1. The brief facts as disclosed in the petition are that Muhammad Younus, the petitioner (hereinafter referred to as Younus) fell in love with Mst.. Kaniz Fatima respondent No,1 (hereinafter referred to as Fatima) and before marriage Younus informed her that he was already married and had children from his first wife. After marriage Fatima repeatedly asked Younus to arrange a meeting with his first wife and while the latter was hospitalized for delivery of the fourth child he arranged a meeting of Fatima with his first wife. After the first wife was discharged from the hospital Younus brought Fatima to his first wife's house but after an hour she left and went to her own residence. With the passage of time minor disputes between the two parties started cropping up and Fatima asked Younus to divorce his first wife and offered attractive incentives but Younus being a father of four minor children and husband of a faithful wife did not do so whereupon Fatima started quarrelling on petty matters and ultimately shifted to her sister's house. Younus tried to bring back Fatima to his house but the latter asked him to divorce his first wife and kill the newly born daughter, his fifth child. He could not reconcile with Fatima who possessed criminal mentality and could not prove herself as a dependable and faithful wife. He has further alleged that Fatima had established intimacy with N.P. Officials particularly Master Sabir whom she instigated to file a complaint against Younus with the Commanding Officer Karsaz who ordered an inquiry which was still pending.
Younus in spite of all the problems created by Fatima was ready to keep her with love and affection as his duly wedded wife and provide maintenance within his legitimate means.
2. It appears that Fatima filed Family Suit No,832 of 1998 in the Court of Xth Civil and Family Judge, Karachi Central, for dissolution of marriage on the ground that Younus had taken an additional wife, in contravention of assaulted her and made her life miserable by cruelty of conduct which amounted to physical ill-treatment and having more than one wife was unable to maintain her due to his meager means and did not treat them equitably in accordance with the Injunctions of the Holy Our'an and requested the Court to dissolve the marriage by way of Khula' as she had developed extreme hatred for him. Younus filed his Written Statement denying the allegations made by Fatima. It further appears that Younus also filed Family Suit No,729 of 1998 in the same Court for Restitution of Conjugal Rights. On 29-1-1999 Fatima filed an application in Family Suit No,729 of 1998 requesting the Court to proceed with the said suit concurrently with the Family Suit No,832 of 1998 filed by her for dissolution of marriage which apparently was not allowed on account of the objections filed by the petitioner's Advocate. He has further alleged that on 4-5- 2000 his Advocate filed an application in Family Suit No,729 of 1998 (for restitution of conjugal rights) to summon Younus from PNS Ahsan at Jinnah Naval Base Ormara where he had been transferred which was dismissed on the same day by the learned Judge on the ground that it was the duty of the counsel to inform his client to attend the Court to record the evidence. On 6-5-2000 the suit for restitution. Of conjugal rights filed by Younus was dismissed for non-prosecution.
3. Meanwhile, on 15-1-2000 the statement of Fatima was recorded in Family Suit No,832 of 1998 filed by her for dissolution of marriage and she was cross-examined by the learned counsel for Younus.
Thereafter, on or about 3-2-2000 Younus filed an application under Order XIX, Rule 2, C.P.C. Stating that during her deposition Fatima had denied visiting and living with him at his residence and having fulfilled her conjugal obligations with him during the pendency of the suit which fact could be disproved from the Audio Cassette which Younus had made of Fatima while she had spent her nights with him. He produced the alleged cassette with the request that the Court should have it examined by a Government agency like Radio Pakistan for detection of sound from its frequency which would prove that the statement made by her in the cross-examination was incorrect. The application did not meet with success, Younus apparently did not produce himself or any witness in his defence and on the basis of the evidence produced by Fatima, the Family Court by judgment dated 10-5-2000, dissolved the marriage by way of Khula' as Fatima had agreed to forego her dower. Consequently Younus filed this petition against the judgment and decree dated 10-5-2000 passed in Family Suit No,832 of 1998 requesting the High Court to set aside the impugned judgment and remand the suit to the Family Court to decide the same on merits.
