INAMUL HAQUE vs Mst. SHARIFAN BIBI and 2 others

' This Constitution petition arises out of matrimonial dispute culminating into a decree for dissolution of marriage in favour of Mst. Sharifan Bibi (herein respondent No,1).

2. The material facts to be noted are; that Mst. Sharifan Bibi (herein respondent No,1) filed a suit for dissolution of marriage again the petitioner in. The Court of Family Judge, Fort Abbas on 11-5-1991 alleging therein that she was treated by the petitioner/defendant with persistent cruelty; that the petitioner did not pay her maintenance for a period of more than two years; that the petitioner had misappropriated her articles of dowry. It was stated therein that on account of aforesaid circumstances she had developed incurable hatred towards the petitioner and was not prepared to live with him within the limits as prescribed by God Almighty. It was prayed that the suit be decreed on the basis of Khula`.

3. The learned Judge Family Court tried to effect the service upon the petitioner = through registered post for 25-5-1991. The summons were not returned; therefore, service was resorted through citation in daily `Musawar Lahore for 12-6-1991. On the said date of hearing, the petitioner did not enter appearance. As such ex parte proceedings were ordered against him and the case was fixed for the evidence of respondent No,1 on 26-6-1991. On the said date of hearing the evidence of respondent No,1 was recoded and ex parte judgment and decree was passed decreeing the suit for dissolution of marriage on the basis of Khula`.

4. Having come to know about this, the petitioner lodged an application on 8-7-1991 before the same Court for setting aside ex parte proceedings as well as ex parte decree. When the application came up for preliminary hearing, the learned Judge Family Court directed that the petitioner shall appear in person on 15-7-1991. Since the petitioner had no knowledge about this order, he did not appear on the said date of hearing. Resultantly the hearing was postponed to 18-7-1991 for the appearance of the petitioner. On account of absence of information, the petitioner did not enter appearance on the said date of hearing. In this background, the learned Judge Family Court dismissed the application.

5. Feeling aggrieved, the petitioner filed appeal which was dismissed on 10-9-1991.

6. On behalf of the learned counsel for the petitioner, it was submitted that the proceedings commencing from citation up to passing of the ex parte decree were wholly without jurisdiction on the ground that the petitioner was not served.

7. It was next. Contended that the petitioner was disabled person and had no knowledge about the orders of learned Judge Family Court directing him to enter appearance before the Court. No other point was urged.

8. Learned counsel for the respondent supported the impugned decision and further stated that respondent No,1, in fact, has contracted second marriage.

9. After hearing the learned counsel for the parties at a considerable length, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. The points urged by the learned counsel for the petitioner relate to the finding of facts which can only be resolved through by taking evidence. Such exercise is impermissible in Constitutional jurisdiction. The learned Judge Family Court postponed the hearing of application for setting aside ex parte proceedings as well as ex parte decree twice commanding the petitioner to appear in person in order to render explanation for his non-appearance but the petitioner did not appear. The explanation of the petitioner that he was not informed by his counsel, hardly merits consideration. Upon the material on record, the learned Judge Family Court was well within his right in coming to the conclusion that the petitioner had submitted application for setting aside ex parte proceedings as well as ex parte decree without any reasonable basis. The impugned order is just and not open to exception in Constitutional jurisdiction.

10. Even otherwise, it is a well-settled principle of law that when the relations between the spouses become so strained that it is not possible for them to live within the limits prescribed by God Almighty, it is better to annul such marital tie in order to save two living souls from the agony of hateful union. Reference be made to Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others (PLD 1983 SC 169). The respondent No,1 has contracted second marriage. She appeared before the Court and stated firmly that she was not prepared to live with the petitioner.

11. In the light of foregoing discussion, this petition is found to be wholly without merit and is accordingly dismissed leaving the parties to bear their own costs.