1988 PLP 1688 (CLC)

(d) Muhammadan Law‑‑‑ ‑‑Divorce‑‑Khula'‑‑Non‑payment of stipulated consideration for Khula'‑‑Effect Non-payment of stipulated consideration for Khula', held, would not invalidate dissolution of marriage by Khula'‑‑Once Family Court had come to conclusion that parties could not remain within limits of God, dissolution of marriage by Khula' must take place‑‑Inquiry into terms on which such dissolution would take place could not affect conclusion but only created civil liabilities with regard to benefits to be returned by wife to the husband and did not, affect marriage itself. (e) Constitution of Pakistan (1973)‑‑ ‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Order of Court below not suffering from vitiative factual or legal infirmity, held, could not be interfered with by High Court in exercise of constitutional jurisdiction. Khizar Abbas Khan for Petitioner. Muhammad Iqbal Sargana for Respondent. Date of hearing: 24th January, 1988. This writ petition is directed against the judgment of a Judge, Family Court, dated 15‑7‑1986 whereby while answering other issues on merits against the wife except of cruelty and Khula', he granted a decree for dissolution of marriage.

2. The learned counsel's first contention before this Court is that the judgment is based on insufficient evidence. On this point I must observe that there is difference between insufficiency of evidence and total want of evidence. The judgment without evidence is void or voidable as the case may be. Insufficiency of evidence is a relative, term. There were two witnesses examined in support of version of the defendant wife and she herself also appeared and supported her' case. That evidence has been perused and it cannot on factual plane be said that it was insufficient for the decision of the issues against the petitioner. This ground, therefore, fails.

3. The second objection raised by the learned counsel is that the, terms of Khula' have not been examined or laid down. This objection is answered by the decision of the Supreme Court in the case of Dr. Akhlaq Ahmed v . Mst. Kishwar Sultana and others (P L J 1983 SC 252), wherein the following proposition has been laid down:‑ "As regards the third submission of the learned counsel for the petitioner that dissolution of marriage by Khula' cannot stand whilst an inquiry on facts with regard to the terms on which it is to be granted is yet to take place, it appears plausible but is not quite sound. It was held in the case of Moonshee Buzul‑ul‑Raheem v . Luteefutoon Nisa (3 Moore's Ind Appl. 379) that non‑payment of stipulated consideration for Khula' does not invalidate the dissolution of marriage by Khula'. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage by Khula' must take place, the inquiry into the terms on which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself.."

4. In view of what has been stated above, I do not think there is any scope for this Court to interfere in its Constitutional jurisdiction with the impugned order which does suffer from a vitiative factual or legal infirmity. This petition, therefore, fails and is hereby dismissed. There will be no order as to costs. H.B.T./A‑316/L Petition dismissed