' Brief facts in the instant writ petition are that suit for dissolution of marriage on the basis of option of puberty and in alternative dissolution of marriage on the basis of Khula' was filed by the respondent No,2. This suit was contested, issues were formulated, the parties produced their evidence and the learned trial Court after hearing the arguments decreed the suit vide judgment and decree dated 27-6-2003 on the basis of Khula'. This judgment and decree is impugned through the instant writ petition.
2. Arguments advanced by learned counsel for the petitioner are that the impugned judgment and decree is against the law and facts of the case and is the outcome of misreading of evidence. The instant marriage being "Watta Satta" marriage the judgment and decree will impair the happy life of the other spouse. The learned trial Court has ignored the undertaking given by the father of the plaintiff that after obtaining majority in case of default, he will pay Rs,1,00,000 to the petitioner.
3. 1 have heard the learned counsel for the petitioner and perused the record. P.W.1 Mst. Shahida Perveen appeared as her own witness and stated in her examination-in-chief that her Nikah was solemnized by her father and at that time she was minor and when she became major she instituted the suit for option of puberty and at that time she was 15/16 years of age and she was being harassed by the petitioner that he will throw acid on her if she will not contract the marriage.
During her cross-examination she has admitted that when her Nikah came to her knowledge, she was 15/16 years of age and now she is of 17 years and 2/3 years have been passed when she knew about the Nikah and the suit was filed 8/9 months before. Tassawar Abbas defendant/petitioner appeared as D.W.1 as his own witness and stated that his Nikah was solemnized during minority out of exchange marriage. Father of the plaintiff gave undertaking on the stamp paper that if he will not give the hands of his daughter, he will pay Rs,1,00,000 and the plaintiff is of 20 years of age.
4. The learned Judge Family Court after discussing the evidence decreed the suit on the basis of Khula'. The argument advanced by learned counsel for the petitioner is that the condition attached by father of the plaintiff that he will give the hands of the plaintiff in marriage when she becomes major and in case of default he will pay Rs,1,00,000 that must be the consideration of Khula'.
5. I am afraid the argument advanced by learned counsel for the petitioner is not convincing. Any condition made by the deceased father of the plaintiff will not be binding on the plaintiff/respondent as the marriage admittedly was solemnized during her minority without her consent and she has filed suit when she became major.
6. There is clear ,indication in the Holy Qur'an that there is offer and acceptance of marital bondage of spouses when they are sui juris. There is also clear Injunctions of the Holy Qur'an either to take the wife in most respectful way or to let her go with "Ehsan" and this is the most dignified and respectful separation of the marital spouses. There are two ways to dissolve the civil contract of marriage, either by way of divorce by the husband or the other by plea of Khula', which is further divided into two ways, one is by mutual consent when the Court comes to the conclusion that the subsistence of marital bondage will transgress the limits of God Almighty and will crop up in a hateful union far away from peace, affection and love and harmony and then it is through interruption of a Qazi or a Judge to dissolve the marriage on the basis of Khula'. Here a man and a woman are on equal footing in respect of the right of one against the other.
7. In the present case there is an agreement reduced into writing by the deceased father of the respondent, where he has stated that since his daughter is minor and when she will become sui juris, he will wed her with the petitioner and if he defaults in marrying his daughter he will give Rs,1,00,000 as penalty to Hakam Khan son of Chiragh and the learned counsel for the petitioner terms as consideration of Khula'. This agreement is dated 12-3-1991.
8. In Islam such stipulations or conditions are altogether illegal and not binding on the girl who is given in marriage during minority rather these are ultra vires of the rights of the parties to the marriage. Since marriage is a civil contract between the two sui persons. Therefore, no condition can be placed on such bondage by any person who is stranger to the civil contract and to a woman who specifically repudiates the same on coming of majority as the marriage was solemnized without her consent. Under the established concept of Khula' no condition or stipulation entered into by the father of the respondent can be taken as consideration of Khula', it is only the benefits which are derived by the wife only.
9. It is settled proposition of law that Tribunals below when they have the jurisdiction and lawful authority to decide the matters on merits it is not open to interference in Constitutional jurisdiction unless and until a grave miscarriage of justice or legal infirmity is established by the party in the Constitutional jurisdiction, therefore, the instant writ petition being devoid of force is dismissed in limine.