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Constitutional Petition No. 36 of 1985, decided on 24th July, 1985.

‑‑‑S. 41‑‑Final judgment or order or decree of a competent Court in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, held, was conclusive proof of that legal character which it conferred, accrued at time when such judgment, order or decree came into operation etc

‑‑‑S. 11‑‑Res judicata‑‑Subject‑matter of two suits should directly and substantially be in issue in order to constitute a res judicata within ambit of S.11‑‑Fact that one of issues was common, or that some questions of fact were common or relevant, held, would not warrant application of S. 11

Shahul Hamid v. Tahir Ali 1980 S C M R 469; Muhammad Younus v. Nargis Sultana P L D 1970 Lab. 41; Lal Hussain Akhtar v. The Judge, Family Court, Daska and another P L D 1975 Lab. 1136 and PLD 1970 Lab. 41 ref.

‑‑‑Art. 199‑‑Dissolution of Muslim Marriages Act (Vill of 1939), S.2 (viii)‑‑Constitutional jurisdiction‑‑Fact that a competent tribunal took an erroneous view on a question of fact, held, would by itself not attract constitutional jurisdiction of High Court‑‑Constitutional jurisdic tion could be pressed into service when a finding of fact was recorded on basis of no evidence or contrary to what was available on record‑ Question of appraisal of evidence or assessment of evidentiary value of such evidence or drawing of inferences from such evidence was within the competency of Tribunal constituted for purpose of adjudicating upon a particular dispute.

‑‑‑S. 8‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)‑ Constitution‑ of Pakistan (1973), Art. 199‑‑Re‑appraisal of evidence‑ Family appellate Court, held, was a Court of competent jurisdiction to re‑appraise evidence recorded by trial Court and take a contrary view to that what was recorded by trial Court‑‑High Court could not re‑appraise evidence in constitutional jurisdiction.

‑‑‑Art. 199‑‑Constitutional jurisdiction‑‑Erroneous view on question of fact of a competent tribunal or Court, held, would not warrant re‑appraisal of evidence by High Court in exercise of constitutional jurisdiction‑‑High Court could not substitute itself as a Court of appeal.

Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner PLD 1973 S C 236; Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139; Zulfiqar Khan Awan v. The Secretary, Industries and Mineral Development, Government of the Punjab, Lahore and 8 others 1974 S C M R 530; Abdul Rehman Bajwa v. Sultan and 9 others P L D 1981 S C 522 and Masjid Committee, Tagore Park v. Rashidul Haq and others 1982 S C M R 65 mentioned.

‑‑‑ Khula' ‑Nikah had been performed but Rukhsati not yet taken place‑ Spouses had never lived as husband and wife‑‑Court held, could not readily infer that spouses could not live within limits prescribed by God, though there was no bar of granting a decree in a fit case on ground of Khula even. in case no Rukhsati had taken place‑‑Muslim Family Laws Ordinance (VIII of 1961), S. 8‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(viii).

‑‑‑Khula‑ Satisfaction of Court‑‑Wife is not entitled to claim right of Khula' as a matter of right without satisfying Court that relations between parties were so strained that they could not live within limits prescribed by God‑‑Muslim Family Laws Ordinance (VIII of 1961),S.8‑ Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(viii)‑‑Granting of dissolution of marriage on ground of Khula' was, therefore, dependent upon satisfaction of Court that wife had developed intense dislike or aversion and that it was not possible for her to live within limits prescribed by God. Wife is not granted a right to come to the Court at any time and obtain Khula if she is prepared to restore the benefit she has received. There is an important limitation on her right of Khula'. It is only if the Judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible, that he will grant a dissolution. The wife cannot have a divorce for every passing impulse. The Judge will consider whether the rift between the parties is a serious one though he may not consider the reasons for the rift. That the wife may go wrong if dissolution is not ordered is rather a reason for grant of dissolution of marriage. Islam prefers divorce to adultery. The rights of the spouses as regards dissolution may be summed up by saying that the husband can effect a dissolution himself by pronouncing a divorce, while the wife has to approach the Court and she is to get a dissolution only if the Court regards further continuance of marriage as not proper. But if it does regard continuance of marriage as important, there is no further limitation on its jurisdiction to dissolve the marriage. A woman cannot claim 'Khula' on whims or on fanciful grounds.

