The petitioner was married with respondent No.2 i.e., Mst. Bushra about five years back. They lived together for about six months after the marriage as contended by the respondent No.2. However, according to the petitioner, they lived together for about three years and thereafter, respondent No.2 allegedly left his house.
2. Brief facts are that respondent No.2 i.e.; Mst. Bushra instituted a suit for dissolution of marriage on 8-6-1994 against the present petitioner on the ground that the petitioner was a bad character, that he treated the plaintiff with habitual cruelty, that he misappropriated the dowry, that the petitioner/defendant failed to provide maintenance to the .Respondent/plaintiff and that the respondent/plaintiff was entitled to divorce on the basis of .' Khula' .
3. Earlier a counter suit was instituted for restitution of conjugal rights by the petitioner/defendant on 2-6-1996, wherein, it was contended that a decree for restitution of conjugal rights be passed in his favour because respondent No.2 had left his house without any rhyme and reason.
4. Both the suits were consolidated by the learned Trial Court and consolidated issues were framed on controversial points. It was held by the Trial Court on issue No. l that there was no evidence to show that the petitioner/defendant was a bad character, as such, issue on that point was found against the respondent/plaintiff. Likewise, non-payment of dower amount was also not proved and issue No.4 was found against the respondent/plaintiff. Rest of the issues i.e. Issues, Nos.2, 3, 5 and 6 were found in favour of the respondent/plaintiff and a decree for dissolution of marriage was granted. The suit for restitution of conjugal rights, filed by the present petitioner was consequently dismissed.
5. In this writ petition, the decree of the learned Trial Court is assailed on the ground that the plea of ' Khula' was not pleaded in the plaint by the respondent/plaintiff but an issue was struck and on that basis, the marriage between the parties was dissolved. In this respect, it was urged that since there was no specific plea of ' Khula' , therefore, the issues framed by the learned Trial Court on that point was misconceived. Secondly, it was contended that while giving finding on the issue of '
Khula' , the learned Trial Court did not take into account that the respondent/plaintiff had obtained benefits from the petitioner/defendant and as such, the latter was entitled to recover those benefits if the marriage was to be dissolved on the basis of ' Khula' . Lastly, it was contended that the learned Trial Judge did not appreciate the evidence brought on record and failed to note that there was not any convincing evidence to lead to the conclusion that the parties could not live together as spouses.
6. I have heard the learned counsel for the petitioner on the above points and have also carefully gone through, the evidence, the copies of which have been placed on the record. The averments in paragraph No.8 in the plaint clearly indicate that it was not possible to observe the limits of God between the pies and that it will not be possible for them to live together. This is sufficient ground to raise the issue of ' Khula' and that the objection against framing of such issue, therefore, seems to be meritless. Even otherwise, the object of the Family Courts Act is to provide quick, comprehensive and conclusive decision in the family matters. To achieve that object, procedural technicalities have been relaxed so that the parties may bring complete evidence regarding their controversial issues in the Court without confronting rigidity involved in the application of Law of Evidence, etc. In fact, procedural law under the Family Courts Act has been liberalised to achieve substantive and natural justice within the minimum possible time.
7. Keeping in view foregoing facts, it is to be seen whether there is any failure of justice due to non- exercise of the jurisdiction vested in the Trial Court or due to the assumption of the jurisdiction which did not vest in it. The perusal of the record shows that the learned Trial Judge proceeded strictly in accordance with law to determine the controversial issues between the parties. He also considered the evidence in pragmatic manner and took a realistic view to decide the case in hand.
He rightly accepted the plea of 'Khula' raised by the respondent/plaintiff as she had clearly stated that it was not possible for her to live with the petitioner/defendant. She went to the extent to say that she did not like even to look at the face of the defendant. This shows that she had developed hatred against the petitioner/defendant and in such circumstances, it would not be possible for her to observe the limits of God to discharge her duties as a Muslim wife towards her husband. She also clearly stated that she did not obtain any benefit out of marriage. She had lived only for six months and thereafter, she was forced out of the house by the petitioner/defendant. In this respect, she stated that the troubles started when the petitioner/defendant suffered a loss in his business and demanded ornaments from her and upon her refusal to part with the ornaments, the defendant/petitioner started giving her beating and ultimately turned her out of the house. The statement of the petitioner was supported by her close relatives who were the natural witnesses in the sense that the matrimonial life is better known to ones near and dear than to the strangers. Out of them one is paternal uncle of the respondent/plaintiff who appeared as P.W.2. He clearly supported the respondent/plaintiff on the points touched by her in her statement as P.W.1. Likewise the other witness being brother-in-law of the petitioner also supported the respondent/plaintiff. All the three witnesses firmly held the view that it was not possible for the parties to live together and to observe the limits of God. The witnesses also stated that there were no benefits from the marriage.
8. The petitioner/defendant, however, led the evidence that he had given ornaments to the respondent/plaintiff and those were liable to be returned as a consideration for 'Khula'. He also added that he had built a house for the respondent/plaintiff which he had given to her in the payment of dower.
However, he admitted during the cross-examination that the house in question was in the name of the father of respondent/plaintiff but he had given the money with which the same was built. It was also admitted by the petitioner/defendant that he was residing in a rented house in order to run his business. The statement of the petitioner/defendant would lead to a conclusion that if he had given a house to the respondent/plaintiff in lieu of dower then it should not have been in the name of her father. Since the petitioner/defendant is himself living in a rented house, therefore, it appears to be improbable that he would have purchased a house or had given the amount in order to pay off the dower to the respondent/plaintiff. In fact, if he had given the house in lieu of dower to the respondent/plaintiff then the house should have been in her name instead of the name of her father. It is, thus, obvious that the petitioner/defendant had failed to show that in fact he had given any benefit to the respondent/plaintiff by giving her a house in lieu of dower money. Likewise, there is nothing in the shape of receipts or other documents that he had given ornaments as claimed by him to the respondent/plaintiff. On the contrary, the evidence of the respondent/plaintiff clearly shows that she did not reap any benefit out of the wedlock.
9. The other allegations such as the habitual cruelty and desertion have also been proved from the evidence produced by the respondent/plaintiff which have been correctly analyzed by the learned Trial Judge to hold that in fact the respondent/plaintiff was treated with habitual cruelty by the petitioner/defendant and that latter had also deprived and misappropriated her belongings. It is also proved that he had deserted her for a period of more than three years.
10. It is, thus, obvious that the judgment given by the learned trial Court remains unexceptional and since it does not suffer from any legal or factual flaw, therefore, it does not call for interference on the writ jurisdiction of this Court. The writ petition being meritless is dismissed accordingly in limine.