khula judgement.

JUDGMENT

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises from a suit for dissolution of marriage filed by Mst. Samia Abbasi, the respondent No.1 herein, against the petitioner, which was decreed by the trial court on 30th November 1989.

1. Background
   The facts necessary for the disposal of this petition are that respondent No.1 was married to the petitioner on 4th December 1985 in consideration of Rs.1,00,000, two squares of agricultural land, and a half share in Dilkusha Manzi situated at Bahawalpur, as dower. On 13th September 1986, she filed a suit for dissolution of marriage on the grounds of cruelty by the petitioner and claimed Khula. The petitioner contested the suit, raising various pleas. The learned Judge of the Family Court framed the following nine issues from the pleadings of the parties:
   1. Whether the suit is not maintainable? OPD.
   2. Whether the plaintiff has no cause of action? OPD.
   3. Whether the plaintiff has not come with clean hands in the Court? OPD.
   4. Whether the defendant has paid dower to the plaintiff? OPD.
   5. Whether the suit has been filed just to harass the defendant and with mala fide intention? OPD.
   6. Whether the defendant has been treating the plaintiff with cruelty? OPP.
   7. Whether the defendant is an intoxicant? OPP.
   8. Whether the plaintiff is entitled to the decree of dissolution of marriage on the basis of Khula? If so, on what terms and conditions? OPP.
   9. Relief.
   In support of her case, respondent No.1 examined Muhammad Batalvi, her maternal uncle as P.W. 1, and appeared herself as P.W. 2. On the other hand, the evidence produced by the petitioner included the statements of Muhammad Zia Ullah Bhatti, D.W. 1, Manzoor Ahmad son of Mubarik Ali D.W. 2, and the petitioner himself as D.W. 3. The petitioner also produced an audio cassette, allegedly containing conversations between him and respondent No.1 as Exh. D.1 and a photograph as Exh. D.2.
2. Family Court’s Decision
   By its impugned judgment dated 30th November 1989, the Family Court dissolved the marriage on the grounds of cruelty as well as Khula. The court directed that respondent No.1 shall not claim either maintenance or any share in one square of land situated in Mauza Shokal Ruba. This judgment of the Family Court has been challenged by the petitioner in this petition.
3. Petitioner’s Arguments
   Mian Israr-ul-Haq, learned counsel for the petitioner, has vehemently argued that the impugned judgment suffers from a misreading of evidence and non-consideration of vital material on the record, rendering the Family Court’s judgment without lawful authority. The learned counsel cited various judgments, including Lal Muhammad v. Mst. Gul Bibi and another PLD 1986 Quetta 185 and Kaura v. Mst. Mansab Mai and another PLD 1981 Lahore 335, contending that in such situations, the error committed by the Family Court is liable to correction by this Court through judicial review.
4. Respondent’s Defense
   Rana Aish Bahadur, learned counsel for respondent No.1, defended the impugned judgment and decree, objecting to the maintainability of this petition on the grounds that the findings of fact recorded by the Family Court are not challengeable before this Court in the exercise of its Constitutional jurisdiction. He referred to Muhammad Yasin v. Mst. Razia Begun and others 1986 CLC 1996 and Muhammad Aslam v. Kausar Parveen and another 1987 CLC 256.
5. Court’s Analysis
   After hearing the learned counsel for the parties and perusing the record, I find a substantial basis in the contentions of the learned counsel for the petitioner. The Family Court dissolved the marriage on the grounds of cruelty and Khula. According to Section 2 of the Dissolution of Muslim Marriages Act, 1939, a wife is entitled to dissolution of marriage if she is treated with habitual cruelty by her husband. Cruelty can be physical, mental, or by conduct, but it must be proven as a matter of fact before the Court.The Family Court relied on the statement of P.W.1, Majid Batalvi, the maternal uncle of the plaintiff, while disregarding the cross-examination of this witness. The Family Court also failed to consider the evidence produced by the petitioner, including two witness statements, the audio cassette Exh. D.1, and the photograph Exh. D.2. It is evident that the Family Court was under a legal obligation to consider all evidence presented and failed to do so, thus acting illegally.The photograph is significant as it purportedly shows respondent No.1 celebrating her birthday on 2nd February 1986 at the petitioner’s residence, contradicting the claims of cruelty. Similarly, the audio cassette Exh. D.1 demonstrates that the petitioner did not treat respondent No.1 with cruelty.
6. Khula Findings
   The Family Court’s findings regarding Khula also lack scrutiny. A wife can seek dissolution on the basis of Khula if the court is satisfied that living together is impossible within the limits prescribed by Allah. Khula is not granted merely upon request; it requires proof of an irremediable breach. In Muhammad Yasin v. Mst. Razia Begum and another 1986 CLC 1996, it was noted that Khula cannot be granted without just cause.The Family Court’s failure to consider the evidence and to justify its findings regarding the parties’ ability to live together as husband and wife was a significant oversight.
7. Maintainability of Petition
   Regarding the objection to the maintainability of this petition, while it is correct that this Court cannot interfere with findings of fact, if important evidence is overlooked, judicial review can be invoked.Citing relevant judgments, it is established that judicial review may correct errors resulting from the non-consideration of crucial evidence.
8. Conclusion
   For the reasons stated above, this petition is allowed. The decree of the Family Court dated 30th November 1989 is declared to be without lawful authority and of no legal effect. The suit filed by respondent No.1 shall be deemed to be pending before the Family Court and shall be decided afresh after hearing the parties