' MUHAMMAD YUNUS SURAKHVI, J.---Through this appeal, with the leave of the Court, an order passed by the High Court on April 16, 1997, has been called in question, whereby the writ petition filed by the appellant, herein was dismissed in limine.
2. The appellant and respondent No,2 married to each other 18th of November, 1992, but 'Rukhsati' did not take place. After about three and a half years respondent No,2 filed a suit for dissolution of marriage on various grounds and also alternatively on the ground of 'Khula'. The appellant also filed a cross-suit for restitution of conjugal rights. Both the suits were consolidated by the learned Judge Family Court and after recording the evidence from both the sides the suit filed respondent No,2 was decreed on the basis of 'Khula' on payment of Rs,20,000 by respondent No,2 to the appellant, while the one filed by appellant was dismissed. Since no appeal is provided by law, a writ petition was filed by the appellant but it was dismissed in limine by a learned Judge in the High Court vide the order impugned, dated April 16, 1997, which is the subject of appeal before this Court.
3. Mr. M Riaz Tabassum, the learned counsel for the appellant, inter alia submitted in support of his appeal that the learned Judge Family Court while deciding issue No,3 clearly held that it was not possible for him to decide whether the appellant was of good reputation or not and also that the question of reputation was not relevant for decision of the case, but ultimately while deciding issue No,4 granted decree of 'Khula' on the ground that the appellant was of bad character and was swindler. The learned counsel submitted that the learned Judge Family Court did not appreciate the evidence in its true perspective and arrived at a wrong conclusion. The learned counsel for the appellant in support of his contentions relied on the reported cases titled "Lal Muhammad v. Gull Bibi (PLD 1986 Quetta 185), 'Dr. Ikhlaq Ahmed v. Mst. Kishwar Sultana' (PLD 1983 SC 169), 'Mst. Ghulam Sakina v. Umar Bakhsh and another' (PLD 1964 SC 456) and 'Mst. Zahida Bibi v. Muhammad Maqsood' (1987 CLC 57).
4. In reply it was vehemently contended by Raja Hassan Akhtar, the learned counsel for respondents, that out of numerous issues framed by the learned trial Judge, issues Nos. 3 and 4 relating to the alleged bad reputation of appellant and 'Khula' have a direct bearing on the fate of the case of the parties. According to the learned counsel, through the finding of the learned Judge on issue No,3 was not certain and definite yet on the question of 'Khula,' the finding was positive and in favour of respondent No,2. The learned Judge after proper appraisal and due appreciation of the evidence brought on record reached the conclusion that it was not possible for spouses to live together within the limits ordained by Almighty Allah. Thus, even if it is conceded that the issue with regard to the bad reputation of the appellant was not proved the issue of 'Khula' was substantially proved and the decree was granted on the basis of 'Khula'. The learned counsel further submitted that after the dissolution of marriage on the basis of decree passed by the learned Judge Family Court respondent No,2 contracted another marriage but the appellant has been sleeping over the matter for more than 4 months and it was only on 12-4-1997 that the appellant filed a writ petition in the High Court which was dismissed in limine.
' The appellant in his writ petition filed before the High Court did not furnish any plausible explanation as to why he approached the High Court so late, and thus, his writ petition was hit by the principle of laches. The learned counsel also submitted that it was held by the High Court that a thorough scrutiny of the evidence was not within the scope of writ jurisdiction and a finding of competent Court cannot be reversed in writ jurisdiction even if this Court arrived at a conclusion different than the one arrived at by the subordinate Court. The learned counsel relied on cases report as 'Dr. Ikhlaq Ahmed v. Mst. Kishwar Sultana (PLD 1983 SC 169) Azad Government and others v. Haji Samundar Khan and others (1995 SCR 259), 'Akber Ali v. Sardar Muhammad Ibrahim and another' (1984 CLC 1464) 'Muhammad Rafique v. Chairman Arbitration Council (1986 CLC 1722), 'Muhammad Yasin v. Mst. Razia Begum' (1986 CLC 1996) 'Mst. Khurshid Bibi v. Babu Muhammad Ameen' (PLD 1967 SC 97 and 'Dilshad Ahmed v. Mst. Sarwat Bi' (PLD 1990 Kar. 239).
