1995 PLP 170 (MLD)

Through this Constitutional petition annulment of a decree of Khula` is sought. The Constitutional petition is filed only against a private respondent, who was the petitioner's wife and to whom Khula` was accorded by the impugned judgment. The learned Judge, who passed the decree, has not been joined as a party to the proceedings even though the writ claimed could only have issued against such Presiding Judge. Then pre‑admission notice was obtained, way back, on 11‑11‑1993 but service has not been effected, according to the learned counsel for the petitioner, because the respondent is shown not to be residing at the given address. If so, proper course for the petitioner would have been to locate the fresh whereabouts of his erstwhile wife. This has not been done and now, at serial No. 1, an urgency application has been filed whereas, at serial No.2, an application under Order 5, Rule 20, C.P.C. has been submitted for seeking substituted service on the respondent, the petitioner's wife till lately. No ground whatsoever is spelt out for obtaining service through publication and all that is said is that service could not be effected upon the respondent in the ordinary course and there is no other alternative except to seek service through publication. Now, ordering substituted process is in the nature of a proceeding of last resort and cannot be opted for except when all procedural requirements have been met and the unserved party is either shown to be avoiding service and no other means subsist to bring the his to its notice. None of this prevails in this case. The impression I have gathered is that the petitioner is trying to have ex parte orders against his wife for we all know that more often than not notices published in newspapers do not come to the knowledge of addressees in the ordinary course. This is a direct result of multiplying populations and a large number of newspapers circulating all of which every one cannot have occasion to peruse. I am afraid the foregoing constitutes an abuse of the process of this Court. No appeal normally lies against a decree for dissolution of marriage, which attains finality. Constitutional remedies can only be resorted to if there is manifest illegality in the passage of such a decree and not otherwise. Khula` is a right of a female professing Islam. A decree of Khula` cannot be lightly interfered with.. Here, in spite of grant of Khula`, the respondent is being unnecessarily kept entangled in litigation, which is not being adequately pursued by the petitioner. The applications at serial Nos.l and 2 are dismissed and so also, on being taken up, the petition itself because Constitutional remedies are designed to be used in aid of justice and not to perpetuate a state of injustice. M.B.A./F‑237/K????????????????????????????????????????????????????????????????????????????????? Petition dismissed.