' This Constitutional Petition brought by Muhammad Sana Ullah (husband) calls in question the judgment dated 4-3-1983 passed by the learned Judge Family Court decreeing the suit of Mst.
Sajida Parveen, respondent for dissolution of her marriage by way of Khula and that of the learned District Judge dated 9-5-1985.
2. The facts which formed the background of the case are that Muhammad Sana Ullah, petitioner was married to Mst.Sajida Parveen, respondent on 26-12-1973 at. Toba Tek Singh. The spouses lived happily and out of the wedlock two sons were born. It is averred that in June 1977 Mst. Sajida Parveen, respondent, on the instigation of her father, went to live with him and on 17-4-1978 filed a suit for dissolution of marriage, inter alia, on the basis of Khula which was dismissed on 15th April, 1980 by the learned Judge Family Court.
3. In the meantime, Muhammad Sana Ullah, petitioner instituted a suit for restitution of conjugal rights against Mst. Sajida Parveen which was decreed in his favour on 31-5-1980. Mst. Sajida Parveen filed an appeal against the dismissal of her suit for dissolution of marriage which was later on withdrawn by her. Later she filed a fresh suit for dissolution of marriage which was resisted by the petitioner.
' By judgment dated 4-3-1985 the Judge Family Court dissolved the marriage by way of Khula subject to the condition that Mst. Sajida Parveen would deposit nine tolas of gold or its prevalent price of Rs,18,000 for payment to her husband within a period of three months. Feeling aggrieved she filed an appeal against the above decision which was accepted by the learned' District Judge on 9-5-1985, modifying the decree of the trial. Court to the extent "that the plaintiff-appellant is granted decree for the dissolution of her marriage against the defendant-respondent subject to the condition that she will be deemed to have foregone claim for the articles of her dowry in his possession".
4. Learned counsel for the e petitioner has assailed the competency of the appeal filed by Mst.''Sajida Parveen, respondent against the judgment and decree dated 4-3-1985. He has referred to the provision of subsection (2) of section 14 of the West Pakistan Family Court Act-11964 which prohibits the filing of appeal against the decree of the- trial Court based on Khula. At first blush it appeared to be a forceful contention but in deeper study of the provisions it became abundantly clear that the bar contained pertains to certain types of "decrees" and not the "decisions". The legislature has intentionally employed the expressions of "decision" and "decree" in Section 14 of the Act. It is, therefore, clear that there is no bar to call in question the decision of a Family Court by filing an appeal. In the instant case it appears that the appeal was filed by the wife against the conditions imposed by the Judge Family Court which is fully covered by the expression "decisions: used In Section 14(1) ibid. The opinion that I have formed is fortified by the judgment of this Court reported in Mst. Rushda Zareen v. Muhammad Saleh PLD 1976 Lah.1327 cited by the learned counsel for the contesting respondent. If any other authorities are needed on this point reference may usefully be made to Bashira Bibi v. Muhammad Rafiq and 2 others 1982 CLC 1200 and Muhammad Shafi v. District Judge Gujrat 1982 CLC 2057. Even the learned District Judge appears to have been fully conscious of the above legal question while deciding the appeal of respondent No,3 and modified the condition imposed by the learned Judge, Family Court. It cannot, therefore, be said that either in entertaining the appeal and/or accepting the same, the learned District Judge has acted without lawful authority and that the modification of the decision made by him is of no legal effect. There is, therefore, no force in this contention of the learned counsel for the petitioner.
'It was next contended by the learned counsel for the petitioner that since Mst. Sajida Parveen, respondent had not fulfilled the condition imposed, the decree granted on the ground of Khula was ineffectively. Elaborating the point, the learned counsel contended that the effect of the decree was dependent on the fulfilment of the condition imposed on Mst.Sajida Parveen, respondent which she had failed to perform. I have considered this point. Non-fulfilment will not render the decree dissolving marriage on the basis of Khula as ineffective because imposition of conditions merely creates a civil liability and the decree for the dissolution of marriage passed by way of Khula cannot be considered as dependent on requiring the wife to fulfil the conditions first. I am fortified in my view by the judgment of their Lordships in the case reported as Dr. Akhlaq Ahmad v.
Mst. Kishwar Sultana and others PLD 1983 SC 169 wherein it was held that once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage by Khula must take place, the inquiry into the terms on D which such dissolution shall take place does not affect the conclusion but only creates a civil liability with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution. Itself.
5. Learned counsel for the petitioner also :attempted to touch the merits of the case in order to show that respondent No,3 had failed to make out any case attracting the application of the principle of Khula.
In this regard suffice it to say that the trial Court has made an objective assessment of evidence brought on the file and there is, no question of its misreading. I am also satisfied that the trial Court was fully justified to hold that the spouses had gone through such an estrangement that it was not possible for them to live a harmonious life. Thus, it is purely a question of fact which I am not persuaded to disturb in writ jurisdiction. Besides the above reasons, I am also not inclined to interfere in this case for the simple reason that the parties have been litigating for the last about 9 years and further investigation or litigation on the subject is likely to result in an irreparable loss to Mst. Sajida Parveen, respondent as by afflux of time she will go out of the marriageable age if at all, she wants to remarry,.
' For the foregoing reasons, I do not find any force in this petition. Accordingly, it is dismissed. The parties are left to bear their own costs.