TAUFIQ AHMAD Versus NAHID AKHTAR
The facts leading to this constitutional petition in brief are that the parties were married at Karachi on 3‑2‑1984. A child was born out of the wedlock, who also died. The parties lived together for about five or six months after which the respondent No.l shifted to the house of her parents and subsequently filed suit for dissolution of marriage on the ground of maltreatment, non‑maintenance and Khula'. The learned Vilth Civil and Family Judge, Karachi East disbelieved the allegations of maltreatment and non‑maintenance, but granted divorce by way of Khula' to the respondent No.l vide the impugned judgment dated 16‑7‑1986.
2. The main contention of Mr. Mohammad Rafiq Khanzada, learned counsel for the petitioner is that after disbelieving the allegations of maltreatment and non‑maintenance, there was no other evidence available with the learned Family Judge on which he could have pronounced divorce by way of Khula. It may be worthwhile to reproduce observations of the learned Family Judge with regard to his finding on the issue of Khula' which reads as under‑.‑
"The plaintiff who is a young girl of not more than 18 years whereas the defendant of the case is above 40 years. This could be a ground for hatred in the mind of plaintiff. Moreso what I had noticed during the reconciliation efforts taken by Court was that plaintiff was not even ready to have a talk with the defendant. I saw much more than mere hatred. Despite my efforts for reconcilitation, the plaintiff was not ready even to listen to the defendant.
It is admitted fact that defendant even did not go and see his newly born child who subsequently expired and even he did not attend his funeral ceremony. This also must had created disliking in the mind of plaintiff. In my opinion there appears great hatred in the mind of plaintiff for the defendant. In the circumstances, refusal of Khula' would amount to force the plaintiff to join unwanted union of her husband which is neither permitted in law nor is the requirement of justice. In the present circumstances there is apprehension of transgressing the limits by plaintiff if she is forced to reside with defendant, who is disliked by her."
3. It is admitted fact that there is disparity between the ages of the parties, but it is contended by the learned counsel for the petitioner that this was an arranged marriage, therefore, disparity of age should not be a ground of Khula'. The marriage was arranged by the parents of respondent No.l and as such the observation of the learned trial Court A*at because of disparity of age the respondent A No.l had developed dislike for the petitioner, does not appear to be unreasonable. The learned counsel for the petitioner has relied upon the case of Mohammad Bilal v. Nasim Akhtar 1983 C L C 2390. In this case the Family Court dissolved the parties' marriage on the ground of Khula' holding without any evidence on record that husband happened to be impotent. The High Court, therefore, set aside the judgment in exercise of writ jurisdiction holding that in such circumstances marriage could not be dissolved on ground of Khula' merely because wife desired dissolution of her marriage.
4. In the instant case disparity between the ages of the parties is not disputed but is apparent from record. As such finding 'of the learned Family Court that hatred is because of the disparity of ages cannot be considered to be not based on evidence.
5. It was further stated at the bar by Mr. S.M. Gharib Nawa learned counsel for the respondent and which fact was not denied by the learned counsel for the petitioner that after dissolution of marriag the respondent No.l has remarried and is also carrying a child from her second marriage. Apart from the fact that the observations o the learned Family Court Judge, as reproduced above clearly show that there was no possibility of the parties living together within the limits of almighty Allah and the circumstances of the case also not call for exercise of its discretion by this Court under writ jurisdiction in the instant case.
I accordingly dismiss the petition with no order as to cost.
A.A./T‑251K Petition dismissed.