This petition has stemmed out of judgment dated 12-3-1989 of Judge Family Court, Hafizabad, decreeing the respondent's suit for dissolution of marriage on the ground of Khula'.
2. The necessary facts culminating into the present petition are that' petitioner's wedlock with respondent No.1, having been brought about some 14 years ago, did not yield matrimonial cordiality beyond 4/5 years, consequently the respondent sought dissolution of the marriage on 23-1-1983, on the grounds of', habitual cruelty, immorality, misappropriation of dowry, lack of maintenance beyond two years, failure to perform marital obligations and Khula'; which was responded by the petitioner with a suit for restitution of conjugal rights. The learned Judge Family Court, Hafizabad, seized of the matter: vide consolidated judgment dated 18-3-1983 dismissed the respondent's suit while decreed that of the petitioner, in the course of execution whereof though certain articles belonging to the former were attached, but despite that she did not reconcile with the notion of matrimonial reunion; consequently, parties relationship remained estranged and they continued living separately, and, eventually, the respondent on 29-9-1986 filed another suit for dissolution of marriage on the grounds of impotency, non-maintenance and Khula', and, on the latter count, she was prepared to relinquish her claim to maintenance allowance and dowry. This was decreed 'on the ground of Khula' vide the impugned judgment: vires whereof has been assailed by urging bifold contentions viz. The suit was barred by res judicata because by virtue of section 17 of the West Pakistan Family Courts Act, 1964, section 11 of the C.P.C. Has specifically been preserved, secondly evidence as to consideration for Khula' has not been properly read.
3. Perusal of the pleadings and the evidence adduced by the parties comprising that of the respondent as PW-1 and Muhammad Nazir PW-2, countered by that of the petitioner as DW-1, Dost.
Muhammad DW-2 and Muhammad Nawaz DW-3, reveals that the respondent testifying contents of the plaint, deposed that she is leading a deserted life for the last six years, has developed so much hatred for the petitioner that she is prepared to get rid of the bondage even at the cost of giving her sister to the petitioner in marriage or getting herself married with his younger brother Zafar, on which count she has been fully corroborated on material particulars not only by Muhammad Nazir PW-2 but also by the petitioner and his two witnesses.
4. There is no cavil with the first contention canvassed by the learned counsel, but I am afraid it does not bar fresh suit based upon independent fresh cause of action, because the contrary view would lead to paradoxical consequences, viz., wife could seek dissolution of her marriage on the ground of Khula' only once in her married lifetime and if found unsuccessful, then would be rendered remediless for the rest of her life till eternity no matter how so hateful and miserable the matrimonial union she may be confronted with; which notion cannot be contributed to even in a male dominated social order.
5. Regarding consideration of Khula' it may be observed that from the evidence it transpires that though the petitioner and his witnesses have deposed that the respondent while abandoning the matrimonial home took along some ornaments and cash, but that does not spell out with particularity that the alleged articles formed part of the dowry, which she was prepared to relinquish as a quid pro quo for Khula'; independent thereof the alleged articles form part of bridal gift which she is entitled to retain.
6. Taking a cumulative view of the evidence, I am of the opinion that relationship between the parties has travelled beyond the frontiers of mend, the respondent seems to have developed intense irretrievable harted for the petitioner, which fact is self-demonstrated by the over stretched litigation in which the parties are interlocked, ruling out even remote possibility of their living together as supposes within the limits prescribed by God.
The petition is without any substance and is accordingly dismissed in limine.
H.B.T./M-1589/L