' IJAZ-UL-HASSAN KHAN, J.--- This writ petition impugns the legality of the judgment and decree of the learned Civil Judge/Judge, Family Court, Mardan, dated 31-7-2003 whereby suit of respondent wife was partially decreed to the extent of dissolution of marriage, recovery of maintenance and return of dowery articles etc. And suit of petitioner husband for restitution of conjugal rights was dismissed.
2. Shortly narrated the facts are, that Muhammad Asad Khan petitioner married Mst. Sadaf Niaz respondent on 28-2-2000 in consideration of 23 Tolas of gold ornaments, 1/5th share of built-up house situated at Tarnab, Tehsil and District Charsadda and a piece of land, measuring 32 Kanals as dower. Spouses lived together after the Rukhsati of respondent on 1-4-2000. Unfortunately relations between the couple became strained which led Mst. Sadaf Niaz respondent to file suit on 27-3-2003 for dissolution of marriage, recovery of dower, maintenance and dowery articles etc. The dissolution of marriage was sought on the ground of cruelty by her husband and his relations, impotency of husband, difference in temperaments between the parties and non-payment of maintenance allowance since she was residing in her parent's house. The petitioner husband also instituted suit for restitution of conjugal rights. Both the suits were consolidated. Out of the pleadings of the parties as many as 20 issues were formulated for trial. Upon consideration of the material on record, learned trial Judge found that pleas of impotency, cruelty and mental retardation were not proved and respondent wife was not turned out of her husband's house as alleged. Having held so, suit of the respondent wife was partially decreed and counter-suit of the petitioner husband was dismissed, as mentioned and detailed above.
3. Qazi Muhammad Jamil, Advocate, learned counsel for the petitioner vehemently contended that the impugned judgment and decree has been recorded in a mechanical manner without application of independent judicial mind and contrary to the material on record and as such same cannot be allowed to remain intact. The learned counsel reiterated that once it was not proved that respondent's wife was turned out of her husband's house, it is established that she was not performing her conjugal duties by living separately from her husband and therefore, she was not entitled for grant of maintenance allowance. The learned counsel also maintained that the alleged hatred towards her husband without any overt contribution towards that hatred by the husband, is not ground for dissolution of marriage.
4. Mr. Amir Zeb, Advocate, learned counsel for the respondent wife fully supported the impugned judgment and decree and asserted that the same does not suffer from any fundamental vice so as to attract Constitutional jurisdiction of this Court.
5. Having heard the arguments of learned counsel for the parties with reference to the material available on record, we find that after marriage, relations between the couple were not cordial which led the respondent wife to file suit against her husband for dissolution of marriage and recovery of dower and maintenance allowance etc. It appears to us that respondent wife has developed a fixed aversion for her husband and it is no more possible for the couple to live together as husband and wife within the limits ordained by Allah. Having regard to facts and circumstances of the case, we find that the learned trial Judge had valid reasons to dissolve marriage of the parties on the basis of "Khula". The finding to the effect is unexceptionable and warrants no interference. The same is maintained. So far as the question regarding maintenance is concerned, it has come on record through the mouth of respondent wife that maintenance was offered to her by the petitioner husband but she refused to receive the same. After considering the matter from every angle, we find that respondent wife left the house of petitioner husband of her own and as such she was not entitled for grant of maintenance allowance. It is well-settled law that if a wife refuses, without any lawful justification to live with her husband, she is not entitled to any maintenance. We also agree with learned counsel for the petitioner husband that in case respondent wife could not habitate with her husband, she could ask for "Khula" on the ground of alleged hatred with all the consequences flowing therefrom. She would not be entitled to the benefit of dissolution of marriage under the Act, on the other hand, she will have to surrender the benefit in the form of "Mahar" etc. Derived from her husband.
'In the result and for the foregoing reasons, we find that the learned trial Judge was fully justified to dissolve marriage of the couple on the basis of "Khula" but she had no valid reason to award maintenance allowance to the respondent wife. The writ petition is disposed of in the above terms.