4. The petitioner has neither filed a copy of the plaint in Family Suit No,832 of 1998 filed by Fatima for Dissolution of Marriage nor his Written Statement in reply thereto which would have helped in verifying the allegations made by him in the petition. Instead, he has filed several documents of Suit No,729 of 1998 for restitution of conjugal rights which was dismissed for non-prosecution which are irrelevant for the purpose of deciding the present petition. He has, however, filed a copy of the evidence of Fatima recorded by the Court in Suit No,832 of 1998 which consists of her examination- in-chief as well as her cross-examination by the Counsel of Younus, a copy of his Nikahnama and the judgment and decree impugned in this petition. On perusal of the documents, the following facts emerge:
(i) Younus married Fatima on 25-5-1994 at prachi. The entire Maher was fixed at Rs,25,000 Mawajaal.
(ii) The space in front of clause 21 of the Nikahnama requiring the groom to disclose whether he had a previous wife and if so whether he had secured permission of the Arbitration Council under the Muslim Family Laws Ordinance, 1961 to contract another marriage, including the space from clauses 18 to 22 has been cancelled by two diagonal parallel lines, thereby indicating that the groom did not have any wife prior to his marriage with Fatima on 25-5-1994.
(iii) On 15-1-2000 in the examination-in-chief. Fatima clearly stated: (a) The defendant did not disclose me that he is already married and he has 3 children from his 1st wife. (b) The defendant is a cheater and always he used abusive language with me...He always beat me on my face. The defendant hitted on my nose and ear and he compelled me for taking Oath on Holy Qur'an for non-disclosure of his beating and then he took me in hospital. On 1-8-1998 the defendant beat me and turned me out from the house and stated that there is no relation between us. (c) "During the 8 years of marriage I found the defendant unconfidence person. He always talked lies, he is dishonest man. On the above circumstances I am not ready to join the defendant at any cost and condition. In lieu of Khula' I am ready to forego my dower amount. I hatred the defendant. I think it is as sin to see the face of my husband."
(iv) In the cross-examination to the Advocate of Younus, Fatima stated: (a) "It is incorrect to suggest that before marriage I knew the facts of defendant's first wife". (b) "It is incorrect to say that after marriage I lived with the defendant happily for about 3 years and then I demanded him to divorce his Ist wife. I vol. Says that when the defendant declared before me that he is already married man and he has children, then I become in tension..." (c) "It is incorrect to suggest that I developed the relation with the Naval Staff". (d) "It is incorrect to say that after filing of this suit I reside with the defendant in Naval Colony and he has recorded my conversation in audio cassettes..I do not want to live with the defendant at any cost and condition. It is incorrect to suggest that defendant paid me dower amount."
5. From the above evidence it is clear that Younus not only cheated Fatima by not disclosing his previous marriage but also violated the provisions of the Muslim Family Laws Ordinance, 1961 by making a false statement in the Nikahnama about his earlier subsisting marriage. Younus used to beat Fatima and turned her out of the house. As a result of the conduct of Younus, Fatima lost all faith in her husband, was not willing to live with him at any cost or condition as she had developed hatred for her husband and offered to forego the dower amount for her release from the bonds of marriage. The Holy Qur'an has given to the wife the right to seek termination of the marriage contract if the parties are unable to live in harmony provided she returns the dower or part of it to the husband. Surah Al-Baqarah 2, Ayat 229 ordains: "And it is not harmful for you (men) to take back (from your wives) any of your Mehar (Bridal money given by the husband to his wife at the time of marriage which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. To deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them, if she gives back (the Mehar or part of it) for her Al-Khul (divorce)."
