P L D 1983 Lahore 442 (PLP)

The background in which this writ petition has been filed is this: Mst. Rashida .Bibi respondent No. 1 was previously married to Ghulam Muhammad petitioner. The marriage subsisted for about 19 years and a child was. also born from the wedlock. But the relations between the parties got strained and respondent No.- 1 filed a suit for dissolution of marriage as against the petitioner on 3Q 9-1974. This suit of hers was dismissed on 12-4-1975. Thereafter she filed a second suit for dissolution of marriage as against the petitioner on 31-5-1975 which was dismissed on 16-1U-1975. Then she started living with her husband through goo offices of the respectables, but her husband i. e. the petitioner, kept he for two weeks and then drove her out of his house. Consequently she filed the third suit for dissolution of marriage as against the petitioner on 28-1-1976. This third suit was also dismissed on 14-5-1976. She filed an appeal against the impugned judgment of the Judge Family Court which was accepted by the District Judge, Sialkot vide his judgment dated 8-7-1976. The petitioner challenged the appellate judgment by way of the present writ petition which was .admitted for hearing mainly on the point that without any fresh circumstance pleaded by respondent No. 1 in the third suit whether the previous suits could not operate as res judicata and that in the circumstances of this case this question required consideration. It may be noted that in the third suit for the dissolution. of marriage one of the issues framed by the Judge Family Court was as to whether she was entitled to the decree on the basis of Khula' and that if so, on what terms and conditions. The Judge Family Court decided oven this issue against her. But when the appellate Court was hearing the arguments in appeal it observed that so far as the other issues were concerned, the evidence in those issues might have operated as res judicata and the Judge Family Court, therefore, rightly decided those issues against her but he fell in gross error by holding that the plea of Khula` taken up by her was also barred by res judicata. The plea of Khula' had not .been. taken. up in the previous suits and consequently this matter was not directly and substantially in issue in the previous suits. Therefore, it was not adjudicated on merits at all. In that view of the matter, respondent No. 1 was justified in taking up the plea of Khula` in the third suit which was instituted by her for the dissolution of her marriage. The learned District Judge has further held that even if she had taken up the plea of Khula' in the previous suits, she was still not debarred from taking up that plea again in the subsequent suit for dissolution of marriage as she could at any time develop hatred against her husband and bring on record circumstances making it impossible for the spouses to live within the limits 'of Allah. The plea of Khula' was, therefore, a recurring cause of action and in no circumstances could it be hit by the principle of res judicata as adopted in section 17 of the Family Courts Act. I agree with the findings of the learned District Judge. Obviously the plea of Khula' is a recurring cause of action and it cannot be hit by the principle of res judicata as adopted in section 17 of the Family Courts Act. A wife can again and again take up the plea of Khula' as she could develop hatred or dislike against her husband every time under different circumstances and if she is successful in establishing and satisfying the conscience of the Court that she has firmly decided not to live with the husband, the marriage has to be dissolved on the basis of Khula and the question of res judicata cannot be a bar. In view of this finding I do not see any substance in this writ petition which is accordingly dismissed but there shall be no order as to costs. M. Y. M.???????? Petition dismissed.