' Adnan Aziz the petitioner and Mst. Zareen Baig respondent No,2 were married on 4-10-1998 and Nikah ceremony was duly performed but no Rukhsati did take place. The dower was fixed at Rs,10,000. The petitioner's family approached the family of respondent No,2 for Rukhsati but instead of Rukhsati differences arose between the parties and lastly on 27-3-1999 respondent No,2 filed a suit (F.S. No,245 of 1999) for dissolution of marriage by way of Khula'. Thereafter, on 29-7-1999 the petitioner filed a suit (F.S. No,645 of 1999) against the respondent No,2 for restitution of conjugal rights. Learned Family Judge held pre-trial which failed and then the following consolidated issues were framed:--
(1) Whether the defendant demanded heavy luxury dowry articles from the plaintiff?
(2) Whether the defendant is jobless and character is suspicious and known as a bad name?
(3) Whether the plaintiff is entitled for Khula'?
(4) Whether the defendant is entitled for the decree of restitution of conjugal and Rukhsati of the plaintiff?
(5) What should the decree be?
2. On these issues respondent No,2 examined herself but the petitioner did not lead any evidence and his side of evidence was closed by his Advocate. Post-trial was also held but that too failed.
After hearing the counsel for parties learned Family Court by judgment, dated 22-5-2000 decided the first two issues in favour of the petitioner and Issues Nos.3 and 4 in favour respondent No,2. In consequence of the findings on Issues Nos.3 and 4 learned Family Court held that the respondent No,2- was entitled to dissolution of marriage by way of Khula' against relinquishment of her dower and decreed her suit-dismissing the suit of petitioner. The petitioner has invoked Constitutional jurisdiction of this Court under Article 199 of the Constitution and assailed the above judgment and decree seeking the following reliefs:-
(i) The impugned judgment, dated May 22, 2000 passed by the learned Court of Xth Civil and Family Judge, Karachi East in F.S. No,245 of 1999 (Mst. Zareen Baig v. Adnan Aziz) and F.S. No,645 of 1999 (Adnan Aziz v.. Mst. Zareen Baig) be declared unlawful, void, discriminatory and violative of the petitioner's Constitutional rights and the same be set aside.
(ii) The F.S. No,645 of 1999 for restitution of conjugal rights of the appellant be decreed.
(iii) Cost of the present proceedings and the proceedings before the lower Court be granted.
(iv) Any other/further relief which the nature and the circumstances of the case may require be granted.
3. Learned counsel for the petitioner contended that the essential requirements for allowing dissolution of marriage on the basis of Khula', were barely lacking, as nothing was placed on record to show that during the pre-trial or post-trial proceedings the respondent No,2 disclosed any hatred against petitioner; the Family Court has, therefore, taken an erroneous view that the marriage was to be dissolved by way of Khula'. He contended that in fact step-mother of respondent No,2 was compelling her not to accept the marriage and the father of respondent No,2 has also been impressed, consequently, the Rukhsati has been delayed. Learned counsel further contended that no Rukhsati had taken place, therefore, it could not be inferred that the parties would not live within the limits of Allah. He also urged that two issues were decided in favour of the petitioner and ground of Khula' was, therefore, not tenable. He sought support from the cases; Aali v. Additional District Judge-I 1986 CLC 27 (Quetta) and Rehmatullah v. Mst. Shamim Akhtar 1989 CLC 3 (Azad J&K).
4. Learned counsel for respondent No,2 supported the impugned judgment and submitted that there is clear finding of. The Family Court that post-trial and pre-trial failed which indicates that the respondent No,2 had hatred against the petitioner and was not prepared to live with him. He also referred to the deposition of respondent No,2 recorded by the Family Court wherein she stated that she hated the petitioner and was not ready to live with him at any cost. He placed reliance on the principle laid down Shahid Javid v. Sabha Jabeen 1991 CLC 805, Mst. Rashidan Bibi v. Bashir Ahmed PLD 1983 Lah. 549 and Sughran Begum v. Additional District Judge 1992 CLC', 1733.
5. The foremost contention on behalf of the petitioner that during the post-trial or pre-trial the respondent No,2 did not demonstrate any hatred against petitioner cannot be subscribed to in view of the observation recorded by the trial Court that the post-rial and pre-trial failed. In the first instance, before recording of evidence pre-trial was held which could not succeed and lastly post- trial was conducted after recording of the evidence which too, met the same fate. It is thus, evident that the respondent No,2 did not agree to live with the petitioner as his wife. The mention of the fact that post-trial and pre-trial failed is enough and it is not necessary for a family Court to record details of the dialogue and the harsh words if any, used by the parties during such proceedings.
