It transpires that petitioner and respondent No.2 were wedded together on 9-3-1984; however, the matrimonial harmony was very short lived, viz. Within a month the two were separated, petitioner parted with the respondent and left for Karachi, whereafter the latter abandoned the matrimonial home and, subsequently, she instituted suit for dissolution of marriage on 9-9-1985 before Judge Family Court at Depalpur, which was responded with a suit for restitution of conjugal rights by the petitioner on 2-12-1985; whereupon the two suits were consolidated and following issues were framed out of the pleadings of the parties:- (1)Whether the defendant has been treating the plaintiff with habitual cruelty? OPP.
(2)Whether the defendant is addicted to intoxication? OPP.
(3)Whether the defendant mixes up with women of ill-repute? OPP.
(4)Whether the defendant is a jobless person and forced the plaintiff to lead an immoral life? OPP (5)Whether the defendant is a gambler and has lost all the households in gambling? OPP (6)Whether the defendant has misappropriated the articles of dowry of the plaintiff? OPP (7)Whether the defendant has levelled a false charge of adultery against the plaintiff? OPP (8)Whether the plaintiff has got any justification to deprive the defendant of his conjugal rights?
OPP (9)Whether the defendant is entitled to the decree for restitution of conjugal rights? OPD
(10) Relief.
2. Learned Judge Family Court, on the basis of the evidence adduced by the parties, vide judgment, dated 23-5-1987 dismissed the petitioner's suit, and, while deciding all the issues against the respondent emanating out of her suit, dissolved the marriage on the ground of Khula, vires whereof has been questioned by virtue of the present petition.
3. The solitary contention raised by the learned counsel for the petitioner is that since the issue of Khula was not specifically framed by the learned Judge Family Court, therefore, he had no legal authority to dissolve the marriage on that count. On the other hand, learned counsel for the respondent No.2 has supported the judgment.
4. I have gone through the pleadings of the parties as well as the entire evidence, that has been placed on the file, with the assistance of the learned counsel.
Respondent No.2, in para. 4 of the plaint has categorically averred that; she has developed irretrievable hatred against the petitioner and, further, in para. 11, she has stated that through the good offices of `Punchait', petitioner was approached number of times to pronounce divorce but he declined. While appearing as P.W.1, she has supported the contents of the plaint and has stated in an unequivocal term that she is willing and prepared to relinquish her right and claim to dower in lieu of Khula. Furthermore. Not only her witnesses have supported her contention but also the witnesses of the petitioner have corroborated her to the effect that the parties lived together only for short while and thereafter they are at daggers drawn, and that 6/7 `Punchaits' were convened with a view to bringing about reconciliation between the parties, but the efforts were frustrated.
5. Admittedly, in the plaint, the respondent did set out the facts attracting the ground of Khula, which has been duly substantiated by the evidence; however, the same seems to have escaped the notice of the trial Court while framing the issues; consequently, I am of the opinion that omission on the part of the Court cannot prejudice her case.
6. In view of the a foregoing finding of fact recorded by the learned Judge Family Court, dissolving marriage between the parties on ground of Khula, m peculiar circumstances of this case, is unexceptionable.
There is no substance in this petition which. Is hereby dismissed leaving the parties to bear their own costs.
M-1306/1,