' MRS. IRSHAD QAISER, J.---Through this writ petition, the petitioner Mst Shazia Haider challenged the judgment and decree of the trial Court dated 30-4-2008 on issue No,5 whereby a decree was passed in favour of petitioner for dissolution of marriage on the basis of Khula' while the dower was restored to the plaintiff/respondent/husband.
2. The facts of the case are that respondent Gul Islam filed Suit No,43/FC against his wife Mst.
Shazia and others for restitution of conjugal rights. The suit was contested by respondent/petitioner and she also instituted a suit for dissolution of marriage, recovery of dower, maintenance allowances and dowry articles. This suit was contested by respondent/husband. Pre trial proceeding were held but failed and issues were framed from the divergent pleadings of the parties. Both the parties produced their respective evidence. After recording of evidence and hearing of arguments of the parties, the learned trial Court passed decree for dissolution of marriage on the basis of "Khula'" while dower was restored to the husband, recovery of maintenance allowances at the rate of Rs,3000/- Per Month with effect from, date of institution of suit till the completion of period of "Iddat" and recovery of dowry articles as per list annexed with the plaint while the suit of respondent for restitution of conjugal rights was dismissed. Feeling aggrieved petitioner filed appeal which was also dismissed. However no finding on issue No,5 was made by appellate Court due to lack of jurisdiction to give any verdict contrary to the verdict given by the trial Court. Hence, the present writ petition is filed wherein findings on issue No,5 were assailed.
3. Learned counsel for the petitioner contended that the finding of the trial Court on issue No,5 is entirely against the law and evidence led by the parties. That the petitioner never claimed the dissolution of marriage on the ground of Khula' nor she uttered a single word in this respect in evidence rather the petitioner claimed the dissolution of marriage on the basis of cruelty and successfully proved the same but the trial Court while deciding issue regarding dissolution of marriage on the basis of cruelty wrongly and illegally converted the same into decree for Khullah and restored the dower in favour of respondent husband.
4. These arguments were rebutted by the learned counsel for the respondent and while supporting the impugned judgment of trial Court contended that when the petitioner does not want to live with the petitioner within the limit as ordained by the God and cruelty has not been proved then the trial Court has the power to dissolve the marriage in the interest of parties through Khula' in lieu of dower.
5. We have heard learned counsel for the parties and perused the available record with their assistance.
6. In the present writ petition, the petitioner has challenged issue No,5 which is framed as follows; ' Whether defendant Mst Shazia is entitled to decree for dissolution of marriage?
7. Petitioner has sought the dissolution of her marriage on the ground of cruelty and torture behavior of the husband and his family members with her. In Para. 7 of her plaint she stated that after beating she has been turned out from his house by the respondent husband with the assistance of his brother. Record shows that issue No,3 was framed in respect of the fact that whether plaintiff Mst. Shazia is a self-deserved wife. The trial Court while giving findings on this issue has observed that there are possibility that petitioner was compelled to take shelter in her parents' house due to the mental incompatibility of parties as it is evidence from record that defendant wife is highly educated while plaintiff/husband education is nominal and on the ground of lack of understanding between the parties, the decree of maintenance allowance was passed in favour of petitioner. Petitioner has not been able to point out any cruel behavior of the respondent.
The cruelty has neither been proved either in the shape of oral evidence or through documentary evidence in the shape of F.I.R. Etc. Trial Court has rightly held that though the ground of cruelty has not been proved but since it is not possible for the parties to live together within the limits ordained by od, therefore, she is entitled to the dissolution of marriage through Khula'.
8. In Para No,8 of her plaint she stated that she has developed great hatred against her husband and she is not willing to live with him at any cost In her statement she also repeated the same version. In such view of the fact when cruelty is not proved and she is not ready to live with respondent within the limits of God because of developing extreme hatred against him then there was no other option for the trial Court but to dissolve her marriage on the basis of Khula'.
9. Now the question is that when the plea of Khula' is not specifically taken in the plaint. Whether Khula' decree could be passed or not?
' In this respect reliance is placed in case of Mst. Saffiya Bibi v. Fazal Din and others reported in 2000 YLR 2678 wherein it is held; "When a wife in her plaint stated that it would not be possible for her to live within the limits prescribed by Allah and in her statement also substantiate the same plea, then marriage between the parties can be dissolved on the basis of Khula'."
' Reference is also made to 2013 MLD 760, wherein it is held; "Khula' is a release from matrimonial bond which according to dictates of Holy Quran can be exercised if the circumstances indicate that it is impossible for the parties to live within the limits prescribed by Allah Al-mighty and their re-union will give birth to hateful union and the Courts are bound to grant this right of Khula' to a woman where she expressly claims or omits to claim in her pleadings and even if the other grounds for seeking dissolution of marriage could not be proved."
' Reference is also made to 2006 YLR 2204 wherein it is held; "Respondent though had not used word Khula but in her plaint had narrated the facts which were the cause of the suit---Respondent lady had stated that she had developed extreme hatred against the petitioner; that there was no likelihood of reconciliation between the parties and that she would prefer death rather to remain within the marital union with petitioner-Said words of respondent could well be considered as bringing out plea of Khula and it was not necessary for her to use specific words of grant of decree of Khula"
' Reference is also made to 2004 CLC 17, wherein it is held; "When relations between the spouses had become so strained that they could not live together in accordance with limits ordained by Allah, Family Court should have dissolved marriage on ground of Khula.
' Reference is also made to PLD 1995 Lahore 287, wherein it is held; "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.
"
Respondent though had not used word "Khula" but in her plaint had narrated the facts which were the cause of filing of the suit-- ' While taking the above plea reliance is also placed on the cases 1993 MLD 1587, 1994 CLC 230, 1995 CLC 957, 1998 CLC 1929. Reference is also made to 2012 YLR 1488.
10. Thus, the arguments of learned counsel for the petitioner is not forceful in the circumstances of her case when she in her plaint has specifically stated that she has developed severe hatred and is therefore not in a position to live with respondent and even during pre and post trial reconciliation proceeding petitioner did not want to settle herself with respondent in spite of great efforts by trial Court and Court was compelled to hold that there is no chance of reconciliation between the parties and the petitioner's hatred to the respondent has reached such an extent that it is not possible for her to live with him within the limits ordained by Almightily Allah. Petitioner has not been able to point out any irregularity, illegality or jurisdictional defect in the impugned judgment.
Resultantly the writ petition being without merit is dismissed with no order as to costs.