1. ' Exemption granted subject to just exceptions. Petitioner Irshad Hussain has invoked Constitutional jurisdiction of this Court against the judgment and the decree passed by learned Family Judge, Mehar dissolving marriage of the petitioner with respondent No,1 on the ground of KHULA.
2. ' Admittedly the petitioner and the respondent No,1 were married according to Muslim Law, some six months prior to filing of the Family Suit .No,10 of 1987 by the respondent No,1. In her suit she alleged that the petitioner maltreated her and subjected her to unnatural lust and consequently she went to her father's house where she was living. Subsequently there was patch up between the parties on Holy Quran when the petitioner wept and apologized to the respondent No,1 and thereafter the lady went to live with her husband. Again the petitioner tried to subject the lady to unnatural lust but she resented. It was alleged that the petitioner committed theft of ornaments and cosmetics bag of the respondent No,1 and slipped away. The matter was referred to police and with the efforts of Nek Mards a part of stolen property was returned to the lady, who was given by the petitioner in dower golden Neelum, a locket, two finger rings and one nose ring. The lady in her family suit No,10 of 1987 alleged that in the circumstances she was unable to live with the petitioner within the limits of Almighty God.
3. ' The petitioner in his written statement claimed to have paid Rs,40,000, for his marriage with respondent No,1, besides the dower. Petitioner controverted all the allegations levelled against him in the plaint. Petitioner levelled counter-allegations against father of respondent No,1 by saying that he was in the habit of selling the girls and that he had obtained a loan of Rs,8,000 from father of the petitioner. Petitioner alleged that the respondent No,1 was running in 7th month of pregnancy when she filed the suit and that her parents arranged her abortion on 25-10-1987.
4. ' Learned trial Court framed issues on the pleadings and then after recording evidence passed the impugned judgment by which the marriage between the parties was dissolved on the ground of Khula and the respondent N6.1 was directed to restore to the petitioner, golden ornaments worth Rs,10,000 given to her in dower, within 30 days. Hence this petition.
5. ' MrAli Ahmed Khanzada, learned Counsel for the petitioner argued that the evidence on record was not sufficient for decreeing the suit on the ground of `Khula' and that the trial Court had not determined the marriage benefits which were to be returned by the lady to the petitioner. It was added that no issue was framed in respect of alleged maltreatment of the lady by the petitioner and that the petitioner was not confronted with the document Ex.No,30-A said to have been executed. By him. In support learned counsel cited the case of Bhag Bhari v. Akbar Khan and others 1987 CLC 1543 where the view taken was that without complying with the procedure laid down in section 145 of Evidence Act, an admission contained in previous statement could not be used as legal evidence against that party. Reliance was also placed on the case of Ismaeel v. Rent Controller 1983 CLC 2994 where the view taken was that a Rent Controller was not empowered to order costs on adjournment. Present case is not under Rent Ordinance.
6. ' In her evidence, respondent No,1 examined herself as Ex.No,30 and P.W. Rasheed Ahmed Ex.No,31.
7. Petitioner examined himself as Ex.No,34 and also examined Niaz Hussain as Ex.No,35 and Haji Khan as Ex.No,36. There were attempts for reconciliation between the parties without any positive result.
8. Petitioner's witness Niaz Hussain deposed that the respondent No,1 was treated fairly by the petitioner and that she was taken away by her father when she was running in 7th month of pregnancy on the ground that she was to deliver first child in house of her father. D.W. Niaz Hussain supported the document about compromise between the parties in pursuance of which the parties lived together. In this way the IQRARNAMA dated 7-9-1987 Ex.30-A was relied upon by the trial Court because father of the petitioner admitted its execution. Even if said document is excluded from consideration, there is evidence to show that the parties were at daggers drawn.
9. The respondent No,1 levelled ugly allegations against the petitioner and at one stage the matter went before Police. Learned trial Judge mentioned in the impugned judgment that during the spell of 4/5 months of the marriage, the parties had become rivals to each other and that it was beyond their control to live a happy married life.
10. ' On this point the law is very clear. In the case of Mst.Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 Lah. 566, it was observed that if the Judge apprehends that the limits of God will not be observed that is, in their relation towards one another the spouses will not obey God, that a harmonious married state, as envisaged by Islam will not be possible, then he will grant a dissolution. Of course the wife cannot have a divorce for every passing impulse, but the judge will consider whether the rift between the parties is a serious one though he may not consider the reasons for the rift. It was also observed that the wife may go wrong if dissolution is not ordered and that Islam prefers divorce to adultery. This authority was considered in the case of Mst.Khurshid Bibi v. Babu Muhammad Amin PLD 1967 SC 97 where it was observed that as declared by the Holy Quran, women have rights against men, similar to those that the men have against them, according to the well-known rules of equity. It was observed on the authority of Holy Quran that the husband should either retain the wife according to well recognised custom or release her with grace, and that the word of God enjoined the husband not to cling to the women, in order to cause her injury. It was also observed in said case, that the marriage among Muslims is not a sacrament but in the nature of a civil contract and it remains a contract between the parties although it has spiritual and moral overtones and under-tones. On the authority of Ahadith it was observed that the wife is given the right to ask for Khula in cases of extreme incompatibility though the warning is conveyed by ahadith against too free exercise of this privilege, one of which says that woman asking for Khula will be deprived of the fragrance of paradise, but such warning is plaed on the moral rather than on the legal plane and is not destructive of their legal rights.
11. Aforesaid authorities were followed by the Supreme Court of Pakistan in the case of Nishat Ahmad Khan v. Ramlah Zakaria and others 1969 SCM R 118.
12. Viewed in the light of case-law discussed above, no exception can be taken to judgment of the Family Court dissolving marriage of the parties on the ground of Khula.
13. ' Under the impugned judgment the trial Court has assessed the marriage benefits and has directed respondent No,1 to return to the petitioner golden ornaments worth Rs,10,000 which she received in dower and according to law this return of marriage benefits is condition precedent for giving effect to a decree for dissolution of marriage on Khula.
14. ' In view of my above discussion, I dismiss this petition in limine.
3. This has become infructuous after dismissal of the main Constitution petition.