' Marriage between the parties is reported to have been taken place in the year sometime 1982. The petitioner was minor at that time. Later on she lived with respondent No,3 as his wife for some time.
But on account of disharmony and discord between the parties, she had to file a suit for dissolution of marriage. The said suit was, however, withdrawn by her on 27-4-1992 due to intervention of the respectables of the family and Panchayat. Immediately thereafter, again she had to file a suit for dissolution of marriage on account of disharmony between the parties and also claimed Khula' .
The suit was contested by respondent No,3 and was dismissed by the learned Judge, Family Court, Multan on 2610-1994. The said judgment was challenged by the petitioner in appeal before the District Court which was dismissed on 17-3-1996 by a learned Additional District Judge, Multan. This is petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenging the aforesaid judgments of the two Courts below.
2. The learned counsel for the petitioner contends that the petitioner had specifically stated in the plaint that it was not possible for her to live with the respondent No,3 as his wife due to extreme hatred having developed between the parties. It is further contended that she appeared as P.W.1 and supported and affirmed the assertion made in the plaint. He next contended that the two Courts below have not considered the case in its true perspective and her statement has been totally ignored. It is further contended that the view of the learned Courts that the second suit was not competent in view of the withdrawal of the previous suit is erroneous in law as principle of res judicata was not at all attracted to the facts and circumstances of this case. He relies upon Ali v.
Additional District Judge-I, Quetta 1986 CLC 27 in support of his contentions.
3. This petition was admitted to regular hearing on 17-4-1996 and notice was sent to respondent No,3. The date in this case for today's hearing has also been fixed after notice to respondent No,3, but he had not turned up to contest this petition. He is accordingly proceeded ex parte.
4. In the plaint the petitioner had in categorical words stated that extreme hatred had developed between the parties and alleged she was apprehensive that she would be killed by respondent No,3 and that she was not prepared to live with him as his wife, at any cost. This assertion of the petitioner was supported by her when she appeared as P. W.1, when her statement on oath was recorded by the trial Court. She has stated in unequivocal terms that it was not possible for her at any cost to live with respondent No,3 as his wife, and she was ready to forego her dower and other ornaments. In the cross-examination she further re-affirmed that despite the efforts of the respondent she was not prepared to live with him. The learned Judge, Family Court as well as the learned appellate Court seem to have ignored this material part of the evidence. Their approach in the matter was not in accordance with law applicable to the cases of this nature. The view of the learned Courts below that the previous withdrawal of the suit operated as res judicata is erroneous in law inasmuch as the cause of action in such-like cases is of recurring nature and the principle of res judicata did not operate in this matter. See Ghulam Muhammad v. Mst. Rashida Bibi and 2 others PLD 1983 Lah, 442.
5. Although the appreciation and appraisal of evidence cannot be undertaken in these proceedings under Article 199 of the Constitution, however, keeping in view the nature of controversy in this case, I have considered the evidence brought on record by the parties and am convinced that the petitioner is not prepared at any cost to live with respondent No,3 as his wife. It is the overall view of the matter which has to prevail with the Court in coming to the conclusion whether the woman is entitled to Khula'. There was ample evidence on the record for coming to this conclusion that she was entitled to Khula'. There can be no use of forcing a woman to live in a hateful union with a person, she in not ready to live even a single day at any cost. She is entitled to dissolution of marriage on her claim of Khula'.
' In view of the above, the judgments of the two Courts below are declared as-without lawful authority and of no legal effect and the same are set aside. This petition is accepted with no order as to costs.