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Petitioner: IRFAN ULLAH KUNDI VS Respondent: AFZALA IRFAN
1997 M L D 2855
1997 M L D 2855
[Lahore]
Before Raja Muhammad Khurshid, J
Dr. IRFAN ULLAH KUNDI‑‑‑Petitioner
versus
Mst. AFZALA IRFAN and another‑‑‑Respondents
Writ Petition No.849 of 1997, decided on 30th April, 1997.
(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973) Art. 199‑‑‑Constitutional petition‑‑‑ Dissolution of marriage ‑‑‑Khula' ‑‑‑Consideration for‑‑‑Wife had relinquished her dower and also right of maintenance as consideration for obtaining divorce on the basis of Khula'‑‑‑Mere fact that Family Court had made order that some articles, belonging to husband would be returned by wife would in no way suggest that there was no consideration for dissolution of marriage on the basis of Khula'.
Majmua Qawaneen‑i‑Islam, Vol. 2 by Dr. Tanzeel‑ur‑Rehman ref.
(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑Ss. 5, 10, 12 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Dissolution of marriage‑‑‑Petitioner (husband) contended that since decree dissolving marriage had not yet become absolute, therefore, summoning of respondent (wife) might create chances for a compromise resulting into saving of marriage bond‑‑‑Attempt was made for conciliation between the parties twice as enjoined by Ss. 10 & 12 of the Act, but both attempts had ended in failure‑‑‑Held, in such a situation, it would be wishful thinking per presume that there might be another chance for compromise if the petition was admitted and respondent was summoned to face the same.
(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑--
----‑S.5 & Sched ‑Constitution of Pakistan (1973), Art 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage on ground of Khula' ‑‑‑Pitched litigation between parties (husband and wife) was existing in which even parents of husband were involved‑‑‑Held, it could be safely said that there was no question of any re‑conciliation nor the parties could live amicably as husband and wife to observe the limits of God‑‑‑Decree for dissolution of marriage on ground of Khula' had rightly been passed in circumstances.
Ibad‑ur‑Rehman Lodhi, Advocate.
ORDER
The petitioner has filed this Constitutional petition to challenge the impugned judgment and decree of the learned Judge Family Court, Rawalpindi, whereby, his marriage with respondent No. l was dissolved. It is alleged in the petition that the decree in question is not sustainable in the eye of law as issues relating to 'Khula' and consideration i.e; issues Nos.4 and 4‑A were wrongly decided as no benefits of marriage were returned to the petitioner. Even otherwise, there was no ground for the dissolution of marriage on the basis of 'Khula' on the solitary statement of the respondent/plaintiff. Lastly, it was contended that the marriage still subsists as it has not yet been finalized after the decree because no certificate has been issued by the Union Council. As such, there is likelihood that the respondent No. 1, if summoned, may come to terms and marriage between them may be saved from collapse.
2. Learned counsel also contended that in this case, the decree on the basis of ' Khula' was not valid because no consideration was fixed for the dissolution of marriage. A reference was made to 'Majmua Qawaneen‑i‑Islam Volume 2 by Dr. Tanzeel‑ur‑Rehman to justify the proposition that dissolution of marriage on the basis of ' Khula' was not lawful in the absence of some consideration to be paid by the wife to the husband. In this respect, Chapter No. 14 page 570 of the aforesaid book was referred. It runs as under:‑‑
3. I have considered the above interpretation viz‑a‑viz consideration of ' Khula' . In the same book at page 571, the view of Imam Kasani contained in his book 'Badai Al‑Sanai is quoted as under:‑‑
4. It is, thus, obvious that a ' Khula' can be with consideration or without consideration. The author has further proceeded to explain the term of ' Khula' with reference to the practice existing in Indo‑Pak Sub‑continent in the following words:‑‑
5. In the instant case, it is wrong to say that the consideration of ' Khula' was missing. In fact, the respondent/wife had stated before the trial Court when she appeared as P.W.1 that in case of 'Khula' she would relinquish her right of dower and maintenance. As such, it is enough to say that a consideration existed for her release from the marriage bond on the basis of ' Khula' .
6. Now coming to the evidence brought on record, it is obvious that the issues relating to cruelty and maltreatment had been proved apart from issues of 'Khula'. I have gone through the evidence brought on record in the trial Court. The respondent/wife has clearly stated that she has developed hatred against the petitioner on account of his maltreatment and the cruelty meted out to her. She further stated that it was not possible for her to live with the petitioner at any cost. The mere fact that the learned trial Court had made an order that some articles belonging to the petitioner will be returned by respondent No. l would in no way suggest that there was no consideration for the dissolution of marriage on the basis of ' Khula'. As stated earlier, respondent No. l had relinquished her dower and also right of maintenance as consideration for obtaining divorce from the petitioner on the basis of ' Khula'. As such, there, is a valid consideration for the grant of decree on the basis of ' Khula'.
7 The other point is also not forceful that since the decree dissolving the marriage has not yet become absolute, therefore, summoning of respondent may create chances for a compromise resulting into saving of marriage bond. It may be pointed out here that an attempt was made for conciliation between the parties twice as enjoined by sections 10 and 12 of the Family Courts Act, 1964 but both attempts had ended in failure. In such a situation, it will be wishful thinking to presume that there may be another chance for compromise if the petition is admitted and respondent No. l is summoned to face the same. On the contrary, the evidence on record shows that the wife has been the victim of cruelty and as such she developed extreme hatred against her husband i.e; the petitioner. There is yet another factor that there was pitched litigation between the parties in which even the parents of the petitioner were involved. As such, it can be safely said that there is no question of any re‑conciliation nor the parties can live amicably as husband and wife to observe the limits of God. The impugned decree has rightly been granted. It does not suffer from any jurisdictional error or misreading of evidence so as to call for interference by this Court on its Constitutional jurisdiction.
8. The petition is dismissed in limine.
?/I‑23/L Petition dismissed.