IJAZ-UL-HASSAN KHAN, J.---Precisely narrated the facts leading to the filing of this writ petition are that Zeb Sar petitioner married Mst. Kausar respondent according to the rites of Islam somewhere in 2000. Unfortunately, after some days of marriage relations between the couple started deteriorating due to stated ill-treatment of the petitioner and his parents with the respondent.
Resultantly, the respondent left the abode of her husband and started living in the house of her uncle. The respondent . Filed Suit (No,27/FC) on 7-5-2002 against her husband Zeb Sar petitioner, before learned Civil Judge/Judge Family Court, Tehsil Matta District Swat, for dissolution of marriage, recovery of dower, recovery of maintenance and return of dowry articles worth Rs,29,500.
In the plaint it was averred that at the time of marriage 7 tolas of gold was fixed as dower; that after marriage relations between the couple were cordial but thereafter, in-laws of the respondent made her life miserable and that the matter took an ugly turn when on one night, father of the petitioner entered into the room of the respondent with intent to outrage modesty of the respondent. This incident obliged the respondent to leave the house of the petitioner and take shelter in the house of her uncle.
2. In the written statement submitted by the petitioner husband, allegations of respondent-wife were totally denied and she was alleged to have left the house of petitioner-husband happily in order to spend Eid in the house of her parents. The pleas of the parties were reduced to the following issues:--
(1) Whether the plaintiff possesses a cause of action to file suit?
(2) Whether suit of plaintiff is bad in law and liable to rejection?
(3) Whether the plaintiff is estopped by her conduct to file suit'?
(4) Whether the suit is hit by the doctrine of res judicata?
(5) Whether this Court has got jurisdiction to hear the suit?
(6) Whether the suit is bad for non-affixing proper court fee?
(7) Whether at the time of `Nikah' 7 tolas gold was fixed as dower and same had been paid to the plaintiff?
(8) Whether the plaintiff is entitled for recovery of maintenance allowance at the rate of Rs,2,000 per month?
(9) Whether the plaintiff is entitled for dissolution of marriage?
(10) Relief.
3. In support of her case Mst. Kausar appeared in the witness-box as P.W.1, repeated the allegations contained in her plaint and stated that she has developed hatred for her husband and that she is not prepared to live with him under any circumstances. She is prepared to relinquish her dower and maintenance etc. In case she is relieved of the marital bond. Muhammad Yar (P.W.2) father of Mst. Kausar also stated that after marriage relations between the couple were not happy and Mst.
Kausar was obliged to leave the house of her husband on account of bad intentions of her father- in-law. As against this Zeb Sar appeared as D.W.1 and repudiated the allegations levelled by his wife Mst. Kausar. He admitted that at the time of marriage 6 tolas gold was fixed as dower which has been paid. He also stated that Mst. Kausar left his house happily without any fault on his part and declined to come back despite several Jirgas. Sharoz Khan (D.W.2) supported the version of Zeb Sar and stated that a Jirga was convened to restore normal relations between the petitioner and respondent and a deed (Exh.D.W. 1 l) was executed in the Jirga. This deed bears his signature.
The petitioner is willing to take back the respondent to his house but her parents were adamant to disallow her to join the conjugal domain of the petitioner-husband.
4. After having heard the arguments of learned counsel for the parties in the light of the material available on the file, learned trial Judge, proceeded to hold that it is manifest from the record that petitioner-husband is willing to take back the respondent-wife to his house but she is not prepared to it; that the factum of cruelty and ill-treatment at the hands of petitioner-husband has not been proved; that respondent-wife left the house of petitioner-husband of her own; that 7 tolas of gold was fixed as dower at the time of marriage which has been received by the respondent-wife and that the onus to prove return of dowry articles was on the petitioner-husband but he has failed to discharge the same and as such respondent-wife is entitled for recovery of the same. Having held so, the learned trial Judge came to the conclusion that respondent-wife is not entitled for dissolution of marriage, dower and maintenance allowance. Ultimately vide judgment and decree dated 14-11-2002 suit of respondent-wife for dissolution of marriage, dower and maintenance was dismissed and it was decreed qua return of dowry articles.
