2001 PLP 477 (CLC)

Briefly stated the facts are that Mst. Bushra alias Bashiran Bibi plaintiff/respondent No.2 filed a suit for dissolution of marriage on the ground of option of puberty against the defendant/petitioner. The defendant/ petitioner resisted her claim while submitting written statement. After the failure of pre‑trial reconciliation proceedings the learned trial Court framed the following issues:‑‑ (1) Whether suit is not maintainable in its present form as the plaintiff was major at the time of her Nikah and now her age is about 30 years? OPD (2) Whether the plaintiff is entitled to a decree of dissolution of marriage on the basis of option of puberty? OPD (3) Relief.

2. In support of her stand the plaintiff examined herself as P.W.1 and also brought on record the statement of Falak Sher , P.W.2. In rebuttal the defendant/petitioner recorded his own statement as D.W.1 and examined Ghulam Muhammad as D.W.2.

3. After going through the evidence produced by the parties the learned trial Court while declining to grant the dissolution of marriage on the ground of option of puberty, granted the said relief on the ground of Khula'. The petitioner/defendant/has felt aggrieved and filed the instant petition.

4. Preliminary arguments have been heard and record perused.

5. The main contention of the learned counsel for the petitioner/ defendant is that respondent No.2/plaintiff never sought divorce on the ground of Khula'. As such the learned trial Court was not justified to grant the said relief on that score. He next argued that respondent No.2/plaintiff while recording her statement as P. W.1 did not utter a single word for the grant of divorce on the ground of Khula'. He next submitted that in such cases when ground of Khula' is neither mentioned in the plaint nor is agitated divorce cannot be granted on the ground of Khula' and placed reliance upon Muhammad Abbasi v. Mst. Sarnia Abbasi 1992 CLC 937.

6. Conversely the impugned judgment has been supported by the learned counsel for respondent No.2/plaintiff that the mere fact that ground of Khula' lips not been agitated in the plaint does not debar the Court to grant the said relief if the conscience of the Court is satisfied that the parties cannot live within the limits of God. In support of his contention he had placed reliance on Syed Dilshad Ahmad v. Mst. Sarwat Bi PLD 1990 Kar. 239 and Bashir Ahmad v. Mst. Nasreen and another 1991 CLC 1234.

7. There is no doubt that respondent No.2/plaintiff has sought divorce on the ground of option of puberty and a finding on that score has been returned against her as is evident from the findings recorded under issue No.

2. However, the fact remains that the parties were married about 11 years ago and even Rukhsati had not taken place till the filing of the suit on 13‑1‑2000. Since the Rukhsati had not taken place; so the question of hatred being agitated in the statement of respondent No.2/plaintiff does not arise. The fact that the parties were married more than one decade ago and they have not lived for a single day and respondent No.2/plaintiff has sought divorce on the ground of option of puberty clearly evinces that conscience of the Court was satisfied that the parties could not live within the limits of God and there was no use to order to continue a hateful union of the parties. The facts enumerated above clearly reveal that it was in the interest of the parties that they should be separated so as to lead their independent and amicable life. The impugned judgment of the trial Court does not call for any interference. This petition fails and is hereby dismissed. H. B. T./M‑410/L Petition dismissed.