1. ' This Constitutional petition is directed against the judgment and decree dated 7-12-1989 passed by the District Judge, Karachi (East) whereby allowing the appeal filed by the first respondent.
2. ' The facts leading to the filing of the above petition are that the petitioner and first respondent were married to each other on 12-8-1980 while the `Rukhsati' took place on or about 29-1-1982. A child was born on 16-8-1983 but they are living separate from each other since 2-4-1983. On 7-12- 1983 the first respondent filed Suit No,87 of 1983 for dissolution of her marriage on the ground of cruelty, non-maintenance and retaining her dower articles, gifts, clothes, etc. With intention to misappropriate the same.
3. ' The case of the first respondent, as set out in her plaint, was that she was married to the petitioner in consideration of a dower amount of Rs,25,000 which was deferred. The petitioner was putting up in a small flat at Burns Road alongwith his mother and six sisters but during the course of negotiations of marriage he had assured her relations that he would lodge the first respondent in a separate accommodation after the marriage but after the marriage he failed to arrange separate accommodation with the result that the `Rukhsati' was deferred. It was her case that the petitioner was a person of bad habits, evil temperament, ill-considerate and cruel in his general disposition. It was her further case that the petitioner did not pay due respect and regard to her as a life partner and abused her physically and mentally. It was her further case that he had no ostensible means of income and did not care to maintain her at her bridal home. After the conception of a child which required constant medical care and better feeds, the petitioner ignored the delicacy of the situation and refused to look after the normal requirements of the first pregnancy. On the contrary he forced the first respondent to secure assistance from her mother and other relatives. It is alleged that he used to hurl wild abuses upon her, suspected her character and integrity and was unreasonably jealous. The first respondent claimed to be graduate from Karachi University and to hail from a respectable family of high Government officials but she was always taunted about her family background so much so that her life with the petitioner became a nightmare. It is further alleged that petitioner used to compel her to beg or borrow money from her mother and other relatives in order to keep him in good style and to enable him to pursue his wild pursuits. On 15-4- 1983 the petitioner started misbehaving with her and gave her serious beating. Thereafter he turned her out of her bridal home with only wearing apparels on her person. Since she was in advanced stage of pregnancy, she suffered internally on account of physical abuses by the petitioner and his behaviour caused complications in the pregnancy with the result that the birth of child took place after much pains and sufferings after a major operation on 16-81983. It was her further case that her relations were made to bear expenses of medical care and treatment to the tune of. Rs,20,000. It is further alleged that when information regarding the birth of the child was conveyed to the petitioner, he visited the hospital with few other persons and created a scene of breach of peace. He disowned the child and imputed inchastity to the first respondent and Publicly pronounced divorce three times to her and left the hospital while issuing threats of dire consequences to her life and limb as well as the newly-born child. She served a legal notice upon the petitioner on 2-11-1983 calling upon him to pay the dower amount and return the dowry articles, since he had pronounced 'Talaq' to her, but he failed to respond. It was her case that he had also retained her dowry articles, gifts, percious clothes etc. With intention to misappropriate the same.
4. ' The petitioner contested the suit and denied all the allegations as false, frivolous, malacious and mala fide by way of counterblast to his earlier suit for restitution of conjugal rights bearing Suit No,1729/83 filed on 30-10-1983. The petitioner claimed in his written statement that he had arranged a three-bedroom flat in Baloch Colony for the first respondent where the `Rukhsati' was performed and the marriage was consummated. It was his further case that at the instance of the first respondent's mother, he shifted her to Flat No,A/40, Wajid Square, University Road, Gulshan-e- Iqbal, Karachi as she desired the first respondent to live in her vicinity. The petitioner asserted that the first respondent was provided due affection, respect, best accommodation and clothing as a life partner. He lived with her with great honour and dignity and she lived such a happy married life which she could not dream of in her mother's house. The petitioner stated that he was employed in a world renowned pharmaceutical organization as an officer and is very much in a position to maintain a social status in the society with respect and dignity. He used to give the whole monthly salary to the first respondent. As regards the birth of the child, he explained that after conception she was admitted in Seventh Day Adventist Hospital for providing her the best medical facilities where she was fully covered under the free medical facilities provided by his employer company.
5. On receiving information about birth of a child from the hospital authorities, he alongwith his widow mother and sisters visited Samdani Hospital, Gulshan-e-Iqbal to see the newly-born child where he was shocked to learn that about ten sturdy built gundas were kept in the room of the first respondent while she was lying unconscious after giving the birth to a child with major operation.
6. The petitioner asserted that the uncle of the first respondent prevented him, his widow mother and sisters to see the newly-born child and when they were returning back without being allowed to see the child, they were attacked by Syed Naseer Haider `Khaloo' of the first respondent and her brother Syed Hasnain Iqbal Kazmi with the help of the gundas who beat them mercilessly.
