' In the present writ petition the judgment and decree passed by the learned Additional District Judge, Sheikhupura dated 21st February, 1978 by which the judgment and decree of the Judge, Family Court, Sheikhupura dated the 31st July. 1977 was reversed.
2. Briefly the facts of the case are that on 14th of February, 1976 the respondent No, 1 filed a suit for the dissolution of marriage on the ground that her relations with the petitioner after about 3 years became strained on account of his cruel attitude to her. There were also the allegations against the petitioner for indulging in bad society and habitual drinking. The respondent No, 1 filed a suit for the dissolution of marriage containing various allegations. It was alleged against the petitioner that apart from his attitude being cruel, he used to bring with him his drunk friends in the house and pursued her to have sexual intercourse with them. She had also accused the petitioner to having deprived her ornaments and valuable garments. The petitioner had also filed a suit for restitution of conjugal rights which was consolidated with the suit for dissolution of marriage filed by the respondent No,
1. The suits were contested and on the pleadings of the parties the following consolidated issues were framed.
(1) Whether the Court has no jurisdiction to try this suit ?
(2) Whether the plaintiff has not come with clean hands ?
(3) Whether the defendant has been maltreating the plaintiff ?
(4) Whether the defendants reads an infamous life and is a bad character ?
(5) Whether the defendant attempts to force the plaintiff to lead an immoral life ?
(6) Whether the defendant has misappropriated the ornaments and dowry of the plaintiff ?
(7) Whether the defendant has failed to pay dower of the plaintiff if so its effect ?
(8) Whether the suit of the defendant for restitution of conjugal rights is bad for misjoinder of defendants ?
(9) Whether there are grounds for restitution of conjugal rights ?
(10) Relief ?
3. The learned trial Court on the basis of the evidence on record came to the conclusion that none of the allegations leveled by the respondent No, 1 against the petitioner had been proved on record, and therefore, dismissed the suit for dissolution of marriage filed by the respondent No, 1 and ordered the suit filed by the petitioner for restitution of conjugal rights to be decreed vide his judgment dated the 31st July, 1977. The learned Additional District Judge accepted the appeal vide his order dated the 21st February, 1978 and dissolved the marriage on the principle of khula`. On an objection being raised on the side of the petitioner that this ground had not been taken, the learned Additional District Judge referred to para. 2 of the plaint where it had been mentioned that in the present case the circumstances were such that it had become impossible for the respondent No, 1 to live with her husband. The learned Additional District Judge thereafter examined the evidence in order to find out whether on the basis of the circumstances brought on record the marriage could be dissolved on the principle of khula'. The statement of the petitioner appearing as D. W. 3 was examined wherein he had admitted that he got registered a case for theft of Rs, 8,000 against his own wife, respondent No,
1. It was also taken into consideration that the marriage of the petitioner with the respondent No, 1 was a watt marriage. The sister of the petitioner was married to the brother of the respondent No, 1.' This fact was used in order to show that they were living normal and happy life, and therefore, there was no reason why the respondent No, 1 would not live peacefully with the petitioner. From this it was concluded that there was some strong hatred in the mind of the respondent No, 1 against the petitioner and therefore, it was thought advisable to dissolve the marriage by invoking the principle of khula. The appeal filed by the respondent N. 1 was accepted and the findings of the Judge, Family Court were reversed in the manner already explained above. As a consideration for the dissolution of marriage Mst. Mumtaz Begum was ordered to forfeit her right to get back her dowry and also to receive the maintenance allowance for the period for which she had not been provided maintenance by the petitioner.
4. The learned counsel for the respondent No, 1 has brought to my notice that the respondent No, 1 after the dissolution of marriage has already contracted another marriage and has also given birth to a child. In view of this matter the petitioner prayed for time to file a petition for contempt of Court against the respondent No, 1 for contracting the fresh marriage in violation of the stay order granted in favour of the petitioner. The learned counsel for the petitioner has in this petition raised the following contentions :-
(1) That the learned lower appellate Court was not justified in invoking the principle of khula` as she had not specifically prayed for the dissolution of marriage on this ground ;
(2) That all the allegations levelled by the respondent No, 1 in the suit for dissolution of marriage having not been proved she was not entitled to a suit for dissolution of marriage on the ground of khula`.