The failure of these trials would indicate that all, possible efforts to bring about reconciliation and persuade the parties to live as spouses within the limits of Allah culminated in failure. It would be interesting to note that in her deposition the respondent No,2 had stated on oath before the Court that she hated the petitioner and she was not ready to live with him at any cost. Even in the cross- examination she reiterated that she was not ready to go with petitioner. Certainly the evidence recorded on oath was sufficient to display aversion and hatred against petitioner which is a pre- eminent consideration in the matter of divorce by Khula' .
6 Learned counsel for the petitioner placed reliance on Aali's case 1986 CLC 27 (Quetta) wherein the facts were that Nikah had been performed but Rukhsati did not take place and spouses had not lived as husband and wife. It was observed that the Court could not readily infer that the spouses could not live together within the limits prescribed by Allah. Learned counsel has lost sight of the observation made in this authority that there is no bar of granting decree in a fit case on the ground of Khula' even in a case where no Rukhsati has taken place. No doubt, it has been observed that a wife is net entitled to claim dissolution of marriage by way of Khula' as a matter of right without satisfying the Court that relations between the parties were so strained that they could not live within the limits prescribed by Allah and it has also been observed that wife is not granted a right to come to Court at any time and exercise right of Khula' if she is prepared to restore the benefit she has received; nevertheless, it has been observed that such relief is to be granted if the Judge apprehends that the limits of Allah will not be observed in their relation towards one another and that any passing impulse shall not itself form foundation of divorce, nor shall such a claim be based on whims and fanciful grounds. Ratio of the above aforesaid judgment is that the Court has to reach the level of complete satisfaction that there existed disliking or hatred resulting in serious disharmony and incompatibility between the parties to live together within the limits of Allah. In the instant case the respondent No,2 has stated in unequivocal terms that she has hatred against the petitioner and she was not ready at all to live with him. Learned Family Court has considered all the ambient circumstances including the attitude of the respondent No,2 and has come to the conclusion that at the time of recording of evidence respondent No,2 displayed intense hatred on her face as such she was entitled to right of divorce by way of Khula'.
7. In Rehmatullah's case 1989 CLC 3 the Azad Jammu and Kashmir High Co-in has observed that the statement of wife in her examination that she was not prepared to live with her husband, in any case was not sufficient to hold that if the parties were made to live together it was not possible for them to do so within the limits ordained by Allah. It may be appreciated that the facts of the aforesaid case are altogether different or the wife had herself left her husband. In the instant case no Rukhsati has taken place and respondent No,2 has during the long time of the proceedings of suit displayed her bitter aversion towards the petitioner which facts were noticed by the Family Court, as such there is no legal justification to interfere with the opinion of trial Court just for the purpose of compelling the wife to perform Rukhsati and live together on experimental basis.
8. As observed by Lahore High Court in Shahid Javid's case 1991 CLC 805 the right of dissolution of marriage on the basis of Khula' was an independent right and failure of wife to establish grounds other than Khula' taken by her would not prejudice her right. Likewise, the observation in Sughran Begum's case 1992 CLC 1733 also support the case of respondent No,2 that onus of establishing the hatred required to secure the dissolution on the basis of Khula' cannot be made so strict as to compel the wife to live in unhappy union. Similarly, the version of wife that she would not live with husband but prefer the death was also, given due weight for the purpose of securing dissolution of marriage on the basis of Khula' in Mst. Rashidan Bibi's case PLD 1987 Lah.
549.
9. It may be noted that while deciding the question of dissolution of marriage on the ground of Khula' the Courts will have to assign due significance to the version of wife and unless it appears to be a flagrantly whimsical and fanciful desire of wife to secure the dissolution of marriage, her word cannot be struck down or ignored. In the case Abdul Ghafoor v. Judge, Family Court 1999 SCMR 2631 the suit for dissolution of marriage on the ground of Khula' was dismissed by the Family Court which was set aside by the High Court in Constitutional jurisdiction and the marriage was dissolved to save the parties from violating the limits prescribed by Allah. The wife adhered to the same position even before the Honourable Supreme Court, the decision of the High Court, as such, was upheld. The principle laid down in this authority supports the case of respondent No,2.
10. It may be added that in the instant case the material on record and the circumstances shown therein are fully convincing as such the dissolution of marriage by way of Khula' could have even otherwise been granted by this Court in Constitutional jurisdiction. The Honourble Supreme Court in Muhammad Rafiq v. Kaniz Fatima 2000 SCMR 1563 has observed that High Court could interfere in its Constitutional jurisdiction, if it was convinced, that the existence of unhappy relation between the husband and wife held no hope in their living together within the limits prescribed by Allah. The Family Judge had already taken a specific, express and positive view which is to be upheld.
11. Resultantly, the reasonable conclusion would be that there is no rational basis for interference with the findings of learned Family Court granting the dissolution of marriage by way of Khula' as apparently the question of facts have been satisfactorily discussed and appraised. The writ jurisdiction as such cannot be exercised in such -a matter, the petition, therefore, fails and is dismissed with costs.