' The sole point argued in the instant petition is that decree on the basis of Khula` was awarded to the petitioner although she never asked for dissolution of marriage on the basis of Khula` in her plaint and wanted dissolution of marriage on the grounds other than Khula`.
2. Through this petition the petitioner has challenged the judgment and decree dated 11-11-1993 passed by the learned Judge, Family Court, Lahore decreeing the suit of the petitioner on the basis of Khula` and that of the learned Additional District Judge, Lahore dated 24-7-1994 affirming the same.
3. The petitioner filed a suit for dissolution of marriage while the respondent (Hashim Raza Khan) filed a suit for restitution of conjugal rights. Both the suits were consolidated and the following consolidated issues on the pleadings of the parties were framed:--
(1) Whether the defendant treated the plaintiff with cruelty? OPP.
(2) Whether the defendant failed to provide maintenance to the plaintiff? OPP.
(3) Whether the plaintiff has developed hatred for the defendant and she is entitled to Khula`, if so, what should be consideration for Khula`? OPP.
(4) Whether the defendant compelled to lead an immoral life to the plaintiff? OPP.
(5) Whether the defendant has misappropriated the jewellery of the plaintiff? OPP.
(6) Whether the plaintiff has no cause of action to file the suit? OPD.
(7) Whether the suit for dissolution of marriage is liable to be stayed? OPD.
(8) Whether the defendant is entitled to decree for restitution of conjugal rights? OPD.
(9) Relief.
' It is worthmentioning that the respondent also filed an appeal having felt aggrieved by the impugned judgment and decree on the ground that he was not given sufficient opportunity to lead evidence in rebuttal. The appeal filed by the respondent was also dismissed vide judgment dated 24-7-1994 of the learned Additional District Judge, Lahore.
4. Learned counsel for the petitioner submits that the petitioner never asked for a decree for dissolution of marriage on the basis of Khula' as the evidence produced by her was not rebutted by the respondent and the Court without asking the petitioner for releasing her by way of Khula' could not grant a decree on the basis of Khula' in lieu of consideration of Haq Mehar.
5. I have heard learned counsel for the petitioner at length and have also perused the plaints as well as the written statements filed by the petitioner and the respondent in both the suits. The petitioner appeared as P.W.1 and has stated about her Haq Mehar of Rs,30,000. Being unpaid and she has also stated that the defendant had sent a dealer to the present petitioner and the petitioner apprehended a danger to her modesty and during that time her mother's phone came and she escaped. The defendant locked the petitioner in a room and threatened her to dire consequences. She also stated that defendant's brother had murdered two women and that her modesty and life was in danger and outside the Court respondent's counsel also attacked her. He also came to her house and abused her and brought the police who came to arrest her and she cannot live with the respondent/defendant in no condition and no more because he brings strangers to her house. She has categorically denied that her character was not good. She reiterated that she used to pray `Namaz' and read Qur'an. She also denied her illicit relationship with the property dealer and that she was seen in objectionable condition with him. The learned Judge, Family Court decided issues Nos.1, 2, 4, 5 and 6 against the present petitioner and decided only issues Nos. 3 and 8 in favour of the petitioner granting her rather entitling her to the right of %hula' on the basis of consideration of 'Hag Mehar' Rs,30,000 (as %hula" consideration).
6. In appeal the judgment on all the issues was affirmed.
7. Khula' or `Khur is a release from the matrimonial bonds. This right vests with the woman according to the dictates of Holy Qur'an. If a woman demands right of %hula' she had to return all benefits received by her from her husband.
8. The question whether a woman who does not ask expressly for 'Khula' can be granted dissolution by way of %hula'? The answer to this query is that 'Khula' is a vested right given by the Injunctions of Holy Qur'an as well as the law of the land exclusively to a woman under certain conditions. While ' deciding a case every Court is desired by law to use its best prudence, capability and the capacity to fund out the truth and the prevalent conditions existing for such right after going through the whole evidence. After careful scrutiny and due appraisal of the same if they come to the conclusion that the conditions exist in the evidence produced by the parties where it is impossible A for the parties to live within the limits prescribed by God Almighty and their re-union will give birth to a hateful union, the Courts are bound to give and grant the vested right of %hula' to a woman whether she expressly claims or omits to claim the same in her pleadings if the law permiti the grant of right the Courts are bound to safeguard the individual who has made recourse to them.
The jurisdiction vests with the Tribunals to determine whether condition of %hula' exists in evidence led by the parties and after due appraisal of the same the Court may release the woman from her, matrimonial bond by way of %hula' even ignoring other grounds entitling her for dissolution of marriage.
9. The arguments advanced by the learned counsel for the petitioner are not convincing. The petitioner has failed to prove other issues of cruelty, non-maintenance and so on. The only issue which was decided in her favour was issue No,3 that was aversion developed against the respondent/defendant by the petitioner/plaintiff and this issue was expressly about the entitlement of the petitioner for Khula'. The issues were framed on 25-11-1992 and an issue in respect of Khula' was also framed, neither the petitioner nor her counsel objected to the framing of the instant issue. Meaning thereby they had acceded to the right of Khula'. Moreover the other material fact which is worth consideration is that the consolidated suit for restitution of conjugal rights was also dismissed vides the same judgment and decree of the learned Judge, Family Court.
The respondent has not assailed the appellate Court's judgment before this Court for the reason that he is satisfied with consideration of 'Khula' granted by the learned Judge, Family Court in respect of the suit for dissolution of marriage filed by the petitioner. Under such a state of affairs after the judgments and decrees of both the Courts below the petitioner cannot be given this right to assail the judgment of the Family Court on issue No,4 i,e, the only issue which is decided in her favour and she has assailed the same in the instant writ petition. After perusing the file and going through the judgment of both the Courts below, I see no substance in this petition to interfere into the findings of both the Courts below in my extraordinary jurisdiction. The same is dismissed in limine.