AHMAD NADEEM ARSHAD, J.---The petitioner , through this constitutional petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, called in question the validity, legality , and propriety of judgments and decrees dated 18.07.2019 and 12.09.2019 whereby , the petitioner's application for judicial separation under Christian Divorce Act, 1869, was concurrently dismissed.
2. Brief facts necessary for the disposal of this writ petition are that the petitioner instituted a suit for recovery of dowry articles (which is - not subject matter of this writ petition) and filed an application for "Judicial Separation" under Christen Divorce Act, 1869 against respondent No.3 on 14.11.2018 by seeking dissolution of her marriage on the grounds of adultery and cruelty . Respondent No.3 filed contesting written reply and refuted all the allegations of adultery and cruelty . The learned trial Court keeping in view divergent pleadings of the parties, framed necessary issues and invited the parties to produce their respective evidence and after recording their evidence pro and contra and providing proper opportunity of hearing, dismissed the application vide consolidated judgment and decree dated 18.07.2019 on the ground that the petitioner failed to prove the allegations of adultery and cruelty , however her suit for recovery of dowry articles was partially decreed. Feeling aggrieved, she preferred an appeal, which met the same fate and was dism issed by the learned appellate Court vide judgment and decree dated 12.09.2019. Feeling dissatisfied with regard to dismissal of her application for judicial separation, she impugned both the judgments/orders of learned courts below .
3. Learned counsel appearing on behalf of the petitioner states that the impugned judgments and decrees are against facts and law and result of mis-reading and non-reading of evidence; that petitioner proved her stance through cogent and reliable, oral as well as documentary evidence but the learned Courts below did not consider the same; that the learned Courts below decided the matter merely on surmises and conjectures; that both the courts below failed to consider the ground of cruelty while deciding her application for judicial separation; that both the learned Courts below have failed to exercise its jurisdiction according to law and rules laid down by the Hon'ble superior Courts and lastly prayed for acceptance of this writ petition, setting-aside of impugned judgments and decrees and acceptance of her petition for judicial separation under Christian Divorce Act, 1869.
4. Conversely , learned counsel appearing on behalf of respondent No.3 hotly contested the writ petition while defending the impugned judgments and decrees passed by learned lower fora and prayed for its dismissal.
5. I have heard learned counsel for the parties at full length and perused the record as well as law applicable thereto with their able assistance.
6. Section 10 of the Divorce Act, 1869 provides the grounds of dissolution of marriage which reads as under:-
10. When husband may petition for dissolution marriage..........
When wife may petition for dissolution. Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; Or has been guilty of incestuous adultery , Or of bigamy with adultery , Or of marriage with another woman with adultery , Or of rape, sodomy , or bestiality , Or of adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et torro, Or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Contents of petition. Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved in founded."
The grounds of the decree are provided in Section 19 of the Divorce Act, 1869 as under: - "19. Grounds of decrees. Such decree may be made on any of the following grounds:-
(1) that the respondent was impotent at the lime of the marriage and at the time of the institution of the suit;
(2) that the parties are within the prohibited decrees of consanguinity (whether natural or legal) or af finity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force Nothing in this section shall affect the Jurisdiction of the Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.
7. Undeniably , under Section 10 of the Act ibid, it is clear from bare reading that unless and until anyone of the grounds as mentioned above is not proved marriage cannot be dissolved meaning thereby to get the dissolution of marriage, the party is required to allege and prove the allegation of adultery . The learned courts below declined to award decree of dissolution of marriage on the ground that she had failed to prove the allegation of adultery .
This Court in a judgment "Mst. Parveen Amanual v. Additional District Judge-III, Rahimyar Khan and 2 others" ( PLD 2009 Lahore 213 ) held as under: - "The bond of marriage between Christian husband and wife is of a permanent nature and as such the wife has to prove her case on the concrete facts after leading reliable and cogent evidence to the facts on which the claim of dissolution of marriage is based. Only then the Court can grant a decree for a judicial, separation within the meaning of section 22 of the Divorce Act, 1869 or to dissolve the marriage under section 10 of the same Act."
