1984 PLP 1086 (MLD)

Date of hearing: 11th December, 1984. The present Constitutional petition has been filed by the petitioner (husband) against judgment and decree, dated 26-3-1983, passed by the II Extra Joint Civil Judge, Hyderabad. Whereby three suits were decided. Suit No. 174 of 1981 had been filed by the respondent No.1 (wife) for recovery of dower and for maintenance for herself and for the three daughters. Suit No. 175 of 1981 was also filed by respondent No.1 for dissolution of her marriage with the petitioner. Suit No. 177 of 1981 was filed by the petitioner against respondent No. 1 for restitution of conjugal rights.

2. This Constitutional petition was admitted to regular hearing by order, dated 24-5-1983. On 26-5-1983 when this matter came up before this Court for hearing of the interim application filed by the petitioner for restraining respondent No. I from re-marrying, the learned counsel for respondent No. 1 made a statement that respondent No. 1 had no intention to re-marry at that time and in the circumstances it was considered not necessary to pass any order on the interim application. However, both the learned counsel now stated that since then respondent No. 1 has re-married and she has also given birth to a child from her second marriage. A contempt application has also been filed by the petitioner in the present Constitutional petition.

3. The suit for dissolution of marriage (Suit No. 175 of 1981) has been decreed in favour of respondent No. 1 on the ground that for three years the petitioner has not maintained respondent No. 1 and secondly on the ground of 'Khula' also. The R.& Ps. had been called by this Court. From the evidence of respondent No. 1 it is found that she had clearly stated that she could not live with the petitioner and that if 'Khula' was granted she was ready to forego her dower as well as her claim for maintenance. The learned Family Judge has granted 'Khula' but also dissolved the marriage on account of non-maintenance of respondent No. 1 and has gone further in granting a decree for dower also. In fact Suit No. 174 of 1981, has also been decreed for maintenance and dower. Mr. Arshad Noor Khan, learned counsel for the petitioner, is correct in arguing that if 'Khula' was being granted and respondent No. 1 herself had stated that she was ready to forego dower and her claim for maintenance, the learned Family Judge should not have passed decree for her maintenance and for her dower. Mr. Mirza Ghiasuddin Baig, learned counsel for respondent No. 1 also concedes that this is correct. To the extent that his marriage has been dissolved also on the ground of non-maintenance for three years, the decree of the Family Judge requires to be set aside. Learned counsel for the petitioner has also contended that on the evidence on record a case of 'Khula' had not been established. I have seen the evidence of respondent No.1. In the evidence of respondent No. 1 it has been clearly stated by her that she is not ready to live with the petitioner. The decree of the learned Family Judge dissolving the marriage by way of 'Khula' is not liable for interference. As the marriage has already been dissolved by way of 'Khula' and the decree by way of 'Khula' is not being set aside in the present Constitutional petition and respondent No. 1 has also re-married and given birth to a child, this Constitutional petition, as regards the claim of petitioner for restitution of conjugal rights, has become infructuous. Learned counsel for respondent No. 1 has pointed out that as against the decree for maintenance an appeal has been filed by the petitioner which is pending before the learned Appellate Authority. It is also pointed out by the learned counsel for the petitioner that as far as the custody of three daughters is concerned, the petitioner has filed an application under section 25 of the Guardian and Wards Act which is also pending. The judgment and decree, dated 26-3-1983 of the learned II Extra Joint Civil Judge, Hyderabad, is amended as follows:- (a) The decree of dissolution of marriage on account of non-main tenance for three years is set aside. However, the decree for dissolution of marriage by way of 'Khula' is maintained. (b) The decree of dower is set aside. (c) Decree for maintenance of respondent No. 1 is set aside, as respondent No. 1 has herself foregone her claim for maintenance in her evidence before the Family Judge. The appeal against the decree for maintenance is pending before the Appellate Authority. While considering the appeal, the Appellate Authority will only consider the question of maintenance for the three daughters and no maintenance will be allowed as far as claim of respondent No. 1 for herself is concerned.

4. Constitutional Petition No. 35 of 1983, stands disposed of in the above terms with no order as to costs. M. Y. H. Petition dismissed.