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Constitutional Petition No. 217 of 1983, decided on 17th April, 1985.

(a) Muhammadan law‑

‑‑ Khula'‑Plea of Khula' not taken in plaint‑Effect‑Dissolution of marriage on plea of Khula', held, would be available only, if conscious attempt was made by wife to exercise such right in this behalf and not otherwise‑Unless wife comes forward to specifically claim right of Khula' decree could not be allowed merely on Court's motion.

(b) Muhammadan law‑

‑‑ Khula'‑Proof of‑Duty of Court‑For allowing wife authority to exercise right of Khula', reasonable proof, held, must exist, sufficient for satisfaction of Court showing incompatibility of temperament indicating total lack of sympathy, between husband and wife, resulting in resistance to mutual adoption .‑Qur'an, Sura Baqr, Verse 229.

It is bounden duty of the judicial forum to restrict itself to the evidence on record, and decide the matter on the available facts and circumstances. In deciding the dispute, Courts are not expected to act in an arbitrary capricious or whimsical manner. Most pertinent question for determination, therefore, is that, to what extent right to dissolve marriage on the basis of 'Khula' is exerciseable by the wife. Islam undoubtedly has conceded, right to wife to seek dissolution on the ground of Khula' in extreme circumstances. But right to claim dissolution of marriage on the basis of 'Khula' is not absolute ; and no blanket authority is given to wife for automatically denouncing marital bonds. In fact this right is reasonably controlled and is dependent upon scrutiny of "Court" competent to decide in the matter after properly satisfying itself about existence of reasonable circumstances whereby separation is being claimed, so as to terminate sacrosanct relationship of the spouse. In Holy Qur'an Verse No. 229 of Sura Baqr deals with "Right" to Claim "Khula" wherein procedure for sanctioning the right of wife to claim dissolution of marriage on this ground is mentioned.

Saeed Khan v. Muhammad Sami P L D 1952 Lah. 113 ; Fatima Balqis v. Najamul Islam P L D 1959 Lab. 566 ; Mst. Khurshld BIN v. Baboo Muhammad Amin P L D 1967 S C 97 and Abdur Rahim v. Mst. Shahida Khan LD1984SC329ref.

(c) Muhammadan law‑

‑ Khula', right of‑Duty of Court‑Islamic principle of law enjoins upon Court a solemn duty to reasonably scrutinize plausibility and desirability of facts and circumstances brought before it, and on basis thereof, to arrive at judicious satisfaction to ascertain entitle ment of wife‑In absence of care and caution, right to claim dissolution by way of Khula as ordained by Holy Qur'an and interpreted by jurists would be completely flouted.

(d) Constitution of Pakistan (1973)‑

‑ Art.199 -Constitutional jurisdiction‑Exercise of‑Constitutional jurisdiction, held, normally would not lie against order of Court, tribunal or authority having jurisdiction to decide such matter. In cases where finding was based on no evidence, ignorance of material evidence, consideration of immaterial evidence, arbitrary exercise of jurisdiction, perversity, or material irregularity in conduct of proceedings causing palpable injustice, constitutional jurisdiction of High Court could be invoked to rectify wrong and injustice occasioned thereby.

Muhammad Hussain Munir v. Sikandar and others P L D 1974 S C 129 ; Zulfikar Khan Awan v. The Secretary, Industries and Mineral Development, Government of the Punjab, Lahore and others 1974 S C M R 530 ; Abdur Rehman Bajwa v. Sultan and others P L D 1981 S C 522 and The Masjid Tagore Park v. Rashidul Haq and others 1982 S C M R 6" ref.