(Translation of the meanings of the Noble Qur'an in English Language by Dr. Muhammad Taqi-ud- Din Al-Hilali and Dr. Muhammad Muhsin Khan, Published by King Fand Complex for the printing of the Holy Qur'an Madinah, K.S.A.).
The manner of giving divorce Al-Khul is narrated by Ibn-e-Abbas (r.a.) in Sahih Al-Bukhari, Volume 7, Hadith No,197 as -follows: "The wife of Thabit bin Qais came to the Prophet (P.B.U.H.) and said: '0 Allah's Messenger I do not blame Thabit for defects in his character or his religion, but I, being Muslim, dislike to behave in an un-Islamic manner (If I remain with him).' On that Allah's Messenger (p.b.u.h.) said (to her), will you give back the garden which your husband has given you (as Mehr)? She said, 'Yes'. Then the Prophet (P.B.U.H.) said to Thabit: '0 Thabit accept your garden, and divorce her once'. " This principle has been followed by our superior Courts in several cases, the prominent one of which is the case of Mst. Khurshad Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, Fatima in her evidence stated very 'clearly that she had no confidence in her husband who was a dishonest man, she hated him and in the circumstances was not ready to join him at any cost and was ready to forego her dower amount. In the cross-examination of Fatima the counsel for Younus did not ask any question in relation to the aforesaid statement. Her evidence thus remained unrebutted. In such circumstances the Family Court had no option but to dissolve the marriage by way of Khula as it was evident that it was not possible for the parties to live with each other on fair basis.
6. It is pertinent to note that in the cross-examination of Fatima, the advocate of Younus suggested to her that she had developed relations with the Naval Staff which she denied. In the present petition in paragraph 6, Younus has stated' that Fatima possessed criminal mentality and could not live as a faithful wife. In paragraph 9 he has again alleged that Fatima had "created intimacy with N.P. Officials and particularly with Master Sabir". The accusation of infidelity is a very serious matter and cannot be ignored. In Surah 24 An-Nur Allah has enjoined as follows: "And those who accuse chaste women, and produce not four witnesses, flog them with eighty stripes, and reject their testimony for ever. They indeed are the Fasiqun (liars, rebellious, disobedient to Allah). (Ayat 4)
' And why did they not produce four witnesses? Since they (the slanderers) have not produced witnesses! Then with Allah they are the liars. (Ayat 13)
' Allah forbids you from it and warns you not to repeat the like of it for ever, if you are believers.
(Ayat 17).
(See Translation of the Meanings of the Holy Qur'an, supra).
' Younus should not have made such slanderous accusations against his wife and if he did it was mandatory upon him to produce four witnesses in support of his allegations of adultery before the Court. He did not do so before the Family Court which shows that his allegations were false. He did not stop there and repeated the same slanderous allegations against Fatima in the Constitution petition. According to the Ayat reproduced above he is apparently a Fasiq (liar, rebellious, disobedient to Allah) whose testimony cannot be accepted by this Court. The petition is patently mala fide and liable to be rejected.
7. Mr. Ajmal Haider, learned counsel for the petitioner, submitted that Fatima had visited and lived with Younus for several nights during the pendency of the suit which showed that she had reconciled and was consequently not entitled to the decree for dissolution of marriage. To prove that Fatima had spent nights with Younus and that she had made incorrect statement during her cross-examination Younus had in his possession an audio cassette containing his wife's conversation with him which should have . Been referred for testing for voice frequency to an expert and referred to the judgment of Sahibzada Shahryar Abbasi v. Samia Abbasi, 1992 M LD 159.
In the said case the husband had given oral evidence and had also produced a cassette and photographs to show that the wife had lived with the husband after filing of the suit, the Court, therefore, remanded the case for a fresh trial. In the present case Younus did not produce any evidence whatsoever to prove his allegation that Fatima had lived with him after filing of the suit.