5. We have given our due consideration to the arguments addressed at Bar and perused the relevant record with care. The main grievance of the learned counsel for the appellant appears to be that after recording finding on issue No,3 which pertained to the reputation of appellant and after having reached the conclusion the learned Judge decided this issue against respondent No,2 and observed that he was not in a position to give a definite verdict on this issue nor the same was material for the purpose of dissolution of marriage. In the opinion of the learned Judge some other forum should have been chosen for the said purpose but at the same time while giving finding on issue No,4 which pertains to 'Khula' on the basis of bad reputation of the appellant the learned Judge fell in error in granting the decree on the basis of 'Khula'.
6. Indeed it is correct that on issue No,3. The findings of the learned Judge Family Court were that it was not possible for him to give any definite verdict on the reputation of the appellant nor this was the proper forum for giving such finding but the fact remains that while dealing with issue No,4 he dissolved the marriage on the basis of 'Khula'. The argument of the learned counsel for the appellant to a certain extent appears to be correct but the fact of the matter is that the learned Judge took into consideration the entire evidence produced by the parties and then arrived at a conclusion that it was not possible for the spouses to live together within the limits ordained by Almighty Allah.
7. We have ourselves gone through the statement of Mst. Farzana Kausar and the statement of appellant including the averments made in the plaint and the written statement filed by the appellant before the trial Court. Mst. Farzana Kausar in her statement before the Court has categorically stated that after Nikah ceremony for about four years the appellant did not turn up to live with her or for taking necessary steps that she should live with him. It was also stated by her that during these years the appellant did not provide her maintenance nor contacted her. On one or two occasions the appellant contacted her on telephone but she made no response. It was stated by Farzana Kausar in unequivocal terms that she hated the appellant and never wanted to live with him because she had developed hatred and disrespect for the appellant due to his attitude.
8. On other hand, if we peruse the written statement of Saleem Akhar, the appellant herein, he has levelled wide allegations against the father of Farzana Kausar. He has gone even to the extent that the father of Farzana Kausar was in the habit of breaking family ties and demanding money. All these circumstances tend to show it positively that in the prevailing circumstances it was impossible for the spouses to reconcile and live as a union. The learned Judge Family, Court observed more than once in his judgment that he tried his utmost and asked Mst. Farzana Kausar to arrive at a reconciliation with her spouse but she flatly refused and expressed the view that she had developed a hatred against the appellant. In these circumstances, the learned Judge Family Court was left with no option except to pass a decree on the basis of 'Khula' and the same was done by him.
9. In a case titled 'Dr. Ikhlaq Ahmed v. Mst. Kishwar Sultana and others' (PLD 1983 SC 169), cited both by the learned counsel for the appellant and the learned counsel for respondents; the observations made at page 255 of the report may usefully be reproduced:--.
' "On the contrary it appears from the proceedings that the Judge Family Court, on an objective appraisal of the evidence on the issue framed, recorded a finding in favour of petitioner but with regard to question of 'Khula' the same Judge held in favour of the wife. Such a conclusion being in domain of discretion exercised by an authority having the advantage of observing closely and over a long period of proceedings before it the behaviour and the conduct of the parties towards each other and their problems is not open to interference unless the discretion was manifestly exercised arbitrarily and capriciously. The High Court has not found any taint in the exercise of discretion."
' In another case 'Lal Muhammad v. Gull Bi (PLD 1986 Quetta 185) the principle enunciated apart from the others may be reproduced;- ' "It is well-settled that writ jurisdiction normally would not lie against order of Court, tribunal or authority which have jurisdiction to decide such matters, but when any finding of fact is based on no evidence at all or ignorance of material evidence or consideration of inadmissible evidence' or arbitrary exercise of jurisdiction; perversity or material illegality in the conduct of proceeding causing palpable injustice, in that case jurisdiction of this Court can always be invoked to rectify the wrong and injustice occasioned to a party, on the basis of admitted facts."
