' Suit filed by Mst. Faiz Elahi respondent No,2 for dissolution of marriage on the grounds of habitual cruelty, non-maintenance, false charge of adultry, evil repute of the husband and Khula' was contested by the petitioner by denying her allegations. In his written-statement, he also detailed certain ornaments which he alleged to have given her at the time of Nikah and although he traversed her claim for dissolution of marriage on the ground of Khula', yet, he did not claim to be paid anything in exchange for her being granted separation by. Khula'. Parties led their evidence on the relevant issues, upon the consideration whereof learned Family Judge concluded that she has not been able to prove the specific grounds taken in the plaint but granted her decree on the ground of Khula' upon fixing the consideration as Rs,5,000 by his judgment dated 7-9-1988 which is impugned in this constitutional-petition.
2. Learned counsel has argued that with the judicial findings adverse to her reached under the various issues which were her liability to prove, there really was not left any basis for her to either allege that she had developed hatred against the petitioner or even to claim to have got aversion for his coverture. This argument really proceeds upon some misassumptions about the scope and effect of the two situations. Inability to prove the specific grounds according to the required legal standards or within the legal connotation, for instance, of habitual cruelty does not import the concept that their existence on the factual plane also may have got effaced. Hatred for a person or aversion to a situation is the accumulated effect of responses built gradually over a period of time and they may not always be capable of being proved by direct evidence. This is the precise reason that grant of separation by right of Khula' has been made to depend upon subjective satisfaction of judicial conscience of the Qazi to be reached upon consideration of all the facts and circumstances of the parties. In any event, since such aspects of the matter are dependent upon questions of pure fact, investigation into which is not ordinarily undertaken by this Court in the exercise of its constitutional jurisdiction which is essentially different from an appellate power conferred by the relevant statute, therefore, contention raised for the petitioner cannot succeed and is accordingly repelled.
3. The only other contention raised in support of this petition is that the decree passed in favour of the respondent ought to have appropriately been conditioned upon her paying the value of ornaments as the consideration for Khula'. The assertion is that failure of the learned Family Judge to so condition the decree has resulted from misreading of the record inasmuch as he has observed under issue No,5 that the evidence produced by the plaintiff is silent about the actual benefits derived from the defendant even who has failed to raise any objection. Counsel invites attention to the statement made by the petitioner as D.W.3 wherein he has given the same details of the ornaments as are contained in his written-statement and has stated also that she had taken them along at the time of leaving his house but has not mentioned that he had given those ornaments to her, as is the averment made in the written-statement. Petitioner's omission to depose to his having given those ornaments to her, leaves it to a conjectural assumption having to be made for reaching a conclusion favourable to him on the basis of a conjuncted reading of the written-statement and his testimony which is actually silent about the source of acquisition by her of those ornaments. Even upon his statement being accepted as a gospel truth, mere existence of those ornaments gets established and by no means may it be deduced therefrom that those ornaments had been given by him. Pleadings are not anything more than mere averments liable to be proved by means of evidence and ordinarily they do not themselves become a substitute for the evidence. Written-statement of the petitioner cannot be capable of being read as supplementing his deposition and, thus, it is not possible to conclude that those ornaments would necessarily have been given to her by the defendant.
' There even is no misreading of the record involved in the judgment of the learned Family Judge who has correctly observed that the evidence produced by the plaintiff is silent about the actual benefits derived from the defendant. The counsel appears to be labouring under the wrong impression that this observation may have been made with reference to his client who actually was a defendant in the suit.
' Be the above as it may, learned trial Judge has remarked about the defendant merely that he has not raised any objection and thereby he presumably meant that the defendant has not made any demand about Zar-i-Khula. It is correct that the defendant-petitioner did not at all make any demand in the written-statement despite his duty to, if he so wanted, have specifically claimed during the trial to be paid the consideration of Khula'. The making of a demand for such a payment is left to the pleasure of a husband and since there is no legal obligation on him to, in all events, claim some consideration for Khula' which may even not have to be thrust upon him by the Qazi and he has the option to also forego it, therefore, if he has the desire to at all take some consideration then it is only reasonable to expect of him to not merely make a specific demand for being paid a desired consideration from the lady for separation by Khula' but he has also to be insistent in making such a demand and if he does not put forward an unequivocal claim for such a payment being made to him, the natural inference will be that he does not want to take it and his failure to insist upon being paid the consideration may legitimately be equated with either his desire to not claim any consideration at all or his intention to forego the same even if same may be found to be really payable to him.
' Not merely that the sworn testimony of the defendant-petitioner does not establish that she may have derived benefit in the form of some ornaments as having been given to her but also his failure to make any demand for payment of consideration for Khula' and not any at all of the nature of insistence, renders the demand now being urged for the first time, as completely untenable. There is no merit in this contention either which too fails, thus.
4. Before parting with this judgment, it deserves to be noticed that the Family Judge has fixed Zar-i- Khula' as Rs,5,000 without any material or basis enabling him to reach the amount which has been fixed only arbitrarily perhaps under the impression that award of compensation in a divorce by Khula' could be a necessary condition. This, however, is not the correct legal position and, as has been demonstrated above, a demand for its payment is necessary to be mane by the defending husband and a Qazi does not have the power to inflict compensation upon an unwilling husband.
The matter is regulated by his will but since in this case the defendant-petitioner did not make any demand despite opportunity available to him for this purpose, therefore, the Family Judge could not have provided to him the unclaimed monetary benefit. Since there is no petition under Article 199 of the Constitution made by the ex-wife to urge a grievance about such an unauthorised award of the so-called compensation for Khula, therefore, my Constitutional jurisdiction does not get invoked for annulling the liability for payment of such an amount.
5. Result of the foregoing is that there is no force found in this writ petition which is, hence, dismissed in limine.