The right of 'Khula' is not an unconditional right, but this can be granted by a Court upon satisfying itself that there is such discard, hatred, intense dislike and incurable aversion on the part of the wife that it is impossible for the spouses to live together and perform their marital obligations within the limits prescribed by God.

Therefore, in 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 of the nature which would result in serious disharmony and incompatibility, leaving no chance at all for the parties to live together.

Umar Bibi v. Muhammad Din I L R 25 Lab. 542; Mst. Sayeeda Khanam v. Muhammad Sami P L D 1952 Lab. 113; Mst. Balqis Fatima v. Najamul lkram Qureshi P L D 1959 (W.P.) Lab. 566; Mst. Khurshid Bibi v. Baboo Muhammad Amin P L D 1967 S C 97; Sabet bin‑Qais‑bin Shamas and l.al Muhammad v . Mst. Gul Bibi and another Petition No. 217 of 1983 quoted.

‑‑‑Khu1a'‑‑Compensation‑‑Wife claiming Khula', held, was obliged to return articles or compensation in respect thereon, received by her from husband on account of marriage and also to refund cash amount receives; by her‑‑No legal obligation was placed on wife to pay compensa tion in addition to said articles etc. received from husband‑‑When Khula was obtained by mutual agreement, wife was free to pay any amount in addition to said articles etc. as compensation in order to induce husband to agree to grant of her right of Khula‑‑Muslim Family Laws Ordinance (VIII of 1961), S.8‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(VIII of Para 2619 from Fatawa‑i‑Kazee Khan, 1977 edition Volume‑II quoted.

Iftakhar Muhammad for Appellant.

Nemo for Respondent No. 1.

Basharatullah for Respondent No.2.

Dates of hearing: 23rd and 24th July, 1985.

This petition is directed against the Judgments/ decrees, dated 25th April, 1984 and 11th March, 1985 passed by the learned Civil Judge/Family Judge, Quetta and the learned Additional District Judge‑I, Quettta in Family Suit No. 15/81 and Civil Appeal No. 33/84 respectively. The brief facts leading to the filing of the above petition are that prior to the filing of the aforesaid suit by the respondent No.2, the petitioner had filed a suit for restitution of conjugal rights, whereas the respondent No.2 had filed a suit for jactitation. The petitioner's above suit was decreed by the learned Qazi, Lehri and Dhadar by his judgment /decree, dated 9th July, 1980. Family Appeal No.4/80 was filed by the respondent No.2 against the above judgment/decree but the same was dismissed by the learned District Judge, Sibi Division, Sibi by his judgment /decree, dated 7th October, 1980. Thereupon, the respondent No.2 filed an application for the withdrawal of her aforesaid suit for jactitation, which was allowed to be withdrawn on 26th February, 1981. After that, the respondent No.2 had filed the aforesaid family Suit No. 15 of 1981 for dissolution of marriage on two grounds namely, (i) that she had exercised the option of puberty and (ii) Khula' . The above suit was resisted by the petitioner. The learned Family Judge, Quetta on the basis of the pleadings of the parties framed the following seven issues: ‑

"(1) Whether the plaintiff is estopped from filing the present suit

(2) Whether the suit is not maintainable in view of P/0 B of written statement

(3) Whether the suit is time‑barred

(4) Whether the Court has no jurisdiction in view of P/0 F of written statement

(5) Whether the ground of option of puberty is available to the plaintiff if so, to what effect

(6) Whether the plaintiff is entitled for dissolution of marriage on ground of Khula

(7) Relief "

The respondent No.2 produced ' five witnesses in addition to examining herself, whereas, the petitioner examined himself and a few witnesses. The learned Family Judge after hearing the parties by her above judgment /decree, dated 25th April 1984 dismissed the above suit on both the grounds. The respondent No.2 being aggrieved by the above judgment/decree filed the above Civil Appeal No.33/84, which was allowed by the learned Additional District Judge I, Quetta by his aforesaid judgment /decree, dated 11th March, 1985. The petitioner being aggrieved by the . above judgment/decree has filed the present Constitutional writ petition.