Nawaza v. The Additional Settlement and Rehabilitation Commissioner, Gujrat and another P L D 1970 S C 39; The Commissioner and another v. Mian Sher Muhammad 1972 S C M R 395; Miss Nasreen Fatima Awan v. Principal, Bolan Medical College, Quetta P L D 1978 Quetta 17 ; Swati Qaum through Bacha Gul and another v. Painda Khel Qaum and others 1981 S C M R 318 ; Ghulam Ali v, Rasab and others 1983 S C M R 1026 ; Rahim Shah v. Chief Election Commissioner of Pakistan P L D 1973 S C 24 ; Abdul Rahim v. Mst. Shahida Khan P L D 1984 S C 329 and Muhammad Siddlque v. Mst. Kalsoom Bibi and others 1984 S C M R 523 fol.

e) Constitution of Pakistan (1973)‑

‑ Art. 199‑Muhammadan Law‑ Khula‑Constitutional jurisdic tion‑Exercise of‑Decree based on Khula having been set aside by High Court in constitutional jurisdiction suit for restitution of con jugal right which stood dismissed because of decree passed in dissolu tion case, held, would stand revived and would require to be decided in accordance with law.‑[Muhammadan law].

Nazeer Ahmed for Petitioner.

Iftikhar Muhammad for Respondents.

Date of hearing ; 9th April, 1985.

‑This petition is directed against judgment dated 31‑5‑1983 passed by learned Civil Judge‑cum‑Family Judge, Sibi whereby he bas decreed, Suit No. 8 of 1982 filed by respondent Mst. Gul Bibi for dissolution of marriage, by granting right of 'Khula' subject to payment of Rs. 2,512 being benefits statedly received by her in considera tion of marriage ; and has simultaneously dismissed counter Suit No., 11 of 1983 regarding restitution of conjugal rights filed by petitioner.

2. Brief facts leading to the present petition are, that petitioner Lal Muhammad married respondent No. 1 (Mst. Gul Bibi) some where during 1981 almost about a year prior to filing of family Suit No. 8 of 1982 regarding dissolution of marriage which was instituted by her on 15‑3‑1982. It is alleged in the plaint that after marriage, respondent No. 1 lived with petitioner in his house at village Sangan for, some time, but right from the beginning petitioner Lal Muhammad, did not behave with her properly. It is case of respondent Mst. Gul Bibi that petitioner not only failed to provide her adequate, food, clothings, etc. but also, often used to beat her and on almost two occasions had even taken out knife to kill her, said grossly improper behaviour of petitioner is source of constant tension for her. Besides petitioner used to object visits of her parents and relatives. According to Mst. Gul Bibi about three to four months after this marriage she came to spend Eid with her parents. But few days prior to Idd petitioner came to the village of her parents and insisted for taking her with him for Idd, which demand was resisted by respondent No. 1 and her parents. This situation thus annoyed petitioner who consequently went away alone, issuing threats, whereupon father of respondent No. 1 initiated security proceedings against petitioner who accordingly was bound down for keeping peace. Respondent No. 1 in view of these developments, apprehended danger to her life and has asserted that since her relations with petitioner were strained, therefore, it is not possible for her to lead a harmonious life with him.

3. The petitioner filed written statement in this case on 10‑5‑1982 wherein he has specifically repudiated allegations made in the plaint and has stated that he had affectionate relations with respondent No. 1 and had been providing all the necessities of life including food, clothings, etc. to her, for the period when she lived with him at Sangan. Accord ing to petitioner, the father of respondent Gul Bibi brought her with him for celebrating ldd but later when he approached them to allow respondent Gul Bibi to spend ldd with him, his request was unjustifiably rejected, creating unpleasantness between the parties which became root cause of dispute giving rise to this suit. It was specifically asserted by the petitioner that in consideration of their marriage, he had paid a sum of Rs. 30,000 (thirty thousand) to father of respondent No. 1 in three equal instalments. ' Petitioner on the facts and circumstances suspected that father of respondent Gul Bibi had detained her mainly with a view to get divorce and arrange for her second marriage to make gains. Replication was filed by respondent .Nst. Gul Bibi on 31‑5‑1982 wherein she has reiterated her claim set out in the plaint and additionally stated that petitioner did not have good character thus she apprehends danger to her life and as such it was not possible for her to live with him. Conciliation proceedings were conducted on 27‑11‑1982 which failed. Later on the pleadings, issues were framed on 29‑11‑1982 Family Court, Sibi on 23‑9‑1982 directed the filing of amended pleadings taking into consideration the requirements of law. Thus, amended plaint was filed on 16‑10‑1982 whereas amended written statement was filed on 15‑11‑1982. Amended pleadings were almost on the same lines as detailed above.

