Through this petition, the petitioner has challenged the impugned judgment passed by the learned IIIrd Civil & Family Judge, Karachi-East with the following prayer:-
(a) declare the Judgment and Decree dated 8-1-2003 and 14-1-2003 as illegal passed by the IIIrd Civil & Family Court Judge, Karachi-East;
(b) call for the R & P of Family Suit No,829 of 2002 from the Court of IIIrd Civil and Family Court Judge, for the purpose of ascertaining and verifying the above assertions of the petitioner and after verifying and confirming the same be pleased to set aside the Judgment and Decree passed on 8-1-2003 and 14-1-2003 respectively and remand the case back to the Court of IIIrd Civil and Family Court Judge, Karachi-East, with directions to proceed in accordance with law while affording opportunity to cross-examine the respondent No,1, and bring all the relevant and material evidence before the said Court with the sole object to achieve the ends of justice and equity besides holding post trial proceedings in accordance with law;
(c) grant any other appropriate relief(s) in the light of the circumstance of the petition which this Hon'ble Court may deem fit and proper." The petitioner was married with the respondent No,1 on 6-9-1982 at Karachi in accordance with Muslim Personal Law against dower amount of Rs,25000, which is unpaid. It was pleaded in the trial Court that the behaviour of the petitioner was not good from very inception of marriage, as the petitioner is a short tempered and used to beat miserably the respondent No,1 even on petty matters. He always used bad language and abused, hence made the life of respondent No,1 extremely miserable. Therefore, the plaintiff/respondent No,1 developed hatred for the petitioner. He failed to provide maintenance and other necessities of life and did not pay any amount towards expenses of the house. The petitioner was jobless and respondent No,1 was doing job in Beauty Parlor and maintaining herself in respect of necessities of life as well as to her children and tried to provide education to her four minors. Due to maltreatment and cruelties the respondent No,1 got developed a great deal of hatred against the defendant/petitioner. She could not live as faithful wife within the limits of Almighty Allah and prayed to forego the dower amount in lieu of dissolution of marriage by way of Khula'. The suit was filed and notice was issued by the trial Court. The written statement was filed and the case was defended, but the trial Court decreed the suit in favour of the respondent by dissolving the marriage by way of Khula' vide impugned judgment dated 8-1-2003.
The Trial Court while deciding the suit framed the following issues:-
1. Whether the defendant has paid prompt and deferred dower amount to the plaintiff?
2. What should the decree be? It has come on record that during cross-examination of the petitioner/defendant he failed to produce any documentary evidence regarding the payment of dower amount. But on the other hand, the respondent/plaintiff had deposed on oath that her dower amount is still unpaid by the petitioner. As per Nikahnama the dower amount of the plaintiff as mentioned half prompt and half deferred in nature. The petitioner has failed to provide any documentary evidence to show that he paid prompt dower amount. Learned counsel for petitioner while arguing the case has relied upon the case of Junaid Qureshi v.
Judge, Family Court (2003 CLC 1001), Mst. Kaniz Fatima v. Ghulam Mustafa (1994 M LD 174) and Amatullah Begum v. Munawar Akhtar Advocate (1999 SCM R 1700). Mr. Ajmal Haider, learned counsel for respondent No,1 has relied upon the case of Syed Niyaz Ahmed v. The Joint Civil Judge and Family Judge (1983 CLC 3107), Aslam Chughtai v. Faimily Court Karachi and Another (1984 CLC 822), Baharoo v. Civil Judge/Family Judge, Lasbela and another (1985 CLC 806), Sona v. Mst. Ghulam Fatima (PLD 1967 Peshawar 324), Dr. Akhlaq Ahmed v. Kishwar Sultana and others (PLD 1983 SC 169) and Muhammad Shafi v. District Judge, Gujrat and another (1982 CLC 2057) have heard the arguments of both the learned counsel, perused the material available on record and have also gone through the case-law cited at the Bar.
The contention of the learned counsel that a case for Khula' has not been made out, hence the respondent No,1 is not entitled to decree for dissolution of marriage is devoid of any force. A wife is entitled to claim dissolution of marriage by way of Khula' and also on any ground recognized as valid under the Dissolution of Muslim Marriages Act. 1939 which includes cruelty and non- maintenance. If a Court comes to the conclusion that the wife has been subjected to cruelty or she is not being maintained as provided by the Act then it can lawfully pass a decree for dissolution of marriage. The present petition has been initiated by invoking Constitutional jurisdiction and while dealing such matter the Court does not sit in appeal, its jurisdiction is limited to see whether the impugned judgment/order has been passed without authority or is without jurisdiction. The respondent No,1 (Zamarud Jehan) is present in the Court and it is urged that petitioner has failed to provide maintenance since last fourteen years and four children are being maintained by her by serving in the Beauty Parlor. The respondent has two sons and two daughters and they are getting education. The petitioner has suspected about the character and tried to scandalize the respondent's reputation and used bad language and abused her and made the life of the respondent/plaintiff miserable so much so that the respondent No,1/plaintiff developed hatred for the petitioner and failed to show any sign of love and affection and have also failed to pay any maintenance and at some time extended ' cruelty. Resultantly, there is no hope to live as faithful wife of petitioner within the limits of Almighty Allah and ready to forego dower amount in lieu of dissolution of marriage by way of Khula'. The allegations as alleged in the application have been denied in the written statement but the fact remains that whenever dissolution of marriage by way of Khula' is claimed then words of the wife are enough. It has come on record that petitioner was extending cruelty and she was not being maintained as provided under the law. The Court in such circumstances can lawfully pass decree for dissolution of marriage on the ground of Khula'. There is no material illegality or infirmity in the impugned judgment. No case is made out for interference to set aside the impugned judgment. Accordingly, this petition is dismissed.