(a) Constitution of Pakistan (1973)-
.Art. 199 -Muhammadan Law-Khula-Beauty by itself though not relevant consideration in considering khula yet considered with other circumstances ugliness, physical aversion and disparity of age, held, relevant factors for deciding khula [Muhammadan Law-Khula'].
(b) Constitution of Pakistan (1973)-
-- Art. 199 read with Muhammadan Law-Khula'---Finding reached that parties would not keep limits of Allah-No discretion left with Court not to grant khula'-[Muhammadan Law-Khula'].
Alultammad Nasrullah Qureshi for Petitioner.
1979 C L C 174
[Lahore]
Before Muhammad Afzal Zullah, J
MUHAMMAD NAWAZ-Petitioner
versus
MR. GHULAM RASUL THE JUDGE, FAMILY COURT, KABIRWALA
DISTRICT MULTAN AND ANOTHER-Respondents,
Writ Petition No. 1366 of 1979, decided on 14/03/1979.
ORDER
Learned counsel has, in support of this petition, calling in question the dissolution of a marriage on ground of khula' contended that the respondent did not, in her deposition, ask for khula; that beauty and physical attraction and disparity of age are irrelevant considerations for khula'; that the respondent having failed on all other issues, could not succeed on khula'; that discretion should not have been exercised in favour of respondent because she did not approach the Court with clean hands; and lastly, that if khula' is granted liberally, as in this case, it might lead to moral degradation.
2. It was not necessary for the respondent to use the word 'khula" or any other technical expression in this behalf. Although the claim made in the plaint can also be noted for considering whether she sought khula', yet the facts stated in her deposition (read by the learned counsel from his brief) give enough indication of her claim for khula'. She also used a comprehensive .. expression in this behalf; namely. In a given case, beauty by itself might not be considered as a relevant consideration for deciding question of khula' but considered with other circumstances, as in this case,', ugliness physical aversion and disparity in age are relevant factors for deciding! whether the spouses would be able to keep the limits of Allah. I do not agree that when the wife fails on other issues, she must be refused khula also. In this case, learned trial Judge gave benefit of some so-called doubts and discrepancies to the petitioner on other issues. He also attached undue importance to omission of details from the plaint which ordinarily need not contain the details. Qua desertion, lie gave positive finding that it was due to the hatred. Thus, notwithstanding negative findings on other issues, khula' could be granted, if otherwise justified.
3. Last contentions of the ',carried counsel can be considered together. Merely because the respondent failed to convince the learned trial Judge oil other issues does not show that she approached the Court with unclean hands. And, as noted above, it was not a case of deliberate falsehood. And in any case, when a finding of fact is reached that "the parties would not keep the limits of Allah", no discretion is left with the Court not to grant khula'. Same would apply to the general 'assertion' of the learned counsel that liberal grant of khula' would be injurious to society. However, I do not g agree with him even on the question of inferential reasoning. If decision is given in a case in accordance with the enforceable Shariat Law and there is no such fatal defect in judgment, which is discoverable by human effort, the resultant dispensation shall be for the good of the society as also the individuals concerned. This, besides being an article of faith, is a principle of policy of our polity and is enshrined in our constitutional law.
4. There is no force in any of the arguments of the learned counsel. This writ petition fails and is accordingly dismissed in limine.
K. M. A.Appeal dismissed.
