By this Constitutional petition, the petitioner through his counsel, has challenged the legality and propriety of the judgment and decree dated 18-2-1999 passed by respondent No,2 in Family Suit No,441 of 1995 holding respondent No,1 entitled for dissolution of marriage on the ground of cruelty and order dated 9-2-2001 in Family Appeal No,23 of 2001 whereby the appeal of the petitioner was dismissed being time-barred consequent to the dismissal of his application filed under section 5 of the Limitation Act. The brief facts leading to the filing of the present Constitutional petition are that marriage between the petitioner and respondent No,1 was solemnized on 13-2-1991 against dower amount of Rs,35,000. It is the case of respondent No,1-plaintiff in her plaint that from the very beginning the petitioner-defendant appeared to be a troublesome and coarse and used to pick-up quarrels in order to create mental agony for respondent No,1-plaintiff. Moreover, though it was agreed between the parties that respondent No,1-plaintiff will be allowed to complete her final examination but the said understanding/commitment could not be done as/the petitioner-defendant failed to keep his words. It was further asserted by respondent No,1-plaintiff that not only even the amount of Rs,14,000 so incurred at the time of delivery of second baby by her parents at Karachi was not paid by the petitioner-defendant but he usually used to snatch money given to her by her parents.
However, on 4-5-1995 after a quarrel the petitioner-defendant announced Talaq thrice and pushed respondent No,1-plaintiff out of the house who took shelter of next door neighbor. She was even not allowed ,to take her belongings or babies and was forced to leave the house in three clothes. It has, further been asserted that the petitioner also tried to operate her bank account/locker but could not succeed since she was intimated in time.
However, having seen no positive response even from the parents of the petitioner who, though complained, did not take any step or responsibility for betterment of the circumstances being created by the petitioner, respondent No,1-plaintiff filed suit for dissolution of marriage on the ground of cruelty alongwith the cost of the suit and other relief in the circumstances of the case. Petitioner-defendant filed written statement denying all the allegations levelled against him. He further added that the attitude of respondent No,1-plaintiff was not compromising or obedient rather insulting. He further asserted that respondent No,1-plaintiff usually used to use abusive language and rigid attitude for which her mother played an important role in their present separation as she used to intervene. The petitioner-defendant also denied the allegation that he stopped respondent No,1-plaintiff completing her studies and it was respondent No,1-plaintiff who under some unavoidable, circumstances left her studies as she became pregnant. He also disowned outstanding amount of Rs,14,000 being the delivery expenses of second baby, which according to him, he was told by the parents of respondent No,1-plaintiff to be Rs,10,000 out of which amount of Rs,7,000 was paid. Lastly, the petitioner-defendant denied the allegation of turning respondent No,1-plaintiff out of the house restraining her from taking her belongings. He admitted that on account of some minor issue of clash on a domestic visit affair to some of the relatives, respondent No,1-plaintiff got irritated and abused the same relative and his daughter and also demanded even insisted for divorce and the petitioner being provoked getting sudden hot impression, pronounced divorce thrice. In this background, the learned trial Court framed the following issues:
(i) Whether the plaintiff is entitled for relief of dissolution of marriage?
(ii) Whether the plaintiff is entitled for the dower amount?
(iii) Whether the plaintiff is entitled for the maintenance and delivery expenses?
(iv) If the minors are entitled for the maintenance? If yes at what rate and paid?
(v) What should the decree be? Both the parties adduced their evidence and ultimately the learned trial Judge decreed the suit in favour of plaintiff-respondent No,
1. Being aggrieved with the judgment and decree dated 26-1-1999 and 18-2-1999, respectively, the petitioner has approached this Court invoking its Constitutional jurisdiction. I have heard the learned counsel for the petitioner as well as the learned counsel appearing on behalf of respondent No,
1. It has been contended by the learned counsel for the petitioner that the order, impugned in this Constitutional petition, is not only illegal, unlawful and without lawful authority but has been passed by the learned trial Court emotionally without applying judicial mind although the respondent No,1- plaintiff, in his examination, deposed that alternatively she wanted Khula' and was ready to forego her dower amount as she could not live with the petitioner at any cost within the prescribed limits of God due to acute hatred developed against him. Therefore, the only remedy for dissolution of marriage by way of Khula' was available for respondent No,1-plaintiff and respondent No,2 while passing the Decree for Dissolution of Marriage on the ground of cruelty has committed illegality and has travelled beyond her jurisdiction as issues with regard to cruelty was not even framed by the legend trial Court. It has, further bees contended that prior to the present Constitutional petition, on erroneous advice of the counsel, the petitioner filed Family Appeal No,23 of 1999 before the learned District Judge while as per the provisions of section 14 of West Pakistan Family Courts Act, 1964 read with section 2 (VIII-D) of Muslim Dissolution of Marriage Act, 1939, appeal was not provided and the petitioner had to prefer the present Constitutional petition challenging the illegality committed by respondent No,2 while passing the impugned judgment and decree.
