' This constitutional petition seeks to challenge the order of XV1Ith Civil Judge/Family Court Judge, Karachi, dated 27th October. 1981 whereby the learned Judge had decreed the suit of the respondent for dissolution of marriage by way of Khula'. It was Suit No, F-1481 of 1979. The facts of the case leading to this constitutional petition are as under :- ' The parties were married some times in 1976 and according to the petitioner, the Rukhsati had never taken place. Whereas according to the respondent, the marriage had been consummated inasmuch as on one occasion only they had valid retirement. Thereafter the parties separated and started litigations with each other before the filing of the above suit.
2. Before taking up the facts of the above suit it would be appropriate to refer to the previous litigations so as to determine the extent of bitterness of relations between the spouses.
' In the year 1976 the petitioner filed a suit against the respondent for restitution of conjugal rights in the Family Court, Karachi. It was F. S. No, 2015/1976. Soon thereafter the respondent also filed a suit for jactitation of marriage against the petitioner pleading that she was never married to the petitioner and in the alternative it was pleaded that the Nikahnama was got executed by force and misrepresentation. The learned Family Court Judge consolidated both the earlier suits and decided the same by a common judgment, dated 30th April, 1979, whereby the petitioner's suit for restitution was decreed while the respondent's suit for jactitation was dismissed. During the said litigation the respondent had also filed a criminal case against the petitioner in respect of the document which was allegedly got executed from her by force. She had also gone to the extent of saying that the appellant had raped her. Nothing is known about the fate of the criminal case.
3. However, after the decision of the previous suits on 30th April, 1979, the respondent filed a fresh suit for dissolution of marriage out of which the present petition has arisen. In her suit the respondent had alleged that the petitioner is a crippled man, that it is not possible for her to live with him within the bounds of Allah and that the marriage should be dissolved by way of Khula, in consideration of which she was prepared to forego the dower amount of Rs, 10,000. The petitioner contested the suit alleging that the respondent had entered into marriage with her voluntarily, that the petitioner is not suffering from any physical disability and that she was not entitled to Khula'. It has not been denied that Rs, 10,000 was fixed as deferred dower for the marriage.
4. The learned Family Court Judge framed three issues which are as under :-
(1) Whether the suit is not maintainable ?
(2) Whether the plaintiff (respondent) is entitled to dissolution of marriage by way of Khula ?
(3) Relief.
' After recording the evidence of the parties, who were the only witnesses in the case, the learned Family Court Judge decided Issues Nos. 1 and 2 in favour of the respondent and consequently decreed the suit.
5. The first contention of Mr. S. M. Afzal learned counsel for the petitioner is that the second suit for dissolution of marriage out of which this constitutional petition has arisen, was not maintainable because her previous suit for jactitation of marriage was dismissed by the Court and a decree for restitution of conjugal rights was also effective. It is not the contention of the learned counsel that the second suit was barred by way of res judicata. From perusal of the facts of the previous suit for jactitation filed by the respondent and the facts of the present suit for dissolution of marriage, it would transpire that the two suits are based entirely on different causes of action. In the first suit there was no specific denial of the marriage on the part of the respondent. She had simply pleaded that the Nikahnama was got executed from her by force and as such she was entitled to a decree for jactitation and to prevent the petitioner from calling her as his wife. The learned trial Court in that suit held that the respondent had failed to prove that the Nikahnama was result of any fraud, coercion or misrepresentation. In this view of the matter he came to the conclusion that the parties had entered into a valid marriage. The second suit was filed by the respondent on entirely different cause of action. She has pleaded that the appellant is a crippled man, that although she had met him only once which amounted to short consummation of marriage, but there after she developed hatred for the petitioner and found it impossible to live with him. The learned trial Judge relying on this evidence, came to the conclusion that it was not possible for the spouse to live together within the bounds of Allah and as such she were entitled to Khula on consideration of waiving her claim for dower of Rs, 10,000.
