MUHAMMAD RAFI vs ATTA ULLAH KAUSAR and another

ORDER

' Through this Constitutional Petition Muhammad Rafi petitioner has challenged a decree for dissolution of marriage passed by the Court of learned Judge, Family Court, Wazirabad dated 11-2- 1993, in favour of the respondent in a suit filed by the respondent, for dissolution of marriage, on the ground of Khula`.

2. Briefly stated facts of the case are that the petitioner was married to the respondent on 20-7- 1990. According to the petitioner she lived with him for a period of one year. A daughter was born out of the wedlock. Respondent No,1 filed a suit on 16-2-1992 in the Court of learned Judge Family Court seeking dissolution of marriage on the ground that behaviour of the petitioner has been cruel to her and he has been in the habit of beating her and also levelling false charges of adultery and it is not possible for her to live with the petitioner as her wife. Therefore, she has prayed that decree for dissolution of marriage among others on the ground of Khula` may be passed in her favour. It is also alleged in the pleadings that the petitioner is living an immoral life and is narcotic addict. The suit has been contested by the respondent on the ground that Rs,10,000 and 6,000 were taken from him by her father and sister respectively and it is on account of demand of the petitioner for repayment thereof that the suit has been got filed by the parents of the respondent and therefore, no decree can be passed in her favour. It is alleged that 4/5 times effort has been made for bringing the respondent to his house through a Panchayat but with no success. It is further alleged that 'she has taken away golden ornaments weighing six tolas and eight pairs of clothes with her when she left the house of the petitioner without his permission. Learned trial. Court settled various issues and decided all the issues in favour of the respondent except issue No,11 relating to 'Khula' and held that respondent No,1 is entitled to the grant of dissolution of marriage on the ground of Khula` as she has acquired hatred and affixed aversion towards the petitioner, vide judgment and decree dated 11-2-1993, hence this petition.

2-A. This case came up for preliminary hearing on 27-3-1993 before me. On that date learned counsel argued the case at some length and was of the view that if some time is granted, there is a possibility of compromise between the parties. However, he argued to further prepare the brief and the case was adjourned to 4-4-1993. On 4-4-1993 again, the learned counsel sought adjournment for the same reasons. Consequently, writ petition was adjourned to 7-4-1993. Today the case has been taken up and argued by the learned counsel for the petitioner.

3. It is contended that the impugned judgment and decree rendered by the learned Judge Family Court is illegal and without lawful authority inasmuch as the real dispute relates to the demand of an amount of Rs,16,000, which has allegedly been paid by the petitioner to the father and sister of the respondent, and, therefore, no decree could have been passed in favour of the petitioner. On my query, learned counsel has conceded that the parties are living separately for 1-1/2 yeaRs, He further admitted that they arc not blood relations and all the efforts so far made for settling the dispute between the petitioner and the respondent at all levels have failed. Learned counsel has further conceded that right from the filing of this suit till today, hectic efforts were made but compromise has not been effected. In this case, suit for dissolution of marriage has been decreed on the ground of Khula`. Right to claim dissolution of marriage on the ground of Khula` is a right equal to the right of Talaq conferred upon the husband except with the difference that the wife has to satisfy the Qazi that she cannot live with her husband within the limits laid down by the God Almighty, as held in case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97). In this case, admittedly, the parties are living separately for the last 1-1/2 yeaRs, Serious allegations have been levelled by the respondent against the petitioner although it has been held that they are not proved. The fact, however, remains that the respondent is sticking to her stand and in spite of best efforts for arriving at a compromise made prior to the filing of the suit, during the pendency thereof as well as this writ petition, have not succeeded. The parties are not blood relations. Necessary inference which can therefore, be drawn is that there is no possibility of compromise between the spouses, who are young in age. The respondent is a human being and not a chattel. It is not possible to force her to live with the petitioner as her wife. She is the best witness of the circumstances on the basis whereof she has categorically stated on oath before the learned Judge, Family Court that she cannot live with the petitioner within the limits laid down by the Almighty Allah. She being adamant not to enter into a compromise in spite of best and hectic efforts made in this behalf by the well-wishers of the parties at all levels, it stands established that there is no possibility of reconciliation between the spouses. In such a situation refusal of dissolution of marriage will definitely result in the crossing of limits of Almighty Allah by the respondent. Consequently, the learned Judge, Family Court has rightly held that it is a fit case where the marriage should be dissolved on the principle of Khula`.

3-A. It is a writ petition. No misreading or non-reading has been pointed out. No cogent evidence of payment of money as well as taking away of ornaments and clothes has been led. At any rate, the evidence led by the respondent has been believed. Her stand has been accepted whereas the version of the petitioner has been disbelieved by a Court of competent jurisdiction. This Court while deciding a writ does not exercise appellate jurisdiction. Law does not contemplate an appeal against the judgment of dissolution of marriage rendered by the learned Judge, Family Court.

Consequently, exercise of writ jurisdiction in such like cases would amount to circumventing the law. Appraisal of evidence is not the subject of writ jurisdiction of this Court. Learned Judge, Family Court having heard the evidence, seen the parties and examined all the circumstances, is satisfied that the parties cannot live together as husband and wife. This Court by interfering with the judgment and decree cannot force an unwanted union.