1983 PLP 2390 (CLC)

The present constitutional petition impugns the judgment and decree dated 10th January, 1982 passed. by respondent No. 2, Judge Family Court, Vehari, dissolving the petitioner's marriage with Mst. Nasim Akhtar respondent No. 1 on the ground of khula.

2. Muhammad Bilal, the petitioner and Mst. Nasim Akhtar, respon dent No: I, were married on 20th February, 1980. Mst. Nasim Akhtar filed a suit for dissolution of marriage before the learned Judge Family Court, Vehari, seeking the dissolution of marriage on the grounds of cruelty and the alleged bad character of the petitioner and his alleged association with women of ill repute. 3 The petitioner resisted the suit of respondent No. 1 and denied her allegations.

4. On the pleadings of the parties the learned Judge, Family Court framed the following issues :‑ (1) Whether the defendant was of immoral character and associated with women of i11 repute ? (2) Whether the defendant deprived the plaintiff of her personal belongings ? (3) Whether the treatment of the defendant with the plaintiff has been cruel ? (4) Whether the plaintiff was entitled to dissolution of marriage on the ground of khula ?

5. The learned Judge, Family Court dealt with issues Nos. 1 to 4 together and found that on account of impotency of the defendant/petitioner the plaintiff/respondent has developed hatred against him. Consequently the marriage was dissolved on the ground of khula. Neither respondent No. 1 took up the plea of impotency of the petitioner in her plaint nor she led any evidence in this behalf before the Judge, Family Court. The respondent examined P. W. 1 Nawab her father and she herself also came into the witness box as P. W.

2. Both these witnesses in their testimonies have not uttered .a single word about the impotency of the defendant/petitioner. It thus transpires that the finding of the learned Judge, Family Court, regarding impotency of the petitioner is based on no evidence. In Commissioner and another v. Mian Sher Muhammad (1972SCMR395), it was held that a finding of fact could be interfered with if it was based on no evidence or a misreading of evidence, or ignoring material evidence, or taking into consideration inadmissible evidence. In Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD1973SC24), it was found that where the High Court was of opinion that there was no evidence proper to be considered by inferior tribunal in support of some point material to the conviction or order certiorari would be granted. In Swati Qaum v. Painda Khel Qaum and others (1981‑SCMR.318), it was held that any decision taken by a competent authority by ignoring or misreading material evidence was liable to be quashed by the High Court in the exercise of its powers of judicial review.

6. It has been urged on behalf of the respondent that the marriage among Muslims being in the nature of a civil contract where the husband has the right of Talaq, the khula is the right of wife and that the Qazi has the Power to dissolve the marriage by khula independent of husband's consent and his pronouncing Talaq. Reliance in this behalf has also been placed on Ust: Khurshid Bibi v. Baboo Muhammad Amin (PLD1967SC97). Nishat Ahmad Khan v. Ramlah Zakaria and others (1960 SCMR 118), has also been cited. In this case it was held that the finding that in view of the strong dislike of the wife for the husband she would not be able to love him and would certainly be trangressing the limits of God was sufficient to grant a decree for dissolution of marriage.

7. As already held the respondent's allegations of cruelty and immorality of the husband have not been .found to be proved and the learned Judge, Family Court has dissolved the parties' marriage on the ground of khula holding without any evidence on the record that the B husband happened to be impotent. In such circumstances marriage could not be dissolved on the ground of khula merely because the wife desired the dissolution of. her marriage. In Siddique v. Mst. Sharjan (P L D 1968 Lah. 41), it was laid down that Judge would not dissolve the marriage for a reason for which the wife was exclusively responsible. It was further found that a wife living in self‑confessed adultery could not avail of khula divorce and the Judge has to consider the circumstances of each case before dissolving the marriage on the ground of khula. In the circumstances of this case the learned Judge, Family Court instead of . recording finding on the allegations on the basis of which the respondent sought the dissolution of marriage on the ground of khula ordered the dissolution of marriage c on the ground of impotency of the husband which has neither been alleged by respondent No. 1 nor she led any evidence to say so. The authorities relied upon by respondent No. 1 are therefore, disting uishable.

8. The upshot of the above discussion is that the impugned judgment is based on no evidence or misreading of evidence and is, therefore, liable to be quashed. In this view of the matter the present constitutional peti tion is allowed and the impugned judgment and decree are declared to be without lawful authority and of no legal effect. No order is, however, made as to costs. K.M.A. Petition accepted.