6. Petitioner Muhammad Haroon admitted in his deposition that even Rukhsati had not taken place.
He thus denies even the factum of consummation of marriage. He further states that a false criminal case was filed by the respondent against him before the present suit. He also spoke about the previous litigations between the spouses inter se. He has denied that he is crippled and asserts that he is prepared to keep the respondent with him as his wife. The contention of the learned counsel for the petitioner that the second suit of the respondent was barred by A virtue of the previous suit for jactitation has, therefore, no substance.So far as the right of Khula is concerned, it was never asserted by the respondent in the previous suit. It seems that as a result of the previous civil and criminal litigations between the parties the relations between them had become so strained that the respondent justifiably felt that it was impossible for her to live with the appellant.
She was, therefore, entitled to bring fresh suit on a fresh cause of action which had arisen to her as a result of the previous litigations, which litigation had generated ill-will and hatred between the parties.
7. It has further been contended by Mr. S. M. Afzal that the respondent has failed to prove her case for Khula and that the decree is based on no evidence at all. In support of .This plea he has relied on the case of Muhammad Bilal v. Nasim Akhtar and another (I). In the above case the wife had sued the husband for Khula on three grounds namely, (I) that the husband was cruel. (2) that he was impotent, and (3) that he forced her to lead an immoral life. During the trial of the case before the Family Court Judge, the wife had failed to prove any of these allegations. The High Court, therefore, held in exercise of writ jurisdiction in the above case that K hula' could not be granted when there was no evidence and moreover the right of Khula does not depend on the mere desire of the wife.
8. The above case is not attracted to the facts of the present case, because there is a definite finding of fact of the trial Judge based on the evidence of the respondent that it was not possible for the parties to live within the bounds of Allah. Once the Family Court Judge comes to the conclusion on the basis of material on the record that the spouses cannot live together within the limits of Allah then he would be justified in dissolving the marriage by w ay of Khula on terms and conditions appropriate to the facts of the case. This is the established principle on which Khula' is granted in view of the law laid down by various High Courts and the Supreme Court. In the case of Muhammad Nawaz v. The Family Court Judge and another (2) it was held by the Lahore High Court in exercise of Constitutional jurisdiction that if the Family Court Judge comes to the conclusion that the parties would not keep limits of Allah then no discretion is left with the Court not to grant Khula.
In another case of Mst. Hakimzadi v. Nawaz Ali (3) it was held that under the Muslim Law a wife was entitled to obtain divorce by Khula on the condition that she restores benefits received by, her from her husband and that it was not necessary for the wife to prove each and every allegation against her husband. In this case the wife had claimed Khula on the ground of maltreatment, immoral conduct of her husband and false charge of adultery laid by the husband against her. The wife had failed to prove these allegations still the learned Judge held that it was the right of the wife to obtain Khula on return of the benefits received by her from her husband.
9. Another case referred to in this connection by the learned counsel for the respondent is of Abdul Rehman v. Family Court Judge and
(1) 1983 CLC 2390 (2) 1.979 CLC 174
(3) PLD 1972 Kar. 540 ' another (1). In this case the Family Court Judge had dismissed the suit of the wife for Khula on the ground that the wife had not made out a reasonable cause for her aversion towards the husband.
The High Court in exercise of Constitutional jurisdiction repelled the view taken by the trial Court and held that "law has left to the Court to satisfy its conscience that parties could not live in marital union within limits of God. It was further held that if the wife has developed aversion towards her husband and has become adamant this difference would be a ground for Khula, but she will have to forego her dowers and other benefits received from the husband."
10. In view of the above legal position the finding of the trial Court in the present case that the respondent had made out a case for Khula is u exceptionable. The husband and the wife had been in litigations, civil and criminal, for the last six years. The respondent has stated in her deposition that she is not prepared to live with the appellant at any cost. The appellant himself has, during the last six years, failed even to get a formal Rukhsati ceremony held as a consequence of the marriage. This long drawn out litigation between the parties by itself is a circumstance to indicate that the relations between the parties are severely strained and that it would be futile to expect that they can live happy together as husband and wife.
' For the above reasons no interference is called for with the finding of facts arrived at by the trial Court Judge as to the circumstances justifying the Khula. Consequently the petition is dismissed in limine.