The appellant married the respondent on 22nd March 1964, but according to her, the respondent "started maltreating and torturing her on petty household affairs and made her life miserable by cruelty of conduct." Then within a month of the marriage the respondent drove her out of the house and she had to come and live with her father. But a settlement was effected and she resumed cohabitation with the respondent. However, the respondent did not mend his ways and, on the contrary, administered opium to her with the result that she had to undergo treatment. When her father protested about this incident, the respondent beat him mercilessly. Further, as he was not maintaining her, she left him again, but there was a third settlement and she returned to his house.
Finally; the respondent accused her of being on illicit terms with his own father and turned her out of the house. So she left him and on these allegations she filed a suit in the Court of the Civil Judge, Second Class, Khairpur for dissolution of her marriage with the respondent. The respondent contested the suit and denied all the allegations made against him by the appellant, and he further stated that the appellant's father was responsible for causing trouble between them on account of his greed for money. On these allegations, the Court framed the following issues :
(1) Whether the defendant has made the life of the plaintiff miserable by cruel conduct ?
(2) Whether the defendant is leading an immoral life and has been seen moving about with women of ill repute ?
(3) Whether the defendant has made a false charge of adul--tery against the plaintiff ?
(4) Whether the defendant has been maltreating the plaintiff ?
(5) Whether the plaintiff would be entitled to dissolution of marriage on the ground of khula' ?
(6) What should the decree be ?
Both the parties examined several witnesses in support of their respective contentions under these issues. The learned Civil Judge decided the first four issues in favour of the respondent, therefore, he held that she was not entitled to dissolution of marriage even on the ground of khula' and dismissed the suit.
2. The appellant then filed an appeal against the dismissal of tier suit in the District Court, Khairpur, but as this appeal was dismissed by the learned District Judge in an order remark--able only for its brevity, she filed a second appeal in this Court which has now come up for hearing before me.
3. Mr. Talpur's submission was that the view taken by the Courts below was perverse and that they had totally misread the evidence. However, as to the second issue, although the appellant alleged that the respondent was of loose character, the evidence produced by her in this respect was very vague. In this second appeal I would not be justified in interfering with the concurrent findings against the appellant on the second issue. I will, therefore, now proceed to consider the other issues
4. The appellant has said in her evidence that within a month of the marriage the respondent had given her a beat--ing and driven her out. She has also said that he had given her opium in consequence of which she fell ill and was treated first by a Dhai, then by a Doctor. She has also deposed about how the local nekmard and others had intervened and effected settlements between her and the respondent on the occasions when she had been driven out of his house. She has also said that the respondent had accused her of having intercourse with his father, therefore, her father had protested to the respon--dent, but the respondent had beaten him up in retaliation.
Now if the appellant's evidence was true, it was sufficient to prove all her allegations, yet she was cross-examined in a most cursory manner and further her evidence was supported by the wit-- nesses examined by her, therefore, I have examined the reasons for the trial Court's decision against the appellant on the first issue.
5. The trial Court has observed that if the appellant's allegations were true, her neighbours would have been attracted "by the commission and on certain occasions they would have intervened and rescued the plaintiff." To say the least, the view contained in these observations is peculiar and was no ground for rejecting the appellant's evidence. But as I have said, the appellant's evidence way supported by that of several witnesses, one of whom was Fakir Hussain (Exh. 18). As this witness supported the appellant's evidence, the trial Court has rejected It with the observation that it was vague and that he had no personal knowledge of the disputes between the appellant and the respondent. But the- witness has deposed about the faislas between the parties and said with reference to one of these faislas : "I was also present. The defendant promised not to misbehave with his wife and he begged the pardon of his father-in-law." The witness appears to have been an honest witness, because he has admitted ignorance of the appellant's charge that the respondent had given her an intoxicant, therefore, bearing in mind the fact that the respondent did not cross- examine him on the passage of his evidence, which I have quoted, I do not think the trial Court should have rejected his evidence in the cursory manner in which it did. By itself the evidence was not decisive, but it was one of several pieces of evidence on which the appellant's case rested.
