(a) Muhammadan Law---
----Divorce---Khula'---Consideration for Khula'---Where no best evidence in respect of the benefits derived by the wife, as alleged by the husband, had been given, Court was right in granting Khula' on the basis of the fixed dower in the Nikahnama as consideration for Khula.
(b) Muhammadan Law---
----Divorce---Khula'---Even, if wife who omits to demand Khula' can be granted a decree for Khula' if the conditions exist that in case a decree for dissolution of marriage is not granted it will give birth to a hateful union of the spouses which will not bring the spouses within the limits prescribed by God.
(c) Muhammadan Law---
----Marriage---Woman whose Nikah was performed during her minority and Rukhsati had not taken place had a right to repudiate her Nikah performed during minority on coming the age of puberty.
Sh. Naveed Shahryar, Advocate
MUHAMMAD ASLAM VS RAZIA SULTANAP L D 1995 Lahore 287Before Mrs. Fakhrun Nisa Khokar, JMUHAMMAD ASLAM---PetitionerversusMst. RAZIA SULTANA---Respondent Writ Petition No.3945 of 1995, decided on 02/04/.1995.
ORDER
The brief facts of the case are that the respondent No.l filed a suit for jactitation of marriage on 17-8-1993 against the petitioner. In the alternative she prayed for a decree for dissolution of marriage. This suit was contested between the parties and on the pleadings of the parties following issues were framed:--
(1)Whether the defendant withdrew the notice of divorce? If so, at what stage? OPD.
(2)Whether this Court has no territorial jurisdiction to try this suit? OPD
(3)Whether the plaintiff is entitled for the decree of jactitation of marriage? OPP.
(4) Relief.
2. The learned Judge, Family Court, Mandi Bahauddin vide judgment dated 21-2-1995 decreed the suit for dissolution of marriage on the ground of Khula` and fixed the dower mentioned in the Nikahnama as consideration of Khula`.
3. Learned counsel for the petitioner has argued that the respondent/plaintiff filed a suit for jactitation of marriage and she did not ask for Khula and so did not press any issue in this concern. Even the statements of the parties were not taken in the said consideration. The judgment of the learned Court below suffers from infirmity for not providing fair trial as it was imperative to frame an issue of Khula` and not to take the petitioner by surprise.
4. I have heard the learned counsel for the petitioner and have perused the record. The respondent/plaintiff filed a suit for jactitation of marriage praying in the alternative that a suit for dissolution of marriage on the basis of her extreme aversion with the petitioner/defendant be decreed. She has completely denied any consummation of the marriage as she has categorically stated that her Nikah was performed during her minority and Rukhsati of the same had not taken place. In the written statement the petitioner/defendant showed that the respondent/plaintiff had been performing matrimonial relationship in the house of the petitioner. The respondent appeared as P.W.1. She has reiterated that the Nikah was performed during her minority and she had never gone to the house of the petitioner and she has extreme hatered and aversion against the petitioner and she even does not like to see the petitioner, as the petitioner defendant has humiliated her by serving notice of Talaq. She also levelled allegation against her mother for taking money from her alleged husband. She has also stated that she had not taken any benefit from the petitioner. She produced P.W.2 in support of her case.
5. Petitioner/defendant produced Muhammad Yaqoob (D.W.1) who brought the record pertaining to notice of divorce dated 16-7-1993 which was received by him on 24-7-1993 and no proceedings were taken in respect of that notice as on the next day the petitioner/defendant appeared in person and withdrew his notice.
