' This be considered as admitted case.
2. Brief facts in the instant case are that the petitioner filed a suit for dissolution of marriage on 29- 3-2000 on the basis of cruelty, non-maintenance, second marriage contracted by defendant and illicit relationship of defendant with stranger ladies . Suit was contested and on the divergent pleadings of the parties following issues were formulated:--
(i) Whether the defendant meted out a habitual cruel treatment towards the plaintiff? OPP.
(ii) Whether the defendant has contracted second marriage without the consent of the plaintiff?
OPP
(iii) Whether the defendant has not paid maintenance allowance to the plaintiff for more than two years? OPP
(iv) Whether the defendant has failed to perform his marital obligations towards the plaintiff for the last about six years? OPP
(v) Whether the plaintiff is entitled to recover maintenance allowance from the defendant? If so, at what rate and of what period? OPP
(vi) Whether the plaintiff has developed intense hatred against the defendant that the spouses cannot live together as husband and wife within the prescribed limits of Allah Almighty, as such, she is entitled to a decree for dissolution of marriage on the ground of Khula? If so, on what terms and conditions? OPP
(vii) Relief.
' Evidence was led by the parties and the learned Judge Family Court vide judgment and decree dared 19-5-2000 decided Issue No,1 in respect of cruelty, Issue No,2 of contracting second marriage, Issue No,3 non-maintenance for two years, issue No,4 failure of performing matrimonial obligations towards the plaintiff for the last about six years, Issue No,5 entitlement of plaintiff to recover maintenance allowance from the defendant and also Issue No,6 regarding intense hatred against the defendant that they cannot live within the prescribed limits of God Almighty, in favour of the plaintiff and dissolved the marriage on the basis of Khula' for return of gold ornaments weighing 12 Tolas given to her at the time of marriage. The petitioner being aggrieved filed an appeal assailing the judgment and decree dated 19-5-2000 passed by the learned Judge Family Court, which was dismissed and the learned Appellate Court observed that the petitioner/appellant did not put question to the respondent that he made a false statement with regard to jewelry allegedly given to her at the time of marriage and now the instant writ petition has been filed challenging the findings of the learned Judge Family Court while dissolving the marriage in lieu of Khula in consideration of 12 Tolas of gold ornaments.
3. Arguments advanced by learned counsel for the petitioner are that onus probandi of all the issues was on the plaintiff and the learned Judge Family Court has recorded issue No,1 regarding habitual cruelty, (issue No,2) in favour of the plaintiff and observed that she has successfully proved the cruelty and the defendant contracted second marriage without her consent and out of second marriage he has a daughter. The learned Judge Family Court has not considered and read the statement of D.W.1 that he was a Head Constable and his pay was Rs,2,500/2,600 per month and he admitted in evidence that he gave alleged Rs,25,000 from his income and he gave 12 Tolas ornaments to her and also clothes. He also admitted that if the plaintiff comes and resides with him he will give her maintenance allowance, therefore, the learned Judge Family Court could not record findings on issue No,3 against the plaintiff who has also successfully proved that during her separation she was not maintained by the defendant as he had contracted second marriage and he has got a daughter and the second marriage is contracted without the consent of the plaintiff.
She also volunteered that if the marriage is dissolved by way of divorce, she is ready to forego her previous maintenance allowance. He further argued that when wife is found entitled to dissolution of marriage on the ground of cruelty and contracting second marriage and the ground of cruelty is recognized by the Dissolution of Muslim Marriages Act, 1939 independently on Khula' , there is no occasion for the Family Court to direct the petitioner to forego her claim of dower and maintenance, relied on Farida Khanum v. Maqbul Ilahi and 2 others 1991 M LD 1531. He further argued that when the judgments of the learned Courts below are unjust in the eyes of law then the Limitation Act does not apply to such judgments relied on Quetta Hindu Panchayat v. Mst. Dilshad Akhtar and 5 others 1993 SCM R 21, where it was held that the property was neither owned by any evacuee nor validly declared as evacuee property at any time much less before 1-1-1957, the target date mentioned in section 3 of Pakistan (Administration of Evacuee Property) Act, 1957 and thus never formed part of the compensation pool for transfer under settlement laws---Transfer of such property to any claimant held was without lawful authority, coram non judice and of no legal effect---Subsequent transfers made by the allottees were resultantly illegal and not binding on the owner of such property. He further relied on Sh. Muhammad Arif and others v. Deputy Settlement Commissioner, Lahore and another 1993 CLC 872 where it is held that principle of laches was not as rigorous as the law of limitation. Constitutional petition having been filed against void, unfair and unjust order was not barred by the principle of laches. He further argued that the vires of judgments were clearly in favour of the plaintiff and onus to discharge the issues was also on the plaintiff, how can she be deprived of her right on the plea which is not taken or demanded by the defendant. Even the learned Appellate Court decided half of the issue of maintenance allowance in favour of husband which directly merges with the judgment of the learned trial Court, therefore, the judgment of learned trial Court while dissolving the marriage on the basis of "Khula" was not only unjust but it was also unfair judgment.
