DR. AKHLAQ AHMAD vs Mst. KISHWAR SULTANA AND OTHERS

ORDER

1. ' SHAFIUR RAHMAN, J.-The petitioner, husband of respondent No. 1, seeks leave to appeal against the judgment of the Appellate Bench of the Lahore High Court dated 17-11-1981 whereby the dissolution of their marriage by Khula` as ordered by Judge Family Court and not interfered with in constitutional jurisdiction was affirmed and the inquiry was confined to the terms on which the dissolution by Khula` was to take place.

2. ' The petitioner is a registered medical practitioner and was married in June, 1975 to respondent No

1. Their marriage was preceded by mutual visits, social intercourse and some acquaintance with each other when they were living abroad. The elder sister of respondent No. 1 was married to respondent No, 3 and it is said that she died in February, 1978. In June, 1978 the respondent No. 1 instituted proceedings in the Family Court laying claim to the dower and also to the dissolution of marriages on the grounds of non-maintenance, non-performance of marital obligations, cruelty etc. The recording of evidence in the case concluded on 7-6-1979. Reconciliation was attempted and failed on 19-6-1979. There were applications filed for leading additional evidence which were rejected and a number of dates were given for announcement of the judgment but ultimately on 11-11-1979 it was noted while going through the record that though not specifically so raised in the pleadings, the wife had in her statement claimed dissolution of the marriage on the ground of Khula on return of the benefits obtained by her during marriage. The case was adjourned for examination of the parties with regard to their contentions on this aspect of case. The statement of the respondent No. 1 was recorded and the petitioner submitted a detailed application listing the material benefits obtained by respondent No. 1 during marriage. By his order dated 6-12-1979 the Judge, Family Court denied the respondent dissolution of marriage on the grounds taken up by her in the petition but allowed it on the ground of Khula on the condition that she should give up her dower and return the diamond ring within thirty days or in lieu thereof Rs, 12,000. Half a share in the house in Samanabad was allowed to remain in the name of the petitioner and the other half in the name of respondent No. 1 and she was made responsible to pay another sum of Rs, 20,000 for it.

3. ' The petitioner invoked the constitutional jurisdiction of the High Court for challenging dissolution of marriage on the ground of fibula'. After examining the conduct of the parties in relation to their marital affairs the learned Judge in the High Court held as follows :- "There is left no trace of harmon' in their life and there could have been no question of their living as man and wife. Therefore, it was just and proper that their marriage bond should be dissolved by Khula The discretion exercised by the learned trial Court is not arbitrary or capricious and does not demand interference by this Court. This petition is consequently dismissed."

4. ' The petitioner filed an Intra-Court Appeal which succeeded only to this extent that the appeal Bench held that proper inquiry had not been held on the written application filed by the petitioner with regard to material benefits derived by the wife from him on the return of which she would have been entitled to the dissolution of marriage on the ground of Khula if at all dissolution of marriage was to take place. Hence to that extent reinquiry was permitted.

5. ' The learned counsel for the petitioner has contended that events subsequent to the institution of proceedings in the Family Court should not have been so strongly relied upon for corning to a conclusion whether it was a fit case for dissolutions of marriage by Khula or not. Another contention of the learned counsel for the petitioner is that the factors which have been so heavily relied upon for holding that the parties cannot any longer live within the limits of God, are all her own delinquencies and derelictions and she could not be the beneficiary of her own improper conduct. The blame should have been properly apportioned and the wrong doer should not have been placed in a position to capitalise on her own wrong. Finally it has been urged that the dissolution of marriage by way of Khula could itself be not kept intact during the course of inquiry into the terms and conditions on which it was to be allowed, if at all.

6. So far as the first objection of the learned counsel for the petitioner is concerned, it cannot be advanced as a proposition of law that whatever happens subsequent to the institution of proceedings in Family Court cannot at all be made the basis for granting or refusing the relief. As a matter of fact, how the parties conduct themselves during the proceedings, particularly during the reconciliation efforts by the Judge have to be taken note of and suitably given effect to. The question whether the parties if made to live as husband and wife would be living within the limits of God is a question which has to receive the full and continuous attention of the Judge Family Court once that issue has been raised. He has to attend to every factor which may contribute or detract from it. No such condition as. Is suggested by the learned counsel for the petitioner can be imposed.

7. ' It is true, and as a principle one can have no cavil with it, that an errant wife cannot make her own conduct the basis for dissolution of her marriage even by Khula in a manner to aggravate and licence the very evil which the effort of all civilized human society is to eradicate or control. On facts of the case it cannot be said that the wife was adjudged through and through to be in error, to give the impression that she benefited from her own misdeeds. On the contrary it appears from the proceedings that the Judge Family Court, on an objective appraisal of the evidence on the issues framed, recorded a finding in favour of the petitioner but with regard to the question of Khula the same Judge held in favour of the wife. Such a conclusion being in the domain of discretion exercised by an authority having the advantage of observing closely and over a long period of proceedings before it the behaviour and the conduct of the parties towards each other and towards their problems is not open to interference unless the discretion was manifestly exercised arbitrarily and capriciously. The High Court has not found any such taint in the exercise of discretion. We have not discovered it either.

8. The learned counsel for the petitioner also attempted to demonstrate that the conduct of the proceedings by the Judge, Family Court was not fair and honest, particularly the writing of such an elaborate judgment in an hour or so on 6-12-1979. This question cannot be collaterally raised in a constitutional petition and the mere timing or sequence of the order-sheets is not a sure guide in drawing conclusions concerning the fairness and honesty of the proceedings and the maintenance of the record thereof. This plea could have as well been avoided in these proceedings.

9. ' As regards the third submission of the learned counsel for the petitions that dissolution of marriage by Khula cannot stand whilst an inquiry on facts with regard to the terms on which it is to be granted is yet to take place, fact With plausible but is not quite sound. It was held in the case of Moonshee Buzul-ul-Raheem v. Luteefutoon Nisa that non-payment of stipulated consideration for Khula does not invalidate the dissolution of marriage by Khula. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage by Khula must take place, the inquiry into the terms on which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself.

10. ' The learned counsel for the petitioner also pointed out to the fact that the wife had, in clear violation of the Court's order and of the statutory prohibitions, contracted a second marriage with her former brother-in-law on the 11th of April 1980 before the expiry of 90 days prescribed under section 7 of the Family Courts Ordinance, 1961 and at a time when the order of the Judge Family Court dissolving the marriage stood suspended and due notice of it had been given to them by telegram and by publication in the newspaper. This matter is not directly relevant to the proceedings in hand which relate to the merits of the case and is subsequent to the orders which were under challenge.

11. ' We find that this is not a fit case for further examination in this Court and the leave to appeal is refused. 8 Moore's Ind. App. 379