These two Constitutional petitions Nos. 5205 of 1983 and 393 of 1984 arise out of a matrimonial dispute between the parties and are being decided together.
2. According to the case of Mst. Nasim Akhtar petitioner, she was married to Muhammad Athar Siddiqui about 21/22 years and out of the wedlock two children namely Farkhanda and a son Muhammad A.I were born. It is alleged that in September 1978 the petitioner was turned out of his house by respondent No.3 after pronouncement of Talaq and ever since then she is living separately. She had filed a suit for jactitation of her marriage on 29th of October 1979 which was however, dismissed by the Judge Family Court, Sheikhupura. Thereafter a suit for dissolution of marriage was filed at Lahore by her which was dismissed for non-prosecution. The present suit was subsequently filed by the petitioner in which she sought dissolution of her marriage on the ground of cruelty at the hands of respondent, Lian i.e. False charge of adultery and Khula.
3. This suit was resisted by the respondent who controverted all the allegations made by the petitioner. The suit was dismissed by the Judge Family Court, Lahore on 2nd of March 1983. The appeal filed by the petitioner was rejected by an Additional District Judge at Lahore on 13th of November, 1983. By these Constitutional petitions the petitioner has assailed the dismissal of her suit for dissolution of her marriage and decree for restitution of conjugal rights passed in favour of the respondent.
4. The learned counsel for the petitioner has contended that the two Courts below, while deciding the two suits have misread the record and have failed to consider material evidence produced by the petitioner in support of her case. The learned counsel for the respondent on the other hand has urged that the decision of the two Courts, on questions of fact cannot be interfered with in the constitutional jurisdiction this Court.
5. From a perusal of the order passed by the Judge Family Court it is quite evident that he had not at all adverted to the evidence on record but has based his decision on mere conjectures. He has neither discussed nor considered the statements of witnesses produced by the parties though he was under a legal obligation to do so. Although there was no issue with regard to the territorial jurisdiction of the Family Court at Lahore yet strangely enough the Judge Family Court, recorded a finding on this aspect of the matter which was uncalled for in the circumstances of the case. As far the Additional District Judge, he too, has failed to take the entire material into consideration. The petitioner, in order to show that false charge of adultery has been levelled against her by the respondent, had produced in evidence a statement made by a the respondent in previous proceedings between the parties which was not considered. Similarly the averments of the respondent in the suit for restitution of conjugal rights as also in the written statement were not noticed. The Additional District Judge, proceeded on an erroneous assumption that it was for the petitioner to have proved that the charge of adultery levelled against her by a the respondent was false. This assumption on the part of the Additional District Judge, is contrary to l, law. It will be useful to reproduce the observations made by a Division Bench of this Court in case Ghulam Bhik v.
Mst. Hussain Begum [PLD 1957 (W.P.) Lahore 9981 which are as under:-- "The correct position appears to be that the case of the wife should be that the charge against her is not true but she is not bound to prove the falsity of the charge. It is for the husband to show that the charge is true if that be his case. So a dissolution is to be based on a charge of adultery which is denied and which is not proved to be true."
It was thus incumbent upon the two Courts below to have given a finding on the two aspects highlighted in this authority which also makes it clear that the burden to prove that the charge against the wife was correct, is on the husband.
6. Similarly, the decision of the Judge Family Court as also the Additional District Judge on the issue of Khula is not sustainable. The two Courts have wholly based their decision on this issue, on the finding recorded by them on the other two issues arising in the case. This course of action is not countenanced b law. It is well-settled that the prayer of dissolution of marriage on the basis of Khula cannot be refused merely because, the other grounds raised in support of plea for dissolution are found against the wife. The decision on issue of Khula is not necessarily dependent upon the findings on other issues. The Courts below have not adverted to this aspect of the matter at all.
For the foregoing reasons the impugned decisions are declared to be without lawful authority and of no legal effect. Both the cases shall go back to the trial Court for decision afresh in accordance with law in the light of the observations made in this judgment. Since the dispute arises out of a family matter which has been pending for the last about 10 years, the trial Court is directed to decide the suit within three months. There shall be no order as to costs. The parties shall appear before the learned District Judge on 25th of January, 1989 who shall entrust the two suits to a Family Court of competent jurisdiction.