4. Learned counsel for the' respondent submits that the respondent filed a suit for restitution of conjugal rights, which was decreed. There is concurrent finding of the learned Courts below and the writ petition is suffering from laches and no writ can be issued as it is not substitute statutory remedy. He further argued that Khula' is not imaginative law. The plaintiff failed to produce any evidence that she had not taken the jewellary as averred by the defendant in his written statement and even no question was asked to him that he was telling a lie.
5. I have heard the learned counsel for the parties and perused the entire evidence produced by the parties as well as the judgments passed by the learned Courts below. The plaintiff appeared as her own witness as P.W.1 and stated in her examination-in-chief that she was subjected to cruelty as the defendant was allegedly having illicit relationship with stranger ladies, ultimately he remarried without her consent or permission and she was subjected to physical cruelty and was expelled after six months of her marriage from the house of the defendant and he did not give her any maintenance allowance and she has developed hatred and does not want to live with the defendant and is ready to forego her past maintenance allowance. In her cross-examination she stated that it is incorrect that she took 12 Tolas of jewelry, Rs,25,000 cash and 35 pairs of clothes.
The defendant appeared as D.W.1 and stated that while going, to her parent's house the plaintiff took the aforesaid jeweler, cash and 35 pairs of clothes. In his cross-examination he admitted that plaintiff's house and his house are situated near to each other and he is Head Constable in police and his pay is Rs,2,500/2,600.
6. It is really surprising that the defendant in his statement is admitting that his monthly income is Rs,2,500 and the Nikah is registered, which is on the record and there is no mention of any jewelry or cash or any other item against the columns provided by the Nikahnama for the same purpose.
The plaintiff while appearing as her own witness stated that she has not taken ornaments or any other items. The defendant appearing as his own witness stated that she has taken the ornaments and other items. No independent supporting or best evidence was produced by. The defendant to prove that he gave 12 Tolas of jewelry to the plaintiff and other items as alleged by him. Even receipt of jewellary is not produced and no supporting oral evidence in respect of cash or other items was produced, how did and wherefrom the learned Courts below gathered that these ornaments were given to the plaintiff on the sole evidence of the defendant.
7. Perusal of judgments passed by the learned Courts below show that plaintiff succeeded in establishing her entitlement of dissolution of marriage on the ground of cruelty. Even non- maintenance was established by her in the evidence, which was wrongly recorded against the plaintiff by the learned Courts below. How did the learned Courts below dissolve the marriage on the basis of "Khula" where there was no demand by the husband for return of benefits obtained by the plaintiff during the subsistence of marriage and when the Court had failed to formulate an issue on this point, therefore, the judgment passed by the learned Judge Family Court dissolving the marriage on the basis of Khula' in lieu of 12 Tolas of jewellary is not only void but also unfair and unjust and based on misreading of evidence and when the judgment is totally unfair, unjust and outside the evidence on record, no laches run against the parties agitating the same.
8. Since both the learned Courts below have misread the evidence on record rather not read the evidence on record that the defendant admitted in his evidence that he has not maintained the petitioner. {{URDU TEXT}} ' Since the learned Courts below travelled beyond their jurisdiction while deciding issues Nos.3 and 6 their judgments suffer from legal infirmity and are liable to be interfered by this Court in the Constitutional petition. Writ petition is accepted, suit for dissolution of marriage is decreed on the basis of finding recorded on issues Nos.1 and 2 by the learned lower Court and issue No,3 as decided by this Court.