This order will dispose of two writ petitions bearing Nos. 2024 and 3026, both of 1983.
2. The petitioner was married to respondent No, 1 on 4-9-1966 at Lahore. The spouses lived together for sometimes at Karachi and then at Lahore. There were three issues of the marriage. On 10-9-1978 the petitioner left their house at Lahore when respondent No, 1 had gone to Sargodha to attend to some business of his own. Soon thereafter the petitioner brought a suit for the dissolution of her marriage. The suit was later dismissed for want of prosecution. On 17-3-1981 she instituted another suit for the same relief. She alleged that respondent No, 1 bad always treated her with cruelty and inflicted mental torture upon her and that he had failed to provide maintenance to her for a period of two years. She also alleged that she had developed aversion towards him and could not live with him within the limits prescribed by Allah ; that being the position, she was also entitled to the dissolution of marriage on the ground of khula and for that purpose she was prepared to forego her dower.
3. Before the institution of the second suit by the petitioner respondent No, 1 had already on 7-9- 1980 filed a suit for the restitution of his conjugal rights. He alleged that the petitioner had abrupty left his house in his absence without any rhyme or reason.
4. The learned Family Judge consolidated the two suits. After the efforts at reconciliation had failed he framed the following issues :-
(1) Whether the defendant (that is, respondent No, 1) treated the plaintiff (that is, petitioner) with cruelty ?
(2) Whether the defendant has failed to maintain the plaintiff ?
(3) Whether the plaintiff is entitled to Khula' ? If so, on what terms and conditions ?
(4) Whether the defendant is entitled to restitution of conjugal rights ?
(5) Relief.
Both parties examined two witnesses each in addition to themselves in support of their respective assertions. The learned Family Judge found Issues Nos. 1, 2 and 3 against the petitioner.
Consequently, he dismissed her suit and granted a decree for restitution of conjugal rights to respondents No,
1. From the decision of the learned Family Judge the petitioner went in appeal before the learned Additional District Judge. The learned Additional District Judge affirmed the findings of the Family Judge and dismissed the appeals. The petitioner has now come in writ jurisdiction to this Court to challenge the legality of the judgments of the learned Additional District Judge and the Family Judge.
5. The findings of the learned Additional District Judge and the Family Judge on the question of cruelty and non-maintenance are based upon appreciation of evidence and even if I do not agree with their conclusions it is not open to me to interfere with them.
6. The learned counsel for the petitioner contended that respondent No, 1 had not paid the dower amount of the petitioner and for that reason she was entitled to live separately from him.
Consequently she was entitled to demand maintenance from respondent No,
1. As respondent No, 1 had not paid maintenance to her the findings of the learned Additional District Judge and the Family Judge on the issue of non-maintenance were not sustainable. I am afraid is cannot accept this contention. Although in her written statement to the suit for restitution of conjugal rights the petitioner had alleged that respondent No, 1 had beaten her when she demanded her dower amount she did not support this assertion when she appeared in the witness-box. In fact this was not reason she gave for living separately from her husband. Further, there is no evidence that she had ever demanded her dower amount from him.
7. So far as the plea of khula` is concerned I think both the learned Additional District. Judge and the learned Family Judge have ignored some material pieces of evidence. In fact after going through their findings I get the impression that they treated this issue in a most perfunctory manner. Thus, the learned Family Judge while rejecting the plea of khula` merely stated :- "The plaintiff is not entitled to khula` because factum of cruelty is not proved and also there is nothing on record that may show that parties cannot reside in Hudood of Allah the Almighty. No act of bad character has been attributed to the defendant and the parties to the suit have three children. Therefore in view of the matter this issue is decided in negative".
' The learned Additional District Judge expressed himself on the said plea in the following manner :- "Then the learned counsel for the appellant vehemently argued that the appellant was entitled to a decree for divorce on the basis of khula'. He said that the parties could not live within the limits of God. No doubt Islam entitles a woman to seek divorce on the basis of khula' but the Qazi has also to keep in view, the attending circumstances, which in this case are that the parties have three children out of which, the eldest is a daughter who was about thirteen years of age, when the statement of the appellant was recorded in December, 1981. That daughter must be a grown up girl and she needs a united house ; that holds true even for the other two children. A broken house would make the lives of the children miserable. Moreover, the plea of khula' is not to be used as a tool, but the conscience of the Court should be satisfied that the parties cannot live within the limits of God. At least the conscience of this Court is not satisfied so, as to hold that the parties cannot live within the limits of God. Some time concerted efforts have to be made in this behalf. I think that the learned trial Court has rightly decided this issue also."