Learned counsel has relied upon the case of Mst. Hafizan v. Muhammad Yasin and others (1985 CLC 1448), Muzzafar Ali v. Mst. Mehrun Nisa and others (1989 CLC 1805) and Anwari Begum alias Khalida Anwar v. Additional District Judge, Lyallpur and others (1988 CLC 1641) in support of his contentions. On the other hand, learned counsel for respondent No,1 has contended that the petitioner has filed this petition just to harass her and to make delay in payment of maintenance as well as dower amount. It has, further been contended that appeal before the learned Vth Additional District Judge,' Karachi .East by the petitioner against judgment and decree of the learned Xth Civil and Family Judge, Karachi East was filed with the delay of more than 21 days without giving any cogent reason thereof and as such the said appeal was dismissed. It has, also, been argued that thereafter respondent No,1 filed Execution Application bearing No,17 of 2001 for recovery of dower amount and maintenance which is still pending. It has, further, been contended that the petitioner is trying to conceal the real facts as besides admission on his part in the written statement with regard to the pronouncement of. Talaq three times, he had again admitted such fact in his examination-in-chief recorded on 15-5-1998, therefore, there is no need to dissolve the marriage on the ground of Khula' as according to Islamic Law after pronouncement of divorce and after expiry of 90 days without reconciliation the spouses could not live together within the prescribed limits of God. The learned counsel has relied upon the case of Shaukat Hussain v. Rubina and others (PLD 1989 Kar. 513) in support of her contentions. I have considered the arguments, advanced on behalf of both the parties and perused the record.
The main contention of the learned counsel for the petitioner was with regard to illegality committed by respondent No,2 having passed the judgment and decree resulting dissolution of marriage on the ground of cruelty without framing such issue. It has come on record that respondent No,1 was divorced three times- by the petitioner which fact was not only admitted in the written-statement but also in examination-in-chief of the petitioner himself. According to Hanafi Sect., if a husband announces divorce thrice to his wife, it becomes operative. As stated above, there is admission on the part of the petitioner not only in his written-statement but also in his examination-in-chief with regard to pronouncement of divorce thrice and in these circumstances in my view there was no necessity of framing issue of cruelty. Such issue could have been framed in the circumstances when there would not have been admission about the c pronouncement of divorce three times. The mention of attitude of the petitioner by respondent No,2/trial Judge in her judgment in respect of cruelty does not mean that she passed the judgment on the basis of cruelty. It has, clearly, been observed by the learned trial Court: "That the plaintiff could not live with defendant when there is situation that she has been pronounced the divorce thrice by the defendant. She has proved her entitlement for the dissolution of marriage by Court of law."
When an husband bypassing his commitments, maltreats his wife and even during the course of such maltreatment or otherwise divorces his wife orally but tries to refrain himself from reducing it in writing, the wife has no other option but to knock the door of the Court. Same is the position in the present case where some of the grounds were available to respondent No,1 for getting her marriage dissolved if it would not have been pronounced thrice by the petitioner and issue for framing of cruelty could necessarily have been made in that situation when she would have come to the Court on any of those some grounds, available to her, but here she has simply come to the Court to get the oral pronouncement of divorce thrice by her husband confirmed where when she was technically cross-examined by the learned counsel for the petitioner that if she does not get that oral divorce confirmed what will be her next step. In that eventuality, she being a Muslim lady, replied that alternatively she will request for Khula' as it was not possible for her to live with the petitioner who according to her was a man of not only bad character but also maltreated her throughout and bypassed his all commitments. It was also not possible for her to live with the petitioner within the limits prescribed by God in view of pronouncement of divorce thrice to her by the petitioner. In these circumstances, I do not find any merit in this petition, which, accordingly, is dismissed. Constitutional Petition No,S-141 of 2001 stands disposed of.