2. In support of the above petition, Mr. Iftikhar Muhammad, learned counsel for the petitioner has urged as follows:‑

(i) That the aforesaid judgment /decree, dated 9th July, 1980 for restitution of conjugal rights in favour of the petitioner constitute constructive res judicata against the respondent No.2 an( therefore, the present suit was not competent;

(ii) That there was no reliable evidence on record on the basis which a decree for dissolution of marriage on the ground exercising the option of puberty could have been passed; and

(iii) That there was no evidence on record on the basis of which decree on the ground of Khula' could have been granted.

On the other hand, Mr. Basharatullah, learned counsel for respondent No. 2 has contended as under:‑

(i) That since the question of exercising the option of puberty 'Khula was not an issue in the previous suit filed by the petition or by the respondent No.2 for jactitation, there was no constructive res judicata against the respondent No. 2;

(ii) That there was some evidence on record on the basis of which decree of dissolution on the ground of exercising the option puberty could have been passed and that this Court while exercising constitutional writ jurisdiction, cannot sit as a Court of appeal; and

(iii) That a married woman is entitled to claim Khula' as a matter right on the condition that she would‑return the benefits obtain on account of the marriage.

3. In order to appreciate the respective conditions of the learn counsel for the parties on the question of constructive res judicata, may be pertinent to quote the issues which were the subject‑matter the suit for restitution of conjugal rights filed by the petitioner an decided in his favour by the Family Court and maintained by the appellate Court. The English version of the issues is given in the judgment of the learned District Judge, Sibi Division, Sibi in the aforesa Family‑ Appeal No.4 of 1980, dated 7th October, 1980, which reads follows: ‑

"(1) Whether the court of Family Judge Dhadar had jurisdiction entertain this suit

(2) Whether the plaintiff was married to defendant Mst. Fatit according to Muslim rights and a validly constituted NIKAH w, solemnised in between the two

(3) Whether any cause of action accrued to plaintiff against defendant Nos. 1 and 2

From the reading of the above issues, it is evident that the was no issue on the question of exercising the option of puberty or the question of Khula'. It is true that in the aforesaid judgment/decree of the learned Qazi/Family Court, doted 9th July, 1980 and the Appellant Court Judgment/decree, dated 7th October, 1980, there is a reference as to the age of the respondent No.2. In this regard, it will pertinent to reproduce para. 11 of the Appellate judgment which reads as follows:‑

"11. Mr. W.N. Kohli, learned counsel for the appellants criticised the evidence of Moulvi Imamuddin (P. W .1) by stating that according to his own saying the Nikah took place about 18 years back meaning thereby that Moulvi Imamuddin who was 30 years old when his evidence was recorded could not be in a position to read the same. There appears some mistake on the face of record. The certified copy supplied by Family Judge Dltadar shows that the Nikah was read about 18 years back. The word appears to have been changed in the original record and this interpolation is visible from the naked eye. It is, however, not known as to who was responsible for this tampering. The statement of Moulvi Imamuddin (P.W.1), if read in full leaves no room of doubt in my mind that the Nikah was performed about 8 years back and not 18 years back. The concluding paragraph of examination in‑chief of the evidence of Moulvi imamuddin (P.W.1) is self‑explanatory. It reads as follows: ‑

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4. In the present suit, the petitioner in his written statement has not raised any plea of res judicata on the question of age. What was pleaded was that the suit was not competent in view of dismissal of respondent No.2's suit for jactitation and because of the decree of conjugal rights in his favour. It was also pleaded that the plaintiff had attained puberty more than six years ago. Thereafter, she accepted the marriage and, therefore, the alleged repudiation of marriage by her in November, 1980 on the aforesaid ground was untenable and barred by time.

