' TALAAT QAYUM QURESIII, J.--Mst. Farhana Begum petitioner/plaintiff filed suit against Hashmat All and another respondents/defendants for dissolution of her marriage, dower, maintenance and dowry articles in the Court of learned Judge Family Court/Senior Civil Judge/Aala Illaqa Qazi Malakand at Batkhela. The said suit was resisted by the respondents/ defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties, granted decree for dissolution of her marriage on the basis of 'Khula' and recovery of dowry articles but the rest of prayer with regard to recovery of dower and maintenance was declined vide judgment and decree dated 2-1-2003. Feeling aggrieved with the said judgment and decree, the petitioner/plaintiff filed appeal in the Court of learned District Judge/Zilla Qazi Malakand at Batkhela but the same was also dismissed vide judgment and decree dated 4-4:2003. The petitioner has now through the writ petition in hand called in question the judgments and decrees passed by the learned Courts below being illegal and without lawful authority.
2. Mr. Jan Muhammad Khan, the learned counsel representing the petitioner, argued that the petitioner/plaintiff had not asked for dissolution of her marriage on the basis of 'Khula'. The learned Judge Family Court at his own without appreciating the evidence on record passed the decree for dissolution of her marriage on the basis of 'Khula'.
3. It was also argued that the petitioner/plaintiff was entitled for the recovery of dower and maintenance because she had proved the cruelty of respondent No.1 but this position has not been considered by both the learned Courts below.
4. On the other hand, Mr. Khalil Khan Khalil, the learned counsel representing respondents Nos.1 and 2, argued that not only in the plaint but in her statement in Court and also at the time of reconciliation the petitioner/plaintiff had stated that she cannot live within the limits prescribed by Shariat with respondent No.1, therefore, the learned Courts below have properly appreciated the evidence on record.
5. It was also argued that the learned Judge Family Court after analyzing the evidence on record had reached at the conclusion that the parties could not live within the limits prescribed by Shariat, therefore, it had the jurisdiction to pass the decree dissolving the marriage on the basis of 'Khula' and no illegality has been committed by the learned Courts below warranting interference in the impugned judgments and decrees.
6. We have heard the arguments of the learned counsel for the parties and perused the recoth of the case.
7. The argument of the learned counsel for the petitioner that the petitioner/plaintiff had not prayed for the grant of dissolution of marriage on the basis of 'Khula' and the learned Judge Family Court at his own granted the said decree on the basis of 'Khula' which was altogether illegal and without lawful authority, has no force at all. The perusal of para.4 of the plaint filed by the petitioner/plaintiff shows that she had stated in clear words that it was impossible for her to live with respondent No.1 within the limits prescribed by Shariat-. She repeated the same in her statement in the following words:-- {{URDU TEXT}} ' The learned trial Court in the impugned judgment/decree had also observed that it was during the second reconciliation proceedings that the petitioner had again reiterated her stand that she could not live with respondent No.1 within the limits prescribed by Shariat. Section 10 of the West Pakistan Family Courts Act, 1964, as it stands now after the amendment inserted by amending Ordinance No.LV of 2002 which was made effective (with effect) from 1-10-2002, provides that the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore to the husband the dower {{URDU TEXT}}received by the wife in consideration of marriage at the time of marriage. The learned trial Court in fact had given a detailed judgment/decree. Although it had powers under the above mentioned section of law of the ibid Act to dissolve the marriage on failure of reconciliation between the parties but it had passed the decree after the evidence of parties was properly recorded. This was done in order to provide proper justice to both the parties.
8. Another question which requires determination in the case in hand is as to whether the learned Judge Family Court could grant decree for dissolution of marriage on the basis of 'Khula' if the wife has not prayed for the same. The answer to this question is in affirmative because the learned Family Court, if it was satisfied that the parties could not live within the limits of God and if they are forced to live together they will continue to live in hateful union, could pass decree on the basis of 'Khula'. Reliance in this regard is placed on : (i) Muhammad Rashid v. Judge, Family Court, Chishtian District Bahawalnagar and another 2001 CLC 477,
(ii) Muhammad Abbasi v. Mst. Sarnia Abbasi 1992 CLC 937, (iii) Syed Dilshad Ahmad v. Mst. Sarwat Bi PLD 1990 Karachi 239 and (iv) Bashir Ahmad v. Mst. Nasreen and another 1991 CLC 1234.
9. In the case in hand, although the learned Judge Family Court has passed the decree for dissolution of marriage on the basis of lthula' but the petitioner/plaintiff has not been directed to return the dower {{URDU TEXT}} as required under section 10 after amendment of the ibid Act of 1964 vide Ordinance No.LV of 2002.
10. On appraisal of averments of the plaint, statement of petitioner/plaintiff recorded by the learned trial Court and the evidence on record, the view formed by the learned Judge Family Court is neither arbitrary nor perverse, hence does not call for icterference by this Court in the exercise of its Constitutional jurisdiction. Resultantly, the writ petition Li hand is dismissed with no order as to costs.