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Petitioner: Mst. NASIM KISHWAR VS Respondent: MUHAMMAD NAWAZ
1988 M L D 1306
1988 M L D 1306
[Lahore]
Before Abdul Shakurul Salam, Actg. C J
Mst. NASIM KISHWAR‑‑Petitioner
versus
MUHAMMAD NAWAZ and 2 others‑‑Respondents
Writ Petition No.4480 of 1985, heard on 8th June, 1988.
(a) Muhammadan Law‑‑‑-
‑‑‑Khula'‑‑Entitlement to claim‑‑Wife had produced photographs of her husband with various women as evidence in Court‑‑Husband had filed application against his wife in a Police Station for taking away his household articles‑‑Husband, meanwhile having taken a new wife had left the country leaving behind his first wife and minor children‑‑Evidence on record showed that wife was entitled to dissolution of marriage on ground of Khula'‑‑Consideration for Khula' in the sense that wife be obliged to return the benefits, husband had not asserted any such benefits against her‑‑Wife had however, compensated the husband by producing a son and a daughter for him‑‑Marriage between parties was dissolved on basis of Khula'.
(b) Guardians and Wards Act (VIII of 1890)‑‑--
‑‑‑S.25‑‑Custody of minor children‑‑Entitlement to‑‑Son of parties, while at the age of twelve years had appeared before Court and showed his preference to be with his mother‑‑Such son being of eighteen years of age and his father having left the country, was entitled to live wherever he liked or with his mother‑‑Girl aged twelve years of age by now, and her father having left the country could hardly be anywhere, but with her mother‑‑Interest of father with the minor could well be gauged when he had taken a new wife and had left the country‑‑Children being with the mother, she was entitled to have them with her.
Ch.Sana Ullah Bajwa for Petitioner.
Ch.Mushtaq Ahmed Khan for Respondent.
Date of hearing: 8th June, 1988.
JUDGMENT
This order will dispose of W.P.No.4480 of 1985 and W.P. No.524 of 1986, as these concern the same parties.
2.The petitioner was married with respondent No.1 some time in the year 1969. Out of the wed‑lock there are two surviving children i.e. a boy aged 18 years and a girl aged 12 years by now. The respondent‑husband went to Nigeria some time in 1975. His wife went there for some time but came back to Pakistan. The petitioner‑wife has filed a suit for dissolution of marriage on I‑10‑1981. The respondent‑husband has filed a suit for restitution of conjugal rights on 12‑9‑1982. He also filed a suit for custody of minors on 13‑9‑1983. The two suits, one for dissolution of marriage and the other for restitution of conjugal rights, were consolidated together and the petitioner‑wife's suit for dissolution of marriage was dismissed whereas the suit for restitution of conjugal rights filed by the respondent was decreed. This is vide order of the learned Judge Family Court, Pasrur, District Sialkot dated 13‑12‑1983. The wife seeking dissolution of marriage filed a Writ Petition No.4480 of 1985. This was admitted for regular hearing on 17‑11‑1985. In the meanwhile, the respondent's suit for custody of minor children was decreed on 5‑1‑1985 by the learned Judge Family Court, Pasrur. The petitioner‑wife's appeal was dismissed on 26‑1‑1986 by the learned District Judge, Sialkot. The petitioner mother has filed writ petition No.524 of 1986.
3. Learned counsel for the petitioner has submitted that the respondent has taken a second wife some two years ago. He has a child from this wed‑lock. He has, again, gone to Nigeria. The petitioner and her children are living in Pakistan. There is no contradiction.
4. The petitioner‑wife had sought dissolution of marriage on the grounds of habitual cruelty, allegation of false charge of adultery and on the basis of Khula. In the evidence, she had produced three photographs marked A to C in which the respondent appeared with various women. His reply was that those were his students. The learned Additional District Judge had observed that there was an application filed by the respondent against his wife, the petitioner in a Police Station for taking away his house‑hold articles but since that was not mentioned in the plaint or evidence, her arguments that she was insulted and, therefore, had developed hatred was not given weight.
5. From the statement of facts made above, it would be quite clear that the marriage has broken down. The petitioner and her children have been left behind in Pakistan. The respondent has taken a new wife, has produced a child and gone to Nigeria. In the circumstances of the case, the petitioner‑wife was and is now clearly entitled to dissolution of marriage on the ground of Khula. As regards the consideration for Khula in the sense that the petitioner‑wife be obliged to return the benefits, neither the respondent‑husband has asserted any and whatever benefits she may have derived from the marriage, she has compensated the respondent by producing a son and a daughter for him. Therefore, in the circumstances, there is no justification or need to remand the case for determination of the benefits derived by the petitioner‑wife. Consequently, the petition is allowed and the marriage between the parties is dissolved under the doctrine of Khula. However, the parties are left to bear their own costs.
As regards Writ Petition No.524 of 1986, the respondent‑husband has been allowed custody of the minor children who are a boy and a girl aged about 18 and 12 years respectively by now. The boy while he was at the age of 12 years had appeared before the learned District Judge and showed his preference to be with his mother. Now he is a young man and his father having left the country, it is obvious that he is entitled to live where he likes or with his mother. The girl aged 12 years of age by now and her father having left the country can hardly be anywhere but with her mother. The interest of the respondent‑father with the minors can well be gauged when he has taken a new wife and gone abroad. The children are with the mother and in the circumstances she is entitled to have the children with her. Learned counsel for the respondent has submitted that in view of the circumstances of the case and the ages of the minors, he is not in a position to oppose the petition but would submit that before the minor girl is married, the respondent‑father should be consulted. This will be quite appropriate but if on attaining the majority the boy or the girl make choice for their marriage, there will be hardly any bar. In the circumstances, this petition is also allowed but the parties shall bear their own costs.
AA./N‑134/L. Petition accepted. .