ABDUL HAFEEZ MEMON, J.---This petition has unfortunate history, Nikah of the respondent, Mst.
Khatm-un-Nisa with the petitioner was performed at Quetta, but Rukhsati had not taken place.
During this intervening period, the relations between the parties became very hostile as it transpired that the petitioner, Saleem Jaharigir had already a wife and six children which fact was concealed from the respondent Khatm-un-Nisa. There were also other causes for the hostility.
Ultimately, the respondent filed a suit for dissolution of her marriage by way of Khula. The petitioner also did not lag behind and filed a suit for restitution of conjugal rights against the petitioner.
Learned Family Judge decreed the suit of the respondent by way of Khula and dismissed the suit of the petitioner on 30-7-1991. The respondent, Khatm-un-Nisa filed appeal against the judgment of the Family Court to the extent of the Family Court directing the respondent to repay the amount of Rs.5,00,000, Haq-e-Mehr to the petitioner. The petitioner also filed appeal against the dismissal of his suit for restitution of conjugal rights. On 28-3-1992, the Additional District Judge modified the decree to the extent of Rs.5,00,000, which were to be paid by the respondent according to the decree of the trial Court. The appellate Court also dismissed the appeal filed by the petitioner. The petitioner challenged the judgments of both the Courts below in Constitutional Petitions Nos. 147 and 162 of 1992. These to petitions were allowed on 5-8-1992 and the case was remanded to the Family Court for fresh decision. On 28-2-1993, the Family Court, on remand, decreed the suit filed by the respondent by way of Khula and dismissed the suit of the petitioner for restitution of conjugal rights. Again a Constitutional Petition No.204 of 1993 was filed by the petitioner which was allowed arid suit was again remanded to the trial Court for re-writing the judgment. The Family Court, on remand, again decreed the suit of the respondent and dismissed the suit of the petitioner on 30-4- 1994 and the respondent was ordered to return gold set etc. And Rs.5,00,000 being the amount of Haq-e-Mehr alleged to have been paid to her by the petitioner. Thereafter, Constitutional Petition No. 114 of 1994 was filed in the High Court which was allowed on 1-I1-1994 and the suit was yet again remanded and transferred from Civil Judge-III to Additional District Judge-I, Quetta for disposal.
The learned Additional District Judge on 29-5-1995 dismissed the suit of the respondent-lady and held further that though Rs.5,00,000 was fixed as dower but the payment was doubtful. The respondent-lady filed appeal in the High Court and the petitioner also filed cross-objections against the judgment of the Additional District Judge holding that payment of amount of Rs.500,000 was not proved. The High Court, ultimately, allowed the appeal of the respondent-lady and held that inasmuch as the respondent-lady had nothing but extreme hatred against the petitioner and that she was not prepared to live with the petitioner under any circumstances, even if some one was to shoot her, it was clear that even if the respondent was forced to live with the petitioner, they would not be able to live happy matrimonial life within the limits prescribed by God Almighty. The learned High Court in this regard also took into consideration that the efforts for the reconciliation between the parties had been made twice by the Civil Judge and also by the Additional District Judge but without success. The learned High Court further held that the Courts below had not taken into consideration the relevant evidence led by the parties and failed to take into consideration the law and the decisions of the superior Courts obtaining on the subject in spite of the observations made earlier by the Court in the proceedings between the parties. In the result, the learned High Court on 22-4-1996 allowed the appeal, set aside the judgment passed by the Court below, decreed the suit of the respondent and dismissed the suit filed by the petitioner.
Hence this petition by petitioner.
2. Notice of hearing of the petition today was given to the petitioner, but he is not present and, instead, his brother, Sultan Dastgir appeared and requested for an adjournment on the ground that the petitioner had gone to Karachi. The respondent, Khatm-un-Nisa, who is present in person, strongly opposed the adjournment and stated that the petitioner was intentionally avoiding to appear before the Court to prolong her agony, and implored the Court with tears in her eyes to decide the case on merit and not to adjourn it. She submitted that she was 17 years of age when her Nikah was performed in the year 1985 and now she is 35 years of age and her whole youth has been wasted in this litigation due to the vindictiveness of the petitioner who was out to torture her and ruin her life.
3. Since, the brother of the petitioner has appeared with the request for adjournment, it would appear that the petitioner had notice of the hearing today but he is absent. This would, indeed, show that the submission of the respondent today, that the petitioner was intentionally avoiding to appear, is not unfounded. We are not inclined to grant adjournment as we do not find the reason for seeking adjournment to be satisfactory, and in the circumstances of the case, proceeded to hear the petition. The brother of the petitioner was given chance to argue the case on behalf of his brother but he declined.