5. Mr. Iftikhar Muhammad, learned counsel for the petitioner has referred to the case of Shahul Hamid v. Tahir Ali reported in 1980 SCMR 469, in which, the facts were that the appellant by filing a civil suit obtained a decree that he was a tenant of the Restaurant, namely, 'Garden Restaurant' and not a licensee, but in the subsequent suit, he attempted to take a contrary plea. The Honourable Supreme Court while hearing the Appeal filed by the appellant arising out of the subsequent proceedings dilated on the question of res judicata and held that the plea of rea judicata being of the kind of public policy, the Courts have been allowing the same to be raised even in cases where it may have not been raised in the courts below or may have been abandoned provided the material in support of such plea is available on record.

6. On the other hand, Mr. Basharatullah, learned counsel for the respondent No.2 has referred to sections 41, 42 and 43 of the Evidence Act. It may be stated that section 41 provides that a final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. It further provides that such judgment, 'order or decree is conclusive proof that any legal character which it confers accrued at the time when such judgment, order or decree came into operation etc. whereas, section 42 deals with the relevancy and effect of judgments, orders or decrees other than those mentioned in the above section 41. It may also be stated that section 43 dilates on as to the relevancy of the judgments, orders or decrees other than those mentioned in sections 40,. 41 and 42.

In our view, sections 42 and 43 have no relevancy to the controversy in issue. The only relevant section is the above section 41 of the Evidence Act which indicates that a final judgment or order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, is conclusive proof of that legal character which it confers accrued at the time when such judgment, " order or decree came into operation etc. Mr. Basharatullah, learned counsel for the respondent No.2 has also referred to the following cases: ‑

(i) Muhammad Younus v. Nargis Sultana reported in P L D 1970 Lah. 41, in which Waheeduddin Ahmed, C J. (as he then was), while dealing with the question of res judicata held that in order to attract section 11, C.P.C. it is necessary that there must be identity of the entire subject‑matter of the two suits and that it is also necessary that every‑ matter in dispute should directly and substantially be in issue in the two suits. It was held that an ex parte decree obtained by the appellant for restitution of conjugal rights did not constitute res judicata in a subsequent suit filed by the wife for seeking Khula'.

(ii) Lai Hussain Akhtar v. The Judge, Family Court, Daska and another reported in P L D 1975 Lah. 1136. In the above case a D.B. of the Lahore High Court, inter alia, relied upon the above judgment of P L D 1970 Lah. 41 and reiterated the view taken in the said case on the question of res judicata and held that an ex parte decree for restitution of conjugal rights obtained by the husband against his wife does not constitute res judicata in a subsequent suit filed by the wife for dissolution of marriage on the ground of 'Khula'.

7. We are inclined to hold that in order to constitute a res judicata within the ambit of section 11, C.P.C. the subject‑matter in the two suits should directly and substantially be in issue. The fact that one of the issues is common, or that some questions of fact are common or relevant; would not warrant the application of section 11, C.P.C. In the instant case neither the question of exercising the option of puberty nor the question of Khula' was in issue either in the aforesaid suit for restitution of conjugal rights or in the suit which was filed by the respondent No. 2 for jactitation and which was withdrawn because of the decree passed for restitution of conjugal rights in favour of the petitioner.

8. Adverting to the question of exercising the option of puberty by the respondent No.2. it may be observed that Mr. Iftikhar Muhammad, learned counsel for the petitioner has tenaciously contended that on the basis of the evidence on record, no decree for dissolution of marriage could have been granted on the ground of exercising of the option of puberty by the respondent No.2. We have gone through the evidence on the above question and we find that it cannot be urged that there was no evidence on record on the basis of which a decree on the above ground could have been granted. The learned Additional District Judge 1. Quetta has discussed the evidence on the point and concluded as follows:‑