Thus, for instance, the appellant's case was also supported by Rasool Bux (Exh. 25). But the trial Court rejected it with the cursory observation that, although the witness stated that the respondent used to abuse and insult his wife, he had not deposed from personal knowledge, therefore, his testimony was of no evidentiary value. But the witness categorically said that he (the respondent) `abuses and insults his wife off and on and the defendant had beaten his father-in---law thrice . . . .' As the witness was not cross-examined on this specific allegation, I am not able to understand how the trial Court came to the conclusion that the witness did not have personal knowledge of the incident about which he deposed. Further, the appellant had examined her father Khudabux and the trial Court has rejected his evidence on the ground that he "does not swear that he has been the defendant with his own eyes maltreating or abusing the plaintiff'". But the witness has categorically supported the appellant's evidence about the administration of opium to her by the respondent and also stated that when he had pleaded with the respondent "to behave with his wife he attacked me thrice". Although the witness was not cross-examined on this allegation, yet the trial Court rejected his evidence. However, perhaps the main ground on which the trial Court rejected the evidence of the appellant and her witnesses was because it disbelieved her story about the administration of opium to her by the respondent. In a lengthy and rambling discussion, the trial Court has pointed out that in her plaint the appellant had only stated that she had been administered opium but in her evidence she said that she had been treated by a doctor who was examined by her, therefore, in view of this discrepancy between her evidence and the pleadings, the trial Court came to the conclusion that she was not a witness of truth. But parties are not required to plead evidence in their plaint and if the appellant referred to her treatment by a Dhai this was really not necessary. On the other hand, the fact that she did not refer to further medical treatment does not necessarily lead to the conclusion that she was a liar. The appellant after all was a young girl and plaints are drafted by counsel, not by litigants. The plaint in the present case can hardly be described as a model of elegant drafting, therefore, her evidence should not have been rejected on account of a discrepancy between it and the plaint without an opportunity to her for explaining the discrepancy, but she was not cross-examined on this discrepancy at all. Further, the appellant examined Dr. Mumtaz Hussain who said in his evidence: "Once I treated the plaintiff for excessive bleeding. On my enquiry she told me that the defendant .Had given her opium before he had sexual intercourse with her. When I confronted the defendant with the allegation he smiled but gave no reply". The respondent did not cross-examine Dr. Mumtaz Hussain at all on this evidence. It is true that the appellant did not examine her mother and the trial Court has criticised her failure to do, but she examined her father and though he supported her evidence on the opium incident, the respondent did not dare to cross-examine him. In these circumstances, bearing in mind the conditions of our Society I do not think the trial Court was justified in rejecting the appellant's evidence because she did not examine her mother. Again the appellant's evidence on this opium incident was supported by her witness Rasoolbux who was also not cross--examined.
As the trial Court has conveniently ignored the respondent's failure to cross-examine the witnesses who deposed against him, I am not able to agree with its appreciation of evidence.
6. I am aware that the First Appellate Court has concurred with the trial Court's finding but I do not think its judgment is fit to be treated as a judgment. After referring to the conten--tions of the parties, the learned District Judge has disposed of the entire case in about one page and with reference to the first issue he has agreed with the view of the trial Court because of the discrepancy between the pleadings and the evidence. He has not cared to examine the evidence of Dr. Mumtaz Hussain or Rasool Bux, much less of the appel--lant, nor has he noticed the failure of the respondent to cross---examine these witnesses. He has then disposed of the issue with the observation that, as the appellant had lived with the respondent for only one month, there was no question of her life being made miserable by cruelty of conduct: In these circumstances, it is very clear that the First Appellate Court has failed to discharge its duty of scrutinising the findings of the trial Court. Mr. Dastgir, therefore, submitted that the case could be remanded to the First Appellate Court so that it could dispose of the appeal after applying its mind to the case. The appeal is 5 years' old and I would not be justified in remanding it to the District Court. But, on the other hand, it is clear that the District Court has not cared to examine the evidence on the record and similarly, the trial Court has dismissed the suit by resorting to the expedient of ignoring is the evidence that supported the appellant, therefore, I have no doubt that I am entitled to interfere with the concurrent findings of the two Courts below against the appellant, and I hold that the appellant has proved her case under this issue.
