Ms. Nighat Sultana has brought this Constitutional petition challenging the order, dated the 28th October, 1996, of the District Judge, Chakwal, whereby he has affirmed the judgment and decree, dated the 16th November, 1995, passed by the Judge, Family Court, Chakwal.
2. Briefly, the facts giving rise to this petition are that the petitioner who claims herself to be sui juris and Pardahnasheen lady instituted a suit for jactitation of marriage against Nasir Aziz, the respondent No. l on the ground that the alleged marriage between her and the said respondent had never been solemnized and any Nikhanama showing her to be the wife of the respondent No.1, was fake and of no legal effect. In the alternative, she prayed for dissolution of marriage on the basis of Khula'. The respondent No. l contested the said suit and during its pendency brought a suit for restitution of conjugal rights against the petitioner. Both these suits were consolidated and gave rise to the following issues:--
(1) Whether this Court lacks jurisdiction to entertain and try this suit?
(2) Whether the plaintiff is not legally wedded wife of the defendant for the reasons enumerated in para. 4 of the plaint?
(3) Whether the plaintiff is entitled to a decree for dissolution of marriage on the basis of Khula? If so, on what terms and conditions?
(4) Whether the defendant has got a lawful excuse to live away from the plaintiff and refuse matrimonial obligation of conjugal rights? OPD
(5) If issue No.4 above is not proved, then whether the plaintiff is entitled to the decree for restitution of conjugal rights? OPD
(6) Whether the present suit has been filed as a counter blast to the suit for the defendant for dissolution of marriage? OPD
(7) Relief.
3. On the basis of his findings on the aforesaid issues through a single judgment, dated the 16th November, 1995, the learned Family Judge, Chakwal, dismissed the suit of the petitioner and decreed the suit for restitution of conjugal rights filed by respondent No. 1. The said judgment and decree were assailed by the petitioner by two separate appeals before the District Judge, Chakwal, who by his order, dated the 28th October, 1996, dismissed both the appeals. Being aggrieved of the said judgment, the present Constitutional petition has been brought praying that this Court may declare that she was not the wife of respondent No. l and Nikahnama prepared to this effect was illegal, void and in the alternative the marriage may be dissolved on the basis of Khula'.
4. It was contended on behalf of the petitioner that the learned Family Judge and the learned Additional District Judge had erred in holding the petitioner to be the legally wedded wife of respondent No. l as she was never wedded to him nor she had given any consent for the alleged marriage. It was claimed that she was the only child of her parents who in order to keep their property within the family had also joined respondent No. 1.
5. The learned Family Judge and the learned Additional District Judge have in detail given their findings on the evidence produced by both the parties and are of the opinion that the parties had entered into a valid marriage. Although in cross-examination she had claimed that she had not signed the Nikah deed but her assertion that this Nikah had not taken place with her consent is very significant. The evidence produced by respondent No. 1, particularly the statement of Ameer Afzal Nikah Khawan also establishes that certain ceremony had taken place and whether willingly or non-willingly the signatures of the petitioner were obtained on the Nikahnama whereafter the marriage was duly registered.
6. Ms. Nahida Mehboob Elahi, Advocate, the learned counsel for the petitioner referred to certain discrepancies in the evidence of the respondent to claim that actually no marriage had taken place between the parties. Nevertheless, no effort had been made on behalf of the petitioner to get the disputed Nikhahnama cancelled. Nor any complaint was made against Nikah Khawan or the Marriage Register for allegedly preparing a forged Nikahnama or for registering a fake marriage.
Even otherwise, in Constitutional petition, the High Court is not required to sit as a Court of appeal on the judgment of competent forums. In Muhammad Hussain Munir v. Sikandar and others (PLD 1974 SC 139), it was held by the Supreme Court that where a Court or Tribunal has jurisdiction and it determines a question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. In Aali v. Additional District judge (1986 CLC 27), it was held by the Division Bench of the Baluchistan High Court that an erroneous view on the question of fact of a competent Tribunal or Court does not warrant reappraisal of evidence by the High Court in exercise of its Constitutional writ jurisdiction. The High Court cannot substitute itself as Court of appeal. In the instant case only the Family Judge and Additional District Judge could properly appreciate the evidence and their opinion in this regard cannot be discarded merely because of certain discrepancies. Consequently, there appears no cogent reasons to interfere in their concurrent findings that a valid marriage between the parties had taken place.
7. As regards alternate relief, the view of both the Courts, however, can be supported on the legal plane. Before the Judge Family Court the petitioner had categorically claimed that she had no intention to join her husband as she is apprehensive of her life in living with respondent No. l and that she hates him. There is also no denial that since immediately after her marriage, the petitioner is living in Darulaman. Even according to respondent after the marriage the petitioner had lived with him for 25!26 days only. The respondent No. l had also alleged that she is living with her maternal cousin Ibrar with whom she wants to marry after her divorce. Even this admission of respondent No. l is sufficient to prove that the petitioner has no intention to live with respondent No. l as her wife presently or in future.
7. In Khurshid. Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97), the supreme Court had held that:-- "It is well-settled that marriage among Muslims is not a sacrament, but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause In this respect, the Din-al-Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as together of a man and woman to what has been described as ' holy dead-lock'.
The husband is given the right to divorce his wife, though, of course, arbitrary divorces are discountenanced. There is a saying of the Prophet to the effect that 'the most detestable of lawful things in Allah's view is divorce Abou Daood). Similarly, the wife is given the right to ask for Khula' in cases of extreme incompatibility though the warning is conveyed by Ahadith against too free exercise of this privilege, one of which says that women asking for Khula' will be deprived of the fragrance of paradise (Tirmizi). The warning both to man and woman in this regard, is obviously placed on the moral rather than the legal plane and is not destructive of their legal rights.
The Qur'an also declares: 'Women have rights against men, similar to those that the men have against them, according to the well-known rules of equity'."
8. In Mst. Balqees Bano v. Shamim Ahmad and others (1991 CLC 2057), the facts of which case are identical as the wife had stayed with her husband only for 15 days and had claimed that she would rather die than living with her husband, it was held that the Family Judge and Appellate Court refusing dissolution of marriage on the basis of Khula', had clearly acted in disregard of the law laid down by the superior Courts. Viewing in the same perspective, even in the present case. Both the Courts below have erred in holding that the spouses had not developed aversion for each other to such an extent that the marriage between them be dissolved. Admittedly, since soon after marriage, the petitioner is not living with her husband so much so that even to avoid their union under C the pressure of her parents she is voluntarily living in Darulaman for the last several years.
She claims that she hates respondent No. 1. In the circumstances, what more disliking for her husband or its expression was required? It is clear that the petitioner cannot lead a life of peace and harmony in conformity with their obligations imposed by Allah Almighty. Hence, relying upon the Balqees Bano's case referred to above the case requires this Court's interference in exercise of its Constitutional jurisdiction to declare the judgments and decrees of the Judge Family Court and District Judge, Chakwal, refusing to allow the alternate relief of dissolution of marriage to be without lawful authority. Consequently, the suit filed by the petitioner is accepted to the extent of alternate relief of dissolution of her marriage with respondent No. l on the basis of Khula'. It is admitted by respondent No. l in his statement that he had not given anything to the petitioner.
Hence, no order as to return of benefits is called for. The petition is accordingly allowed with no order as to the costs.