"It is observed that the evidence on record reveals that the plaintiff /appellant produced six witnesses namely Hazoor Bakhsh, Dost Muhammad, her mother Gul Bibi, Education Clerk, and Shah Muhammad, all the P.Ws. are the unanimous that the plaintiff /appellant was within the age of 3 and half and 4 years when she was given in Nikah to the defendant. So, this is an admitted fact that she was minor at the time of marriage. So far the other point about repudiation of marriage is concerned there is a difference between the statements of the plaintiff /appellant. However, they stated that within two and half years to three and half years back the plaintiff /appellant exercised her right of repudiation of marriage. Some of the P.Ws. were of the opinion that at the time of their statements recorded in the Court the age of the plaintiff /appellant was stated to be within 18 to 20 years. The education clerk who produced the Exh.P.l the age certificate of the plaintiff /appellant revealed that her date of birth was 1st February, 1964. It may be observed that all the P.Ws. were given their opinion about the past incident according to their memory. All the P.Ws. are admittedly illiterate and traditional persons. Traditionally the P.Ws. including the parties due to the illiteracy do not picturise the date of birth of their kids. Only memories count with reference to some other incident occurred in their life. Similar is the case with the D.Ws. The D.Ws. are unanimous that the marriage of the parties was held when the plaintiff /appellant was of 1,0 years old. However the age of .the plaintiff /appellant at the time of their statement is stated to be within 18 to 21 years. Now taking into all these evidence on record one cannot find definite a word that what was the age of the plaintiff /appellant at the time of marriage. As earlier observed that the P.Ws. adduced by the plaintiff /appellant stated that the marriage of the plaintiff /appellant was held when she was 3 years or 4 years old whereas the version given by the D:Ws. was of 10 years of age of the plaintiff /appellant at the time of her marriage.

One fact becomes close to truth for safe presumption that all the witnesses stated that on the time of their statement the age of the plaintiff /appellant was within 18 years to 21 years. On this score even if the age certificate of the plaintiff /appellant is taken out of consideration, the statement of mother of the plaintiff /appellant from the plaintiff /appellant side and statement of Moulvi Imam Din D.W.6 are more reliable in this respect because these two witnesses can be taken natural witnesses close to the fact.

The statement of the mother is more reliable because no witness other than the mother could be proper witness with regard to the age of the plaintiff /appellant however, she can be taken an interested witness but the statement of Imam Din .who claims that he had given education to the plaintiff /appellant and he had seen the plaintiff /appellant throughout this period of more relevant. Moulvi Imam Din stated that the age of the plaintiff/ appellant at the time of his statement was between 18 and 20 years. The statements were obtained during the last months of 1983 or in the beginning of 1984. The suit has been filed in 1981 if the age of the plaintiff /appellant is taken maximum 20 years, in 1983 or in the beginning of 1984. This means that in 1981 at the time of institution of a suit the plaintiff /appellant had attained the age of puberty. So at that time she had already repudiated the marriage with the defendant which was a proper time for repudiation of marriage under the law. Consequently the observation made by the trial Court was not of much deep insight and consideration. , The plaintiff /appellant was not an educated girl and social set up where she was residing, was not such that she could have gone deep into technicalities about her age or other circumstances."

9. It cannot be urged that there was no evidence on record on the basis of which the decree for dissolution of marriage on the ground of exercising the option of puberty could have been granted. This Court on the basis of the evidence on record might have taken a different view in the matter, or might have held that the evidence produced by the respondent No. 2 was not such on which implicit reliance could have been placed. But this fact does not warrant interference by this Court in exercise of constitutional writ jurisdiction. A competent Tribunal may take an erroneous view on a question of fact, but this itself does not attract constitutional writ jurisdiction of the High Court. The High Court's constitutional writ jurisdiction can be pressed into service when a finding of fact is recorded on the basis of no evidence on record, or when it is based on misreading of evidence; namely contrary to what is on record, but the question of appraisal of evidence or the assessment of the evidentiary value of such evidence or drawing of inferences from such evidence is within the competency of a Tribunal constituted for the purpose of adjudicating upon a particular dispute. In the above case, the Family Appellate Court was a Court of competent jurisdiction. It had the same power as the Family Trial Court and, therefore, was competent to reappraise the evidence and to take a contrary view to what was recorded by the Family Trial Court. If reference is needed

to the case law, the following cases may be referred to:‑

(i) Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner reported in P L D 1973 S C 236, in which, the honourable Supreme Court while dealing with the Settlement Laws, inter alia observed that finality given by Legislature to decision of certain Tribunal which also has jurisdiction to decide finally facts upon which its own jurisdiction is founded, cannot be called into question in any collateral proceeding by another Tribunal or body of limited jurisdiction.

