' This writ petition was admitted to full hearing in order to determine the question as to whether in the circumstances of the case, the marriage of the petitioner should have been dissolved by invoking the principle of Kbu Ia.
2. The background is that the petitioner filed a suit for dissolution of marriage as against respondent No,
1. One of the issues framed by the trial Court was : "Whether plaintiff is entitled for Khula divorce if so on what term ?"
' The trial Judge while considering this issue observed that the petitioner could not prove the allegations levelled against respondent No,
1. He further observed that "as the parties have entered into marriage contract with each other under Watta system prevalent in the local tribe of Punjab" and "as the other woman given under Watta is living a happy life", therefore there was not the slightest appearance of strained relations between the spouses, and that consequently the principle of Khula was not applicable to the present case. Thus, he proceeded to decide this issue along with others as against the petitioner.
3. In appeal, the appellate Court did not give any finding in regard to this issue but only observed that a sister of respondent No, 1 was married to a brother of the petitioner and that they both were living cordially as husband and wife.
4. It is interesting to note that respondent No, 1 had filed a suit for restitution of conjugal rights as against the present petitioner. That suit was dismissed on the ground that respondent No, 1 had not treated well the petitioner and that the evidence on the record indicated that they had not been living happily. The trial Court also observed that there was no question of compromise between the parties. Thus, as is evident, the Judge Family Court dismissed the suit of the husband with costs.
The result is that a strange position has arisen. The suit of the wife for dissolution of her marriage had been dismissed and the appellate Court also maintained the judgment of the Judge Family Court. On the other hand, the suit of the husband for restitution of conjugal rights had also been dismissed by the Judge Family Court. Thus, the marriage has been ordered to subsist and yet it does not subsist in practical terms.
5. As I have observed earlier, this writ petition had been admitted in order to determine the question as to whether in the circumstances of the case, the marriage could have been dissolved by invoking the principle of Khula. The petitioner had taken this ground in her suit and even an issue, as reproduced above, was framed to that effect. The petitioner in her statement before the Judge Family Court had clearly stated that the relations between the parties were strained and that she did not want to live with her husband. The Judge Family Court while dismissing the suit for restitution of conjugal rights of respondent No, 1 recorded a finding, that there was no possibility of any compromise between the parties. In such circumstances, the Judge Family Court should have dissolved the marriage on the basis of Khula and should have not held that since in the Watta marriage system prevalent in the local tribes of Punjab, a sister of the husband was.Happily married to a brother of the petitioner, therefor the marriage of the petitioner as against respondent No, 1 could not dissolved on the basis of K hula. This would imply that a custom is beginning given preference over a rule of Shariah, which could not be done. The Watta marriage or the marriage of the sister of respondent No, 1 with th brother of the petitioner and its subsistency has got nothing to do with the marriage of the petitioner with respondent No, 1 or its fate. The Watta marriage system is not based on the fact that once a Watta marriag takes place, then the parties must in all circumstances remain married. If one of the parties to the Watta marriage is living happily and the othe is not, then obviously the female partner can move for dissolution of the marriage on the basis of Khula just as a male partner has the right t pronouncement of Talaq on his wife. In my opinion, in the circumstance of the instant case, the Judge Family Court should have dissolved th marriage on the basis of Khula and decided that issue in favour of the petitioner. Similarly, the appellate Court was not justified in making the observation that a sister of the respondent was married to the brother o the petitioner and that they both were living happily as husband and wife.
The appellate Court has not made any reference as to why the issue o Khula should have not been decided in favour of the petitioner. The observation, of course, by itself is highly erroneous. In that view of th matter, the judgment of both the Courts below are declared to have been passed illegally. The case is remanded to the District Judge, Faisalabad who should treat as if the appeal of the petitioner was pending before him and after re-hearing the parties in appeal he should dispose of the appeal in the light of the observations made by me in this judgment. The parties to appear before the District Judge on 16th July, 1983. This petition is accepted but there shall be no order as to costs.