KAURA vs Mst MANS AB MAI AND Another

The petitioner has challenged the validity of his order dated 23-4-1980, passed by the learned Additional District Judge, Muzafargarh, accepting the appeal filed by respondent No. 1, against the order of the Judge, Family Court, Muzaffargarh, dated 18-7-1979.

2. Respondent No. I filed her first suit for dissolution of marriage which was dismissed by the Judge, Family Court on 9-3-1976. The record does not show any appeal having been filed against that order and as such the same became final. Another suit was filed thereafter at Kabirwala, which was admittedly withdrawn. Thereafter she filed a miscellaneous application before the Martial Law Authorities, Muzaffargarh complaining against the petitioner. The same was not attended to on account of the lack of jurisdiction.

3. After that she filed Suit No. 279 of 1978, before the Judge, Family Court, Muzaffargarh, which was dismissed -on 18-7-1970. On the basis of the pleadings of the parties as many as five issues were framed

(1) Whether the plaintiff has no cause of action against the defendant 7 O. P. r.

(2) Whether the defendant treated the plaint with cruelty ? O. P. P.

(3) Whether the defendant misappropriated, ornaments etc. Of the plaintiff 7 O. P. P.

(4) Whether the defendant levelled false charge of adultery ? O. P. P.

(5) Whether the plaintiff is entitled to the dissolution of her marriage on the basis of Khula` ? If so, on what terms ? O. P. P.

4: All the issues were decided against respondent No. 1 by the Judge, Family Court. However in appeal she succeeded before the Additional District Judge, who decreed her suit on the basis of Khula` on account of hatred and aversion against each other as allegedly shown on record.

5. It is interesting to notice that the learned counsel for respondent No. 1 while arguing the appeal did not press Issues 2 to 4 with regard to cruelty, misappropriation of ornaments and levelling of false charge of adultery.

6. The learned Additional District Judge which accepting the appeal has relied upon Bilqees Fatima v. Noor Muhammad and 2 others PLD 1978 Lab. 1109in order to show that since aversion and hatred exists between the parties, therefore, they cannot live within the limits of God and as such decree in favour of respondent No. 1 is liable to be passed on the basis of Khula`.

I am afraid, the facts of the case relied upon by the learned Additional District Judge are absolutely different from the present one. In that case much evidence was brought on record to show hatred and aversion by the wife against her husband while in the present case issues with regard to such hatred and aversion in the form of cruelty, misappropriation of ornaments and levelling of false charge of adultery were given up and never pressed before the Appellate Court. If such material had been considered and duly examined by the appellate Court and thereafter if the Court had come to conclusion that it was sufficient to prove hatred and aversion against the petitioner before this Court then decree in favour of respondent No. 1 on the basis of Khula` would have been quite justified. In the absence of that it cannot be said that the decree is based upon any material, whatsoever.

7. Mere filing of another suit for dissolution of marriage by respondent No. 1 at Kabirwala after the dismissal of her first suit and then filing of application before the Martial Law Authorities at Muzaffargarh and having stayed away for about seven years from her husband cannot lead to the conclusion that hatred and aversion exists between the parties. In order to prove such matters sufficient material has to be brought on record. A wife A can stay away from her husband without any sufficient cause even for many years, but still may not be entitled to a decree for dissolution of marriage on account of having stayed away for such a long time from her husband unless. She shows that she has not been living with him on account of reason--able cause . No reasonable cause having been brought on record for her staying away from her husband, respondent No. 1 is not entitled to decree for the dissolution of marriage on the basis of Khula`.

8. In the circumstances the impugned judgment and decree passed by respondent No. 2.In favour of respondent No. 1 against the petitioner is here--by set aside being illegal. The writ petition stands accepted in the terms stated above, without any order as to costs.