' Brief facts necessary for the disposal of this Constitutional petition are that Mst. Aziz instituted a suit against Abdul Khaliq for jactitation of marriage or in the alternate for dissolution of marriage alleging therein that on the asking of her father, who is an illiterate and rustic villager, she affixed her thumb-impression on some papers. The defendant had asked her father to obtain her thumb- marks by misrepresenting that they were required for the purposes of issuance of Identity Card. It was alleged that she never gave her consent for Nikah with defendant and her thumb-impressions were obtained on the Nikahnama fraudulently by misrepresentation; that the defendant is of the age of her father and it is not possible for her to live with him as his wife within the limits ordained by Allah Almighty and that she hates him.
2. The suit was contested by the defendants on the grounds that the plaintiff had consented to the Nikah, consummation had taken place; at the time of "Rukhsati" her father had obtained from him a sum of Rs,25,000; at the time of engagement 5 tolas of gold ornaments were given by him to the plaintiff and in case of dissolution he is entitled to recover the aforesaid ornaments and the sum of Rs,25,000 which was obtained by the plaintiff's father from him.
3. After failure of the pre-trial reconciliation, issues were framed and evidence was recorded.
Thereafter another attempt was made by the Court for post-trial reconciliation but the same also ended in smoke whereafter final arguments were heard and vide judgment dated 29-5-1998 the case was decided wherein it was held that Nikah between the parties was validly solemnized hence case for jactitation of marriage was not made out; the plaintiff was, however, found entitled to the decree of dissolution of marriage on the ground of Khula' in consideration of Rs,5,000.
Regarding the amount of Rs,25,000 received by the father of the plaintiff, it was held that the defendant may claim the same through civil suit from the plaintiff's father.
4. The said judgment/decree is called in question by the defendant in this Constitutional petition.
5. The petition is opposed by the learned counsel for respondent No,2.
6. Arguments heard. The writ petition and the annexures appended therewith perused.
7. Learned counsel for the petitioner argued that impugned judgment is illegal because a suit for jactitation of marriage could not be converted into a suit for dissolution of marriage on the basis of Khula' especially when there was no specific plea or prayer for Khula' in the plaint. The impugned decree was passed without there being any plea, issue or prayer regarding Khula', therefore, it was beyond jurisdiction and amounted to the exercise of jurisdiction not vested by law, therefore, the trial Court had acted in the exercise of its jurisdiction illegally and with material irregularity.
Reliance was placed on "Lal Muhammad v. Mst. Gull Bibi and another" (PLD 1986 Quetta 185) wherein it is held that dissolution of marriage on the ground of Khula' would be available only if conscious attempt was made by the wife to exercise such right in this behalf and plea of Khula' is taken in the plaint and that unless the wife comes forward to specifically claim right of Khula', decree could not be allowed merely on Court's motion.
8. The above argument of the learned counsel is misconceived because the suit was not converted into one for dissolution of marriage. The suit was for jactitation of marriage or in the alternate for dissolution of marriage and in prayer clause also it is specifically prayed that in the alternate decree for the dissolution of marriage be granted as is evident from copy of plaint Annexure 'A'.
9. In paras. Nos.6 and 7 of the plaint it is specifically alleged that age of defendant is 51 years he is already married and has a wife; the plaintiff has developed hatred against him and it could not be possible for her to live with him as his wife within the limits prescribed by God Almighty. Although the term `Khula', as such was not used in the plaint but from the aforesaid pleadings it was quite obvious that she was claiming dissolution on that very ground without using the specific term `Khula'. While appearing as P.W.1 the plaintiff had specifically deposed that she cannot live with the defendant and would prefer to die rather than to live with him as his wife.
10. The authority cited by the learned counsel for the petitioner is distinguishable inasmuch as in the said case no conscious attempt was made by the wife either in her plaint or her statement, to exercise such right and decree for dissolution of marriage on the ground of Khula' was granted on Court's motion.
11. Impugned judgment was passed by the Family Court which had the jurisdiction to grant decree for dissolution of marriage on the ground of Khula' despite the fact that term `Khula' was not specifically used in the plaint yet there was evidence on record on the basis of which it was evident that respondent No,2 had a fixed aversion to the petitioner and that spouses could not live within the limits of God.
12. The term "acted illegally" means acting in breach of some provisions of law and the words "acted with material irregularity" refer to committing of some error of procedure in the course of trial which is material, in that it may affect the ultimate decision . Neither there appears breach of any provision of law nor commission of any error of procedure in the impugned judgment.
13. It was next argued by the learned counsel for the petitioner that as per version of the plaintiff Rukhasti had not taken place hence when the spouses never had the occasion of living together as man and wife, the Court could not readily infer that spouses could not live within the limits prescribed by God which is the most important ingredient for grant of Khula', and that a wife is not entitled as of right to claim Khula' without satisfying the Court.
14. The above argument is without substance because the' above version of the plaintiff in context of jactitation of marriage was not accepted by the trial Court. The record indicated that respondent had developed hatred against the petitioner to such an extent that she preferred to die than to live with him as his wife hence in such a case Islam does not allow subsistence of marriage for that would mean forcing the wife into a hateful union. A wife cannot be forced to live with her husband without her consent and liking. She need not come out with logical objective and sufficient reasons regarding her claim of Khula', it is enough to show that she had developed a fixed aversion against her husband and as per her own statement to the effect that she had developed hatred against the husband she was entitled to the dissolution of marriage on the ground of Khula'.
15. For the reasons above the writ petition is hereby dismissed.