4. According to the judgment of the learned High Court, the respondent/lady had proved her case for dissolution of marriage by way of Khula and that the Court below had not properly considered and appreciated the evidence brought on record including the statement made by the respondent/lady wherein she had shown her extreme hatred for the petitioner and was not prepared to live with him under any circumstances, even if some one to shoot her. The relevant part of the judgment of the High Court on the point may be reproduced as under:-- "Besides above, it is also important to note down that despite of conciliation proceedings, initially arranged by Civil Judge between the parties on 29-8-1989 and 11-11-1990 and subsequently by Additional District Judge on 28-2-1994. She observed that appellant has extreme hatred, in her heart against respondent. It would be appropriate to reproduce hereinbelow the contents of the said order:-- 28-2-1994:--Case called. Counsel for plaintiff present. Defendant present. Plaintiff present. Plaintiff at any cost is not ready to live with defendant and has extreme hatred in her heart against defendant. Conciliation proceedings failed. Arguments heard. Case adjourned. To come up on 10th March, 1994, for orders.'
It is strange to note that learned trial Judge had not taken note of her own observations, made in the above order, regarding conduct of appellant, in which, she had explained extreme hatred. The learned Judge had also not attended to the fact that even prior to above proceedings, Civil Judge/Family Judge had twice conducted conciliation proceedings, but without any positive output. Moreover, the prolonged litigation between the parties, which is full of allegations and counter-allegations against each other, itself as a factor was sufficient to hold that there exist such circumstances, due to which, appellant was developed intense dislike towards respondent and it is not possible for her to lead a happy matrimonial life with him. It may also be observed that appellant had spent her prime youth in litigation against respondent, therefore, now it is impossible for her to lead a happy matrimonial life with respondent even if she is forcibly compelled to live with him as his legal , wife. Therefore, keeping in view all these facts even if the trial Court was not satisfied that no case is made out for dissolution of marriage; for the reasons mentioned hereinabove, still on taking into consideration the added facts which have come on record, during proceedings, particularly her own statement, her attitude towards respondent during conciliation proceedings of 28th February, 1994, as well as prolonged litigation, it was incumbent upon the trial Court to have dissolved the tie of marriage on 'Khula' following the principle laid down by Hon'ble Supreme Court in the case of Abdul Rahim, relevant para wherefore has already been reproduced hereinabove.
Thus, for the above discussion, I am inclined to hold that learned Judge decided issues 3,4 and 5 contrary to available evidence on record, as well as the principle laid down in this behalf by the superior Courts. As such, findings on these issues are hereby reversed for the reasons mentioned above and these issues are decided in favour of appellant and against the respondent, subject to the condition of returning the benefits received by her from respondent in view of the determination which will be made hereinbelow.
The respondent plea in this behalf is that he had paid an amount of Rs.65,000 to plaintiff for purchasing of different articles for performance of marriage, but he failed to prove the contention, as in his own statement, he did not utter a single word in this behalf. .Similarly no suggestion was given to appellant during her cross-examination, in this regard. Therefore, the Family Judge/Additional District Judge has rightly decided issue No.7.
The respondent in written statement repudiated the claim of applicant and urged that dower was not rupees fifty thousand, as such, there was no occasion either for appellant to demand or for defendant to pay the same. However, he has paid rupees five lacs to appellant.
The conclusion, therefore, would be that in respect of rupees fifty thousand, the dower amount as alleged by appellant, nothing was paid to her. "
5. Having held as above, the learned High Court concluded as under:-- "There is no other evidence available on record concerning the benefit which appellant has taken from respondent, at the the of Nikah, except her statement, in which she has admitted that at the the of Nikah, respondent gave him a set of gold, nine pairs of clothes, one pair of shoes and one attachi-case. She further stated that these articles are lying with her and she is ready to return them.
Thus tie of marriage between the parties is dissolved on ' Khula' subject to depositing/returning of above articles by appellant to respondent within to weeks, after receipt of certified copy of judgment through Additional District Judge/Family Judge, Quetta, who will ensure its return of Respondent Saleem Jahangir.
Resultantly appeal is allowed and cross-objection filed by respondent is dismissed.
Parties left to bear their own costs.
Office to draw decree sheet in above terms and consign the file to record after completion. A copy of the Judgment/decree, be also sent to Administrator Municipal Corporation for onward transmission to conciliation Court for further action, in accordance with law."
6. We have gone through the judgment passed by the learned High Courtand we are of the view that the learned High Court proceeded on correct principles of law as laid down by this Court in various cases, some of which have been cited in the impugned judgment, and had also correctly appreciated the evidence on record in reaching the findings and acted rightly in setting aside the judgment and decree passed by the learned Additional District Judge/Family Court and we see no reason to interfere with the judgment of the learned High Court. That being so, we find no merit in this petition and dismiss it, and refuse leave.