This Court in a recent judgment "Pervaiz Afzal v. Mehwish and 2 others" (PLD 2020 Lahore 160) endorsed that without proof of the allegation of adultery no one should be entitled to get dissolution of marriage by holding as under:-- "If for the sake of above-repealed section 7 of the Act is considered and the grounds as mentioned above are taken into account, even then, as stated above, the respondent No.1 has failed to discharge the burden shifted on her with regard to alleged ground of adultery . As such, the learned appellate Court, as elaborated above, has misread and non-read evidence of the parties and has wrongly passed the impugned judgment and decree dated 20.11.2017 with regards to dissolution of marriage, which cannot be allowed hold field further , to this extent."
The decision of the learned lower Courts is correct to the extent that as the petitioner failed to prove the allegation of adultery , therefore, she is not entitled to get dissolution of marriage. But the learned Courts below failed to consider that besides the allegation of adultery , she also by stating certain facts alleged that the respondent has behaved in such a way that the petitione r cannot reasonably be expected to live with the respondent and level allegation of cruelty and seek judicial separation on the ground of cruelty also.
The grounds of judicial separation are provided in section 22 of the Divorce Act, 1869 in the following manner: - "22. Bar to a decree for divorce a mensa et toro, but judicial separation obtainable by husband or wife. No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery , or cruelty , or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of as divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned."
8. Before the promulgation of Federal Laws (Revision and Declaration) Ordinance, 1981, section 7 of the Divorce Act, 1869 was available and grounds of divorce under U.K. Matrimonial Causes Act, 1973 (UK Act) including the ground that the marriage has broken down irretrievably were also available in the Courts of Pakistan. Section 7 of the Divorce Act, 1869 as amended by Divorce (Amendment) Act, 1975 which reads as follows: - "Section 7: Court to act on principles of English Divorce Court. Subject to the provisions contained in this Act, the Courts shall, in all suits and proceedings hereunder , act and give relief on principles and rules which, in the opinion of the Courts, are as nearly as may be conformable to the principles and rules on which the Court of Divorce and Matrimonial Causes in England for the time being acts and gives relief".
9. The Ordinance ibid (item 7(2) of the Second Schedule) simply provides that section 7 of the Act shall be omitted. On behalf of Section 7 by the Ordinance, the grounds left for divorce or dissolution of marriage are provided under Section 10 of the Act, reproduced above. This Court while examining the constitutional ability of the provision of the Ordinance ibid whereby Section 7 of the Act has been deleted in its judgment reported as "Ameen Masih v. Federation of Pakistan and others"(PLD 2017 Lah. 610), declared item 7(2) of the second schedule to Federal Laws (Revision and Declaration) Ordinance, 1981 unconstitutional and illegal. Relevant para No.46 reads under: - "46. For the above reasons, item 7(2) of the Second Schedule to Federal Laws (Revision and Declaration)
Ordinance, 1981 (XXVII of 1981) promulgated on 08.7.1981 is declared to be unconstitutional and illegal being in violation of the minority rights guaranteed under the Constitution to the petitioner and the Christians in Pakistan. As a result, section 7 of the Divorce Act, 1869 is restored, in the manner it stood in the year 1981, making available to the Christians of Pakistan and relief based on the principles and rules of divorce under UK Matrimonial Causes Act, 1973.
The Court further held as under:- "Restored section 7 is to be read harmoniously with Section 10 of the Act. This means that grounds of divorce on the basis of adultery are available and anyone who wishes to invoke them is free to do so, but for those who wish to seek divorce on the ground of irretrieva ble breakdown of marriage, they can rely on section 7 of the Act and avail of the additional grounds of divorce available under the Matrimonial Causes Act, 1973 (UK), which will be available to the Christians in Pakistan and will be enforceable in Pakistan. Reliance is placed with advantage on Mrs. Marie Palmer v. O.R.J. Palmer (PLD 1963 (W.P) Lahore 200) where Manzoor Qadir CJ (as he then was) held: "This is where section 7 comes in. As I understand it, it makes it incumbent on the Courts in Pakistan that whenever the Act makes no specific provision, they must ask themselves the question of whether the Divorce Court in England would, in corresponding conditions, give or refuse relief and act accordingly . It further requires the Courts in Pakistan to remain in step with the Englis h Court all the time, and to alter their course from time to time if need be so as not to get out of step with that Court." The term subject to the provisions of the Act in Section 7 is read down in order to make sections 7 and 10 works together and to make them constitutionally complain.
