MUHAMMAD HANIF Versus NASEEM BIBI

This Constitutional Petition is directed against the judgment dated 31‑8‑1986 passed by the learned District Judge, Karachi South in Family Appeal No.22 of 1986 reversing the judgment of the learned Family Court and granting decree of Khula' to the respondent.

2. The brief facts leading to the filing of this petition are that the respondent No.1 filed Suit No. 309 of 1985 for dissolution of marriage on the ground of cruelty. She has also pleaded for Khula' in Para 8 of the plaint. The above suit was resisted by the petitioner and inter alia, it was pleaded that the suit was filed as a counterblast to the suit filed by him for restitution of conjugal rights. The learned Family Court on the basis of the pleadings of the parties framed the following issues:

(1) Whether the plaintiff was maltreated by the defendant?

(2) Whether the defendant failed to maintain the plaintiff properly?

(3) Whether the plaintiff is entitled for dissolution of marriage on the ground of Khula'?

(4) What should the decree be?"

In support of the suit the respondent examined herself, her father Sirajuddin, her brothers Majeed and Hussain Din, whereas the petitioner examined himself and his father Muhammad Lateef. The learned Family Court after hearing the parties by his judgment dated 30‑8‑1986 dismissed the suit on the ground that cruelty was not proved. The. respondent being aggrieved by the above judgment filed aforesaid Family Appeal No.22 of 1986, which was allowed in the form of granting Khula'.. The petitioner being aggrieved by the above judgment has filed the present constitutional petition.

3. In support of the above petition Mr. Haji Allauddin Ansari, learned counsel for the petitioner has vehemently urged that since allegations in respect of the charge of cruelty were not proved before the Family Court, learned Appellate Family Court was not justified in granting 'Khula' on the assumption that respondent No.1 was entitled to claim the same as a matter of right. He has invited my attention to the following observations of the learned Appellate Court, which read as under:

"The right to claim Khula' is not dependent upon .proof of allegation of cruelty. The circumstances of the case are that it is difficult to hold that the parties can live in peace and harmony Within the limits of God."

In support of his above submission he has also invited my attention to the case of Lal Muhammad v. Mst. Gul Bibi and another, reported in P L D 1986 Quetta 185, in which a Division Bench of the Baluchistan c High Court, to which I was a member held that the wife cannot claim Khula' as a matter of right unless it appears to the satisfaction of conscience of the Court that both the spouses cannot live within the prescribed limits of God in harmony.

On the other hand Mr. Abdul Wajid, learned counsel for respondent No.1 has invited my attention to Para 8 of the plaint and also to the evidence of respondent No.1 on the question whether she could live with the petitioner. It appears that respondent No.1 has specifically pleaded for Khula' in the alternative. She has also deposed in support of the above plea. In the judgment cited by the learned counsel for the petitioner the plea of Khula' was not raised before the Family Court and, therefore, the case is distinguishable.

4. Since the plea of Khula' was raised in the plaint and there) was some evidence in support of the above 'plea' the learned Appellate Family Court being a Court of competent jurisdiction could grant a decree for dissolution on the basis of Khula'. In this view of the matter, the impugned judgment cannot be said to be without jurisdiction or in excess of jurisdiction nor it suffers from any jurisdictional infirmity as to warrant the attraction of the constitutional jurisdiction.

The petition is, therefore, dismissed but there will be no order as to costs.

H . B . T . / M‑456 / K Petition dismissed