5. Both the parties feeling aggrieved filed appeals (Family Appeal No,12/FC of 2002 and Family Appeal No,2/FC of 2003) which were heard by learned Additional District Judge/Izafi Zila Qazi, Swat Camp Court at Matta. The learned appellate Judge by virtue of his judgment dated 11-2-2003 dismissed the appeals regarding return of dowry articles and payment of maintenance allowance.
However, appeal of Mst.Kausar was partially accepted and she was held entitled for decree for dissolution of marriage through 'Khula' on return of six tolas of gold to husband-petitioner.
6. The petitioner-husband having no other adequate remedy has approached this Court through instant writ petition with the prayer that on acceptance of writ petition, judgment and decrees of learned lower Courts be declared as unlawful and the same be set aside. The suit of respondent No,1 be dismissed in toto whereas the suit of petitioner pending in the Court of respondent No,4 be decided according to law and disposes of the same in the light of evidence and in consonance with facts and law.
7. Sheikh Wazir Muhammad, Advocate appearing on behalf of the petitioner-husband forcefully contended that the material available on record has not been properly assessed and appreciated by the learned Appellate Court which has resulted in manifest injustice. The learned counsel submitted that nothing was brought on the file to demonstrate that after marriage relations between the couple were not cordial and life of the respondent-wife was made miserable by the petitioner-husband and his parents which obliged the respondent-wife to abandone the house of petitioner-husband and take abode in the house of her uncle. The learned counsel also asserted that a wild and bald allegation was levelled by the respondent wife against her father-in-law, an old man of more than sixty years of age in order to create a ground for dissolution of marriage. The learned counsel submitted that at the relevant time father-in-law of the respondent-wife was in Saudi Arabia in connection with labour and as such the question of his having bad eye on the respondent-wife, does not arise. The learned counsel reiterated that 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' and there is apparently no justification whereby the Court could lawfully exercise jurisdiction of granting right of 'Khula' to the wife.
8. It needs no reiteration that 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 any arbitrary, capricious, or whimsical manner. Islam undoubtedly has conceded right to wife to seek dissolution on the ground of 'Khula' in extreme circumstances. 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. For allowing wife authority to exercise this right there must exist reasonable proof, sufficient for the satisfaction of Qazi showing incompatibility of temperament including total lack of sympathy between husband and wife resulting in resistence to mutual adoption. 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 limits prescribed by God: and subject however to restoration of partial or total benefits received by the wife in connection with marriage.
9. In the instant case we find that respondent-wife has developed intense hatred and aversion for her husband on account of his cruel treatment and she is not willing to live with him under any circumstances. She is prepared to forego her dower amount and maintenance in case she is relieved of the marital bond. She has also levelled a serious allegation against her father-in-law and blamed him for having made an unsuccessful attempt to outrage her.,modesty. Admittedly at present the respondent-wife is residing in the house of her uncle and during the period of separation she has not been provided the maintenance allowance. The mere fact the petitioner husband deputed Jirgas to secure return of the respondent-wife, by itself, is not sufficient to indicate that he is interested in cohabitation. And that the respondent-wife left the house of petitioner-husband of het-own without any fault on his part.
10. Having heard the arguments and submissions of learned counsel for the petitioner-husband with reference to the material on record we find that in view of the above circumstances and unhappy relations between the couple, there existed genuine cause for their separation on the basis of 'Khula'. In such eventuality, the spouses cannot be forced to live together in a hateful union and within the limits ordained by Almighty Allah and in such a situation, Qazi is bound to terminate the marriage tie between the husband and wife. The learned counsel has not been able to point out any illegality or jurisdictional defect in the impugned judgment. There is difference of temperaments between the couple, therefore, it would be better for them to separate from each other and dissolve the marriage than to continue the same to lead the critical and unpleasant life.
11. It is well-settled that writ iurisdiction 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 proceedings causing palpable injustice. In that case jurisdiction of High Court can always be invoked to rectify the wrong and injustice occasioned to a party, on the basis of admitted facts as held in Abdur Rahim v. Mst. Shahida . Khan (PLD 1984 SC 329) and Muhammad Siddique v. Kalsoom Bibi and others (1984 SCM R 523). In the present case no such circumstance has been demonstrated successfully justifying interference of this Court in its Constitutional jurisdiction.
12. In the result and for the foregoing reasons, finding no substance in this writ petition we dismiss the same in limine.