10. Section 7 of the Act, ibid provides that the Courts in Pakistan, shall, in all suits and proceedings hereunder , act and give relief on principles and rules to Christian which, in the opinion of the Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrim onial Causes in England for the time being acts and gives relief. The UK law referred to in Section 7 is the "UK Matrimonial Causes Act,1973".
Section 1 of Part 1 of Chapter 18 of UK law provides as follows:
1. (1) Subject to Section 3 below , a petition for divorce may be presented to the Court by either party to a marriage on the ground that the marriafle has broken down irretrievably .
(2) The Court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the Court of one or more of the following facts, that is to say- (a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petitio n (hereafter in this Act referred to as "two years' separation" and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as "five years' separation").
(3) On a petition for divorce it shall be the duty of the Court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
(4) If the Court is satisfied on the evidence of any such fact as is mentioned in subs ection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably , it shall, subject to sections 3(3) and .5 below , grant a decree of divorce.
(5) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the Court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection. (emphasis supplied)
11. The petitioner specifically stated in her application the cruel attitude of respondent No.3, due to which, she is unable to perform marital obligations and has developed extreme hatred against respondent No.3 and wants to get the decree of judicial separation. The petitioner has stated in her application for judicial separation that initially the attitude of the respondent was cordial towards her but afterward changed and became cruel to her; that he started to beat her on petty matters; that he is addicted to drugs and when comes to home intoxicated then severely tortures her; that he has illicit relations with other women and when she forbade him, he after beating her kicked her out of the house in wearing apparels; that during the rehabilitation he without her knowledge administered injections of preventing pregnancy to her because he desired to marry his cousin and due to his that cruel attitude she is unable to perform marital obligations and has developed extreme hatred against him and wants to get the decree of judicial reparation under Christian Divorce Act, 1869. To fortify her contentions, she produced her affidavit as Exh.P-1 and reiterated all the facts as stated in her application. During cross -examination, she categorically stated that her affidavit is computer written and on her deposition, the computer operator has written it and on asking of the counsel gave details of the affidavit and remained firm during lengthy cross-examination. The petitioner produced Umar Hayat as PW-2 to prove her stance, who gave his statement in the shape of an affidavit and described all the facts as stated by the petitioner . He also remained firm during length cross-examination. In rebuttal, the respondent himself appeared as DW-1 and produced Arif Ilyas as DW-2. Both the DWs denied all the allegations levelled by the petitioner and stated that the respondent did not torture the petitioner and neither he intoxicated nor has relation with any girl, however , he levelled some allegations against the petitioner .
From a careful perusal of the evidence of the parties, it appears that the petitioner levelled some serious allegations against the respondent, and the respondent while refuting her blames also levelled some allegations against her. It suggests from allegations and counter-allegations that blame game going on between the parties which they developed extreme hatred against each other . In this situation, the petitioner cannot reasonably be expected to live with the respondent.
In UK Matrimonial Causes Act, 1973, Part 1, Chapter 18 section 1(2)(b) provides as under:-- "that the respondent has behaved in such a way that the petitioner cannot reasona bly be expected to live with the respondent."
Section 1(4) empowered to Court to grant a decree of divorce, which is as under: - "If the Court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably , it shall, subject to sections 3(3) and 5 below , grant a decree of divorce".