7. However, even if I am wrong, as I shall presently show, as the appellant's claim is pressed on the ground of khula' alone, the appellant can succeed even if she fails under this issue. Additionally, I have also to point out here that this issue coincides with the 4th issue which need not, therefore, be discussed, and the only issue which remains for consideration is the third issue.
8. The question under this issue is whether the respondent made a false charge of adultery against the appellant. The appellant has categorically stated in her evidence that the respondent had "imputed inchastity to me alleging that I had illicit 'intercourse with his father. Whereupon his own brother had given him thrashing. This charge of adultery was 'made by him in the presence of Altaf Hussain, Fakir Ali Shah, Mumtaz and Hyder Ali." The respondent and his brother have naturally denied this allegation, but the respondent examined a brother by the name of Hyder Bux not Hyderali, and did not care to give evidence to show that Hyderali and Hyderbux are the same person. Turning now to the evidence of the other alleged eye-witnesses to the occurrence mentioned by the appellant, the evidence of Fakir Hussain Shah is very badly recorded, and I would not penalise the appellant for the failure of the Court to record evidence properly. But the other witness Altaf Hussain has fully supported the appellant's claim. It is true that Dr. Muntaz Hussain has not supported her claim. But as Altaf Hussain was not cross-examined, why should the appellant's evidence be rejected? I am aware that the First Appellate Court has given its finding against the appellant but am the ground that the charge of adultery was not made in tier presence. This cursory finding is based on a misreading of evidence and, on the other hand, the trial Court's finding is not satisfactory because it has only considered the evidence favourable to the respondent. However, I do not need to decide the correctness of the view taken by the Courts below because on the evidence I am completely satisfied that the appellant genuinely believed that she had been insulted by the respondent and accused of adultery with his father and, as I shall presently show, this is enough to entitle her to a divorce by khula'.
9. Issues Nos. 5 and 6.-The question for consideration under these issues is whether the appellant has made out a vase for divorce by khula' and the First Appellate Court has rejected her claim on the sole ground that the parties were newly married and had not "sufficient time to live together as husband and wife and it cannot be said at this stage that the married life (has) become impossible". The fact that the parties had cohabitated together for a short period is clearly a circumstance relevant to the question of divorce, because of the possibility of a reconciliation between the parties through the passage of time, and the only question is whether on the evidence such a possibility is feasible. The very violence of the appellant's allegations against the respondent suggests that the marriage has completely failed. Then there is the incontrovertible evidence about the dispute between the parties and the subsequent faislas. Thus, as the trial Court has approved of the evidence of Dr. Mumtaz Hussain, I may refer here to his evidence : "The respondent used to maltreat (the appellant) and did not maintain her. The faislas were made two or three times between the parties in which I have participated." He was not cross-examined on this allega--tion. Similarly, Altaf Hussain and Rasool aux have fully supported this evidence. But these witnesses have denied the allegation that the appellant had lived with the respondent for only one month, as held by the Courts below. However, even if I accept the finding of the Courts that the appellant had lived for only one month with the respondent, the evidence that there were two to three faislas between them is over-whelming. But if there were even two faislas within one month of the marriage it seems to me that the marriage has broken down completely, therefore, I cannot agree with the view of the First Appellate Court.
10. It is true that in deciding these issues against the appellant the trial Court has at least attempted to examine the evidence, but on the basis of the scrutiny of its evidence it has held that the mischief was caused by the appellant's father and was due to his greed for money. But as the appel--lant cannot repudiate her parents, even if I accept the finding, of the trial Court, the prospects of a successful marriage between the parties are bleak in the extreme, therefore, Mr. Talpur submitted that even if the appellant had failed to prove her many allegations of cruelty she had made out a case for divorce by khula', in view of the judgment of the Supreme Court in Mst.
Khurshed Bibi v. Muhammad Amin (PLD 1967 SC 97).
