2017 M L D 1344
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer -ud-Din Kakar, JJ
GHULAM QADIR ---Petitioner
Versus
Mst. ZAINAB alias ZEENA and another ---Respondents
C.P. No.663 of 2014, decided on 21st March, 2017.
Family Courts Act (XXXV of 1964) ---
----S.7 & Schd.----Dissolution of marriage on the basis of Khula ---Ex parte decree ---Scope---
Husband (petitioner) contended that wife (respondent) had obtained Khula through court by ex
parte evidence which was based on mis -appreciation of law and facts ---Respondent contended
that petitioner lived abroad who had turned her out from his house fifteen years back---Validity --
-Requirement of law was to be satisfied that the spouses could not live as husband and wife
within the limits prescribed by Allah Almigh ty---Maintaining limits ordained by Allah by
husband and wife ---Scope--- Limits prescribed by Allah would mean the directions regarding
happy social life ---In the present case, respondent (wife) through ex parte evidence proved her
case that petitioner (hus band) had failed to provide maintenance to her and the children for the
last 15 years and also had turned her out from his house ---Fact that husband and wife had lived
separately for a long time without maintenance could be a strong factor to assess as to whether
the spouses could live together within the limits ordained by Allah ---Family Court had rightly
reached to conclusion in favour of grant of Khula on consideration, inter alia, of such factors ---
Constitutional petition was dismissed accordingly.
Mst. Khursheed Bibi v. Babu Muhammad Amin PLD 1967 SC 97 and Muhammad Rafi
v. Attaullah Kauser and others 1993 CLC 1364 ref.
Najam -ud-Din Mengal for Petitioner.
Habib -ur-Rehman for Respondent No.1.
Date of hearing: 16th March, 2017.
ORDER
ZAHEER -UD-DIN K AKAR, J. ---By this petition filed under Article 199 the
Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), the petitioner prayed
the following relief:--
"It is therefore, respectfully prayed that the judgment and decree impugned d ated
13.03.2014 passed by respondent No.2 be declared null, void and of no legal effect and
consequently the matter may kindly be remanded to the learned trial Court for deciding
afresh after providing proper opportunity of hearing, in the interest of just ice, fair play
and equity."
2. Precisely stated, the facts for disposal of the instant petition are that plaintiff/respondent
No.1 namely Mst. Zainab, married with petitioner Ghulam Qadir but, subsequently, due to some
differences, that had cropped up betw een the parties, respondent No.1/plaintiff filed a suit for
dissolution of marriage on the basis of Khula before the Court of Family Judge, Lasbella, in the
month of March 2013, on the ground that she was married with petitioner about 22 years ago and
out of wedlock two children were born and after marriage, the petitioner used to live in Dubai
and he never paid maintenance to her, tortured her and even turned out of his house and for the
last 15 years no payment of maintenance was made. After registration of the suit, the Family
Court issued notices to the petitioner, but despite of service of notice upon his brother namely
Muhammad Musa and publication in daily newspaper "Bolan" Hub dated 22.2.2014, he is failed
to appear before the Family Court, therefore , proceeded against ex -parte and the respondent
No.1/ plaintiff was directed to produce ex -parte evidence. Thereafter, on the basis of ex -parte
evidence the Family Court decreed the suit vide impugned judgment and decree 31.3.2014. on
the basis of Khula in the following words: -
Hence the instant appeal.
3. Learned counsel for the petitioner contended that the impugned judgment and decree,
passed by the Family Court is based on mis -appreciation of law and facts; that no opportunity of
proper hearing has bee n afforded to the petitioner by the trial Court; that there are certain facts
and grounds, which were concealed at the time of filing of the suit, thus, the impugned judgment
is liable to be set aside.
4. Conversely, the learned counsel for the respondent vehemently opposed the contentions
of the learned counsel for the petitioner and defended the impugned judgment.
5. We have heard learned counsel for the parties have gone through the record. Before
going to further, it is necessary to mention here that th e principle for grant of Khula are quite
authoritatively laid down in the illustrative judgment of Mst. Khursheed Bibi v. Babu
Muhammad Amin (PLD 967 SC 97), wherein after reference to a number of authorities and in
the light of verses of Holy Qur'an, it i s laid down as follows: --
"Secondly, it confers a right and a privilege on the wife to seek dissolution of marriage.
Khula is thus a right conferred on the wife. In the prior verse 2:228 the Holy Qur'an itself
mentions 'women have rights against men simila r to those that men have against them,
according to the well known rules of equity'. "
6. However, such right is circumscribed by the requirement of the Court being satisfied that
the spouses cannot live as husband and wife within the limits prescribed by Allah Almighty. A
woman is not maintaining the limits ordained by the Allah Almighty is her neglecting or
avoiding of her performance of her duties towards her husband as well as not obeying him at all.
Likewise, the husband failing to provide protection a nd maintenance to his wife, is failure to
keep the limits prescribed by the Almighty. The limits prescribed by the Allah Almighty would
mean the directions regarding happy social life. In the present case, the respondent No.1/plaintiff
through ex -parte evi dence proved her case that the petitioner had failed to provide maintenance
to her and her children for the last fifteen (15) years and also turned her out from his house. The
fact that the husband and wife have lived separately for a long time and mainten ance too has not
been provided by the petitioner, can be a strong factor to assess as to whether the spouses can
live together within the limits prescribed by the Allah Almighty. The learned Family Judge,
appears to have reached the conclusion in favour of grant of Khula on consideration, inter alia, of
about, factors. Such conclusion cannot be termed unlawful or without jurisdiction so as to call
for interference in exercise of powers conferred under Article 199 of the Constitution. In this
regard reliance can be placed in the case of Muhammad Rafi v. Attaullah Kauser and others
reported in (1992 CLC 1364).
7. For what has been discussed above, we find no merit in the petition as such, the same is
hereby dismissed.
MQ/40/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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