(ii) Muhammad Hussain Munir and others v . Sikandar and others reported in P L D 1974 S C 139. In the above case, an order passed by a Member of the Board of Revenue was declared as without lawful authority by a learned Single Judge of the Lahore High Court. The honourable Supreme Court while allowing the appeal against the above judgment and while commenting upon paragraph (ii) of sub clause (a) of clause of Article 88 of 1962 Constitution, observed that the phrase "without lawful authority and of no legal effect" is an expression of art and refers to jurisdictional defects as distinguished from a mere. Erroneous decision whether on question of fact or even of law. It was further observed that it is well‑settled that where a Court or a Tribunal has jurisdiction and it determined that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on question of fact or even of law.

(iii) Zulfiqar Khan Awan v. The Secretary, Industries and Mineral Development, Government of the Punjab, Lahore and 8 others reported in 1974 S C M R 530 in which, the honourable Supreme Court while declining leave against the judgment of the Lahore High Court and on the basis of the above Muhammad Hussain Munir's case of P L D 1974 SC 139, reiterated the view that a Tribunal having jurisdiction to decide a matter, is competent to decide it rightly or wrongly and that mere fact that the decision is incorrect, does not render the same as without lawful authority.

(iv) Abdul Rehman Bajwa v. Sultan and 9 others reported in P L D 1981 S C 522 in which, the honourable Supreme Court while hearing an appeal against the judgment of the Lahore High Court, which was passed in exercise of. constitutional writ jurisdiction arising out of criminal proceedings initiated on the basis of an F.I.R. lodged in Police Station, Sillawali, under section 148/307/447/149, P.P.C. on 21st June. 1976, observed that the High Court while interfering with the orders or judgments of final Tribunals or Courts in exercise of constitutional writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 has only to see whether the Tribunal or the Court acted without jurisdiction or in violation of relevant statute or law as laid down by the superior Courts but the High Court in such cases, cannot embark upon the re‑appraisal of evidence and proceed as if it were hearing an appeal from a subordinate Court.

(v) The Masjid Committee, Tagore Park v. Rashidul. Haq and others reported in 1982 S C M R 65. In the above case, the honourable Supreme Court while allowing an appeal against the judgment of the Lahore High Court passed in exercise of constitutional writ jurisdiction again reiterated the above view and held that the finding recorded by the officer of the Settlement Department having jurisdiction in the matter and the transferee/ respondent not contesting such finding by reference to any document or otherwise, the High Court could not substitute the above finding in exercise of constitutional writ jurisdiction, particularly in the absence of any material before it.

10. From the above referred cases, it is evident that by now, it is well‑settled principle of law that an erroneous view on the question of fact of a competent Tribunal or Court, does not warrant reappraisal of evidence by the High Court in exercise of constitutional writ jurisdiction and the High Court cannot substitute itself as a Court of appeal. In this view of the matter, as pointed out hereinabove, the learned Additional District Judge I, Quetta was competent to take the view, which found favour with him on the basis of the evidence on record. There was some evidence in support of the view. We are, therefore, inclined to hold that the impugned judgment cannot be interfered with on the ground urged by Mr. Iftikhar Muhammad, learned counsel for the petitioner.

11. As regards the grant of decree on the ground of 'Khula' it may be advantageous to reproduce the finding of the learned Additional District Judge I, Quetta on the point, which reads as follows:‑

"So far the issue on the point of Khula decided by the trial Court is concerned, the same is also not a correct view taken by the trial Court. From no circumstance mala fide of the plaintiff /appellant is exposed. On the point of 'Khula' it has been observed that:‑

'When the wife, owing to her aversion to the husband, or her unwillingness to fulfil the conjugal duties, is desirous of obtaining a divorce, she may obtain a release from the marital contract by giving up either her settled dower, or other property; such a divorce is consequently called Khula'.

