JUDGMENT CH. IJAZ AHMAD, J.- The brief facts giving rise to this writ petition are that the marriage was solemnized between the petitioner and respondent \ No. 2 on 28-3-1985. Out of the wedlock two sons namely Shahwaiz and Shahbaz was born on 26-5-1986 and 22-7-1990 respectively. The relationship of the spouses became strained, therefore, respondent No. 2 filed suit for dissolution of marriage before the Family Judge, Rawalpindi on 1-9-1994.
The petitioner/defendant filed written statement and controverted the allegations levelled by the respondent No. 2 in her plaint. The trial Court framed the following issues: ISSUES.
(1) Whether the defendant treated the plaintiff with habitual cruelty? OPP (2)Whether the defendant leads an in favours life? OPP
(3) Whether the plaintiff is entitled to the decree for dissolution of marriage on the basis of Khula? If so, on what terms and conditions? OPP (3A) Whether the defendant is entitled to decree for Restitution of Conjugal Rights? OPD
(4) Relief.
2. The present petitioner also filed suit for restitution of conjugal rights on 13-6-1996 before the Family Judge, Rawalpindi. Both the suits were consolidated and disposed of by one judgment dated 11-3-1997. The learned Family Judge, after appreciation of evidence on record decided Issue No. 1 in favour of respondent No. 2/plaintiff and gave finding that it is established that the petitioner/defendant has been creating painful circumstances for the plaintiff and it amounts to mental torture. The Issue No. 2 was decided against respondent No. 2/plaintiff. Issue No. 3 was decided ^ after appreciation of evidence on record in the following terms: "Pre-trial and post trial unsuccessful attempts for reconciliation and the evidence on record is sufficient to reach on the conclusion that now not to dissolve the marriage would mean forcing the plaintiff to live with the defendant into a hateful union, which is not requirement of law and religion.
This suit was filed op 1-9- 1994 and now it had been decided in March. 1997 after about 21/2 years.
This long period of clash is also sufficient to prove that now there is no hope for reconciliation. In these circumstances, I dissolve this marriage on the ground of Khula. However, the plaint iff will not claim her dower and maintenance, as she herself has offered during her statement, so these things will he considered as consideration of Khula. This is decided in favour of the plaintiff.
3. The learned trial Court vide its judgment and decree finally decreed the suit for dissolution of marriage on the ground of 'Khan hence the present writ petition filed by the petitioner.
4. The learned counsel lor the petitioner contended that the learned Family Judge, decided the case without applying its mind and also decided the case in violation of mandatory provisions of Order 20 Rule 5, C.P.C. He further argued that the Family Judge, misread the whole record, therefore, the finding of the learned Family Judge is based on misreading or non- reading of the record. The learned trial Court decided the case on surmises and conjuncture without applying its mind towards evidence on record. He further argued that the ingredients of 'Khula' are not available in the present controversy, therefore, Family Judge was wrongly relied upon the principle of 'Khula'. He further argued that the trial Court wrongly decided Issue No. 3 against the petitioner without considering the evidence on record and the decision on the Issues No. 1 & 2. All the three issues are inter-connected hut the learned trial Court decided Issue No. 3 independently which is not in accordance with law.
5. The learned counsel for respondents contended that the judgment of the learned trial Court is based on proper appreciation of the evidence on record. The provisions of C.P.C, are not strictly applicable in these proceedings. It is further argued that evidence on record is sufficient to establish that the petitioner and respondent No. 2 did not want to remain as husband and wife.
Exh.' P/5, affidavits of respondent No. 2 which were produced before the trial. Court as Exhs. P.5, P.6, P.7, P.9, P.10, P.12, and P.13 which were not denied by the petitioner, therefor, findings of the trial Court were justified and she relied upon the following judgments: Muhammad Akram v, Majeed Begum1' (1985 C.L.C. 2626)
Abdul Rahim v, Mst. Shahidan Khan" (P.L.D. ] 84 S.C. 329)
1st. Shahidan Khan v. Abdul Rahim-' (N:L.R. 1984 Civil 330)
6. I have given my anxious consideration to the facts and circumstances of the case and heard the learned counsel for the parties. It is admitted fact that the respondent No. 2 did not want to continue the relationship as husband and wife. It is not in dispute that the Family Court in course of hearing of divorce suit attempted to bring about reconciliation between the parties, but these efforts also failed. This Court also aid his best to bring about reconciliation between the pari, as through the respective Advocates but these efforts also failed. Considering the evidence, circumstances and probabilities of the case, Family Court felt convinced that the existing unhappy relations between the parties held out no hope for their future happy living together within the limits prescribed by Allah. In the circumstances, purpose of marriage clearly seemed to be frustrated. Respondent/plaintiff has shown firm stand in asking for divorce. From the evidence and her conduct a clear inference is. Available that reconciliation between the two was not possible.
When such are the circumstances, it is better to separate, then to live in an atmosphere perpetually saturated with suspicions mutual district, discord and hatred for each other. In an atmosphere of the type afore-noticed, human life becomes a mere waste. It is pertinent to mention here that as has been noticed in several pronouncements of the superior Courts that. Islam does not thrust upon the parties a marriage devoid of bise and happiness. In view of these circumstances respondent No. 2/plaintiff was entitled to separation on the basis of 'Khula'. The Court has neither omitted nor ignored from its consideration the material placed before it. In the absence of right of appeal, conclusions arrived at, are not reviewable in Constitutional jurisdiction.
It is correct that 'Khula' cannot be allowed on the mere asking of a wife. She can only succeed if she proves to the satisfaction of the judicial conscience of the Court that there exists an irremediable breach between the parties which makes it impossible for her to perform her part of contract within the limits prescribed by God Almighty. When the case is examined from this angle 1 have no manner of doubt, in my mind to say that the plaintiff had succeeded in making out a clear case for Khula' divorce. In view of these circumstances, I see no adequate ground to differ with the views of the Court below and find that the impugned decision has been arrived at on the correct analysis of the evidence and does not suffer from any infirmity of the type which could render it to be without any lawful authority.
It is pertinent to mention here that the learned trial Court gave findings against the petitioner in the following manner: "I am of the view that though there is no direct evidence on the file of any physical torture, but it is established that the defendant has been creating painful circumstances for the plaintiff and it amounts to mental torture."
7. In view of what has been discussed above, this writ petition is dismissed with no order as to costs.