MRS. FAKHAR-UN-NISA KHQKHAR, J.- The brief facts of the case are that the respondent No. 1 filed a suit for jactitation of marriage oh 17.8.1993 against the petitioner. In the alternative she prayed for a decree for dissolution of marriage. This suit was contested between the parties and on the pleadings of the parties following issues were framed:-
1. Whether ths defendant withdrew the notice of divorce? If so, at what stage? O.P.D, 2 Whether this court has no territoiial jurisdiction to try this suit?OPD.
3. Whether the plaintiff is entitled for the decrae of jactitation of marriage: OPP
4. Relief
2. The learned Judge, Family Court Mandi Baha-ud-Din vide judgmentdated 21.2.1995 decreed the suit for dissolution of marriage on the ground of KHULA and fixed the dower mentioned in the NIKAHNAMA as consideration of KHULA.
3. Learned counsel for the petitioner has argued that the respondent/plaintiff filed a suit for jactitation of marriage and she did not ask for KHULA and also did not press any issue in this concern. Even the statements of the parties were not taken in the said consideration. The judgment of the learned Court below suffers from infirmity for not providing fair trial as it was imperative to frame an issue of KHULA, and not to take the petitioner by surprise.
4. I have heard the learned counsel for the petitioner and have permed the record. The respondent/plaintiff filed a suit for jactitation of marriage praying is the alternative that a suit for dissolution of marriage on the bask of her extreme aversion with the petitioner/defendant be decreed. She has completely defendant be decreed. She has completely denied any consummation of the marriage as she has categorically stated that her Nikah was performed during her minority and RUKHSTATI of the same had not takes place, 1h the written statement the petitioner/defendant showed that the respondent/plaintiff had been performing matri-monial relationship in the house of the petitioner. The respondent appeared as PW.1. She has reiterated that the NIKAH was performed during her minority and she had sever gone to the house of the petitioner and she has extreme hatered and aversion against the petitioner and she even does not like to see the petitioner, as the petitioner/defendant has humiliated her by serving notice of TALAQ.
She has also levelled allegation against her mother for taking money from her alleged husband.
She has also stated that she had not taken any benefit from the petitioner, She produced PW.2 in support of her case.
5. Petitioner/defendant produced Muhammad Yaqoob (DW.1) who brought the record pertaining to notice of divorce dated 16.7.1993 which was received by him on 24,7.1993 and no proceedings were taken in respect of that notice as on the next day the petitioner/defendant appeared in person and withdrew his notice.
DW.2 Mst. Amina Bibi is the real mother of the respondent. She has stated that two and half years ago the respondent/plaintiff got married with the petitioner/defendant she remained in the house of the petitioner for one year and she has left the house of her husband for one-and half years ago.
Muhammad Aslam petitioner appeared as his own witness as DW.3. The respondent has also produced school leaving certificate (Ex.F/1), certified copy of the plaint (Ex.P/2),Order dated 24.2.1994 (Ex.P/3) a the school leaving certificate (Ex.P/1) respondent's date of birth is shown as 9.6.1979 which shows that she is about 16 years of age today. If the evidence of the petitioner is taken in its true perspective then she was married 2 years ago from the date of evidence of PW.2, then the respondent was about 11 years of age. No reliance can be placed on such evidence in the absence of any other evidence in rebuttal as to die date of birth of the present respondent. The only contention of the learned counsel for the petitioner that the Court below has not applied its mind in respect of the issues relating to the pleadings of the parties is without substance. In the alternative, she has also prayed for a decree for dissolution of marriage. The respondent in her statement has categorically stated that she has developed extreme aversion against the petitioner she does not want to see him. Moreover there seems to be some litigation in respect of sending notice of TALAQ and later on withdrawing the same. So far as the consideration of KHULA is concerned the arguments of the learned counsel for the petitioner that the benefits derived by the respondent are not taken into consideration is completely wrong.In fact the trial Court has taken into consideration the dower mentioned in the NIKAHNAMA and the KHULA is granted on the basis of the consideration of dower mentioned in the NIKAHNAMA as on the one side respondent categorically states that she never went to the house of the present petitioner and have not derived any benefit from that matrimony. On the other hand the petitioner reiterates that some ornaments/valuables were taken by the respondent. No best evidence in respect of the benefits derived by the respondent, as alleged by the petitioner, has been given and the Court below has rightly given KHULA on the basis of the fixed dower in the NIKAHNAMA as consideration of KHULA.
Even if a wife who omits to demand KHULA\cm be granted a decree for KHULA if the conditions exist that in case a decree for dissolution of marriage is not granted it will give birth to a hateful union of the spouses which will not bring the spouses within the limits of God, so the Court below in view of the evidence of the parties have rightly given the right of KHULA to the respondent.
6. Even otherwise the respondent had a right to repudiate her nikah performed during minority on coming the age of puberty. It is surprising that the respondent has not claimed such right neither in the plaint nor in her evidence. For this reasons the Courts have constrained to give finding in this respect.
7. For the foregoing reasons I see no substance in this petition to interfere in the finding of facts arrived at by the Tribunals below in my extraordinary jurisdiction, the same is dismissed in limine.
No order as to costs.