D.W.2 Mst. Amino Bibi is the real mother of the respondent. She has stated that two and half years ago the respondent/plaintiff got married with the petitioner/defendant and she remained in the house of the petitioner for one year she has left the house of her husband for one-and half years ago. Muhammad Aslam petitioner appeared as his own witness as D.W3. The respondent has also produced school leaving certificate (Exh.P/1), certified copy of the plaint (Exh.P/2), Order dated 24-2-1994 (Exh.P/3). In the school leaving certificate (Exh.P/1) respondent's date of birth is shown as 9-6-1979 which shows that she is about 16 years of age today. If the evidence of the petitioner is taken in its true perspective then she was married 2-1/2 years ago from the date of evidence of D.W.2, then the respondent was about 11 years of age. No reliance can be placed on such evidence in the absence of any other evidence in rebuttal as to the date of birth of the present respondent. The only contention of the learned counsel for the petitioner that the Court below has not applied its mind in respect of the issues relating to the pleadings of the parties is without substance. In the alternative, she has also prayed for a decree for dissolution of marriage. The respondent in her statement has categorically stated that she has developed extreme aversion against the petitioner and she does not want to see him. Moreover, there seems to be some litigation in respect of sending notice of Talaq and later on withdrawing the same. So far as the consideration of Khula` is concerned the arguments of the learned counsel for the petitioner that the benefits derived by the respondent are not taken into consideration is completely wrong. In fact the trial Court below has taken into consideration the dower mentioned in the Nikahnama and the 1Chula` is granted on the basis of the consideration of dower mentioned in the Nikahnama as on the one side respondent categorically states that she never went to the house of the present petitioner and have not derived any benefit from that matrimony. On the other hand the petitioner reiterates that some ornaments/valuables were taken by the respondent. No best evidence in respect of the benefits derived by the respondent, as alleged by the petitioner. has been given and the Court below has rightly given Khula` on the basis of the fixed dower in the Nikahnama as consideration of Khula`. Even if a wife who omits to demand Khula` can be granted a decree for Khula` if the conditions exist that in case a decree for dissolution of marriage is not granted it will give birth to a hateful union of the spouses which will not bring the spouses within the limits of God, so the Court below in view of the evidence of the parties have rightly given the right of Khula` to the respondent.
6. Even otherwise the respondent had a right to repudiate her Nikah performed during minority on coming the age of puberty. It is surprising that the respondent has not claimed such right neither in the plaint nor in her evidence- For this reason the Courts have constrained to give finding in this respect.
7. For the foregoing reasons I see no substance in this petition to interfere in the finding of facts arrived at by the Tribunals below in my extraordinary jurisdiction, the same is dismissed in limine. No order as to costs.
M.BA./M-2041/LPetition dismissed.
(a) Muhammadan Law---
----Divorce---Khula'---Consideration for Khula'---Where no best evidence in respect of the benefits derived by the wife, as alleged by the husband, had been given, Court was right in granting Khula' on the basis of the fixed dower in the Nikahnama as consideration for Khula.
(b) Muhammadan Law---
----Divorce---Khula'---Even, if wife who omits to demand Khula' can be granted a decree for Khula' if the conditions exist that in case a decree for dissolution of marriage is not granted it will give birth to a hateful union of the spouses which will not bring the spouses within the limits prescribed by God.
(c) Muhammadan Law---
----Marriage---Woman whose Nikah was performed during her minority and Rukhsati had not taken place had a right to repudiate her Nikah performed during minority on coming the age of puberty.
Sh. Naveed Shahryar, Advocate
ORDER
The brief facts of the case are that the respondent No.l filed a suit for jactitation of marriage on 17-8-1993 against the petitioner. In the alternative she prayed for a decree for dissolution of marriage. This suit was contested between the parties and on the pleadings of the parties following issues were framed:--
(1)Whether the defendant withdrew the notice of divorce? If so, at what stage? OPD.
(2)Whether this Court has no territorial jurisdiction to try this suit? OPD
(3)Whether the plaintiff is entitled for the decree of jactitation of marriage? OPP.
(4) Relief.
2. The learned Judge, Family Court, Mandi Bahauddin vide judgment dated 21-2-1995 decreed the suit for dissolution of marriage on the ground of Khula` and fixed the dower mentioned in the Nikahnama as consideration of Khula`.
3. Learned counsel for the petitioner has argued that the respondent/plaintiff filed a suit for jactitation of marriage and she did not ask for Khula and so did not press any issue in this concern. Even the statements of the parties were not taken in the said consideration. The judgment of the learned Court below suffers from infirmity for not providing fair trial as it was imperative to frame an issue of Khula` and not to take the petitioner by surprise.
