1. ' This is a writ petition filed by Mst. Rashidan Bibi petitioner. The background is that the petitioner was married to respondent No. 1. They lived as husband and wife for some time but thereafter their relations became strained and they were separated. She instituted a suit for dissolution of marriage and in her plaint it was pleaded that relations between the parties had become so much strained that they could not live within the limits prescribed by God and that, therefore, she was entitled to get the marriage dissolved on the basis of Khula'. Accordingly, an issue was framed by the Judge Family Court along with other issues to the effect as to 'whether there is hatred between the parties to such an extent that they cannot live together within the limits prescribed by God'. The Judge Family Court decided this issue against the petitioner for the reason that it was the duty of the petitioner to make out from the record that circumstances did exist which made it impossible for them to live together within the limits prescribed by God and that since she could not bring such circumstances on the record, she was not entitled to get the marriage dissolved on the basis of Khule. The Judge Family Court did not decide this issue on the basis of the statement of the petitioner but he proceeded to indulge in fanciful thinking and instead of deciding the issue in a judicial manner broke into a sermon dealing with matters which were not even the case of the parties. For instance he proceeded to observe that if a woman went astray it did not mean that she would have a premium of her going astray. She would have to justify her conduct and then she could claim divorce. If it would be made a general principle that every woman who becomes corrupt not due to any fault of her husband but due to present day life, then any woman can adopt that way and seek divorce. This would hit the very basis of the society and against public policy.
2. Islam does not accept corrupt men and women and prescribes severe punishment for them. Then he proceeded on to say that how every woman who may go astray could be allowed to do so. The petitioner had left the respondent as well as her brother and had gone to some other place where she could not show that she was living with any bona fide relative. Consequently a young woman living all alone in a place having no near kith and kin cannot be considered to be living alone. It may be noted at this stage that the petitioner in her statement befqp the Judge Family Court had clearly stated that she had been married for a period of about 31 years. The marital life only lasted for about 5/6 months and that too in a very bad manner. During this period respondent No I misappropriated her ornaments as he was drunkard, gambler and a womanizer. He used to beat her and leveled false allegations on her. Consequently, she left him and had been residing in Chak No, 387/GB for the past 21. Years. During this period he had not paid any maintenance nor had even cared to get her back. She further stated that she earned her livelihood by doing manual work and that she was not going back to live with respondent No 1 even if she was shot at with a bullet but if she can get her marriage dissolved she abdicates from any legal claim or demand to which' she is entitled. She also explained that she had only one brother who was a lunatic and was not in a position to help her in any way. In the light of this statement what the Judge Family Court could do was to have worked out conciliation between the parties. He must have attempted to do that and this attempts must have obviously failed. If a woman states that she would not live with her husband even if she was shot with a bullet and thereafter the reconciliation attempts by the Judge Family. Court fail, in my view it is sufficient to satisfy the conscience of the. Judge Family Court that the two parties could certainly not live together within the limit prescribed by God and consequently in such circumstances the woman is entitled to get the marriage dissolved on the basis of Khula'. Unfortu nately, the Judge Family Court broke into a religious sermon which was not required in the circumstances of the case. He decided all the other issues also against the petitioner. Eventually she challenged the judgment of the Judge Family Court by way of an appeal which was decided by the Additional District Judge, Faisalabad (Mr. Azad Muhammad Awan) on 1- 2-1982. In respect to issue of entitlement of the petitioner for dissolution of her marriage on the basis of Khula` his findings are as follows: "Learned counsel for the appellant has invited my attention to the statement of the plaintiff wherein she had stated that even if she was shot dead she would not go with the defendant and that she was ready and willing to forego all her claims in case marriage was dissolved. In this view of the matter it was contended that in case the suit was dismissed it would amount to forcing the plaintiff to a hateful re-union with the defendant which could hardly lay a foundation of peaceful married life between two Muslims. Ordinarily forcing the hateful re-union is of no useful purpose but then the plaintiff has got to prove and bring out facts and circumstances which could bring the Court to the conclusion that the circumstances do justify for ordering separation and bringing an end to the sacred bonds of marriage between the parties. The mere fact that the plaintiff had uttered these words unsupported by facts and circumstances which could lead to extreme hatred in the mind of the plaintiff; would not give rise to decree a claim of dissolution of marriage on the basis of Khula
2. It is strange that the Addis knal District Judge, Faisalabad also failed to appreciate that when a woman in Rated categorically that she would prefer to be shot dead rather than to go an I live with the husband and that she was ready and willing to forego all her claims in case hcr marriage was dissolved, then what more facts and circumstances did he want so that it could be established that there existed extreme hatred in the mind of the petitioner as against her husband. The principle of- Khula is based on the fact that if a woman has decided not to live with her husband for any reason and this decision is firm, then the Court, after satisfying its conscience that not to dissolve the marriage would mean forcing the woman to a hateful union with the man, and it is not necessary on the part of the woman to produce evidence of facts and circumstances to show the extent of hatred to satisfy the conscience of the Judge Family Court or the Appellate Court.
3. Anyway, the appeal of the petitioner was also dismissed, hence the present writ petition which was admitted for hearing on the ground that learned counsel had contended that the two Courts below had failed to take into consideration the entire circumstances of this case while repelling the plea of Khula raised by the petitioner and, therefore, their orders were open to interference by this Court.
4. Learned counsel has taken me through the statement of the petitioner made before the Judge Family Court and he is placing reliance on Dr. Akhlaq Ahmad v. Mst. Kish war Sultana and others (1), as well as Bilqees Fatima v. Noor Muhammad and 2 others (2). The citations are in support of his argument to the effect that in such circumstances the marriage should have been dissolved on the basis of Khula. Learned counsel for. Respondent No. 1, on the other hand, attempted to argue that there was not sufficient evidence on the record to make out a case for dissolution of marriage on the basis of Khula'. But I do not agree with him. {{FOOT NOTE}}
(1) PLD 1983 SC 169 (2) PLD 1978 Lah. 1109 {{FOOT NOTE}} In my view, if a woman had stated that she would rather prefer to be shot dead than to go and live with her husband, it obviously means that she .Is determined not to live with her husband and the hatred was so deep that not to dissolve such a marriage would amount to compelling her or C rather pushing her in a hateful union with the husband which certainly is not contemplated by the law applicable to the present case, i. e. Dissolution of marriage on the basis of Khula'. In that view of the matter I am convinced in my mind that the judgments passed by both the lower Courts have been passed illegally and without lawful authority and they are liable to be set aside. The case is remanded to the District Judge, Faisalabad to consider the appeal of the petitioner as pending before him and he should proceed to dispose it of in the light of the observations made by me in this judgment. The parties are directed to appear before him on 18-7-1983. This writ petition is accepted but there shall be no order as to costs.