11. In this classic judgment their Lordships have laid down the law of khula' and the question before them was whether the view taken by a Full Bench of the West Pakistan High Court in Mst. Bilqis Fatima v. Najam-ul-Ikram Qureshi (PLD 1959 Lah. 566), was correct. The contention of the appellant was that in that case it had been held "that for khula' divorce to be granted it was not necessary that the plaintiff must express reasons in support of her demand and the reasonableness or otherwise of that demand was not a relevant question at all." In accepting this contention S. A. Rahman, J , as he then was, observed at page 111 : "Learned counsel for the appellant, Mr. Ghazanfar Ali Gondal, strongly relied on Mst. Bilqis Fatima v.
Najam-ul---Ikram Qureshi, as authority for the view that, under Muslim Law, the wife is entitled to khula', as of right, if she satisfied the conscience of the Court that it will otherwise mean forc--ing her into a hateful union. A Full Bench of the West Pakistan High Court held, in that case, that the wife is-- entitled to dissolution of her marriage, on restoration of what-- she received in consideration of marriage, if the Judge appre--hends that the parties will not observe the "limits of God". This latter limitation is an important one and it is only in, cases where a harmonious married state, as envisaged by Islam, will not be possible, that such a decree for khula' will be granted. If the rift between the parties is a serious one and there is danger of the wife transgressing the Islamic injunctions, in case the dissolution is not ordered, then there would be plain necessity for the grant of khula'. This con--clusion was arrived at, after a review of the Qur'anic injunc--tions on the subject, the relevant Ahadith, previous case-- law and the opinions of legists and commentators of the Qur'an. The view expressed in Mst. Umar Bibi v. Muhammad Din I L R 25 Lah. 542 by a Division Bench of the Lahore High Court and endorsed in the Full Baneh case of Mst. Sayeeda Khanam v.
Muhammad Sami PLD 1952 Lah. 313, to the effect, that incompetibility of tamperament, is not a.
Ground for dissolution of marriage and that it is not possible for a Court to grant a khula' decree, unless the husband consents thereto, was dissented from."
In view of these observations, it is clear that the appellant was not required to prove that each and every allegation of her's was true, but only to show that her marriage had broken down and that there was no hope of reconciliation. Now, the finding of the Courts that the marital difficulties between the parties had been caused by the appellant's father was itself a circum--stance which obviously made any possibility of reconciliation difficult. The appellant's allegations against the respondent were of a heinous nature, that he had administered opium to her, that he had beaten and assaulted her father and that he had made a false charge of adultery against her, the charge being that she was seducing her own father-in-law. Then there is the fact that there were repeated quarrels and she had either left the respondent's house or been driven out of it. Further, the very fact that all this happened within a very short period of the marriage was an utter failure.
Unfortunately, this aspect of the case was so to say brushed off by the Courts with the observation that the parties were young. But, as I have explained. That was only one of the many circumstances, to be taken into account. Bearing in mind the evidence on the record, and the gravity of the dispute between the parties, in my humble opinion, it seems that they cannot live together and that the marriage has failed totally. Accordingly, I allow the appeal, set aside the judgment of the Courts below and decree the appellant's suit for khula'.
12. However, as a wife can obtain a divorce by khula' only on the condition that she restores the benefits received by her from her husband, the appellant has, therefore, to restore the benefits received by her from the respondent. Unfortunately, the Courts below have ignored this aspect of the case, but Mr. Talpur conceded that this was because the learned counsel for the parties had not pressed it. He, there--fore, himself suggested that the case should be remanded for determination of the benefits, if any, received by the appellant from the respondent and Mr. Dastgir also requested that if I allowed the appeal, the case should be remanded so as to give the parties an opportunity to give evidence on the question of the benefits received by the appellant from the respondent. It seems to me that the parties were not aware of the conse--quences of a divorce by khula' and it is just and proper that the case should be remanded as requested by both the learned counsel. However, I have to point out here that the appellant had pleaded in paragraph 13 of the plaint that she had "not received any benefits from the defendant, but she is prepared to return if anything is proved." The only answer of the respon--dent to this allegation was that it was vague.
However, in rail fairness it seems to me that he should be permitted to amend his written statement if he so desires. Accordingly the appeal is allowed and the case is remanded to the trial Court which shall decide the question of the benefits received by the appellant from the husband and if it comes to the conclusion that the appellant had received any benefits it will order the appellant to return them to the respondent. In the circumstances of the case I leave the parties to bear their own costs.
K. B. A.