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Writ Petition No.19 of 1986/BWP, decided on 22nd April, 1986.

‑‑‑Ss.5 & 14‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2‑ Khula'‑‑Habitual cruelty‑‑Mere fact that wife had not been able to prove habitual cruelty in accordance with requirements of S.2 of Dissolution of Muslim Marriages Act, 1939, held, would not per se lead to conclusion that disaffection and rough treatment deposed by her had also not been meted out to her by husband‑‑Existence in a wife of hatred for her husband, was a matter of her feelings which get formed from various factors and happenings during coverture and was not always easy to be proved by direct evidence.

‑‑‑S.5‑‑Dissolution of Muslim Marriages Act (VIII of 1939), 5.2‑‑Khula'‑ Hatred‑‑Right of Khula' was allowed to be exercised by Qazi upon his satisfaction that wife had developed intense hatred for her husband and that, in their being forced into a union, parties would not be able to abide by limits laid by God.

‑‑‑Art . 199‑‑Constitutional jurisdiction‑‑Reappraisal of evidence into question of fact‑‑High Court in writ jurisdiction, held, could not make a reappraisal of evidence led in suit and come to different conclusion on question of fact‑‑Function of High Court in constitutional jurisdiction, therefore, could not be regarded a substitute for an appeal not provided by law.

Mst. Mahmooda Begum v. Chief Settlement Commissioner, West Pakistan and another P L D 1962 Lah. 911 rel.

‑‑‑Art. 199‑‑Constitutional jurisdiction‑‑Scope of interference‑‑Limited‑ Scope of interference in Constitutional jurisdiction, held, was limited to those cases where orders impugned were without lawful authority ‑and of no legal effect.

Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 S C 139 rel.

‑‑‑S. 2‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5‑ Constitution of Pakistan (1973), Art. 199‑‑Khula'‑‑Family Court seized of matter, having power to decide it rightly as well as wrongly, committing no legal error in exercise of his jurisdiction‑‑Case for interference by High Court in exercise of writ jurisdiction could not be claimed to have been made out on mere ground that conclusion of family Court in favour of wife with regard to exercise of right of Khula' was incorrect in fact or even in law‑‑Judgment of Family Court upheld.

‑‑‑S .5‑‑Khula'‑‑Consideration‑‑No benefit accruing to wife in consequence of marriage‑‑A lump sum amount claimed by husband to have been paid to wife's maternal‑grandfather, held, was not benefit accrued to her and she could not be considered liable to repay same‑ Husband in his written statement also not claiming specifically any amount which was liable to be paid by her as a consideration for exercise of right of Khula'‑‑Demand of consideration by husband from wife for exercise of right of Khula' not accepted. [p. 259] F

Sh. Hakim Ali for Petitioner. A.R. Tayyab for Respondent.

This writ petition calls in question a decree passed against the petitioner on 31‑fi‑1985 to dissolve his marriage with Mst. Kausar Parveen, respondent No.l on the ground of Khula'.

2. They were married on 5‑10‑1983 and on 25‑9‑1984, she filed a suit for grant of a decree for dissolution of her marriage on the grounds of cruelty and also Khulal. Petitioner contested the suit by denying her allegations. The suit was set down to be tried on only two issues relating to habitual cruelty and exercise of her right of Khula'. Parties led their evidence, upon the consideration whereof learned trial Judge concluded that even though she had not succeeded in proving habitual cruelty to have been practised upon her during the short period of 2/3 months that she lived with her husband, she was entitled to a decree for dissolution of marriage on the ground of Khula' because the relations between the parties were so strained that it was not now possible for them to live together as husband and wife. Finding that she had developed hatred against her husband, learned Family Judge proceeded to dissolve their marriage on the basis of Khula' by holding that since she had not received anything from the defendant and has rather, had to file suits for recovery of maintenance and dower, 'therefore, she was not liable to pay anything as consideration for the same.

3. Mst. Kausar Parveen put in appearance in this case in pursuance of a notice for pre‑admission hearing and stated on 9‑2‑1986 that she had contracted a second marriage with Maqsood Ahmad of village Nurewali.

