' Facts necessary for the disposal of this petition are that Mst. Zainab Mai, respondent No,1, filed a suit against the petitioner for dissolution of marriage inter alia on the grounds of option of puberty and Khula' . It was contested by the petitioner. He controverted the allegations contained in the plaint and alleged that marriage was consummated and that respondent No,1, had been living with him as wife for the last more than 10 years. An objection regarding territorial jurisdiction of the family Court was also raised.
2. The learned Family Court framed issues except that on Khula' , however, evidence on that ground was also produced on record. The suit was ultimately decreed on 8-2-2003 by Family Judge, Jalalpur Pirwala A on the basis of Khula' on condition that respondent No,1 would not be entitled to claim her dower. It was observed that the petitioner did not produce any cogent evidence regarding any benefit conferred on the wife as a consideration of marriage and it was also held that the Court had the territorial jurisdiction.
3. After the evidence was concluded the petitioner moved an application praying that respondent No,1, be subjected to medical examination for ascertaining if she was a virgin as was alleged by her but his said application was dismissed by the Family Court on the same day vten the impugned judgment was passed.
4. The aforesaid judgment and order dismissing the application for medical check-up of respondent No,1, are called in question in this Constitutional petition as void, without jurisdiction, without lawful authority and of no legal effect on the following grounds:-- (i). Order for medical examination of respondent No,1, was meant for resolving the controversy regarding exercise of the right of puberty by respondent No,1, who had alleged that marriage was not consummated and the same was denied by the petitioner whose stance was that marriage was consummated and respondent N.o.1, had been living as his wife.
(ii). Evidence was misread and overlooked by the Family Court.
(iii). There was no issue regarding Khula' , therefore, decree for dissolution of marriage on the said ground could not have been legally passed; hence the impugned judgment is arbitrary and fanciful, and (iv). The evidence was not properly appraised otherwise it was established on record that petitioner was not residing in Jalalpur Pirwala.
5. I have heard the learned counsel for the petitioner. Writ petition and its annexures also perused.
6.Perusal of order dated 8-2-2003, whereby petitioner's application for medical examination of respondent No,1, was dismissed, shows that the said respondent was not ready and willing for medical examination. An unwilling person could not be legally compelled to undergo medical examination hence no illegality was committed by the Family Court in refusing the aforesaid prayer of the petitioner. At the most an adverse inference could have been drawn on account of unwillingness of respondent No,1, but since no finding was given by the Family Court on the point of exercising the option of puberty by respondent No,1, the said adverse inference Was not drawn as it would have been of no legal consequence in the said circumstances when no finding was given on the option of puberty. The marriage was dissolved on the sole ground of Khula' .
7. Pre and post reconciliation proceedings had admittedly failed. Not only in the plaint but also during her statement as P.W.1, respondent No,1, had specifically alleged that she had developed aversion towards the petitioner; that she hated him strongly and it was not possible for her to live with him as wife within the limits ordained by the Allah and would prefer death rather than to live with the petitioner. She also stated that she is prepared to forego her dower as a consideration of Khula' . In the said circumstances the Family court had rightly drawn the conclusion that refusal to dissolve marriage would amount to forcing the wife (respondent No,1) into a hateful union, which was not desirable.
8. It is well-settled that wife as per her own statement to the effect that she had developed hatred against the husband and there was no possibility of reunion, is entitled to dissolution of marriage on the ground of Khula'.
9. Since the ground of Khula' was taken up in the plaint and evidence on the said ground was also produced, the Family Court was empowered to consider whether on the basis of evidence marriage should be dissolved on the principle of Khula.
10. Wife is entitled to Khula as of right if she satisfies the Court that she had developed fixed aversion towards the husband and refusing dissolution would mean forcing her into a hateful union. Hence dissolution of marriage on the ground of Khula, on the basis of evidence produced on record, in spite of the fact that specific issue regarding Khula was not framed, was valid.
11. Contention of the petitioner's counsel that evidence was not correctly appraised and that it was proved on record that the petitioner did not reside in Jalalpur Pirwala cannot be considered because finding of fact recorded by Family Court cannot be substituted in writ jurisdiction on the ground that another view is also possible on the same evidence.
12. A perusal of impugned judgment shows that findings recorded by the Family Court on the issue of jurisdiction as well as on other issues have been given after having examined and assessed the evidence and are based on sound and plausible reasoning. Such findings cannot be successfully assailed in Constitutional jurisdiction.
13. For the foregoing reasons, the writ petition is devoid of any merit, it is accordingly dismissed in limine.