' This is a constitutional petition brought by Muhammad Yaqoob to challenge the decree of dissolution of marriage on the basis of khuld, passed in favour of his wife Mst, Shagufta Begum, by Judge, Family Court, Sialkot, on 31-7-1980.
2. The facts briefly stated are that the petitioner had been married to Mst. Shagufta Begum in exchange for the marriage of his sister Mst. Naziran Bibi with Ahmad Din, brother of Mst. Shagufta Begum. His marriage was, however, not consummated as Mst. Shagufta Begum never came to the house of the petitioner. Later, she brought a suit for dissolution of marriage on the ground that the marriage had been performed without her free consent and under undue pressure and coercion.
The petitioner also brought a suit for restitution of conjugal right. The petitioner's suit was decreed and that of Mst. Shagutta Begum dismissed by the Judge, Family Court on 30-3-1978. After failing in appeal which was dismissed on 30-5-1978, she brought a fresh suit for dissolution of marriage on the ground of khula. A preliminary objection taken that the suit was barred by the principle of res judicata was repelled and finding that repeated efforts at reconciliation between the parties had failed, that arbitrators appointed for the purpose had themselves recommended that the parties could not live together and Ahmad Din should also divorce the petitioner's sister, that the petitioner's sister had herself since brought a suit for dissolution of marriage with Ahmad Din and that the relation- between the parties was not good, the Family Court accepted the plea that Mst.
Shagufta Beguin had developed a fixed aversion to the petitioner and as such it was impossible for them to live together within the limits of God. He, therefore, decreed the suit by his impugned judgment.
3. The first contention raised before me as to the maintainability of the suit on the ground that the same had become res judicata is devoid of merit because the previous suit had proceeded upon the assertion that the marriage had not been validly performed while the ground of khula` taken in the second suit must proceed on the assumption as to the validity of the marriage.
4. Learned counsel, however, next argued strenuously that the wife not having given reasons for her having developed aversion to her husband to the satisfaction of the Court, she could not succeed.
He pointed out that no objective reasons had been given and that a marriage validly performed cannot be dissolved under the Muslim Law at the whims of the wife. In this connection, he referred to the observation in Mst, Balqis Fathna v. 1\14M-ill-lkram Qureshi (0, that "the safe cannot have a divorce for every passing impulse". It will, in my view, not be proper to construe by reference to a particular sentence the judgment in the well-known case of Mar. Balqis ,Fatima which had been approved later by the Supreme Court in Mst. Khurshid bibi v. Baboo Muhammad Amin (2). The whole observation in which the particular sentence had occurred reads: "There is an important limitation on her right of khula`. It is only if the Judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God. That a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolution. The wife cannot have a divorce for every passing impulse. The Judge will consider whether the-rift between the parties is a serious one though he may not consider the reasons for the rift.
' That the wife may go wrong if dissolution is not ordered is rather a reason for grant of dissolution for Islam prefers divorce to adultery."
5. In fact, the question as to what should constitute the basis for grant of kitulat has been discussed at some length in these two judgments. The original sours e invariably takes us to the cases of Jarneela and Habiba in the Prophet's time which show that the Prophet did not ask for any objective reason for the aversion. In the ease of Jameela, her aversion was not on account of any defect, religious or moral, in the husband but because of his ugliness. In the case of Habiba, no such ground had even been stated for the aversion. The guiding words in the Holy Qur'an are: "And it is not lawful for you that you take back from women anything out of what you have given them unless they both fear that they cannot observe the limits imposed by Allah. But if you fear that they cannot keep within the limits prescribed by Allah, then it is no sin for either of them in what she gives up to be free." Verse 2:229.
6. For grant of hire, therefore, all that is required is that there should be the fear that the spouses would not live within the limits prescribed by God. Shah Wali Ullah in Al-Musawwainin-Ahadith-al- Mnatta (Vol. II, p..160) has commented 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 {{FOOT NOTE}}
(1) P D 1959 Lah, 566 (2)PLD1967SC97 {{FOOT NOTE}} (seeking) khur." Syed Ameer Ali has commented that when the wife, owing to her aversion to the husband, or her unwillingness to fulfil the conjugal duties, is desirous of obtaining a divorce, she may obtain a release from the marital contract by giving up either her settled dower, or some other property; such a divorce is consequently called khula. (Muhammadan Law, 7th Edition, Vol. II, p.
467). The same learned author has also referred to Fatawai Alamgiri according to which following the Hedya and the Badaya, "when married parties disagree, and are apprehensive that they cannot observe the bounds prescribed by the divine laws, that is, cannot perform the duties imposed on them by the conjugal relationship, the woman can release herself from the tie by giving up some property in return in consideration of which the husband is to give her a khula, and when they have done this a talak-ul-bain would take place".
7. In deciding whether khula is deserved, the Court has, therefore, to see whether efforts at reconciliation have failed, whether the rift is so serious that there remains no possibility of the spouses living in amity and if the wife is willing to return the benefits she has received from the husband. I am unable to find any authority to support that in order to secure her release, the wife must come out with logical, objective and sufficient reasons such as would satisfy the ordinary Court. All that the Judge is required to do is to see if according to his appreciation of situation his conscience is satisfied that there is no possibility of the parties living in harmony. For, forcing the parties to live in a hateful union is not in accord with the concept of marriage in Islam. No Judge could possibly take upon himself the responsibility of forcing the parties into a situation which leaves them no choice but to go astray or to adopt a sinful life.
8. In the instant case, there is material to show that all efforts at reconciliation had failed, that relation between the parties has become strained inasmuch as a suit for dissolution of marriage has been filed in the other marriage, too, that the marriage has not consummated, that the wife has consistently refused to go to the husband and that she has been litigating from the very beginning to get out of the marriage. In these circumstances, it cannot be said that there remains any possibility of the parties living together within the limits of God. The Judge had, therefore, no alternative but to grant the decree.
9. 1, therefore, dismiss the writ petition in limine.