Petitioner has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. According to petitioner, respondent is legally-wedded wife of the petitioner and their marriage took place about 6 years ago. This marriage was a result of exchange of marriages, as petitioner in exchange of respondent got his sister Hooran married to the brother of respondent.
According to petitioner after marriage couple was passing very happy life, at Bhan Saeedabad.
After some time on account of shifting of mother of respondent No.1 to Mehar the respondent was taken away from Bhan Saeedabad to Mehar for meeting purpose (Gadjani) where a suit for dissolution of marriage being Suit No.15/1993 was filed before learned Family Judge, Mehar. The learned Family Judge Mehar dissolved the marriage between the parties by his judgment and decree dated 30-4-1995.
2. Mr. Muhammad Nawaz Chandio, Advocate for petitioner has challenged the . Findings of the learned Family Judge in this petition and has contended that view taken by the learned Family Judge was perverse and that learned Trial Judge has misread the evidence that neither issue of Khula' was framed nor any evidence was brought on record to satisfy the conscience of the Court that learned trial Court decreed the suit which is not with consonance of the established principles of law governing the dissolution of Muslim marriage. That no substantial material was brought on record to show that even case of Khula' was made out. That since there is no appeal or any other efficacious remedy available, therefore, petitioner has approached this Court through the extraordinary jurisdiction.
3. Mr. Roshan A.I Solangi learned Advocate for respondent No. l has contended that the learned trial Court was pleased to frame the proper issues in the hatter and it has properly recorded the evidence in accordance with law and after proper appreciation of the evidence the learned trial Court was pleased to decree the suit of the respondent against the petitioner. That the petition is not maintainable and is liable to be dismissed in limine.
4. Mr. Muhammad Bachal Tunio learned Additional Advocate-General for respondent No.2 has contended that Court cannot be a party in dispute between the spouses. That no violation of the procedure or law is alleged by the petitioner. That it is the Constitutional and legal right of a woman to get the divorce from her husband if there is no possibility for her to live within the limits prescribed by the Almighty Allah. That petitioner did not file suit for restoration of conjugal rights before the trial Court, where the suit of the respondent for dissolution of the marriage against the petitioner was pending. This clearly shows that the petitioner was not serious to contest the matter and get a proper decision from the Court.
5. Mr. Roshan A.I Solangi learned counsel has cited (1) 1989 CLC 25. Learned counsel has also referred me to the relevant portion of the judgment in which respondent has prayed for dissolution of marriage with the defendant on the ground of Khula' also. The learned trial Court framed the issue bearing No.4 which reads:--- "Whether the plaintiff is entitled for the relief claimed?"
The learned counsel has also referred to the evidence of Zareena the respondent in family suit, in examination-in-chief she has stated that, "defendant promised to give golden Neelam in Haq- Mahar but he did not pay the same till today. My parents gave me 15 pairs of cloth, golden phull, one golden ring, 4 silver bangles in dowry (Daj), the defendant sold out the same articles". Learned counsel has also referred me to the cross-examination carried over by the learned counsel for defendant that contentions of the plaintiff were not seriously controverted or challenged by the learned counsel for the defendant. Legal presumption is that whatever plaintiff has stated in Court has gone unchallenged and is to be accepted in totality. Learned counsel has referred me to the answer of plaintiff in cross-examination which is as follows:--- "Voluntarily says that defendant is in habit of committing sodomy. I know about the sodomy to commit the sexual performance with boys is called sodomy. He was committing sodomy in my presence. He also committed sodomy with me. The defendant was committing sodomy for about 2/3 times per month. "
6. I have also perused the evidence of Gulab recorded by the learned trial Court. In his examination-in-chief he stated that "I gave golden Neelams to my wife as Haq-Mahar at the time of marriage". Whereas in cross-examination carried over by the learned counsel for the plaintiff he has stated as follows:--- "I cannot say whether I mentioned in written statement that amount of Rs.8,000 was given to the plaintiff in consideration but amount is paid by me. It is fact that Haq Mahar was not paid by me".
The evidence so furnished by the petitioner on oath clearly shows that he has no sanctity for oath and he can take hot and cold together. In this state of affairs and evidence so recorded by the parties the learned trial Court decreed the suit with the following observations:--- "Under the circumstances given above it is not possible for the spouses to exist in future while keeping in view the deposition of plaintiff in which she deposed that defendant was habitual of sodomy and he was committing sodomy for 2/3 times in a month. There is no likelihood of their existence with the limits prescribed by the God, arid in such a case plaintiff cannot be forced to join hateful union, therefore, it is settled principle of law in such a type of case, Khula' cannot be refused, hence this issue is answered in affirmative. "
7. In the case referred by Mr. Roshan A.I Solangi his lordship Saeeduzzaman Siddiqui (as he then was) observed: "There can be no doubt that if husband and wife are not willing to live together the harmonious concept of life contemplated in Islam under the situation of marriage cannot be obtained and, therefore, the parties cannot be excepted to keep themselves within the limits prescribed by Allah in such circumstances. The learned Family Court, therefore, rightly ordered dissolution of marriage of respondent No. l with the petitioner by way of Khula'."
8. I have gone through the material and evidence referred hereinabove and also case-law referred by Mr. Roshan A.I Solangi, the evidence so furnished by the petitioner in the trial Court is full of contradiction itself, on the one hand he stated that Haq Mahar was paid in the shape of Neelam whereas in cross---examination he had admitted that he has not paid the Haq Mahar. The evidence of respondent alleging sodomy against the petitioner has gone unchallenged as contention of committing sodomy and unnatural act with the plaintiff was not challenged by the petitioner and in his cross-examination even suggestion contradicting the version of plaintiff was not put to the respondent. The petitioner Gulah even in his examination-m-chief has not stated anything denying the allegation of the respondent regarding committing unnatural offence (sodomy). The marriage between Muslim couple is a sacred trust which is not to be infringed or violated, The torture so suffered by the respondent is clear from the evidence recorded by the trial Court, outcome of the above acts of the petitioner created hatred between wife and husband and the learned trial Court considering the evidence came to a correct conclusion and rightly dissolved the marriage. Neither there is illegality of procedure nor violation of law. A wife who has got such type of agony, torture at the hands of petitioner cannot be forced to live with this type of uncivilized husband. The authority cited by Mr. Roshan A.I Solangi is relevant/applicable to the facts of the present petition. I most respectfully follow the rule laid down in it. For the above reasons this petition is dismissed in limine with no orders passed. By short order petition was dismissed on 6-8- 1996 and those are reasons for the same.