' In the case reported as 'Mst. Ghulam Sakina v. Umar Bakhsh' (PLD 1964 SC 19 456), the distinction between divorce on 'Khula' and 'Mubaraat' has been made which is not relevant in view of the facts of the present case. In the cases titled 'Mst. Zahida Bi v. Muhammad Maqsood' (1987 CLC 57) referred by the learned counsel for the appellant, the principle laid down was:-- ' "Husband marrying second wife after turning out appellant from his house and thereafter, settling in England the appellant maintained by her parents receiving no equal treatment from her husband for many years. The appellant's marriage was dissolved by 'Khula' on payment_ of Rs,4,000 which met the ends of justice."
' The principles enunciated in the aforesaid authorities referred by the learned counsel for the appellant advance the case of respondent No,2 rather than the case of appellant.
10. Now we advert to the authorities referred by the learned counsel for the respondents.
11. In a case titled 'Syed Dilshad Ahmed v. Mst. Sarwat Bi (PLD 1990 Kar. 239) it was observed at pages 247 and 248 of the report as under:- ' "Now adverting to the case, the learned Family Judge, while dissolving the marriage by way of 'Khula', discussed in detail the concerned issue No,6 The relevant portions from his judgment are reproduced as under:- ' 'I have considered the evidence brought on record by the parties and have also watched the attitude of the spouses towards each other. The plaintiff has clearly deposed that she hated the defendant and wanted dissolution. Her attitude towards the defendant du ring conciliation talks was also very much hostile towards the defendant and natural hatred against the defendant was quite evidence from her face. This all leads me to form a firm opinion that the relations between the parties are strained beyond repair. The issue in hand is, therefore, answered in affirmative' ."
' The learned Family Judge further observed:- ' "In the present case, admittedly, the parties are close relations and are visiting each other freely after the 'Nikah'. Only marital obligations have not yet been performed. The plaintiff has been practically subjected to mental annoyance by the defendant which has resulted into hatred against him and it can be readily inferred from the evidence brought on record that the spouses cannot live together as husband and wife within the limits of God. In my humble opinion in the present case, though no 'Rukhsati' has taken place, yet it is a fit case for the grant of 'Khula'."
12. In a famous case titled 'Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97) it was observed by the learned Judges of the Supreme Court in a following manner:- ' "As is well-settled, 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 his respect, Islam, 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 'holy dead-lock' . "
' Again at page 99 it was observed as under:- ' "The question that fell for consideration in the case was whether a wife, under the Muslim law, is entitled, as of right, to claim Khula, despite the unwillingness of the husband to release her from the matrimonial tie, if she satisfies the Court that there is no possibility of their living together consistently with their conjugal duties and obligations. The learned Judges concurred in their opinion and endorsed the view of Kaikaus, J. In Mst. Balqis Fatima v. Najmul Ikram Qureshi (PLD 1959 Lah. 566) that under Muslim Law, the wife is entitled to Khula, as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union."
13. In a case titled 'Muhammad Yasin v. Mst. Razia Begum and another' (1986 CLC 1996) the relevant observation made at page 1998 may conveniently be reproduced:- ' "In the absence of any evidence it can be safely inferred that Razia Begum is asking for divorce on her own initiative and has not been prompted by any other person. It is not in dispute that the Family Court in course of hearing of the divorce suit attempted to bring about reconciliation between the parties, but these efforts also failed. Considering the evidence, circumstances and probabilities of the case, Family Court felt convinced that the existing unhappy relations between the parties held out no hope for their future happy living together within the limits prescribed by Allah. In the circumstances, purpose of marriage clearly seemed to be frustrated. Plaintiff has shown a firm stand in asking for divorce. From the evidence and her conduct, a clear inference is available that reconciliation between the two was not possible. When such are the circumstances, it is better to separate, than the live in an atmosphere perpetually saturated with suspicion, mutual distrust, discord and hatred for each other. In an atmosphere of the type aforenoticed, human life becomes a mere waste. As has been noticed in several pronouncements of the superior Courts that Islam does not thrust upon the parties a marriage devoid of bless and happiness. A clear reading of the impugned judgment indicates that the Family Court which had the additional advantage of seeing and noticing the demeanour and behaviour of the parties inter se found, on evidence, that plaintiff was entitled to separation on the basis of 'Khula'. In coming to the aforenotice conclusion, the Court has neither omitted nor ignored from its consideration the material placed before it. In the absence of right of appeal, conclusions arrived at, are not reviewable in Constitutional jurisdiction."