4. I have heard the learned counsel for the petitioner and have perused the record. The respondent/plaintiff filed a suit for jactitation of marriage praying in the alternative that a suit for dissolution of marriage on the basis of her extreme aversion with the petitioner/defendant be decreed. She has completely denied any consummation of the marriage as she has categorically stated that her Nikah was performed during her minority and Rukhsati of the same had not taken place. In the written statement the petitioner/defendant showed that the respondent/plaintiff had been performing matrimonial relationship in the house of the petitioner. The respondent appeared as P.W.1. She has reiterated that the Nikah was performed during her minority and she had never gone to the house of the petitioner and she has extreme hatered and aversion against the petitioner and she even does not like to see the petitioner, as the petitioner defendant has humiliated her by serving notice of Talaq. She also levelled allegation against her mother for taking money from her alleged husband. She has also stated that she had not taken any benefit from the petitioner. She produced P.W.2 in support of her case.
5. Petitioner/defendant produced Muhammad Yaqoob (D.W.1) who brought the record pertaining to notice of divorce dated 16-7-1993 which was received by him on 24-7-1993 and no proceedings were taken in respect of that notice as on the next day the petitioner/defendant appeared in person and withdrew his notice.
D.W.2 Mst. Amino Bibi is the real mother of the respondent. She has stated that two and half years ago the respondent/plaintiff got married with the petitioner/defendant and she remained in the house of the petitioner for one year she has left the house of her husband for one-and half years ago. Muhammad Aslam petitioner appeared as his own witness as D.W3. The respondent has also produced school leaving certificate (Exh.P/1), certified copy of the plaint (Exh.P/2), Order dated 24-2-1994 (Exh.P/3). In the school leaving certificate (Exh.P/1) respondent's date of birth is shown as 9-6-1979 which shows that she is about 16 years of age today. If the evidence of the petitioner is taken in its true perspective then she was married 2-1/2 years ago from the date of evidence of D.W.2, then the respondent was about 11 years of age. No reliance can be placed on such evidence in the absence of any other evidence in rebuttal as to the date of birth of the present respondent. The only contention of the learned counsel for the petitioner that the Court below has not applied its mind in respect of the issues relating to the pleadings of the parties is without substance. In the alternative, she has also prayed for a decree for dissolution of marriage. The respondent in her statement has categorically stated that she has developed extreme aversion against the petitioner and she does not want to see him. Moreover, there seems to be some litigation in respect of sending notice of Talaq and later on withdrawing the same. So far as the consideration of Khula` is concerned the arguments of the learned counsel for the petitioner that the benefits derived by the respondent are not taken into consideration is completely wrong. In fact the trial Court below has taken into consideration the dower mentioned in the Nikahnama and the 1Chula` is granted on the basis of the consideration of dower mentioned in the Nikahnama as on the one side respondent categorically states that she never went to the house of the present petitioner and have not derived any benefit from that matrimony. On the other hand the petitioner reiterates that some ornaments/valuables were taken by the respondent. No best evidence in respect of the benefits derived by the respondent, as alleged by the petitioner. has been given and the Court below has rightly given Khula` on the basis of the fixed dower in the Nikahnama as consideration of Khula`. Even if a wife who omits to demand Khula` can be granted a decree for Khula` if the conditions exist that in case a decree for dissolution of marriage is not granted it will give birth to a hateful union of the spouses which will not bring the spouses within the limits of God, so the Court below in view of the evidence of the parties have rightly given the right of Khula` to the respondent.
6. Even otherwise the respondent had a right to repudiate her Nikah performed during minority on coming the age of puberty. It is surprising that the respondent has not claimed such right neither in the plaint nor in her evidence- For this reason the Courts have constrained to give finding in this respect.
7. For the foregoing reasons I see no substance in this petition to interfere in the finding of facts arrived at by the Tribunals below in my extraordinary jurisdiction, the same is dismissed in limine. No order as to costs.
M.BA./M-2041/LPetition dismissed.
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