This writ petition is directed against the judgment and decree dated 27-4-1998 passed by Mr. Shahid Islam Khan Ghilzai, Judge Family Court, Kot Adu District Muzaffargarh whereby he decreed the suit for dissolution of marriage filed by Mst. Saeeda Khatoon i,e, respondent No,2 against Muhammad Sharif and dismissed the suit for restitution of conjugal rights instituted by the latter against the former.
2. The brief facts are that the respondent/plaintiff filed suit for dissolution of marriage on the ground that she was married with the present petitioner about 15/16 years back while she was hardly 13 years of age; that Rukhsati had not taken place and she remained virgo intacto; that after attaining puberty she repudiated the aforesaid marriage and as such the Nikah between the parties came to an end; that the petitioner had taken another wife namely Mst. Wazir Mai only three months after his marriage with the respondent/plaintiff and has 5/6 children from the second wife who were alive and living with him. It was also contended in the plaint that behaviour of the husband towards her was cruel as he was allegedly residing as 'Ghar Damad'. She allegedly developed hatred and as such the limits of God could not be observed by the parties.
3. The petitioner in his suit for restitution of conjugal rights contended that he was ready to take the respondent/plaintiff to his house and that he had given golden ornament and clothes to her at the time of Nikah; that the marriage had been consummated after the ceremony of Rukhsati.
4. The learned Judge Family Court framed issues on the controversial points and after recording evidence came to the conclusion that the marriage in question had taken place during the minority of the respondent/plaintiff, while she was hardly 13 years of age. In this regard, he considered the statement of respondent/plaintiff when she appeared in her suit as P.W.1. He also relied upon the school leaving certificate Exh: P/2 wherein her date of birth was recorded as 18-2- 1967 and as such her age was round about 13 years; that Nikahnama Exh.P/1 showed her age as 16 years but the same was disbelieved as according to the statement of the petitioner/defendant as D.W.1, respondent/plaintiff was studying in 8th or 9th class at the time of Nikah. This statement was in line with the date of birth recorded in the school leaving certificate, hence it had left no doubt that the respondent/plaintiff was around 13 years of age although her age was recorded in the Nikahnama as 16 years for the reasons best known to the parties concerned.
5. Secondly the petitioner had admittedly taken second wife only after three months of the aforesaid Nikah out of which he has got 5/6 children. The petitioner had taken the second wife after getting permission from the father of the respondent/plaintiff, which shows that the latter must be minor, which necessitated taking permission from her father i,e, Wali. Had the respondent/plaintiff been sui juris, then permission should have been granted by her to the petitioner allowing him to take the second wife. All these facts make it clear that respondent/plaintiff was minor at the time of her Nikah. In such a situation, she has a right to repudiate the marriage on attaining majority. This right has been found by the learned trial Court to have been exercised legally and correctly. The mere allegation that consummation had taken place would not take away the right of repudiation particularly when there was no child born to the parties from their wedlock. If the consummation had taken place and the parties had lived together after the Nikah, which took place about 18 years back, there should have been some issue from the wedlock.
6. The learned counsel for the petitioner contended that the respondent/plaintiff had failed to prove that she was virgo intact to as she refused to be medically examined when a question to that effect was put to her during cross-examination. However, mere refusal on the part of the plaintiff/respondent would not dis-entitle her to exercise the right of option of puberty particularly when there is no other evidence that in fact the rukhsati had taken place or the marriage had been consummated. The petitioner/defendant while appearing as D.W.1 stated that the plaintiff had got pregnant twice but the pregnancy was lost on account of abortion. There is however, no such proof on the file. On the contrary, the petitioner has denied such suggestion during her statement. The cross-examination of the petitioner/defendant as D.W.1 would show that in fact the petitioner has an axe to grind as he wanted to usurp the house of respondent/plaintiff which she got from her father. The petitioner/defendant has filed a suit in respect of the aforesaid house being an heir of the deceased father of the respondent/plaintiff. As such it is clear that the petitioner/defendant is only interested to get his share in the aforesaid house instead of keeping the respondent/plaintiff as his wife. Had he been interested in the respondent/plaintiff, then he would not have taken a second wife after his marriage with her. The trial Court has rightly dissolved the marriage between the parties after respondent/plaintiff had exercised her right of option of puberty to repudiate the marriage, which had taken place during her minority, The view taken by the learned trial Court does not suffer from any patent illegality nor it suffers from mis-reading of any evidence. The petitioner, therefore, cannot defeat the impugned judgment and decree through this writ petition without pointing out that there was any palpable illegality in granting the decree or the same was granted without jurisdiction.
7. The writ petition being meritless is dismissed in limine.