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Writ Petition No. 106 of 1982/BWP, decided on 4th February, 1985.

---Art. 9--Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(ix)--Khula'--Spouses having bad matrimonial life of 27 years and three children from wed-lock--Husband constantly defending suits for dissolution of marriage instituted by wife-Real dispute between spouses pertaining to reciprocal marriages between two families--No ground for Khula' made out and trial Court had not exercised jurisdiction properly and judicially in dissolving marriage on ground of hatred and long separation in circumstances--Decree by Family Court dissolving marriage quashed in constitutional jurisdiction.

Ch. Abdul Sattar Goraya for Petitioner.

Nemo for Respondents.

This constitutional petition is intended to quash the judgment dated 21-7-1981, pronounced by Ch. Habib-ur-Rahman, the learned Judge Family Court, Bahawalnagar, who had granted a judicial divorce to Mst. Bashiran Bibi, wife of the petitioner on the basis of Khula'. 2. The facts of this case in substance are that the parties were married about 27 years before the institution of the suit and three childern were born during the said wed-lock, Mst. Bashiran had brought a suit for the dissolution of marriage, firstly on 12-12-1972, which was dismissed on 18-2-1975. She brought another similar suit on 14-9-1980 almost on the same allegations, which has been dismissed on 21-7-1981. In the meantime, the petitioner obtained a decree for the restitution of conjugal rights on 14-5-1981. The copy of the decree was not filed before the learned Judge Family Court. In this suit a number of allegations were made and the petitioner while defending the suit voiced the objections regarding the territorial jurisdiction and the principle of res judicata. On the basis of the pleadings of the parties, the following issues were framed:-

(1) "Whether this Court lacks territorial jurisdiction to try the present suit O.P.D.

(2) Whether this suit is hit by the principles of res judicata under section II C.P.C. O.P.D.

(3) Whether the plaintiff has no cause of action to bring this suit O.P.D.

(4) Whether the defendant treated the plaintiff with habitual cruelty O.P.P.

(5) Whether defendant is a man of bad character O.P.P.

(6) Whether the defendant had mis-appropriated the jewellery of the plaintiff O.P.P.

(7) Whether the defendant has failed to maintain the plaintiff for more than 2 years O.P.P.

(8) Whether the defendant has failed to perform the marital obligations of the plaintiff for more than 3 years O.P.P.,

(9) Whether the plaintiff is entitled to the decree for the dissolution of marriage on the basis of Khula' If so, on what terms and conditions O.P.P.

(10 )Relief." 3. Issue No. 1 was decided against the petitioner, wheras issues No. 2 to 8 were held against Mst. Bashiran. With regard to issue No. 9, the learned Judge Family Court adjudicated that on account of long separation of eight to nine years, hatred and aversion had cropped up in the mind of Mst. Bashiran and she was held entitled to have divorce on payment of Rs.1,500 on the basis of khlua' . 4. According to the judgment dated 18-2-1975, the real dispute was that the petitioner was married to Mst. Bashiran and the petitioner's sister was married to the brother of Mst. Bashiran, who died and the sister of the petitioner was leaving them. The parents of Mst. Bashiran had demanded the hand of another female of their family, which led to a dispute between the parties and Mst. Bashiran went to her parented home. Mst Bashiran has stated that since she was not provided with any maintenance, and the petitioner never endeavoured to take her to his house, so she intended to have divorce in lieu of the ornaments and clothes, which were given to her by the petitioner. When subjected to the cross-examination, she has conceded the fact that the petitioner strived a number of times to take her by filing suits for the restitutionof conjugal rights. Annexure 'C' indicates that the petitioner obtained a decree for the restitution of conjugal rights on 14-5-1981, and her suit was decreed after about 2 months. Had Mst. Bashiran been deserted by the petitioner for a number of years, then it could be said that hatred and aversion had developed in her mind. The spouses are having childern and the petitioner had constantly been defending the suit of A Mst. Bashiran and obtained a decree for the restitution of conjugal rights. The real dispute pertains to the reciprocal marriage between the two families and the death of the brother of Mst. Bashiran. No ground for Khula' was made out and the learned Judge Family Court has not exercised his jurisdiction properly and judiciously. I, therefore, set aside the judgment and decree dated 21-7-1981. The suit of Mst. Bashiran intended for the dissolution of marriage stands dismissed. I make no order as to costs. S.A. Petition accepted.