4. During pendency of abovesaid proceedings petitioner (Lal Muhammad) filed a Suit No. 11 of 1983 for restitution of conjugal rights Muhammad Amin P L D 1967 S C 97 and Abdur Rahim v. Mst. Shahida Khan PLD1984SC329ref. towards December 1982. It was alleged that he had paid a sum of Rs. 30,000 (thirty thousand) in three instalments to the father of respondent Gul Bibi for this marriage apart frorn ornaments and valuable clothing, etc. According to petitioner/respondent Gul Bibi is refusing to join him at the behest of her parents, who as alleged are greedy and wish to make gains by manipulating dissolution of her marriage, for contracting her second marriage. In this case respondent Gul Bibi filed written statement on 20‑1‑1983 wherein apart from challenging maintainability of suit for restitution of conjugal rights all averments on merits were also vehemently denied. She reiterated her claim contained in Family Suit No. 8 of 1982 stating that petitioner's behaviour was cruel to her, making her married life quite wretched. The incident leading to peace securities and threat of dire consequences allegedly, issued by petitioner were repeated. Sarie issues were framed on 22‑2‑1983 and both these counter family suits, i.e. (i) No. 8 of 1982 and (ii) 11 of 1983 were taken up together. Respondent Gul Bibi examined "4" witnesses namely P. W. Mulla Dur Muhammad, P. W. 2 Abdul Salam, P. W. 3 Abdul Qadir and P: W. 4 Jangi Khan apart from her own statement ; whereas petitioner in support of his claim as well as rebuttal produced 3 witnesses namely D. W. 1 Jan Muhammad, D. W. 2 Fateh Muhammad and D. W_3 Sargul apart from himself. On this evidence learned Civil Judge‑cum=Family Court, Sibi vide his impugned judgment dated 31‑5‑1983 dismissed, the claim in Suit No. 11 of 1983 relating to conjugal rights, but accepted claim of respondent No. 1 in Suit No. 8 of 1982 for dissolution of marriage, on the ground of 'Khula' subject to payment of Rs. 2,512 being benefit received by her in connection with marriage. Aggrieved by said judgment and decree and there being no remedy available to the petitioner, present Constitutional petition has been filed.

5. In support of this petition learned counsel for petitioner has vehemently urged that decree for Dissolution of Marriage passed by Family Court, Sibi is not warranted and requires to be termed as without lawful authority because, (A) once lower Court had rejected plea of cruelty which was main ground for seeking dissolution then lower Court was not justified to dissolve marriage on the basis of Khula'; (B) since ground of 'Khula' was not specifically pleaded, therefore, Court without intention of the party to exercise this right could not of its own motion frame issues or pass decree. on that score ; (C) that Qazi under the spirit of Islamic law has only limited and controlled right for granting claim of dissolution on the basis of 'Khula', consequently Qazi could not go behind the principle and procedure contained in Sura Baqr Aya‑229; (D) right to claim 'Khula' is only subject to restoration of all benefits ; received by the wife in connection with marriage ; (E) that otherwise too decree is completely erroneous as mandatory provisions regarding post trial reconciliation as required by section 12 of Family Courts Act were not adhered to ; and finally (F) evidence produced by respondent Mst. Gul Bibi even if unrebutted does not disclose any circumstances justifying exercise of authority for granting decree of dissolution of marriage on the ground of 'Khula'.

6. On the other hand Mr. Iftikhar Muhammad, Advocate, learned counsel for respondent No. 1 has contended that (i) plea of 'Khula' though not taken in the plaint, yet it emanated from contents of replica tion filed by her client on 31‑5‑1982 (page 43 of lower Court's file), (ii) secondly issue as regards Khula' and quantum of benefits received by wife in pursuance of marriage were specifically framed and parties had opportunity to lead evidence ; therefore, objections raised by petitioner in that behalf is misconceived, (iii) thirdly ,efforts for reconciliation were made on 31‑5‑1982 and 19‑5‑1983 (indicated in impugned judgment ‑ at page 109) but with no practical result, therefore, requirement of sections 10 and 12 were duly met with ; and lastly (iv) impugned judgment was passed by the Court of competent jurisdiction and merely because any other view was possible or there is any error in appreciation, writ cannot be issued and impugned judgment cannot be interfered with.

