Find a Lawyer

Constitutional Petition No. 20 of 1985, decided on 5th March, 1985.

--S. 2. (x)--Khula'--Wife not prepared to live with other wives of husband and staring that she would prefer death to such life--Conduct and character of husband developing such aversion in mind of wife towards husband that wife hating and disliking him--Marriage not consumated and still there being so much of hatred, misunderstanding and suspicion in minds of parties that they could not live together- Finding recorded by trial Court found to be neither incorrect nor opposed to law--Order of dissolution of marriage on basis of. Khula' maintained in circumstances.

---S. 2(iv)--Constitution of Pakistan (1973), Art. 199--Writ jurisdic tion--High Court, held, does not interfere with findings on fact recorded by civil Courts in regular suits after taking into consideration all evidence and disposing of case by a reasoned judgment--Requisites fulfilled, by judgment delivered by civil Court--Interference in exercise of writ jurisdiction refused in circumstances.

Muhammad Ehsan Shaikh for Petitioner.

The petitioner has filed the present petition to challenge the judgment and decree passed by the Court. XXth Civil Judge and Family Court Judge at Karachi in Family Suit No. 1447 of 1981. He seeks an order from this Court in exercise of its Constitutional jurisdiction to the effect that the judgment, whereby his marriage with respondent No.l has been dissolved, is of no legal effect, and is opposed to law.

I have heard Mr. Muhammad Ehsan Shaikh.

The brief facts are that respondent No. 1 who is aged about twenty years and is serving as a School Teacher was married to the petitioner. Allegations were made by respondent No. 1 in the plaint that the marriage was arranged by misrepresentations and by taking her photos with the petitioner, presumably to r- - that 'the respondent was in love with the petitioner. It is stated that Nikah was performed, a dower of Rs.1,51,000 was fixed, but the marriage was not consumated. The case of the respondent was that the petitioner was already having two wives and twelve children, and she, therefore, did not want the marriage to be consumated. It was also alleged by the respondent that the petitioner had obtained some signatures on some writings for the purpose of transferring some property to her and her relatives, but it seems such promises were not fulfilled. A written statement was filed by the petitioner, challenging the averments, and he also filed a suit for restitution of conjugal rights. Both these suits, viz. the suit filed by the respondent for dissolution of marriage and the suit filed by the petitioner for restitution of conjugal rights were tried together, and the following issues have been framed:

"(1)Whether Nikahnama is a valid document, prepared according to law if not its effect

(2) Whether plaintiff married with her consent and free will

(3) Whether the plaintiff is entitled to be dissolution of marriage by way of Khula'. "

The learned Civil Judge held all the three issues in the affirmative, so that the effect was that there was a valid Nikah with consent and free will of respondent, but the Civil Judge also held that respondent was entitled to dissolution of marriage by Khula'.

In regard to the third issue, which has been determined in favour of the respondent, the learned Civil Judge had taken care to consider all the pieces of evidence that were available on the record. The learned Civil Judge took notice of a statement made by the respondent in her evidence to the effect that she did not like to live) with the wives of the petitioner and would rather prefer death to such life. The learned Civil Judge also took notice of another statement in A the evidence of the respondent to the effect that the conduct and character of the petitioner has developed such a version in her mine towards the petitioner that she hates and dislikes him. The marriage has not been consumated, and still there was no much of hatred; misunderstanding and suspicion in the minds of the parties that they could not live together. On such state of evidence, the finding recorded by the learned Civil Judge does not appear to be even incorrect what to speak of being opposed to law. Normally, this Court does not interfered with findings on fact recorded by civil Courts in regular suits after taking into consideration all the evidence and disposing of the case by a reasoned judgment. All these requisites appear to have been fulfilled by the judgment that has been delivered by the learned 'Civil Judge.

I see no reason to interfere in this case in exercise of Constitu tional jurisdiction, and I dismissed this petition in. limine.

H . A . K .

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.