In the present case, the evidence on the record is unanimous that the dower of the plaintiff /appellant was fixed 9s.32 and that she was not given that money. Moreover, there is no evidence on record that plaintiff /appellant has obtained any other benefit for marriage. In addition to that the relations between the parties remained strained, it was a good ground for claiming Khula'."

It has been vehemently ruged by Mr. Iftikhar Muhammad, learned counsel for the petitioner that there is no material on record on the basis of which the learned Additional District Judge I, Quetta could have concluded that the parties cannot live within the limits prescribed by God as husband and wife.

On the other hand, Mr. Basharatullah, learned counsel for the respondent No.2 has contended that a wife can claim dissolution of marriage on the ground of 'Khula' as a matter of right. Before dilating on the above point, it may be pointed out here that only Nikah had taken place between the petitioner and the respondent No.2, and Rukhsati had not taken place. In other words, the petitioner and the respondent No. 2 have never lived as husband and wife. In a case where the spouses have not lived as husband and wife, the Court cannot readily infer that they cannot live within the limits prescribed by God though there is no bar of granting a decree in a fit case on the ground of 'Khula' even in case where no Rukhsati had taken place. A D. B. of the Lahore High Court in the case of Umar Bibi v. Muhammad Din reported in I L R (1944) 25 Lah. 542, which view was endorsed by a Full Bench of the Lahore High Court in the case of Mst. Sayeeda Khanam v. Muhammad Sami reported in P L D 1952 Lah. 113 took the view that incompatibility of temperament, is not a ground for dissolution of marriage and that it is not possible for a Court to grant a Khula' decree, unless the husbnad consents thereto. In order to examine the correctness of the above view a Full Bench of the erstwhile West Pakistan High Court was constituted in the case of Mst. Balqis Fatima v. Najmul Ikram Qureshi reported in P L D 1959 (W.P.) Lah. 566, in which, B.Z. Kaikaus, J. (as he then was) delivered the celebrated judgment on the question of 'Khula'. It may be advantageous to reproduce hereinbelow, the operative portion of the Full Bench view, which reads as follows: ‑

"42. Let it not be understood that our answer to the question referred grants a right to wife to come to the Court at any time and obtain 'Khula' if she is prepared to restore the benefit she has received. There is an important limitation on her right of Khula'. It is only if the Judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam will not be possible that he will grant a dissolution. The wife cannot have a divorce for every, passing impulse. The Judge will consider whether the right between the parties is a serious one though he may not consider the reasons for the rift.

43. That the wife may go wrong if dissolution is not ordered is rather a reason for grant of dissolution of marriage Islam prefers divorce to adultery.

44. The rights of the spouses as regards dissolution may be summed up by saying that the husband can effect a dissolution himself by pronouncing a divorce, while the wife has to approach the Court and she is to get a dissolution only if the Court regards further continuance of marriage as not proper. But if it does regard continuance of marriage as important, there is no further limitation on its jurisdiction to dissolve the marriage."

12. The above Full Bench view was approved by the honourable Supreme Court of Pakistan in the case of Mst. Khurshid Bibi v. Baboo Muhammad Amin reported in P L D 1967 S C 97. The question which requires consideration is, whether a wife is entitled to claim 'Khula' as a matter of right without satisfying the Court that the relations between the parties are so strained that they cannot live within the limits prescribed by God or whether granting of dissolution of marriage on the ground of 'Khula' is dependent upon the satisfaction of the Court that the wife has developed intense dislike or aversion and that it is not possible for her to live within the limits prescribed by God.