7 . It is quite evident from proceedings in Suit No. 8 of 1982, filed by respondent Gul Bibi ; that, plea in respect of 'Khula' was not specifically taken. In replication dated 31‑5‑1982 only a mild reference has been made which too, suggests that in view of strained relations it was not possible for her to reside with petitioner. However learned Civil Judge did frame specific issue regarding entitlement of Mst. Gul Bibi for seeking dissolution of marriage on the ground of 'Khula'. Normally when parties are conscious about point on which they are at variance and specially when issues in that behalf are also framed, in that event mere non‑mention of such ground with clarity in the pleadings cannot be made basis for rejecting the claim. But as would be dealt with later, dissolution of A marriage on the plea of 'Khula' is available only if conscious attempt is made by the "woman" to exercise her right in this behalf and not otherwise. Therefore, in this peculiar case unless wife comes forward to specifically claim this right, decree cannot be lawfully allowed on this score merely on Court's motion. Factual position on record is that learned Civil Judge did not accept claim for dissolution of marriage on account of cruelty but surprisingly on the strength of same set of evidence has granted decree by way of 'Khula'. It appears that Family Court has accepted right of 'Khula' merely because wife was adamant and was not inclined to join the petitioner on the behest of her parents. Before adverting to the question as to authority exerciseable by Qazi or Court competent under the law to grant decree on the plea of Khula in this case it would be appropriate to make brief reference to the evidence available before the Family Courts for adjudication of family dispute between the parties.

8. As mentioned earlier respondent Mst. Gul Bibi produced 4 witnesses out of which P. W. Mulls Dur Muhammad proved performance of Nikah in consideration of Haq‑e‑Mehr of Rs. 12. This witness denied payment of Waiver in his presence. However, he has .added that petitioner Lai Muhammad was a good man. P. W. 2 Abdul Salem who is father of respondent Gul Bibi stated that after marriage his daughter lived with petitioner for about 2 to 3 months, and during this period she was beaten even in his presence. He admitted that he brought, his daughter Gul Bibi to his village Looni for celebrating Idd ; but petitioner contrary to arrangement came earlier, to take her back before Idd, whereupon respon dent and her parents resisted which resulted in an unpleasent situation causing serious annoyance to petitioner who thus went away issuing threats of dire consequences. It is admitted position that Gul Bibi was not sent back and on the contrary security proceedings were initiated and parties were bound down. P. W. 3 Abdul Wahid who is brother of P. W. 2 and uncle of Mst. Gut Bibi stated that respondent had come for spending ldd with her parents, but before Idd petitioner came to the house of in‑laws and insisted to take his wife Me. Gul Bibi with him which was resisted and this fact became cause of dispute between the parties. This witness unequivocalily admitted that prior to that, during‑3/4 months of marital relations, respondent Gul Bibi came to the house of her father twice, but did nut complain about maltreatment by the petitioner. P. W. 4 Juma Khan another brother of P. Ws. 2 and 3 also mentioned that petitioner wanted to take back Gul Bibi for spending Idd with him, but her refusal to accompany petitioner became basis of dispute between the parties. He also mentions that respondent had told him that petitioner used to beat her. Respondent appearing as witness has made assertions almost on the same lines maintaining, that petitioner used to beat her and also gave her threats of dire consequences. According to her he was in the habit of flirting other ladies., Respondent has reiterated that petitioner unnecessarily insisted for accompanying her to spend Idd with him at Sangan, which resulted in an unpleasent situation and their relations have become so much strained that it was not possible for her ‑to live with petitioner, as his wife. The evidence as discussed above was produced to substantiate allegations of cruelty and issues pertaining to 'Khula'. Learned Family Judge rightly rejected this evidence so far allegation of cruelty was concerned.

