P L D 1993 Lahore 249 (PLP)

Ahmad Nadeem petitioner, who was married to Assia Bibi respondent as filed this Constitutional petition to challenge the judgment and No.1, decree of dissolution of marriage passed in favour of respondent No.1 by the District Judge, Rajanpur vide judgment and decree dated 6-10-1992.

2. Briefly stated facts of the case out of which this Constitutional petition has arisen are that the respondent, after a period of 1 year 3 months w.e.f. her marriage with the petitioner, filed a suit for dissolution of marriage against him on 24-11-1990 on the basis of the allegation that the petitioner has been treating her with cruelty and in an inhuman manner and further that he is vagabond and criminal-minded person and that he had turned her out of his house after giving kicks alongwith her minor daughter and, therefore, there is a strong aversion against him which has been developed by the plaintiff due to his conduct and as such she is entitled to the grant of decree for dissolution of carriage on the ground of Khula'. The suit has been contested by the defendant inter alia on the ground that there is a daughter born out of the wedlock and that the parties have been living amicably and he has never maltreated the respondent, therefore, marriage cannot be dissolved. The Judge Family Court after recording of evidence vide judgment and decree dated 21-5-1992 dismissed her suit. Aggrieved of the aforementioned judgment and decree passed by the learned Judge Family Court, the respondent filed an .appeal before the District Judge which has been accepted vide judgment and decree dated 6-10-1992 and the marriage has been dissolved on the principle of Khula'. This judgment and decree has been challenged by the husband through this Constitutional petition.

3. Ch. Muhammad Ashfaq Khan learned counsel for the petitioner has argued that the judgment and decree rendered by the learned District Judge which is at variance is illegal inasmuch as the marriage has been dissolved on the principle of Khula' without there being any lawful basis and justification. Learned counsel has argued that the learned District Judge has misread the evidence and has failed to take into consideration material pieces of evidence and, hence, has committed error of exercise of jurisdiction. According to the learned counsel marriage having been refused to be dissolved by the learned Judge Family Court who enjoyed the position of Qazi and who had opportunity to watch the conduct of the parties who have been appearing before him. The learned District Judge had no jurisdiction to interfere with the same on the basis of conjectures and surmises. Learned counsel argued that all the issues which were framed on the basis of various allegations including the allegation of cruelty and bad character, have been decided in favour of the petitioner and, therefore, there being no basis for granting favourable decree, on the principle of Khula' the suit could not have been decreed. Learned counsel has further argued that the finding of the learned District Judge to the effect that the respondent has not drawn any benefit from the petitioner is based upon misreading of evidence whereby it has been proved that a house was given by the petitioner to the respondent in lieu of dower at the time of marriage, therefore, to hold that no benefit was received by the respondent is not a lawful finding rendered by the learned District Judge. According to the learned counsel there is absolutely no evidence on the record to show that the respondent has acquired an affixed aversion towards the petitioner, therefore, the decree for dissolution of marriage could not have been granted to the respondent on the principle of Khula' as laid down in various judgments rendered by this Court as well as the Hon'able Supreme Court of Pakistan. 4. 1 have considered the arguments addressed by the learned counsel for the petitioner and have gone through both the judgments and have also perused the record including the evidence led by the parties. On my query learned counsel has admitted that the parties are not previously related to each other; that they are living apart for the last about two years; that efforts to effect compromise during the pendency of the suit before the learned Judge Family Court as well as the appellate Court have not succeeded; that the parties are of the young age and that the respondent is contesting the litigation with full force. It is an established principle of law as laid down in cases of Mst. Balqis Fatima v. Najm-ul-lkram Qureshi PLD 1959 (W.P) Lahore 566 and Mst. Khurshid Bibi. v. Baboo Muhammad Amin PLD 1967 SC 97, that a right t6 claim divorce on the principle of Khula' by the wife is a right equal to the right of pronouncement of Talaq by the husband except with the one difference that the husband can pronounce Talaq himself and in Pakistan has to notify the same to the Chairman of the Local Council concerned but the wife has to fide a suit seeking dissolution of marriage on the principle of Khula' in the Court of a Qazi which in the Pakistan is the Family Court. It is further an established principle that a woman is not chattel and there is no method by which she could be forced to five with her husband, if she herself has acquired hatred for him. A very noble husband having a very charming personality may not be liked by his wife and the Court has no lawful authority to force the wife to live with such a husband. The judgment has to be that of the wife herself and if she feels that there is no possibility of her living with her husband and if the marriage is not dissolved she will not be in a position to dissolve the limits ordained by God Almighty and the Quran the basis of the circumstances is subjectively satisfied that the parties cannot live together, it will be a fit case for he grant of dissolution of marriage on the principle of Khula'. In the case in hand, learned District Judge has scanned the whole evidence and has taken into consideration various circumstances and has come to the conclusion that the parties cannot live as husband and wife., Even the circumstances which have been admitted by the learned counsel for the petitioner to be correct with regard to the previous relationship of the parties, the period of separation and the force with which the litigation is being contested up to this Court, fortify the conclusion that in this case the respondent shall not live with the petitioner as his wife and, therefore, it cannot be said that the earned District Judge had no jurisdiction to pass a decree of dissolution of marriage while sitting in appeal over the judgment rendered by the Judge Family Court inasmuch as status of the appellate Court in hierarchy of the Family Court Act shall be that of Qazi who shall have the same powers to ' make an assessment with regard to the possibility of continuance of the marriage between the parties. Hence, argument of the learned counsel for the petitioner that the learned District Judge could not have set aside the decree of dismissal passed by the Judge Family Court is misconceived and is hereby repelled.

5. Learned counsel has been asked to point out the specific portion "t evidence which has either been misread or has not been read, he is unable to point out any such misreading or omission. This being a writ petition and not an appeal, in exercise of the writ jurisdiction this Court cannot entertain the objection with regard to the wrong appreciation of the evidence. Learned counsel has failed to point out as to how the impugned judgment and decree rendered by the District Judge is either illegal or is without a lawful authority; Merely because there is a daughter of the parties is not sufficient circumstance to hold that the parties will five together as husband and wife, if the marriage is not dissolved. Serious allegation has been levelled by the respondent against the petitioner with regard to his maltreatment with her as well as her daughter and also with regard to his character. She has categorically stated and him proved by other evidence that she hates the petitioner and does not want to live with him. Merely because a house was given at the time of marriage in lieu of dower will not be a sufficient circumstance to tie down the respondent who' has admittedly given a sufficient company to the petitioner and has to a birth to a daughter from him which cannot be said to be a lesser compensation than the value of the house which was given to the wife as a consideration for entering into a contract of marriage with him. 6. 'Resultantly I see no force in this writ petition. The same is, therefore dismissed in limine. AA/A-336/1 Petition dismissed