13. In the above Supreme Court case, reference has been made to a well‑known Ahadith pertaining to the wife of Sabet‑bin‑Qais‑bin‑Shamas. According to the above Ahadith, Jameela came to Prophet (Peace be upon Him) and said that she had no reason to reproach Sabet‑bin‑Qais in respect of his morals or his faith but she disliked him. She further stated that having embraced Islam, she did not wish to commit infidelity. Thereupon, the Prophet (Peace be upon him) asked her whether she was prepared to return the garden (Abu Daood has referred to two gardens and not one garden) given by her husband to her in dower. to which, she replied in the affirmative. Then, the Prophet (Peace be upon him) directed the husband to accept the garden and to give her divorce according ‑to one version and as per another version, given by Bukhari, the Prophet (Peace be upon Him) had ordered separation upon return of the garden by the wife to her husband. There is also another Ahadith about Jameela's case which is also in identical circumstances. Kaikaus, J. in his judgment has referred to the case of a woman who sought divorce from her husband in Hazrat Umar's time. In order to test the seriousness of tier demand, Hazrat Umer confined her in a dirty prison, but in spite of that she insisted upon 'Khula'. The above instance during the time of Hazrat Umer is indicative of the fact that a woman cannot claim 'Khula' on whims or fanciful grounds.

14. We are inclined to hold that the right of Khula' is not an unconditional right, but this can be granted by a Court upon satisfying that there is such discord, hatred, intense dislike and incurable aversion on the part of the wife that it is impossible for the spouses to live together and perform their marital obligations within the limits prescribed by God. The above question had come up for consideration before a D.B. of this Court, to which, one of us (Mr. Justice Ajmal Mian, Actg. C.J.) was a party in Constitutional Petition No. 217 of 1983 Lal Muhammad v. Mst. Gul Bibi and another decided on 17th April, 1985 and in this regard, the following observation was made:‑

"Therefore, in order to arrive at the decision with regard to separation of the spouses on the ground of 'Khula' the Court must have complete satisfaction. on the proved facts and circumstances; that there exists disliking or hatred of the nature which would result in serious disharmony and incompatibility, leaving no chance at all for the parties to live together."

We reiterate the above view. Applying the above principle to the present case, we find that the contention of the learned counsel for the petitioner that the learned Additional District Judge 1, Quetta has decided the question of Khula' without going into the real question and without having sufficient material on record, is not without force. However, since we have maintained the judgment of the learned Additional District Judge I, Quetta on the above first, ground, it is not necessary to decide the above question.

15. Before parting with the above discussion, we may observe that it was also urged by Mr. Iftikhar Muhammad, learned counsel for the petitioner that the petitioner was entitled to compensation, if the dissolu tion of marriage was to be granted on the basis of Khula'. Reliance has been placed on para. 2619 from Fatawa‑i‑Kazee Khan, 1977 Edition Volume 11, which reads as follows:‑

"2619. (1719) . So, also if a man marries a woman for a thousand dirhems and has no sexual intercourse with her, and the wife does not realise any portion of her dower, so that the husband makes Khoola with the wife for (a definite and certain amount, that is. for Mal‑i‑moeyan or) a thousand Dirhems (without saying that the Khoola is in consideration of the dower) Aboo Haneefa, on whom be peace, says, that the wife shall be bound to pay a thousand (to the husband on account of the consideration for the Khoola) and she shall not be entitled to realise anything (from the husband on account of her dower). And Aboo Yusoof and Mahomed, on whom be peace, have said that the wife shall pay five hundred to the husband (in cash as a net result) and the other five hundred Dirhems (being part of the consideration for the Khoola) shall be set off in the five hundred due to the wife on account of dower."

Apart from the fact that no such ground has been raised in the writ petition, the above proposition of law submitted by the learned counsel for the petitioner is not tenable on the basis of the above quoted para. A wife claiming Khula' is obliged to return the articles on compensation in respect thereof, received by her from her husband on account of the marriage and also to refund the cash amount received by her but there is no legal obligation to pay compensation in addition to the above items. However if the Khula' is obtained by mutual agreement, a wife is free to pay any amount in addition to the above) items as compensation in order to induce her husband to agree to the) grant of Khula' .

16. For the aforesaid reasons, the above petition is dismissed with no orders as to cost. These are the reasons in pursuance of short order of even date.

M . B . A Petition dismissed.

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