7. ' In the suit for restitution of conjugal rights the petitioner alleged that the first respondent was living away as he left for Saudi Arabia on 2-4-1983 to perform Umra and on his return on 18-4-1983 came to know that she did not like to live with his sisters even for a fortnight during his absence and had gone to live with her mother. On his return, he was very tired and sick, therefore he sent his nephew to fetch the first respondent but she did not come whereafter her mother and brother went to his house and quarrelled with him. Her mother instead of sending the first respondent to his house threatened to cause loss to his life and property and that of his mother and sisters. He stated that at the instigation of her mother and her `Khaloo' Syed Naseer Haider, she operated the locker in the Muslim Commercial Bank, Hasan Square Branch on 19-4-1983 and took away all the ornaments worth Rs,64,000, cash worth Rs,30,000 and prize bonds worth Rs,40,000. Finally on 22-4-1983 he personally went to the first respondent at her mother's house and asked her to accompany him but her mother insisted that he should sever all relations with his mother and sisters and that he should come to stay as a `Ghar Damad". The first respondent, however, refused to come and live with him.
8. He alleged that she was playing as a tool in the hands of her mother who again was playing in the hands of Syed Naseer Haider and they were responsible for all this trouble and mischief. He had issued a final legal notice through his Advocate dated 19-10-1983 which was refused.
9. ' In the written statement in his suit, the first respondent admitted the marriage but she denied to be his legally-wedded wife as the petitioner had pronounced irrevocable divorce to her on 16-8- 1983 when he visited her in the maternity home. She has reiterated her allegations in the suit for dissolution of her marriage and denied various allegations of the petitioner.
10. ' Both the suits were consolidated and the parties led evidence in support of their respective contentions in Suit No,791/85 after the framing of appropriate issues.
11. ' The trial Court, on assessm ent of the evidence on record, dismissed the suit for dissolution of marriage and decreed the suit for conjugal rights. The first respondent went in appeal. The Additional District Judge relying on the cases of Khurshid Bibi reported in PLD 1967 SC 97 and Muhammad Siddique v. Ghafuran Bibi reported in PLD 1971 SC 192 set aside both the judgments as remanded both the suits to Family Court with a direction to allow the parties to amend their pleadings for raising specific issue with regard to the question of `Khula' and to determine the same by adducing the evidence, if necessary.
12. ' After remand of the suits, additional evidence was adduced by both the parties and following additional issues were settled by the Family Court:- "(1) Whether the defendant on 15-4-1983 misbehaved and gave severe beating to the plaintiff and turned her out of his house?
(2) Whether the plaintiff operated the joint locker No,125 on 19-4-1983 in absence of the defendant and removed precious articles worth Rs,1,33,200?
(3) Whether the plaintiff is liable to return/refund the said valuable articles already removed from the locker in absence of the defendant, if Khula is granted? If so, to what extent?
(4) Whether plaintiff is entitled for Khula?
(5) What should the decree be?"
(6) The Family Court on assessm ent of the evidence on record answered issues Nos.1 and 4 in the negative, issue No,2 in the affirmative while issue No,3 was not decided in view of the findings on the above issues.. In consequence the suit for dissolution of marriage was dismissed while the suit for restitution of conjugal rights was decreed. The first respondent preferred separate appeals before the District Judge, Karachi, East.
13. ' The learned District Judge, on re-assessment of the evidence on record, came to the conclusion that there is no truth in the allegation of the first respondent that she was maltreated or subjected to misbehaviour or turned out of the house on 15-4-1983 as repeatedly claimed by her because on her own admission the petitioner had left for Saudi Arabia on 2-4-1983 and returned back on 18-4- 1983. He came to the conclusion that the first respondent left the flat of her own accord and ignored the desire of the petitioner to live with his sisters in the flat at Burns Road. He also found that the other instances quoted by her tending to show the cruel conduct, misbehaviour and ill- temperament on the part of the petitioner are also completely false, fabricated and baseless to her own knowledge and belief.
14. ' On issue No,2, he held that in the absence of any conclusive evidence, it would suffice to say that though the first respondent had operated the locker on 19-4-1983, it is difficult to say that she had removed precious articles including cash amount, prize bonds and ornaments worth Rs,1,34,000 as alleged.
15. ' On the most crucial issue i,e. Dissolution of marriage on the ground of Khula`, the trial Court came to the conclusion that the first respondent had failed to satisfy the conscience of the Court to establish a case of %hula'. The first appellate Court did not subscribe to this view. He held that "in fact the pleadings of the appellant, her evidence and the circumstances of the case clearly indicate that she developed a sense of aversion and complete hatred for her husband irrespective of any reason or logic." The first respondent has categorically stated that she is not prepared to live with her husband at any cost. The circumstances that the 'parties are living separate from each other since April, 1983 speaks for itself and there is enough evidence on record that the parties can no more live a happy and harmonious married life. On the basis of this evidence, the learned District Judge came to the conclusion that the protracted litigation and contest over the issues regarding maltreatment, usurpation of properly and the oral pronouncement of `Talaq' leads him to an irresistible conclusion that the first respondent cannot be forced to live together with the petitioner in view of the chequered history of her case. In that view of the matter, he held that it is abundantly clear that the spouses would not be in a position to observe the limits prescribed by God by continuing in the marriage tie which is virtually broken for the last more than seven years.
