1999 PLP 342 (YLR)

Through this Constitutional Petition filed under Article 199, of the Constitution, 1973, the petitioner has called in question judgment/decree‑ dated 28th August, 1998, passed by the learned VIth Family Judge Karachi (West) in Family Suit No.365 of 1996 seeking the following relies:‑‑‑ "(A) Declare that the impugned judgment and decree (Annexures 'A' & 'A/I') passed in F.S. 365 of 1996 are illegal, ultra vires of Islamic Shariat and of legal effect having been passed without lawful authority, and are liable to be set aside and quashed; (B) Declare further that the marriage solemnized under Muslim Law between the petitioner and the respondent No.1 still subsists until and unless dissolved strictly in adherence to Muslim Shariat/Law. In the alternative, any other appropriate relief, that may be deemed fit, may be graciously granted. (C) Costs of the petition is also solicited. "

2. The brief facts as narrated in the memo. of petition are that the petitioner and respondent No. l were married on 20‑8‑1987; that Rs.15,000 was fixed as dower amount, that a male child was born who is living with his mother/respondent No. 1; that petitioner filed Family Suit No.316 of 1996 for restitution of conjugal rights which was decreed ex parte against the respondent No. l vide judgment, dated 12‑5‑1997 passed by IVth Civil and Family Judge Karachi (West); subsequently respondent No. l filed a Suit for dissolution of marriage bearing No.63 of 1996 which was decreed in her favour through the impugned judgment.

3. I have heard Mr. Syed Ahmed Farooqui, Advocate for the petitioner at length. It was strenuously argued by Mr. S. Ahmed Farooqui that the respondent No.1 miserably failed to prove the Family Judge that she has developed hatred and aversion and that it was not possible for the parties to live within the prescribed limits of God. He was permitted to read the evidence of the parties for which he has filed certified copies alongwith his petition in order to point out any gross irregularity or misreading of the evidence. It was further argued that the learned Judge of the Family Court erred in passing decree for dissolution as there was a prior decree for the restitution of conjugal rights which error is sufficient to invite interference of this Court under Article 199 of the Constitution. He has placed reliance on the following cases:‑‑‑ (i) Tahira Tabassum v. Additional Judge and two others (1991 MLD 759); (ii) Muhammad Abbasi v. Mst. Samia Abbasi and others (1992 CLC 937); (iii) Mst. Balqis Fatima v. Najm‑ul -Ikram Qureshi (PLD 1959 Lahore 566); (iv) Syed Dilshad Ahmed v. Mst. Sarwat RI (PLD 1990 Karachi 239); and, (v) Lal Muhammad v. Mst. Gul Bibi and another (PLD 1985 Quetta 185).

4. In addition to the above case‑law, Mr. S. Ahmed Farooqui has also referred to the commentary on "The Holy Qur'an" by Agha Muhammad Yaqoob (Volume‑I), p.207 where verse 299 of Surah Baqra was interpreted. All the relevant verses of Holy Qur'an on the relationship of wife and husband and views of several Faqih and some of the commentaries from leading books were considered by Tamil‑ur‑Rehman, J. (as he then was) in the case of Syed Dilshad Ahmed (supra) where it was held, inter alia, by this Court that in order to obtain Khula' following three conditions must be fulfilled, namely:‑‑‑ (a) Apprehension of husband and wife and that they cannot live within the limits of Almighty Allah. (b) It is the wife who seeks a separation from her husband. (c) It is the wife who is to pay the consideration for obtaining Khula'.

5. In the matter of granting or refusal of Khula' to a wife, the rule laid down by the Hon'ble Supreme Court in the case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97) still holds the field where inter alia, it was held that "the wife is entitled to Khula' as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union." For further reference see the case of Muhammad Raft v. Attaullah Kausar and another (1993 CLC 1364) where a learned Judge of Lahore High Court after making reference to the case of Mst. Khurshid Bibi (supra) held as follows: "...The fact, however, remains that the respondent is sticking to her stand and in spite of best efforts for arriving at a compromise made prior to the filing of the suit, during the pendency thereof as well as this writ petition, have not succeeded. The parties are not blood relations. Necessary interference which can, therefore, be drawn is that there is no possibility of compromise between the spouses, who are young in age. The respondent is a human being and not a chattel. It is not possible to force her to live with the petitioner as her wife. She is the best witness of the circumstances on the basis whereof she has categorically stated on oath before the learned Judge, Family Court that she cannot live with the petitioner within the limits laid down by the Almighty Allah. She being adamant not to enter into a compromise in spite of best and hectic efforts made in this behalf by the well‑wishers of the patties at all levels, it stands established that there is no possibility of reconciliation between the spouses. In such a situation refusal of dissolution of marriage will definitely result in the crossing of limits of Almighty Allah by the respondent . . . . "

