' MUHAMMAD ALAM KHAN, J.---Mst. Nageena Bibi daughter of Zulfiqar, Caste Sahoo, resident of Paharpur, District D.I. Khan has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to set-aside the judgments and decrees passed by respondents Nos. 2 and 3, dated 6-10-2005 and 16-5-2005 respectively, vide which the relief of dower and maintenance was granted to the petitioner by the learned two Courts below but her prayer for dissolution of marriage was refused.
2. Pre-admission notice was issued to respondent No,1 and in spite of service he did not appear and thus, he was placed ex parte vide order of this Court, dated 13-3-2008.
3. Briefly, narrated the facts of the case are that the petitioner filed a suit for the recovery of cash dower amounting to Rs,1000, golden ornaments weighing three tolas and a house fully detailed in the head notes of the plaint. The defendant submitted detailed written statement vide which the allegations in the plaint were hotly contested. After recording of pro and contra evidence and hearing the learned counsel for the parties and consulting the data available on record, the learned Judge Family Court (Respondent No,3), vide judgment and decree in suit A No,to/FC of the year, 2005 decided on 16-5-2005 decreed the suit of the petitioner with respect to the recovery of three tolls golden ornaments, Rs,1000 as dower amount, recovery of the suit house detailed in the heading of the plaint and maintenance at the rate of Rs,1000 per month from 25-4-2004 till 16-5- 2005. However, her prayer for dissolution of marriage was dismissed. The petitioner then filed an appeal before the learned District Judge, D.I. Khan who, while concurring with the learned Judge Family Court, dismissed the appeal of the petitioner Mst. Nageena Bibi vide FCA No,5 of 2005, decided on 6-10-2005.
4. Now Mst. Nageena Bibi has assailed the judgments and decrees of the two Courts below only to the extent of refusing her prayer for dissolution of marriage.
5. It was argued by learned counsel for the petitioner that the attitude of respondent No,1 towards the petitioner was cruel and he used to subject her to physical beating and even refused to maintain her and in wearing apparels she was forced to leave the house of her husband and thus, she took shelter in the house of her parents. It was prayed that on these grounds the petitioner was entitled to dissolution of marriage.
6. After partly hearing the learned counsel for the petitioner, the petitioner came forward and recorded her statement on Oath that it is not possible for her to live with the respondent within the limits prescribed by Allah Almighty, and thus, opted for dissolution of marriage on the ground of Khula in lieu of the suit house decreed in her favour by the learned Judge Family Court, respondent No,3.
7. We have gone through the record of the case as well as material available on the file, the submissions of learned counsel for the petitioner and the statement of the petitioner recorded on Oath.
8. Perusal of the record reveals that there is difference in the temperaments of the parties. The relations inter se the parties have become so strained to have a happy union and to live within the limits prescribed by Allah Almighty and the petitioner is entitled to the decree for dissolution of marriage on the ground of Khula.
9. Resultantly, we accept this writ petition and modify the judgments and decrees of the two Courts below only to the extent that decree for dissolution of marriage is granted to the petitioner against respondent No,1 on the basis of Khula subject to the condition that the petitioner will not claim the house decreed in her favour as she has claimed the Khula in lieu of the house. No order as to costs.