1996 PLP 250 (CLC)

(1) Whether the plaintiff left the house of defendant without permission of defendant? (2) Whether the plaintiff is entitled to dissolution of marriage on the ground of maltreatment, non‑maintenance or on point of Khula? (3) What should the decree be?

3. Respondent No. 2 examined herself, Taj Bibi her mother and Abdur Rehman; while petitioner examined himself, Rustam and Abdul Khaliq.

4. According to Mst. Shabana, respondent No. 2, she was married with the petitioner 2‑1/2 years earlier; and petitioner was teacher at that time. He obtained her signature on some document pretending it to be examination form; but actually it was Nikahnama. After sometime petitioner showed the same document to her parents, as such, she started living with the petitioner in his house as his wife. There, she came to know that petitioner is already married and has six children from that marriage. Petitioner always used to mal treat and beat her without any reasonable cause. He did not maintain her properly as he used to give his earning to his first wife. The petitioner, it is alleged, was so negligent in maintenance that when respondent No. 2 Mst. Shabana gave birth to child, he even did not pay delivery expenses, and the same was borne by her father. It is further alleged that petitioner was so cruel that he used to burn part of body of the respondent No. 2 with cigarettes and finally thrown her out of the house. This action of the petitioner resulted in creation hatred by respondent No. 2 against the petitioner and as such respondent No 2 filed a suit for dissolution of marriage by way of Khula.

5. The petitioner in his deposition has denied all the allegations and has stated that this suit has been filed because the parents of respondent No. 2 had demanded Rs.60,000 from him which he refused.

6. During examination‑in‑chief of respondent No. 2, the Advocate of the plaintiff/petitioner withdrew his power, as such, petitioner also did some cross‑examination. On next date i.e. on 13‑2‑1994, Taj Bibi was not cross- examined by the petitioner so also Abdur Rehman, not due to any act of the respondent, but as the petitioner chose to remain absent. After examination of all these witnesses, petitioner on 16‑2‑1994 moved an application for recalling these witnesses for cross‑examination. After hearing the Advocate for petitioner and respondent No. 2 the learned Trial Judge rejected this application.

7. The learned Trial Judge after recording the evidence and hearing the learned counsel for the parties announced the impugned judgment.

8. Learned counsel for the petitioner Mr. Nawab Mirza argued that petitioner has been deprived the right of properly cross‑examining the respondent No. 2 and her witnesses, as his application for recalling witnesses for cross‑examination was rejected without assigning any reasonable grounds. He further submits that even otherwise respondent No. 2 has not made out any ground for granting Khula, as she has not returned benefits derived by her from this marriage. He further argued that learned Trial Judge should have believed the petitioner's version that the. suit for dissolution of marriage has been instituted on his refusal to yield demand of payment of Rs.60,000 made by the parents of respondent No. 2.

9. Learned counsel for the respondent No. 2 has argued that the suit for dissolution of marriage was filed on 26‑5‑1993 and the witnesses were examined in February 1994 while judgment was announced on 8‑3‑1994 which means it has taken more than ten months. The petitioner's Advocate cross- examined Mst. Shabana thoroughly and in the end he withdrew his power, still petitioner was allowed to further cross‑examine respondent No. 2, Mst. Taj Bibi and Abdur Rehman were examined five days afterwards, which shows petitioner had ample time to engage an Advocate. His in‑difference can be spelt out from the fact that he was present in the morning, on that day, but when these witnesses were examined he remained absent. The learned counsel further contends that the order of the Trial Court in rejecting application for recalling witnesses for cross‑examination is proper; as case has already been delayed and there was order from the High Court to complete the case within three months. He further argued that evidence of respondent No. 2 Mst. Shabana, who was cross‑examined by petitioner's Advocate, is by itself sufficient for the grant of Khula.

10. Heard Advocates of both the parties and perused the record. Powers of this Court in a Constitution Petition under Article 199 of the Islamic Republic of Pakistan is limited; and powers can only be invoked if orders sought to be set aside has caused some grave injustice to the parties or the orders have been passed without jurisdiction. Reliance in this regard can be placed on case of Market Committee v, Muhammad Sabir (1995 SCMR 305). In present case the dissolution of marriage has been allowed on the point of Khula. Evidence of Mst. Shabana itself shows that she had developed hatred with the petitioner to such an extent that she could not live with him as his wife. Marriage is a civil contract which is contracted with the consent of the parties and will subsist with the consent of the parties. Islam does not allow force to be used for subsisting of marriage, if there is dislike by one party for other. Right to claim divorce on the principle of Khula by wife is equitted to the right of pronouncement of Talaq by husband with one difference that Talaq can be pronounced by husband, but wife has to file a suit for seeking dissolution of marriage on principle of Khula. A woman cannot be forced to live with her husband without her consent and liking. She is allowed to be separated if she acquires hatred, as then wife and husband cannot live together within the limit ordained by the God. In this regard reliance can be placed in Ahmed Nadeem v. Asia Bibi (PLD 1993 Lahore 249) and Khursheed Bibi v Babo Muhammad Amin (PLD 1967 SC 97).

11. The order of the Trial Court in refusing to grant application of the petitioner for recalling witnesses for cross‑examination has not caused any grave injustice to the petitioner as Mst. Shabana, respondent No. 2 was fully cross‑examined. She has clearly stated that she had developed hatred for the petitioner. Whether they could live as husband and wife is a question of fact and the Trial Court who had arranged pre‑trial talks between the parties, was in a better position to form the opinion that the parties could live together as husband and wife within the limits prescribed by the God. This finding cannot 8 be challenged and set aside in the Constitutional Jurisdiction of this Court except for exceptional grounds. Reliance can be placed to the cases Wiqar Avais v. Raja Muhammad Shafi Janjua and 4 others (1992 CLC 9), Huma Hafeez v. Shaukat Javaid and another (1993 CLC 855), Muhammad Riaz v. Judge, Family Courts and another (1994 CLC 172) and Akhlaque Ahmed v. Kishwar Sultana (PLD 1983 SC 169).

12. In view of my above discussion, and law laid down by the superior Courts I find no merit in this petition which is dismissed with no order as to cost.

13. These are reasons for short order already announced on 1‑3‑1995. AA./H‑407/K Petition dismissed.