MUHAMMAD AKHTAR vs JUDGE FAMILY COURT and others
This matter arises from a petition seeking leave to appeal against the dismissal of a writ petition by the High Court, which upheld the dissolution of a marriage on the basis of Khula. The core legal question concerns the propriety of dissolving a marriage on the ground of Khula due to incompatibility of temperament and failure of conciliation efforts. The Supreme Court held that the concurrent findings of fact by the lower courts regarding the wife's aversion and inability to live within the limits prescribed by Almighty Allah involved the appreciation of evidence, which the High Court had correctly examined and found free of jurisdictional defects or legal infirmities. Consequently, the petition was dismissed, affirming that factual determinations based on evidence in family suits regarding Khula will not be re-examined by the apex court unless a substantial legal or jurisdictional error is shown.
- Whether a marriage can be dissolved on the basis of Khula due to incompatibility of temperament?
- Can the Supreme Court re-examine evidence concurrently appreciated by the lower courts and the High Court in a family matter?
- Whether a writ petition against the judgment of a Family Court can be maintained without showing a legal infirmity or jurisdictional defect?
ORDER
1. ' MUHAMMAD HALEEM, C. J.--Respondent No,2 was married to the petitioner on 3-12-1977 by her parents as she was a minor, and, therefore, there was no Rukhsati and the marriage was not consumated. She filed a suit for the dissolution of her Nikah on the basis of Khula which was resisted and as a counter-blast, the petitioner filed a suit for restitution of conjugal rights. The suit was decreed as prayed by the Judge, Family Court on the ground of incompatibility of temperament so much so that the respondent was unable to live within the limits prescribed by Almighty Allah. The suit of the petitioner was accordingly dismissed. Several issues were framed and evidence was recorded. And not only this, an effort was also made to bring about a conciliation which failed.
2. ' The petitioner thereupon filed a writ petition No,1217 of 1988 to challenge the decree but it was dismissed on 23-4-1988 as the High Court was of the opinion that "the petitioner has wholly failed to point out any legal infirmity much less jurisdictional defect in the judgment of the learned trial Court".
3. The High Court itself examined the evidence to satisfy itself before recording the above finding. In this view of the matter, it is a case of appreciation of evidence and we do not see any point to examine the evidence afresh.
4. ' The petition, accordingly, fails and is hereby dismissed.