fully attended by Court and decision based on sound grounds‑Question of Khulal a question of fact and no material misreading in evidence pointed out‑Spouses present in Court and difference of their ages very much obvious‑Attempts made for reconciliation but wife not agreeable‑Order of dissolution Of marriage upheld. [Muhammadan Law]. (b) Provisional Constitution Order (1 of 1981)‑ ‑‑Art. 9‑West Pakistan Family Courts Act (XXXV of 1964), S. 5‑Writ jurisdiction ‑ Contention raised relating to apprecia tion of evidence made by Court of competent jurisdiction Interference declined in writ jurisdiction. This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Muhammad Amin, petitioner, wants this Court to declare judgment and decree, dated 21‑6‑1982 for dissolution of marriage passed by the learned Additional District Judge, Vehari, to be without lawful authority and of no legal effect.

2. The facts giving rise to this writ petition are that Muhammad Amin, petitioner, filed a suit for restitution of conjugal rights against Mst. Aisha Bibi, respondent No. 1, who in response filed a suit for dissolution of marriage on various grounds. Both the suits were consolidated. The trial Court framed as many as eight issues and after recording evidence of the parties, dismissed the suit for dissolution and decreed that of restitution of conjugal rights filed by the petitioner. Feeling aggrieved Mst. Asiha Bibi filed two separate appeals which were entrusted to the Additional District Judge, Vehari, respondent No. 2, who on 21‑6‑1982 accepted the appeals and dissolved the marriage of Mst. Aisha Bibi, res pondent No. 2 with the petitioner. Hence this writ petition.

3. Learned counsel submits that ; (1) the witnesses produced by respondent No. 2, i.e. Muhammad Akram, P. W. 1, Muhammad Hanif, P. W. 2, being cousin and brother of respondent No. 1, are interested witnesses. They were not the residents of the Chak where the parties lived as husband and wife and as such are not reliable witnesses : (2) that there is no evidence on the record to justify Khula in favour of respondent No.

1. Furthermore, the benefits received by the wife, respondent No. 1 were not taken into consideration.

4. After hearing the learned counsel and going through the record I find that learned Additional District Judge/Appellate Court while discussing issue No. 6 has stated :‑ "Issues Nos. 6 and 7 are taken up jointly. There is difference of age between the spouses. I hold the view that the parties to litigation have incompatability of temperament. There is usage in the Illaqa of exchange marriages. The lady given in exchange for Mst. Aisha has met her natural death. I hold the view that there is no possibility that Aisha will be living with Amin defendant within the limits of Allah Almighty. Both the spouses were before me on a previous date. I had heard sufficient of their talks. Mst. Aisha has fixed aversion for her husband. She is willing to pay any money for her release from the marital ties. She is willing to part away the custody of her little son. She made an offer before me that Muhammad Amin should take the son and pronounce her the tale. Muhammad Amin has not accepted the offer. I am definite on the point that the estrangement between the spouses has come to an impasse which is not likely to be resolved in the future. .' Brothers of the lady are supporting her cause. Thus, I am convicted that Aisha is not a prey at any foul hand. There is enough of litigation and all occasions proved futile. I hold the view that Mst. Aisha has made out a good case for Khula. There is acute disdain . between the spouses and there is no possibility that in future they would have blissful union. Next question is about the consideration for Khula. I propose to grant Khula in lieu of waiving the right of Aisha for recovery of dowery and. any past maintenance. Mst. Aisha has been able to satisfy the conscience of the Court that she cannot live as a wife with Muhammad Amin, defendant. I upset the findings of trial Judge on these issues and decide them in favour of Mst. Aisha." The plain reading of the discussion shows that the learned Additional District Judge has applied mind to the factual and legal aspects of the matte and has given reasons in support of the conclusion arrived at by him. He had jurisdiction to believe or disbelieve the evidence and accept or reject the appeal. As for contention No. 1 raised by the learned counsel at relates to the appreciation of evidence and while sitting in my constitutional jurisdiction I do not desire to interfere with the appreciation of the evidence made by the Court of competent jurisdiction. As for contention No. 2 I find that the question of Khula and the benefit received by the wife have been attended to by the learned Additional District Judge. He has applied his mind and given sound reasons to support of his decision.

5. Furthermore Khula is a question of fact and the learned counsel has not been able to point out any material misreading in the evidence The parties are present in the Court. The difference of the ages is very much obvious. Even today attempts for reconciliation have been made between the spouses but Mst. Aisha is not agreeable., For what has been stated above there being no merit in the petition the same is dismissed leaving the parties to bear their own costs. Petition dismissed. M.Y.H.