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-- S. 8-Khula'-Res judicata-Wife's first suit for dissolution of marriage, on

ground of Khula' dismissed-More serious rift developing between parties after dismissal of suit--Husband instituting criminal case against wife and also proceeding under S. 100, Criminal Procedure Code, merely for dragging wife to Court-Grant of Khula on second suit, held, unexceptionable-Civil Procedure Code (V of 1908), S. 11.[Khula' -Res judicata].

Manzoor Hussain Sial for Petitioner.

Learned counsel has, in support of this writ petition filed by a husband calling in question dissolution of his marriage with the respondent ordered in appeal by a learned District Judge, contended that the issue of khula' has not been correctly decided because the respondent's plea in this behalf was hit by the principle of res judicata. In an earlier suit the respondent had pleaded the ground of khula' but did not succeed.

2. On the face, the argument of the learned counsel appears to be plausible but on deeper scrutiny it has been discovered that after the dismissal) of the earlier suit more serious rift developed between the parties and the. said rift coupled with the incidents in the earlier life of the spouses was considered enough, after due consideration of the entire evidence by the learned' lower appellate Court, to grant khula' decree in favour of the respondent. To mention some of the new factors after the dismissal of the earlier suit, it cannot be ignored that the petitioner instituted a criminal case against his own wife, the respondent. Not only this, it appears that the case was unfounded. The petitioner's complaint was dismissed. This circumstance alone would furnish two elements to be considered in the context of khula'. (i) a husband filing a complaint against his own wife ; and (ii) the complaint being a false one. This is not all-the petitioner instituted proceedings for recovery of his own wife the respondent through a warrant under section 100, Cr. P. C. He did not file those proceedings as a matter of form but virtually dragged his wife in Courts. She was released after the recovery, only on her making the statement as mentioned in the impugned judgment "that she would never live" with the present petitioner. It also cannot be ignored that for the last nearly a decade the parties are entangled in continual litigation. This is not all, although in earlier decade, somewhere in 1969 the parties after an earlier estrangement and desertion had come to some sort of working arrangement through agreement Exh. P. 1 but this time they spent their time in accusing each other in Courts. The fact that despite the petitioner's having succeeded in the earlier suit, there has not been a rapprochement between the parties also cannot be ignored. It means that there is no chance left of even a working re-union leaving aside a happy married life. The fresh factors after the dismissal of the earlier suit alone were enough to grant khula' in favour of the respondent. However, in the circumstances of this case added with the fresh factors, the old ones would obviously accentuate the situation The judgment and decree passed by the learned lower appellate Court 3 unexceptionable.

3. There is no force in this petition and the same is dismissed in limine.

M. A. K. Petition dismissed.

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