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Writ Petition No.397 of 1981, decided on 12th February 1984.

---S.5--Provisional Constitution Order (1 of 1981), Art.9--Suit for dissolution of marriage--Wife taking round of Khula' in her suit for dissolution of marriage but appellate Court failing to give his finding on this issue while dismissing her appeal and omitting to read relevant important sentence in examination-in-chief, on which her marriage could have been dissolved on basis of Khula-Finding of appellate Court, held, without lawful authority and set aside--Case remanded to appellate Court for hearing appeal of petitioner afresh and then pass an appropriate judgment in accordance with law in respect of issue pertaining to Khula' as well as other issues.

Mst.Khurshid Bibi v. Baboo Muhammad Amin P L D 1967 S C 97 ref.

Muhammad Ishaque v. Ch.Ahsan Ahmad, Judge Family Court, Lyallpur and another P L D 1975 Lah. 1118 rel.

Kh.Ashfaq Ahmad for Petitioner.

Malik Muhammad Khan Awan for Respondents.

Date of hearing: 12th February, 1984.

The background in which this writ petition has been filed is that the petitioner filed a suit for dissolution of her marriage as against the respondent No.1 in which the following issues were framed:--

(1) Whether the present suit of the plaintiff was barred by res judicata

(2) Whether this Court has got no territorial jurisdiction to try this suit

(3) Whether the treatment of the defendant with the plaintiff was cruel

(4) Whether the defendant has failed to maintain the plaintiff for a period of more than three years

(5) Whether the plaintiff has failed to perform his marital obligations for a period of more than two years

(6) Whether the plaintiff is entitled to get divorce on the principle of Khula, if so on what terms

(7) Relief.

In the light of the findings on issues Nos.3, 4, 5 and 6 the judge Family Court dismissed the suit of the petitioner. Thereafter, the petitioner filed an appeal before the Additional District Judge, Sargodha which was also dismissed. The main grounds on the basis of which the appeals was dismissed were: that the petitioner had previously also filed a suit for dissolution of her marriage as against the respondent No.1 on the same grounds which had been dismissed and the appeal in the same had also been rejected and that, therefore, the suit was hit by section 11, C.P.C. on account of res judicata. The Additional District Judge, Sargodha also generally observed that the P.Ws. produced in the instant case did not substantiate any of the allegations of the petitioner and that, therefore, the findings of the Judge Family Court on all the issues' were upheld.

2. Learned counsel has attacked the appellate order in this writ petition on two grounds. Firstly, it is submitted that the principle of res judicata cannot be made applicable in dissolution of marriage suits and that if the petitioner had taken the ground of Khula even in the previous suit for dissolution of marriage, it would not be a bar for her to raise the same ground again because the ground of Khula can be raised as a fresh cause of action every time and if a suit were to be filed on that ground it cannot be held that the finding of the Court would amount to become res judicata in that respect. It was next submitted that the appellate Court did not touch the issue of Khula at all although issue to that effect had in fact been framed by the Judge Family Court. It was submitted that the finding of the Judge Family Court on issue No.6 was that the plaintiff was not entitled to invoke the provisions of Khula as no ground for that had been established by the plaintiff and that it was for this reason that he decided the said issue against the petitioner. Learned counsel took me through the statement of the petitioner made before the Judge Family Court in which she has stated in examination-in-chief that it was not possible for her to live with the husband, i.e., Ghulam Rasool respondent as he had not treated her in the way with which they could live together. Thus in her statement she had taken a categorical stand by saying that living together of both the spouses was not possible. If a wife was to make such a statement the Judge Family Court has to accept it on its face value provided that he is satisfied that the wife has made up her mind not to live with her husband under any circumstances. When this is the attitude of the wife then the Court in such circumstances can and should only determine the terms on the basis of which the marriage is to be dissolved under the provisions of Khula. Singe this is the correct legal position as laid down in Mst. Khurshid Bibi v. Baboo Muhammad Amin P L D 1967 S C 97 there was no justification on the part of the Judge Family Court to give a finding to the effect that the petitioner was not entitled to invoke the provisions of Khula as no ground for that had been established by her.

3. It is next submitted by learned counsel for the petitioner' that the appellate Court did not even care to touch this aspect of the case and had not discussed the issue of Khula in its judgment. I have gone through the judgment of the appellate Court with the assistance of learned counsel and I cannot help agreeing with him. The Additional District, Judge Sargodha who heard the appeal has not said anything about the ground of Khula taken by the petitioner. Learned counsel in this connection is placing reliance on Muhammad Ishaque v. Ch.Ahsan Ahmad, Judge Family Court, Lyallpur and another P L D 1975 Lah. 1118 which is fully applicable to the facts of the instant case. In that case it was held that failure of the lower appellate Court to consider the question of Khula amounted to non-exercise of appellate jurisdiction) conferred on it and that, therefore, the appeal was ordered to be heard afresh. Since the lower appellate Court has given no finding on the issue of Khula and has not even cared to read the relevant important sentence in the examination-in-chief of the petitioner on which the marriage should have been dissolved on the basis of Khula, the judgment passed by the lower appellate Court was without lawful authority and is of no legal effect. It is, therefore, accordingly set aside and the case is remanded to the District Judge, Sargodha to hear the appeal of the petitioner afresh and then to pass an appropriate judgment in accordance with law in respect of the issue pertaining to Khula as well as the other issues. With these observations this petition is accepted. There shall be no order as to costs. The parties are directed to appear before the District Judge, Sargodha on 10-3-1984. The office is directed to send back the record of this case to the District Judge, Sargodha immediately.

M. Y. H. Case remanded.

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