BASHIR AHMAD vs Mst. NASREEN and another
This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, challenges the judgment and decree of the Family Court dissolving the marriage of the parties on the sole ground of Khula. The core legal question was whether a marriage can be dissolved on the ground of Khula alone when all other issues framed in the suit were decided against the wife. The Lahore High Court held that Khula is an independent ground for the dissolution of marriage, provided the court's conscience is satisfied that the spouses cannot live within the limits prescribed by Almighty Allah. The Court ruled that where reconciliation efforts have failed, parties have lived separately for years, and serious allegations have been exchanged, forcing them to remain in a hateful union is impermissible. Furthermore, the wife's refusal to return benefits was held immaterial where the Family Court found that no benefits worth naming were bestowed upon her. The petition was accordingly dismissed.
- Can a marriage be dissolved on the ground of Khula alone when other grounds or issues are decided against the wife?
- Whether the refusal of a wife to return benefits defeats her right to Khula when no substantial benefits were bestowed upon her?
- Does the High Court interfere with the decision of a Family Court granting Khula when the conclusion is based on the wife's aversion and failed reconciliation?
- Article 199, Constitution of Islamic Republic of Pakistan, 1973
' This petition under Article 199. Of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a suit for dissolution of marriage filed by respondent No,1 against the petitioner which was decreed by the Family Court on the ground of Khula alone on 20th March, 1988. In the suit filed by her the respondent had claimed dissolution on other grounds also like cruelty, failure to perform marital obligations for more than three years and non-maintenance for more than two years. These issues were, however, found against the respondent by the Family Court.
2. Agha Taj Muhammad, the learned counsel for the petitioner contends that as all other issues were decided by the Family Court against the respondent, there was no justification for dissolving the marriage on the ground of Khula.
3. This contention of the learned counsel is not well-founded. Khula by itself is an independent ground on which marriage can be dissolved by the Court provided its conscience is satisfied that it shall not be possible for the parties to live together as husband and wife, within the limits prescribed by God. While arriving at such a conclusion, Family Court 'has relied upon the statement of the wife, who appeared as P.W.1 and stated in categorical terms that she was not willing to live with husband in any circumstances. It is also to be seen, that there is no issue alive out of marriage.
All the efforts made by the Family Court at pretrial and post-trial hearings to bring about reconciliation failed. The parties are living separately since the year 1988. Respondent had levelled serious allegations regarding character of the petitioner. In these circumstances to refuse Khula would tantamount to forcing the parties to live in a hateful union. The view formed by the Family Court, is neither arbitrary nor perverse and does not call for interference by this Court, in the exercise of its constitutional jurisdiction.
4. It was next submitted by Agha Taj Muhammad, the learned counsel for the petitioner that: in her "statement as P.W.1 respondent No,1 had refused to return the benefits upon her by the petitioner in lieu of marriage and she was not entitled to Khula. This refusal of the respondent is immaterial as it has been found as a fact by Family Court that no benefit worth the name was bestowed by the petitioner. Consequently, the question of restoration of benefits does not arise.
' For the reasons aforesaid, this petition is without any force, which is 'accordingly dismissed, with no order as to costs.
Cited by 4 cases
- MUHAMMAD ASIF QAYYUM Versus FOZIA SHAHEEN 2020 CLCN 49
- Mst. FARHANA BEGUM vs HASHMAT ALI and 4 others 2004 YLR 2012
- MUHAMMAD RASHID vs JUDGE FAMILY COURT, CHISHTIAN and another 2000 PLJ Lahore 2415
- MUHAMMAD RASHID vs JUDGE, FAMILY COURT, CHISHTIAN, DISTRICT 2001 CLC 477