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Constitutional Petition No. 141 of 1981, decided on 11th April, 1983.

‑‑ S. 7‑Dissolution of marriage on ground of Khula' Absence of prayer in plaint‑Family Court, held, competent to grant Khula on basis of evidence on record, even if no such prayer made in plaint.‑‑(Plaint].

‑‑.S 7‑Dissolution of marriage‑Grant of Khula'‑Framing of issue -Issue regarding grant of Khula not framed‑Family Court, held, competent to grant Khula if case made out.

Muhammad Ashraf Kazi for Petitioner.

A Aziz Khan for Respondent No. 2.

Date of hearing : 11th April, 1983.

This Constitutional Petition challenges the judgment, dated 21st August, 1982 of the learned Family Judge, Karachi, whereby suit for restitution of conjugal rights filed by the petitioner was dismissed and the suit filed by the respondent No. 2 (wife of the petitioner) for dissolution of marriage was decreed to the extent that the marriage between the petitioner and respondent No. 2 was dissolved.

I have heard both the learned counsel for the parties. It was con tended by Mr. Muhammad Ashraf Kazi, learned counsel for the petitioner that although no prayer for Khula was made in the suit filed by respondent No. 2 and no issue had been framed in that regard, the learned Family Judge dissolved the marriage by way of Khula and in the circumstances the judgment of the learned Family Judge is a nullity and is liable to be declared as having been passed without lawful authority. It was also submitted that there was no evidence before the Family Judge on the basis of which Khula could be granted. In the evidence of respondent, No. 2 (the wife), she has stated that the petitioner had charged her for adultery with a boy and that she could not live with the petitioner as a wife within the limits of God. On the evidence led by the respondent No. 2, in my view, Khula could be granted by the learned Family Judge. In so far as the contention relating to absence of prayer in the plaint filed by respondent No. 2, it may be observed that in par. 8 of the plaint it has been stated by respondent No. 2 that she had developed strong aversion against the petitioner and she would not be able to live with the petitioner as hiss wife within the limits prescribed by Shariat. The prayer is for disso lution of marriage and in view of the contents of the plaint it is apparent that dissolution of marriage was sought in the alternative on, grounds Khula also. As regards raising of an issue, in my view there is issue about dissolution of marriage and even otherwise on the basis of evidence that may come on record, a Family Judge is competent to dissolve the marriage on grounds of Khula if a case is made out.

I find no mirit in this petition Constitutional Petition No. S‑151 of 1982 is dismissed with costs to respondent No. 2.

M. Y. M. Petition dismissed.

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