According to the statements of parties, they are going through an agonizing and painful situation, where a woman even appearing before the Court refuses to go with her husband and approaching up to the levelled of High Court for judicial separation. Admittedly she is living separately from her husband from two months prior to the filing of her application for judicial separation i.e. 14.11.2018 and period of three years have been elapsed, but she is not ready to live with the respondent. As no religio n allows a hateful union that is not based on true consent of the parties especially in Christian Marriage Act, where marriage is a sacrament and at the time of marriage both the parties vow to stand together in sorrow and happiness etc. till death departs them. Although divorce is not encouraged in any `society , where the relations between husband and wife are such that the legitimate objects of matrimony have been utterly destroyed and in perpetuating a marriage after all possibilities of accomplishing a desirable purpose of such relationship is gone, or out of which no good can come and from which harm may result, then it is better to terminate dead marriages and does not discourage divorce. UK law and other international law, on the subject, show that "no-fault divorce" or "irretrievable breakdown of marriage" is an established ground of divorce in Christian majority countries of the world. This Court in "Ameen Masih's case supra observed as under: - "28. In this connection, non-culpatory or so-called "no-fault" laws have been enacted in many jurisdictions in order to enable persons to extricate themselves from a dead marriage more easily . Most States now have statutes which allow for no-fault divorce, or divorce by consent, in which the parties are not required to prove fault or grounds for divorce other than a showing of irreconcilable differences or an irretrievable breakdown of the marriage.
29. Primary purpose of such a statute is to remove from domestic relations litigation the issue of marital fault as a determining factor , to abolish the necessity of presenting sordid and ugly details of conduct by either party to obtain a dissolution of marriage and to replace the concept of fault by substituting marriage failure or "irretrievable breakdown" as a basis for a decree dissol ving a marriage. It has also been observe d that the purposes of a no-fault divorce statute are: to strengthen and preserve the integrity of marriage and safeguard family relationships; to promote the amicable settlement of disputes that have arisen between parties to a marriage; to mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage; to make reasonable provision for the spouse and minor children during and after litigation , and to make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis of its dissolution. These no-fault statutes were enacted based on the theories that a divorce shou ld be granted when a marriage has broken down, so that parties may be free to form other alliances, to keep pace with contemporary social realities, and to reduce guilt and conflict as incidents of divorce, as well as to minimi ze bitterness resulting from attempts to place blame for an unsuccessful marriage with either the husband or the wife. Most no-fault divorce statutes provide for the dissolution of marriage upon a showing that the marriage is "irretrievably broken" or similar variations of such language. A marriage is "irretrievably broken" as a basis for divorce, where either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation.
30. The Family Law Act of California has been enthusiastically received throughout that state by judges, lawyers, sociologists, psychologists, partners to broken marriages, and the public at large. Judge Everett M. Porter applauds the action taken by the California Legislature and says "...The new Act recognizes that a man and wife cannot be compelled to live together in a marital relation. It recognizes that the right to support, both temporary and permanent, should depend on relevant needs and the circumstances of the parties. It decrees that when divorce and separation are inevitable, neither spouse shall be permitted to use the law or the court as an instrument for revenge... It empowers the court to do whatever is necessary to protect the vital interest of minor children. There isn't a state in the union that shouldn't be using the provisions in the New Family Law Act of California."
31. The so-called "no-fault" revolution started in the 1970s, when many countries introduced grounds for divorce in addition to a fault, typically the "irretrievable breakdown" of the marriage."
12. Both the learned Courts below have failed to consider that this Court in its judgment referred supra, on 19.06.2017 declared item No.7(2) of the Second Schedule to Federal Laws (Revision and Declaration) Ordinance, 1981 un-constitutional, resultantly , section 7 of the Act ibid was restored. The term subject to the provision of the Act in section 7 is read down to make sections 7 and 10 work together and to make them constitutionally compliant.
The petitioner claimed judicial separation and has available ground of cruelty in the light of Section 22 of the Act ibid.
13. Hence, in the light of the above discussion, the instant writ petition is allowed , and the impugned judgments and decrees dated 18.07.2019 passed by the learned trial Court and dated 12.09.2019 passed by the learned appellate Court are hereby set aside and consequently the petition for judicial separation filed by the petitioner is allowed with no order as to costs.