4. In support of this writ petition, counsel argues that the principal ground taken in the plaint with regard to cruelty having been decided against her, there was really not left any basis for her to exercise the right of Khula and to decree her claim on that basis. It is also contended that her claims with regard to dower and other demands against the petitioner were in need of being adjudged to be the consideration for her exercise of right of Khula. In addition thereto, a sum of Rs.4,000, claimed to have been paid to her maternal‑grandfather Nawab Din for her marriage, was also urged to be liable to be returned on the same count.

5. I do not find merit in any of the foregoing contentions because the mere fact that she had not been able to prove habitual cruelty in accordance with the requirements of section 2 of the Dissolution of Muslim Marriages Act, 1939 would not, per se, lead to the conclusion that disaffectionate and rough treatment deposed to by her had also not been meted out to her by the petitioner and, more particularly so, because she has not been disbelieved on this point by the learned trial judge who appears to have rather considered it as one of the factors for concluding that she is not ready to live with the petitioner at any cost. Furthermore, the existence in a wife of hatred for her husband is a matter of her feelings which gets formed from various factors and happenings during the coverture and is not always easy to be proved by direct evidence. In law, right of Khula is allowed to be exercised by the Qazi upon his satisfaction being reached that s he has developed intense hatred for her husband and that, in their being forced into a union, the parties would not be able to abide by the limits laid by God. Since in this case learned Judge, who heard the evidence of the B parties, has come to that conclusion, therefore, his judgment is clearly correct. In writ proceedings, this Court cannot make a re‑appraisal of the evidence led in the suit ‑and come to a different conclusion on question of fact because such is actually the function of an appellate Court and this Court cannot take upon itself such a function nor can the present proceeding be regarded a substitute for an appeal, not provided by law. In Mst. Mahmooda Begum v. Chief Settlement C Commissioner, West Pakistan and another P L D 1962 Lah. 911, a Division Bench of this Court has held as under:

"There is a fundamental difference between the power to hear appeals or revisions and the power to issue writs. A Court which is competent to hear an appeal or a revision is competent to set aside the order of a Court sought to be appealed from or revised on the ground that in the circumstances of the case the order was not proper or just but when the question to consider is whether or not a writ should issue, the consideration before the Court has to be whether or not the order against which the issue of a writ is sought was within the jurisdiction of the authority which had passed it, and a writ will not issue on the ground that though the order was within the jurisdiction of the tribunal of authority which had passed it, the circumstances of the case demanded that it should not have been passed."

Scope of interference in writs is limited to those cases where the orders impugned are "without lawful authority and of no legal effect". In Muhammad Hussain Munir and others v . Sikandar and others P L D 1974 S C 139, while examining these terms, their Lordships of this Supreme Court observed:‑

"These are expressions of art and refer to jurisdictional defects as distinguished from mere erroneous decision whether on the question of fact or even of law." and held:‑

"It is wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full‑fledged appeal, which plainly is not the intention of the Constitution‑makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."

6. Since learned Family Judge was lawfully seized of the matter and there is not legal error pointed out to have been committed by him in the exercise of his jurisdiction, therefore, he has to be held to have had the power to decide it rightly as well as wrongly and a case for interference is exercise of writ jurisdintion cannot be claimed to have been made out on .the mere ground char hip conclusion in her favour with regard to the exercise of right of Khula is incorrect in fact or even in law.

7. As regards the consideration for exercise of right of Khula, suffice it to say that learned trial Judge has concluded that there is not any benefit accrued to her in consequence of the marriage and hence she is not liable to pay anything in that behalf. Even the alleged amount of Rs.4,000, which is claimed to have been paid to her maternal‑grandfather, though held to have not been proved to be so paid, would not be a benefit accrued to her and cannot be considered her liability to repay. Even her claims for recovery of money which are inchoate at this stage cannot be considered the benefits accrued to her on account to her marriage. Moreover, in his written statement petitioner did not specifically claim any other amount to be liable to be paid to him as a consideration for the exercise of right of Khula, therefore, he cannot now, at this stage, take up the plea that some other unspecified amounts were also liable to be paid to him. Contentions of the learned counsel are‑accordingly repelled.

8. Judgment passed by the learned Family Judge is not open to any valid 'exception and there does not emerge any case for exercise of constitutional jurisdiction of this Court. Hence, dismissed in limine.

M . Y . H . Petition dismissed.

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