14. In a case titled 'Muhammad Yusuf v. Mst Kaisar Jan' (1984 CLC 1465 SC (AJ&K) it was observed at page 1466 as under:-- ' "The superior Courts in Pakistan and Azad Kashmir are in agreement that if wife is adamant that she has developed a fixed aversion and if all attempts at reconciliation have failed, there is a little choice for the Court except to grant a decree, for the consequences in adopting any other course may be disastrous."
' The again at page 1446 it was held that:- ' "The wife is entitled to 'Khula' as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union."
15. From the above referred authorities, the irresistible conclusion is that if the spouses have developed so much hatred, disrespect and discomfort against each other and all the possible measures of reconciliation have failed then it is always advisable to dissolve the marriage on the basis of 'Khula' which is the right of the wife. The learned Judge Family Court, as stated earlier, formed the opinion that Mst. Farzana Kausar had developed such a hatred and disrespect against her husband that she was not willing to live with him under any circumstances. Therefore, there was no choice with the learned Judge except to pass a decree for dissolution of marriage on the basis of 'Khula' otherwise as observed in the pronouncements of the superior Courts the result would have been disastrous. The conclusion arrived at by the learned Judge Family Court should not have been disturbed in exercise of writ jurisdiction and it was rightly done so by the High Court.
16. Another significant aspect of the case is that against the judgment of the learned Judge Family Court the right of appeal was not available to any of the parties but the fact remains that the judgment was pronounced in presence of appellant on December 31, 1996, by the learned Judge Family Court. After the pronouncement of judgment the appellant has been sleeping over the matter for a period of more than 4 months and it was only on April 12, 1997, that he filed the writ petition. This obviously shows that the appellant has been indolent and negligent in pursuing his remedy and his writ petition was hit by the principle of laches. Moreso, no explanation whatsoever was furnished in the writ petition as to why he had been indolent. The writ petition was not dismissed by the High Court on the ground on laches but all the same this point was raised before us by the learned counsel for respondents and the point being purely of legal nature we allowed him to argue the same. The learned counsel for the appellant could not furnish a sufficient explanation for the delay nor could he satisfy us for the indolence shown by him. In our view, the fact that the appellant had been indolent and had been sleeping over his right for a period of more than 4 months during which the respondent No,2 contracted another marriage, and the fact that the appellant did not move any application either before the learned Judge Family Court or in the High Court or in this Court for grant of any interim relief tends to show that he was grossly negligent in pursuing his remedy and was only interested in humiliating and dragging the respondent into fruitless litigation.
17. In an unreported case of this Court titled 'Mehboob Khan and others v. Fazal Ellahi and others, decided on 9-4-1995, (Civil Appeal No,11 of 1995), the laches of 28 days was considered fatal for the case of respondents. In a reported case' Nusrat Fatima v. Azad Government and 2 others' (PLD 1985 SC (AJ&K) 93) it was observed as under:- ' "It must first be ascertained as to what precisely the doctrine of laches means. The doctrine in its essentials is based on the maxim 'Vigilantibus, non dormientibus Jura Subveninut,' which means equity aid the vigilant and not indolent or delay defeats equity. The delay which under the given circumstances is considered sufficient to prevent a party from obtaining, relief is technically called laches. The High Court would normally, in exercise of its extraordinary writ jurisdiction, refuse its aid to stale claims where the claimant by sleeping over his right for a great length of time, has acquiesced as to what length of time would constitute laches depends upon and varies according to the facts of each individual case."
' The nutshell of the above discussion is that finding no force in this appeal, it is hereby dismissed with costs.