6. The scope of scrutinizing the judgment or order of the Family Court under! Article 199 of the Constitution, 1973 is limited and only in such circumstances where a petitioner succeeds in showing that some important piece of evidence was left out of the consideration resulting in a wrong decision or that order of Family Judge is patently violative of the law and the judicial precedents then such order could be struck down. Mr. S. Ahmed Farooqui has rightly referred to the case of Lal Muhammad (supra) where a Division Bench of Baluchistan High Court comprising Ajmal Mian and Munawar Ahmad Mirza, JJ., (as their lordships then were) held that when any finding of fact is based on no evidence at all; or ignorance of material evidence or non‑consideration of any admissible evidence or arbitrary exercise of jurisdiction; perversity; or material illegality in the conduct of proceeding causing palpable injustice, then the jurisdiction of High Court under Article 199 can always be invoked to rectify the wrong and injustice occasioned to a party on the basis of admitted facts. Same view was held by a Division Bench of the Peshawar High Court in the case of Khalid Mehmood v. The District Judge and 2 (1993 MLD 298). It was observed by Dr. Nasim Hasan Shah, J., (as his lordship then was) in the case Utility Stores Corporation of Pakistan v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447 at 452) that the Tribunal has the jurisdiction to decide rightly but has no jurisdiction to decide wrongly. It was further held, "when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on the point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction".

7. Keeping in view the Injunctions of Islam and the rule laid down in the above cases, I have considered the case of petitioner viz a viz the evidence produced by the party before the Family Court. One may say that the learned Judge has left some of the pieces of evidence to be discussed in the judgment but still it will not affect the final finding. It was not the case of the petitioner that respondent No. l was under any obligation to return any benefit which she had received in consideration. In para.10 of her plaint it was categorically mentioned that she is ready to forego all her dower amount in lieu of Khula'. In her evidence she has stated about the maltreatment and cruelties she suffered at the hands of the petitioner and his family members, during her brief stay after marriage in their family. Hardly after three months of marriage, she was forced to leave the house of the petitioner and remained with her parents for more than nine years till she filed the suit for dissolution of marriage by way of Khula'. Petitioner was not able to displace her allegation that during this period she and her family members have borne expenses of delivery of one son and that no maintenance amount was paid either for the minor or for respondent No.1 /wife. It was further alleged by her that neither the defendant nor his family members ever visited respondent No.1 and her child during any of the festivals and even on the death of the father of respondent No. l . Admittedly, now it is more than eleven years that the spouses are living separately. Nothing and no one was able to persuade her during all this period to join the petitioner. At the same time, the petitioner was also not able to convince her to come back. I am at a loss to understand how a decree for restitution of conjugal rights could force her to join the petitioner. In my view, the facts that the spouses are living separately for a considerable length of time and are involved in litigation, is sufficient proof of hatred and aversion. (If any further reference is needed, see Mst. Khurshid Mai v. Additional District Judge, Multan and 2 others 1994 MLD 1255; Mst. Rehana Tabasam v. Amanullah and others 1994 MLD 1807; Mst. Saadia Shirin v. Javed Ali Bhatti and 2 others 1991 MLD 784 and Mst. Nasreen Bibi v. Atta Muhammad and 2 others PLD 1994 Lahore 276). This is a long period of dissociation and in my considered view, is enough material to prove hatred and aversion that has developed in the wife and it will not be fair and just to compel her to join the association of petitioner which will amount to forcing her in a hateful union. No ground is made out for interference.

8. The decree for restitution of marriage obtained by a petitioner may be a good ground or defence in a suit for' maintenance and/or dissolution of marriage but in no manner it will come in the way of a Family Court to pass a judgment and decree for dissolution of marriage either on the ground of Khula' or on any of the grounds as mentioned in the Dissolution of Muslim Marriages Act, 1939 if it satisfies the conscience of the Court. Before it is too late for the respondent who is waiting for last nearly 11 (eleven) years to get her marriage dissolved, it is the right time that she may be left to her discretion.

9. As a result of the above findings and through a short order, dated 15‑2‑1999 this petition alongwith listed application was dismissed in limine with no order as to costs. Above are the reasons for the said short order. Petition dismissed Q.M.H./M.A.K./A‑320/K