5. As regard the first contention the point, therefore, to be looked into is to whether it is incumbent upon the wife to pray for dissolution of marriage on the ground of khula'. In Bilqis Fatima v. Najam- ul-Ikram Qureshi (I), it was held that where wife's suit for dissolution of marriage was based on failure of maintenance and husband's association with women of ill repute the High Court in second appeal allowed the case to be argued on new point of pure law that the khula` was a right of the wife. It was further observed in this case that the wife was entitled to dissolution of marriage on restoration of what she received from husband in consideration of marriage if Judge apprehends that the parties will not observe the limits of God. It was clarified that it was not the right of the wife to come to the Court at any time and obtain khula` if she was prepared to restore the benefit she had received. There was an important limitation on her right. It was only if the Judge apprehends that the limits of God will not be observed, that is, in their relations towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, would not be possible that he may grant a dissolution. The Judge has to consider whether the rift between the parties is a serious one though he may not consider the reasons for the rift. In view of the observations made in this Full Bench reference the objection that the ground of khula' was not taken is not legally sustainable. It is for the Judge to consider whether in a given circumstance even if the grounds on which the dissolution is claimed has not been proved whether the marriage should be dissolved on the principle of khula` subject to the important limitation laid down in the said judgment. In Mst. Khurshid Bibi v. Baboo Muhammad Amin (2) the question that felt for determination was whether a wife under the Muslim Law was entitled as of right to claim khula' despite the unwillingness of the husband to release her from matrimonial tie if she satisfies the Court that there is no possibility of their living together consistently with their conjugal duties and obligations. Their Lordships of the Supreme Court concurred in their opinion and endorsed the view taken in Mst. (1) PLD 1959 Lah. 566 (2) PLD 1967 SC 97 Bilqis Fatima v. Najam-ul-Ikram Qureshi that under the Muslim Law the wife was entitled to khula` as of right, if she satisfies the Court that it would otherwise mean forcing her into a hateful union. In a recent case reported as Bilqees Fatima v. Noor Muhammad and 2 others (I), the facts of the case were that the wife had filed a suit for the dissolution of marriage before the Judge, Family Court on certain allegations mentioned in the plaint which were reflected in six issues all decided against her and consequently the suit for dissolution of marriage was dismissed. An appeal filed before the District Judge also failed and the wife filed a writ petition. A case for khula` was made out on the ground that in spite of the allegations having not been proved but the evidence could be looked into for the purpose of dissolution of marriage on the basis of khula`. In this case it was observed as follows :- "I am afraid, the approach of the learned District Judge in the exercise of his jurisdiction on the above observation made, is not correct, for, even to determine the claim of divorce on the doctrine of khula' he was bound to appreciate the evidence. Learned counsel for the petitioner argued that it is in evidence that owing to maltreatment the lady developed aversion towards her husband and it is in her statement that she is prepared to jump into the well rather to accompany her husband.
The petitioner had further stated that the brother of her husband lives in the same house and he made overtures towards her. She made a complaint to her husband who observed that she was woman of that type. The petitioner thereupon swallowed grinded glass. She fell ill but was not given any medical aid. She in unequivocal terms offered to forego her dower money along with dowry, goods and the maintenance in case she was released. The leading authority on the subject is Mst.
Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 in which their Lordships have discussed Qur'an, Ahadith and several other books. It was held that khula` is a charter granted to the wife who has a right to seek khula` if she has fixed aversion to her husband and the spouses cannot live within the limits of God. The classical instance of Sabit-bin-Qais and Jamila was also considered. It was further observed that in case of khula` it is not only the right of the husband to give divorce but separation can be ordered by the Qazi if the case falls within the purview of doctrine of khula`. The Supreme Court also distinguished the claim of divorce on the basis of khula' and Mubaraat in Mst.
Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456. In Full Bench judgment Muhammad Khan v. Zarina Begum PLD 1975 Azad J & K 27 it was held that even under Hanafi Law, khula' is not dependent upon consent of husband but Judge could dissolve marriage by khula`."
6. In view of the above discussion it can now be examined whether the ground on which the marriage has been dissolved by invoking the principle of khula` was a valid one. Admittedly there are allegations and counter-allegations and the husband had admitted to have lodged a case of theft against his own wife. Moreover, the fact that after the dissolution of marriage the respondent No, I has contracted another marriage (1) PLD 1978 Lah. 1109 and has borne a child cannot be lost sight off. The marriage was, therefore, rightly dissolved and no case is made out for interference in this writ petition which is hereby dismissed with no order as to costs.