Both the learned Courts failed to notice that in her plaint the petitioner had made a definite assertion that she had developed aversion towards respondent No, 1 and could not live with him as his wife within the limits prescribed by Allah. Again, when she appeared in the witness-box she stated on oath:- Neither the learned Additional District Judge nor the learned Family Judge took notice of these strong sentiments expressed by the petitioner in respect of respondent No,
1. It does not appear that these emotions were a sudden development for her brother-in-law, Mian Zafar Hayat (P. W. 1), and paternal uncle, Mian Ashfaq Ahmad Khan (P. W. 2), stated that while living with respondent No, 1 she was under considerable stress. Being close relatives of the petitioner they were in a position to depose about her mental state. This was not a matter of opinion but something that they could perceive. In rebuttal respondent No, 1 examined Mehfooz Shahid (D. W. 1) and Haji Muhammad Latif (D. W. 2). Mehfooz Shahid (D. W. 1) was quite obviously a casual visitor to the house of the parties and as such he could hardly be in position to talk about their relations or the mental condition of the petitioner. Haji Muhammad Latif (D. W. 2) had on his own showing not met the parties after 1970.
I am, therefore, unable to hold that any of these two witnesse was competent to testify about inter se relations of the spouses.
8. The learned Additional District Judge and the learned Family Judge also failed to notice that there were three issues of the marriage and no woman with children would ordinarily break up her home unless there were compelling circumstances which left her with no other choice. It was not the case of respondent No, 1 that the petitioner was a woman of easy virtues or had an affair with some one else or was immature. There is no reliable evidence D that her parents had at any stage instigated her to return to their house. In any event, had there been any such evidence it would have required carefu scrutiny for no parent would like his daughter who had children of her own to break up her home. In the absence of any other plausible explanation for the conduct of petitioner in leaving her husband's home her statement that she had done so on account of the hatred she bad developed against respondent No, 1 ought to have been taken more seriously by the Family Courts.
9. It is also to be noticed that the parties have now been litigating since 1978 when the petitioner brought her first suit for dissolution of marriage. The added bitterness of litigation could hardly have ameliorated the petitioner's feelings towards respondent No,
1. The learned Family Judge himself has mentioned in his judgment that the Court had endeavoured its best to bring back the parties to 'paradise of harmonious living, but the struggle remained futile at all occasions. This circumstance was by itself a pointer to the fact that a serious rift had taken place between the parties.
10. In rejecting the plea of khula one of the considerations which weighed with the learned Additional District Judge was that there were three children of the marriage and a broken home would make lives miserable. It is no doubt true that when the parents separate it is the children who suffer the most but I do not see how a home where one of the spousus intensely bates the other could be a healthy place for the children to grow up. On the other hand I think it will be in the welfare of the children that they should live in an atmosphere free of acrimony and discord without having to suffer the agony of seeing their parents in a state of continuous confrontation.
11. The trued counsel for respondent No, 1 referred to a decision of this Court reported as Kaura v.
Mansab Mai (PLD 1981 Lah. 335) wherein a learned Single Judge observed :- "A wife can stay away from her husband without any sufficient cause even for many years, but still may not be entitled to a decree for dissolution of marriage on account of having stayed 'away for such a long time from her husband unless she shows that she has not been living with him on account of reasonable cause. No reasonable cause having been brought on record for her staying away from her husband, respondent No, 1 is not entitled to decree for the dissolution of marriage on the basis of Auld."
' In the judgment the facts have not been stated in sufficient details. It is, therefore, not possible for me to comment on his Lordship's view that a separation for a period of 7 years between the spouses was not sufficient to come to the conclusion that their marriage had not broken down irretrievably. However, if it was intended to lay down that before a wife could claim dissolution of marriage on the ground of khula she had to explain the causes which led her to entertain feelings of aversion for her husband and then to get their sufficiency or otherwise judicially examined, then, with all humility, I would take a different view in the matter. The emotions of love and hatred may not invariably have a rational basis and I think that all that the Courts have to see is whether there is any possibility of the parties ever living together in order to perform their marital obligations. If after examining all the circumstances the Court comes to the conclusion that the marriage has irretrievably broken down and there is no hope of the parties ever living together to perform their marital obligations a case for the invocation of the doctrine of khula is made out. In support of the view which I take 1 would refer to a judgment of this Court reported as Rashlda Bibi v. Bashir Ahmad (PLD 1983 Lah. 549). It was a case where the wife while seeking dissolution of marriage on the ground of khula had declared that she would rather be shot dead than live with her husband. While commenting on the plea of khula Javed Iqbal, Judge (now A. C. J.) observed :- "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".
' The present case stands on the same footing even though, perhaps mercifully, the petitioner has not offered herself as a willing target for a bullet shot in case her marriage is not dissolved.
12. It is quite clear that the learned Additional District Judge while disposing of the two appeals did not at all advert to the circumstances noticed above and disposed of the plea of khula taken up by the petitioner in a perfunctory manner. Accordingly, I would declare the judgments and decrees in the two appeals to be illegal and without effect. The appeals should be treated as still pending and disposed of in the light of the above observations within two months. The petitioner shall also have her costs in both these petitions.