This case does not support the case of the petitioner. The learned counsel for Younus also referred to the case of Muhammad Abbasi v. Mst. Samia Abbasi 1992 CLC 937 and Kaura v. Mst. Mansab Mai and another, PLD 1981 Lahore 335 in support of his argument that there was not sufficient evidence on the record before the Family Court to dissolve the marriage by way of Khula' . It appears that the learned counsel has not understood the case of Muhammad Abbasi properly. In the said case the learned Judge observed as follows: "The same position obtains as regards the finding of Family Court on the issue of Khula' . There cannot be any cavil that a wife is entitled to have the marriage dissolved on the basis of Khula' if the conscience of the Court is satisfied that it shall not be possible for the parties to live together as husband and wife within the limits prescribed by Allah Almighty. It is, however, to be remembered that Khula' cannot be granted to the wife just for asking and it cannot be equated with the right of husband to dissolve the marriage by pronouncing Talaq. The grant of Khula' as already observed, is dependent upon the satisfaction of the Court that refusal to dissolve the marriage would amount to forcing the parties to live in a hateful union."
' From the evidence of Fatima reproduced above, it is crystal clear that the learned Family Court was satisfied that the wife having expressed her hatred for the husband it was not possible for the parties to live together in love and harmony and that the refusal to dissolve the marriage would force the parties to live in hateful union which would not be in accordance with the Injunctions of Islam. In the second case of Kaura cited by the learned counsel, the Court held that the wife may not be entitled to a decree for dissolution of marriage unless reasonable cause was shown for not living with her husband. There is no cavil about this proposition of law. Suffice it to say that Fatima had established sufficient cause for dissolution of the marriage which was consequently granted by the learned Family Court.
8. As regards the petitioner's contention that the Court should have sent the cassette for examination by an expert to match the voice frequency of Fatima on the alleged cassette; suffice it to say that it was for Younus to prove the same which he failed to do. Fatima denied having lived with Younus during the pendency of the suit. It is probable that Younus may have recorded their intimate conversation in the privacy of their conjugal bedroom at any time prior to the filing of the suit. It is not possible to fix an exact date of the conversation without recording evidence. The burden of proving the conversation and its timing was upon Younus which he failed to discharge.
There is no mention of the audio cassette in the impugned judgment and it appears that after filing the application it was not pursued. Further section 9 of West Pakistan Family Courts Act, 1964 reads as follows: "9. Written statement.---(1) On the date under clause (a) of subsection (1) of section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement, and attach therewith a list of his witnesses along with a precise of the evidence that each witness is expected to give.
(2) Where a defendant relies upon a document in his possession or power, he shall produce it or a copy thereof in the Court along with the written statement.
(3) Where he relies in any other document, not in his possession or power, as evidence in support of his written statement, he shall enter such documents in a list to be appended to the written statement.
(4) Copies of the written statement, list of witnesses and precise of evidence referred to in subsection (1) and the documents referred to in subsection (3) shall be given to the plaintiff, his agent or Advocate present in Court."
Younus has filed a copy of the written statement filed by him in the suit which would have revealed the list of documents and his witnesses along with a gist of the evidence that each witness was expected to give. In the absence of the written statement the presumption would be that he had not complied with the requirements of supplying copies of the documents (which would include the alleged cassette) and the list of witness as provided in section 9 of the West Pakistan Family Courts Act, 1964. Therefore, he cannot now agitate that the Family Court committed grave illegality in not considering the contents of the alleged cassette which were apparently not produced by him through any witness who would have been subject to cross-examination by Fatima's counsel.
9. In view of the above discussion, it is evident that the Family Court did not commit any illegality in deciding the suit in favour of Fatima or exercised its jurisdiction unlawfully or with material irregularity resulting in grave injustice which ought to be corrected by this Court. The impugned judgment of the learned Family Court is based upon the evidence on record and is in accordance with the Injunctions of the Holy Qur'an and the judgment of the Honorable Supreme Court of Pakistan. The petition is patently vexatious and is, accordingly, dismissed in Iimine.