9. But at the same time in fact in the whole evidence, including statement of respondent Mst. Gul Bibi there is nothing to establish intense disliking, serious hatred, grave situation for disharmony, which could possibly form basis for grant of decree of dissolution of marriage by way of 'Khula'. There is apparently no justification whereby lower Court could lawfully exercise jurisdiction for granting right of 'Khula' to the wife. It is bounden duty of the judicial forum to restrict itself to the evidence on record, and decide the matter on the available fact and circumstances. In deciding the dispute, Courts are not expected to act in an arbitrary capricious or whimsical manner. Most pertinent question for determination therefore, is that, to what extent right to dissolve marriage on the basis of 'Khula' is exerciseable by the wife. Islam undoubtedly has conceded, right to wife to seek dissolution on the ground of Khula in extreme circumstances But right to claim dissolution of marriage on the basis of 'Khula' is not absolute ; and no blanket authority is given to wife for automatically denouncing marital bonds. In fact this right is reasonably controlled and is dependent upon scrutiny of "Court" competent to decide in the matter after properly satisfying itself about existence of reasonable circumstances whereby separation is being claimed, so as to terminate sacrosanct relationship of the spouse. In Holy Qur'an Verse No. 229 of Sura Baqr deals with "Right" to Claim "Khula" wherein procedure for sanctioning the right of wife to claim dissolution of marriage on this ground is mentioned. This right, of wife to claim dissolution of marriage on the ,ground of 'Khula' as been elaborately and authoritatively considered by superior Courts in following cases

"(i) Saeed Khanem v. Muhammad Sami P L D 1952 Lah. 113.

(ii) Fatima Balqis v. Najamul Islam P L D 1959 Lah. 566.

(iii) Mst. Khurshid Bibi v. Baboo Muhammad Amin P L D 1967 S C 97.

(iv) Abdur Rahim v. Mst. Shahida Khan P L D 1984 S C 329."

The ratio of above decision is, that for allowing wife authority to exercise this right, there must exist reasonable roof, sufficient for the satisfaction of the Qazi showing incompatibility of temperament indicating total lack of sympathy, between husband and wife, resulting in resistance to mutual adoption. According to observations in the above‑quoted cases there should pre‑exist, intense hatred, serious discord, extreme disliking, strong malice, explicitly indicating complete impossibility of future harmonious relationship between the parties, in accordance with limit prescribed by God ; and subject however to restoration of partial or total benefits received by the wife in connection with marriage. Therefore, in 'C order to arrive at the decision with regard to separation of the spouse on the ground of 'Khula' the Court must have complete satisfaction, on the proved facts and circumstances ; that there exists disliking or hatred o' the nature which would result in serious disharmony and incompatibility,/ leaving no chance at all for the parties to live together. Respectfully following the dictum in cases referred to above, we find that there is no basis available on record in this case whereby trial Court could arrive at a conclusion that it had become absolutely impossible for the parties to live together as husband and wife. In the instant case, from stated facts, mainly bone of contention, for the commencement of unpleasant relations between parties is indicated from refusal of parents of Mst. Gul Bibi to allow her to join the husband on Idd. Normally it would have been fair for the husband to have provided the facility to his wife for spending first Idd after their marriage with her parent, but at the same time mere insistance of petitioner to carry his wife with him for Idd for which he was obviously entitled cannot be construed by any stretch of imagination to be so serious or grave, as to result in termination of marital relations. Nothing is brought on record to show that there is at all hatred or disliking of a nature on which Court may proceed to exercise jurisdiction to allow right of Khula. For the consideration of this right, in our opinion it would not be mere choice, discretion, or mere desire or wish of the wife, to come forward and make loose allegations of hatred disharmony or disliking and expect that Courts by acting mechanically should allow this right. We feel that Islamic principle of law enjoins upon the Court a solemn duty to reasonably scrutinise plausibility and desirability of facts and circumstances brought before it, and on the basis thereof to arrive at a judicious satisfaction to ascertain entitlement of wife. If such care and caution is not taken in that case right to claim dissolution by way of ' hula' as ordained by, Holy Qur'an and interpreted by the jurists would be completely flouted. Any loose consideration or blanket authority allowed. to wife, would lead to frustrate the very purpose and object of regulating the right through Qazi of Courts of law. In view of above discussion we feel that the decision of the lower Court allowing decree for dissolution of marriage on the ground of 'Khula' is not well founded. Additionally this fact cannot be completely ignored that respondent in his suit had not specifically claimed. Now question arises whether in spite of apparent defects found in the impagned judgment of Family Court it would at all be appropriate to interfere with it in the exercise of constitutional jurisdiction of this Court. Mr. Iftikhar Muhammad learned counsel for the respondent has objected to exercise of jurisdiction by this Court and has relied on following decided cases

