2004 PLP 633 (MLD)

Tauqeer Rehman for Respondent. Date of hearing: 24th September, 2003. Mst. Gul Zeb filed Suit No.269/FC for cancellation of marriage, recovery of Rs.50,000 as dower amount and for 'past and future maintenance allowance at the rate of Rs.2000 per month against her husband Tahir Iqbal, who not only resisted the suit but also filed a suit for restitution of conjugal rights (285/FC). Both the suits were consolidated and the Family Court granted her a decree for recovery of Rs.50,000 as dower amount and maintenance @ Rs.500 for the past 11 months and Rs.1000 per month for future period, while her claim for dissolution of marriage was dismissed whereas the suit of the respondent was decreed subject to payment of dower and maintenance allowance vide judgment and decree dated 14-11-2002. Being dissatisfied the petitioner filed-an appeal so as to seek the dissolution of marriage and dismissal of suit for conjugal rights but the learned District Judge dismissed the appeal on 28-5-2003. Now through this Constitutional petition she has called in question the legality of the judgment of the Family Court as well as the Appellate. Court.

2. The main grievance voiced on behalf of the petitioner is that she was and is entitled to cancellation of marriage on the ground of `Khula' which, has not been properly taken into account by the Courts below.

3. Mr. Tauqeer Rehman, learned counsel for the respondent, on the other hand submitted that according to the order sheets of the Family Court concerning reconciliation proceedings there were minor differences and so the petitioner is not entitled to dissolution of marriage on any ground. May it be stated that the petitioner is a Graduate while the respondent is a matriculate and they are inter-related in that, the petitioner is the daughter of maternal uncle of respondent. There is clear assertion in the plaint that she had developed aversion and it was not possible for her to remain as a wife within the limits prescribed by Almighty Allah. Appearing in the witness-box the petitioner did give reasons also by explaining that soon after the marriage she was subjected to regular criticism on petty matters and was directed not to meet her parents. Her parents and brothers were often abused but she quelled her lips. The respondent through friend conveyed certain private matters on phone to her which was to remain as a secret between a couple. She was also subjected to beating. Her plea was not shattered in the cross-examination. Again there is also statement of Shadi Khan (P.W.6) to the effect that father of the petitioner did disclose that she was subjected to beating and later on father of the respondent was contacted for the purpose of jirga but he never appeared.

4. We have gone through the record of the Family Court and find that there is nothing in the order sheet pertaining to reconciliation proceedings and that there were minor differences. In fact twice the Family Court tried to resolve the controversy but failed. Even at the time of hearing of this petition we made a serious effort to iron out the differences between the parties but the petitioner struck to her allegation of maltreatment, cruelty etc. and expressly stated her inability to live with the respondent within the limits prescribed by Almightly Allah.

5. The respondent stated that the petitioner had been granted visa by the Saudi Government and she is out to desert him but this was denied. It appears that right from the beginning to the misfortune-of the parties there were differences and incompatibility of the temperament as well. We are satisfied that, she is entitled to separation by way of `Khula'.

6. Resultantly the decree passed for dower amount and maintenance allowance is set aside, as she expressed her willingness to forego the same. The writ petition is allowed and the petitioner is granted a decree for dissolution of marriage on the basis of Khula. H.B.T./15/P Petition allowed.