16. ' The first respondent stated that she had not received the dower amount worth Rs,25,000 which remains unpaid. In that view of the matter, he decreed the suit of the first respondent for dissolution of her marriage on the ground of `Khula' on the condition that she would not claim the dower amount and the maintenance from the petitioner. Consequently, the suit brought by the petitioner for restitution of conjugal rights was dismissed.
17. ' The pre-trial and post-trial proceedings were held and failed. The learned District Judge in a matter involving a matrimonial dispute was convinced after considering all the circumstances of the case that the existing unhappy relations between the parties, who are involved in litigation for more than six years, held no hope for their living together within the limits prescribed by God Almighty and held that the wife could legitimately ask for `Khula'. He also noted that she was prepared to give up her claim of dower amount of Rs,25,000 and the maintenance. In this view of the matter, the dismissal of the suit for dissolution of marriage on the ground of `Khula' was set aside and the same was decreed by the learned first appellate Court. He referred to the decision of the Hon'ble Supreme Court in the case of Abdul Rahim v. Mst. Shahida Khan reported in PLD 1984 SC 329.
18. The ground of `Khula' can be invoked by a wife on proving that in the light of her relations between the spouses she developed an aversion to her husband so much that it was impossible for them to live within the limits of God. This view is finally settled in the cases reported in PLD 1959 Lah. 566, PLD 1967 SC 97 and PLD 1984 SC 329.
19. In the present case the first respondent sought dissolution of her marriage on the ground of `Khula'.
20. It was accepted by the learned District Judge that the relations between the parties were strained to such an extent that there was no likelihood of their coming back to happy position. She deposed that she, under no circumstances, was inclined to restore relations with the petitioner. The finding of the learned District Judge was based on the re-assessment of evidence on the record and for cogent reasons. In case `Khula' is not invoked, the result will evidently be disastrous in the sense that Mst. Tahsin Iqbal will never agree to, go back to the petitioner and this may turn up a cause to flout limits of God. One thing that goes to the credit of women of the area is that they live with all the miseries as an obligation to parents and husband. Courts are approached as a last, resort.
21. Once parties are in Court, it is very rare that they come to settlement and restore their matrimonial relations. In the present case, parties are going through litigation for the last more than seven years. There was no reconciliation between the parties during that period. Therefore, at this stage of the litigation, it is not reasonable to believe that good sense will prevail and the parties shall come to reconciliation. Under these circumstances, the finding of the learned District Judge finds full support.
22. ' With the decision of the Hon'ble, Supreme Court in the case of Abdul Rahim v. Mst. Shahida Khan (PLD 1984 SC 329), the impugned judgment could legitimately be passed by the learned District Judge. It has been found as facts in the case that the protracted litigation and contest over the issues regarding maltreatment, usurpation of property and the oral pronouncement of `Talaq' lead him to an irresistible conclusion that the first respondent cannot be forced to live together with the petitioner in view of the chequered history of her case. He also found that "it is abundantly clear that the spouses would not be in a position to observe the limits prescribed by God by continuing in the marriage tie which is virtually broken for the least more than seven years. " With these findings of fact established before him, the learned District Judge cannot be said to have given an arbitrary decision. It is to be understood that he has not transgressed the limits of his jurisdiction.
23. This Court is not sitting in appeal against his judgment. Therefore, I am confident to say that the petition under Article 199 of the Constitution is not entertainable.
24. ' In Nimat Ali v. Hafeez Bibi and others (1988 SCMR 1283 (1), the Hon'ble Supreme Court while refusing leave to appeal observed as under:- "After hearing the learned counsel, we do not think that this is a fit case where leave should be granted. Even if for some reason the orders of the Additional District Judge and the Judge Family Court are set aside, the circumtances are such that `Khula' would be granted to respondent No,1.
25. No purpose would be served by driving the parties to another round of litigation."
26. ' The principle laid down in the above case is applicable to the facts of the instant case.
27. In these circumstances, the learned District Judge has rightly ordered dissolution of marriage of first respondent with the petitioner by way of `Khula'. No case for interference is made out.
28. ' It is, therefore, evident that no sufficient grounds have been made out for exercise of powers conferred by Article 199 of the Constitution. The very plentitude of these powers requires a cautious exercise of it. I would, therefore, hold that the petition is not maintainable and should be dismissed.
29. I, therefore, dismiss the same accordingly.
30. ' In the circumstances of the case, the parties are directed to bear their own costs.