"(i) Muhammad Hussain Munir v. Sikandar and others P L D 1974 S C 139 ;

(ii) Zulfikar Khan Awan v. The Secretary, Industrigs and Mineral Develop ment, Government of the Punjab, Lahore and others 1974 S C M R 530.

(iii) Abdur Rehman Bajioa v. Sultan and others P L D 1981 S C 522 and

(iv) The Masjid Tagore Park v. Rashidul Haq and others 1982 S C M R 65."

He has thus contended that order of the lower Court is with jurisdiction and said forum was competent to pass the same, merely because a different view is possible, writ jurisdiction cannot be exercised, There is no cavil to this legal proposition, but in the instant case there is a defect apparent on record whereby lack of jurisdiction, misreading of evidence, and unjust finding is manifest from the record. Therefore the principle enunciated in the authorities cited above will be hardly of any avail to the respondent. It is well‑settled that writ jurisdiction normally would not lie against order of Court, tribunal or authority which have jurisdiction to decide such matters, but when any finding of fact is based on no evidence at all ; or ignorance of material evidence or consideration of inadmissible evidence or arbitrary exercise of jurisdiction ; perversity ; or material illegality in the conduct of proceeding causing palpable injustice, in that case jurisdiction of this Court can always be invoked to rectify the wrong and injustice occasioned to a party, on the basis of admitted facts. Reference in this behalf can also be had to the observations of superior Courts on following cases :

"(i) Nawaza v. The Additional Settlement and Rehabilitation Commis sioner, Gujrat and another P L D 1970 S C 39.

(ii) The Commissioner and another v. Mian Sher Muhammad 1972 SCMR395.

(iii) Miss Nasreen Fatima Awan v. Principal, Bolan Medical College, Quetta P L D 1978 Quetta 17.

(iv) Swati Qaum through Bacha Gul and others v. Painda Khel Qaum and others 1981 S C M R 318.

(v) Ghulam Ali v. Rasab and others 1983 S C M R 1026.

(vi) Rahim Shah v. Chief Election Commissioner of Pakistan P L D 1973 SC24.

(vii) Abdul Rahim v. Mst. Shahida Khan P L D 1984 S C 329 and

(viii) Muhammad Siddique v. Kalsoom Bibi and others 1984 S C M R 523."

Respectfully following dictum laid down in the above decisions, we feel that if the impugned order is not interfered with as regards determination of rights of Khula and incidental factors, pertaining to grant of benefits etc it would operate as grave injustice and hardship to both the parties. Since there is not an iota of evidence for arriving at satisfaction F or enabling lower Court to exercise jurisdiction for granting relief on the points of 'Khula' therefore impugned judgment is on the face of it is invalid to this extent. Thus, in our opinion it would be a fit case for interfering with the impugned judgment of the Family Court to the extent indicated above.

It is pertinent to examine here that Suit No. 11/1983 regarding res titution of conjugal rights was dismissed merely because Suit No. 8 of 1982 pertaining to dissolution was decreed in favour of respondent Mst Gul Bibi, by allowing right of Khula' and no reasoning whatsoever, otherwise were stated or discussed ‑for dismissing Suit No. 11 of 1983. Since impugned judgment of Family Court, Sibi has been found to be invalid for the foregoing reasons, therefore, as a consequence thereof observation for deciding Issue No. 6 automatically cease to exist. Obviously disposal of said suit, is without application of mind or without speaking judgment same thus is not sustainable. As a result thereof Suit No. 11 of 1983 filed by petitioner for restitution of conjugal rights would revive and file of said case will be sent back to Family Court, Sibi for trying the same on merit in accordance with law.

With above observations this petition is disposed of with no orders to costs.

A. A. Petition accepted.

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