' This is the husband's writ petition seeking to challenge a decree of dissolution of marriage granted on the ground of khula by the Family Court, Gujranwala on 27-10-1979. The wife had brought the suit on a number of grounds and the suit having been contested, as many as six issues had been framed relating to the allegations that the husband had been treating her with habitual cruelty, that he was given to immoral living, that he had misappropriated her property, that he had neglected to maintain her for 2.1/2 years and that hot had relations with other women. The finding on all these issues Went against the wife. Nevertheless, on account of her expression of dislike for him the suit was decreed on the ground of khula` with the stipulation that she would not demand maintenance or dower from the husband.
2. The contentions before me advanced by learned counsel for the petitioner are two-fold, i,e, (i) no proper ground had been established justifying the grant of the decree on the basis of khula' and
(ii) the Family Court had failed to order the return of the benefits in spite of evidence available in that regard.
3. The first contention proceeds from an assumption, that the wife has to make out a reasonable cause for her aversion. In other words she has to give reasons amenable to an objective test whereupon the Court can base the decision. I am afraid, the law does not require such objective reasons. It has left to the Court to satisfy its conscience that the parties could not live in marital union within the limits of God. If the wife is adamant that she has developed a fixed aversion and if all attempts at reconciliation have failed, there is little choice for the Court except to grant a decree, for, the consequences in adopting any other course may be disastrous. In this connection I may refer to the following portions from the well-known case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (1) ' under Muslim Law, the wife is entitled to khula' as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union and Shah Wali Ullah of Delhi in (Al- Musawwa-min-Ahadith-al-Muatta, Vol. II, p. 160) goes to the length of saying that "even if she obtains khula` without any reason (apart from personal dislike) it is lawful but not approved. The reason is that the Prophet and the Companions never inquired from her the reason for her (seeking) khul."'
' Referring to the hadith of the Prophet concerning Barairah and Mughis, the learned Judges concluded that "This shows that a woman cannot be compelled if she has a fixed aversion to her husband to live with him."
' From the attitude of the parties it had become clear to the Family Court that there was no possibility of the spouses living together. That being so, the grant of decree on the ground of khula` cannot be questioned.
4. As regards the question of the return of benefits, I find that the same had been part of the relevant issue which is Issue No, 5 and reads as below :- "Whether plaintiff is entitled to divorce on the ground of khula'. If so, on what terms."
5. A divorce by khula` is a divorce at the instance of the wife in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. The Court dissolving the marriage on the ground of khula` must, therefore, advert to the question of the benefits received by the wife in consideration of the marriage and whether she was prepared to restore the same. (See Mulla's Principles of Muhammadan Law, Art. 319). In Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi (2), it was held that the wife was entitled to khula` on restoration of what she had received in consideration of the marriage. The same principle was reiterated in the afore cited case of Mst.
Khurshid Bibi where it was observed :- "Therefore, it is necessary for the Court to ascertain in a case of khula' {{FOOT NOTE}}
(1) PLD 1967 SC 97 (2) PLD 19:9 Lab. 566 {{FOOT NOTE}} ' what benefits have been conferred on the wife by the husband as a consideration of the marriage, and it is in the discretion of the Court to fix the amount of compensation. . . ."
' On the subject, the Hedya says: "If, moreover, the aversion be on the part of the woman, it is abominable on the husband to take from her more than what he had given or settled upon her namely her dower. (According to the Jama Sagheer, if the husband take from her more than the dower, it is strictly legal, as the text of the Koran already quoted is expressed generally, but the former opinion is bounded on a tradition of the Prophet, to whom a woman having mentioned her hatred of her husband, he advised her to give up her dower, as a compensation, to induce the husband to divorce her, to which she replied, 'I will give that and more' but the Prophet answered 'not more'-and here the aversion was on the part of the woman) But yet if the husband should take more than the dower, it is approved in point of law."
' The case of the woman referred to, is that of Jamila wife of Sabet-bin-Qais who approached the Prophet for release from her marital tie. The Prophet asked her "Are you prepared to return the garden that he gave you". She said: "Yes, Oh Prophet of God, and even more". The Holy Prophet said: "No more, but you return the garden that he gave you," and then the Holy Prophet said to Sabet: "Take the garden and divorce her."
6. Normally, therefore, the husband should not ask for more than the return of the dower itself in a case of separation by khula, yet if he insists, it is legally permissible for him to demand something more than that. The position of the dower is that a wife can claim the full amount of it if the husband wishes to divorce her but she may have to forego or to return the same if received by her, in case she is seeking khula. As for any other compensation, she can be asked to return only such benefits as had been conferred by the husband on her in consideration of the marriage. It is, therefore, the duty of the Court to ascertain from the evidence produced before it, as to what benefits had been conferred by the husband which the Court can, in its discretion, order the wife to return.
7. In the case in hand the wife had in the very plaint sought release from the marriage bond on the ground of khula. In spite of this the husband had not asserted in his written statement any benefits conferred by him on the wife in consideration of the marriage. All that he had said was:- {{URDU TEXT}} ' In his evidence as D. W. 3 he had repeated the same by saying: {{URDU TEXT}} ' And again: {{URDU TEXT}} ' He had denied that she had brought any dowry. But his own witness Muhammad Malik (D. W. 2) had stated :- {{URDU TEXT}} ' The allegation that the wife had taken away jewellery, etc., had been denied by her as P. W. 3 in the words {{URDU TEXT}}
8. Thus there is nothing to show that the articles allegedly removed by the wife had constituted benefits conferred on her by the husband in consideration of the marriage. There is no specific pleading that the articles had belonged to the husband which he had given to the wife. Even the description of the articles is, too, scanty and vague to make their identification possible. Moreover, in view of the express dental by the wife, the removal is not even satisfactorily proved. It may be that the articles belonged to her as part of her dowry because according to D. W. 2 she had been given dowry by her father.
9. On the basis of the evidence on record I am satisfied that the trial Court was right in holding that the petitioner had failed to prove the benefits conferred by him. The Court has already ordered that the wife in consideration of the grant of khula will not demand maintenance or dower from the husband. To my mind this is sufficient compensation on the basis of evidence on record.
10. 1, therefore, find no merit in this petition which 1 accordingly dismiss with costs.