This constitutional petition filed by the wife is directed against the order of the learned Judge, Family Court, dismissing her suit for dissolution of marriage and the appellate judgment of the learned Additional District Judge dismissing her appeal.
2. Facts necessary for the disposal of this petition briefly are that the parties were married some eight years prior to the institution of the suit. Two daughters were born to them but none survived. It is alleged that the petitioner inherited some land from her father which the respondent-husband forced her to transfer in his name. On her refusal to do so, respondent used to give her beating and finally he turned her out of the house. Thereafter, she lived with her parents and during this period, respondent did not give her any maintenance. It is further alleged that on 30-12-1984, respondent along with some others forcibly abducted the petitioner, her sister Mst. Hafeezan, and her mother Mst. Khurshid Bibi, kept them in illegal confinement for some days and gave them physical beatings and this was done to prevent them from selling their land. The occurrence was reported to the police by the petitioner's mother and a case under section 365/452/354/149/148, P.P.C. Was accordingly registered against the persons accused including the respondent on 2-1-1985. On these allegations, petitioner brought a suit for dissolution of marriage. She also prayed for the grant of 'Khula' alleging that owing to the conduct of the respondent, she had developed intense hatred against him and it was, therefore, not possible for her to discharge her matrimonial obligations within the limits prescribed by Allah. Respondent contested the suit controverting the allegations made by the petitioner. Pleadings of the parties gave rise to the following issues:-
(1) Whether the defendant treated the plaintiff with habitual cruelty? O.P.P.
(2)Whether the defendant has failed to provide maintenance to the plaintiff for over three years?
O.P.P.
(3)Whether the defendant along with his cronies wished away her sister Hafeezan Bibi and mother Mst. Khurshid Bibi on 30-12-1984, made them rude and committed torture upon them in order to abstain them from selling their shares of land upon which a case under section 365/452/354/148/149, P.P.C. Was registered? 0 . P . P .
(4)Whether the plaintiff has developed extreme aversion against the defendant and it is not possible for them to live within the limits of God and hence she is entitled to divorce on the basis of 'Khula'? O.P.P.
(5)Relief
3. Both the parties led evidence in support of their respective contentions. Petitioner examined herself as P.W.2 and her mother Mst. Khurshid Bibi appeared as P. W.1. Appearing as her own witness, petitioner categorically stated that she had developed intense aversion towards the respondent on account of his conduct and it was not at all possible for her to live in matrimonial bond with him. She also deposed that the respondent had not paid her the dower amount which she was prepared to forego to obtain 'Khula'. Petitioner also adduced in evidence copy of the F.I.R.
Exh. P.1 and medico-legal report Exh.P.3 to prove her allegation that she was abducted by the respondent and others and was subjected to physical violence. Respondent, on the other hand, produced one witness Hassan Muhammad D.W.1 and himself appeared as D.W.2.
4. Learned Judge, Family Court decided all the issues against the petitioner and consequently dismissed her suit vide judgment dated 30-10-1986. Reasoning of the Family Court mainly was that the petitioner had failed to produce any independent evidence to support her allegation of maltreatment at the hands of the respondent and the alleged incident of abduction and wrongful confinement. If was further observed by the learned Judge, Family Court that as the petitioner had failed to establish these allegations, she had no reason for developing aversion towards the respondent so as to entitle her to a decree in the form of 'Khula'.
5. Petitioner preferred an appeal but with no better result as the same was dismissed by the learned Additional District Judge vide his judgment, dated 1G-1-1986 upholding the findings of the trial Court on all the issues. He summed up his conclusions on issues Nos. l to 3 by observing, "the plaintiff had failed to prove that she was living away from the defendant for a period of two years and that the statutory period of non-payment of maintenance was two years. Similarly, the plaintiff had not been able to produce any cogent and independant evidence to support the occurrence reported in the F. I. R. Exh. P.1. The mother of the plaintiff was the complainant and as such she was an interested witness. This being so, I uphold the finding of the learned trial Court with regard to issues Nos.l to 3. "Finding of the learned Additional District Judge on issue No.4 relating to 'Khula' which is the only issue relevant for the purpose of the present petition is reproduced hereunder in extenso:- "With regard to this issue, it shall be sufficient to say that the plaintiff had failed to prove that the defendant had been treating her with cruelty and as such there was no sufficient reason to conclude that she had developed extreme hatred towards the defendant which would entitle her to the grant of decree for dissolution of marriage on the basis of Khula. The sole reliance of the learned counsel for the appellant was on the F.I.R. Copy EXh.P.l but then there is no presumption of truth attached to the facts contained in the F.I.R. Which had not been proved through any independent evidence. Accordingly, the finding of the learned trial Court on issue No.4 is confirmed."
6.Learned counsel for the petitioner has not questioned the findings on issues Nos.l to 3. He has only assailed the finding on issue No.4 and contends that the petitioner's plea for 'Khula' has been rejected by the Courts below on illegal premises. Contention of the learned counsel is that despite adverse findings on issues Nos.l to 3, there was ample material on the record to justify the petitioner's aversion for husband entitling her to a decree on the ground of 'Khula'. Grievance of the learned counsel is that the evidence and the other attending circumstances having material bearing on the issue of 'Khula' have either been ignored or misconstrued by the Courts below.
Learned counsel appearing for respondent /husband has only endorsed /adopted the reasoning of the learned Courts below in deciding the issue of 'Khula' against the petitioner and contends that the impugned judgment are not open to interference in writ jurisdiction.
7.I have considered the submissions of the learned counsel for the parties and have perused the available record. Contentions raised by the petitioner's counsel appear to have considerable force.
The learned Courts below have proceeded on the assumption that the petitioner was required to give reasons for her aversion towards the husband. I am afraid, there is no such requirement of law that a wife seeking 'Khula' must give objective reasons and prove the circumstances justifying her aversion for the husband. The principle of 'Khula' is based on the consideration that if a woman has decided not to live with her husband for any reason and she is firm in her A decision, then the Court after satisfying its conscience that not to dissolve the marriage would mean forcing her into a hateful union would order separation between the spouses. If any authority is needed for this proposition, reference may be Made to a celebrated judgment of the Supreme Court in the case of Mst. Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97 wherein it was observed "under Muslim law, the wife is entitled to 'Khula' as of right, if she satisfies conscience of the court that it will otherwise mean forcing her into a hateful union." In this judgment, their Lordships also referred to B the view of Shah Wali Ullah of Delhi stated in "A1-Musawwa-min--Ahadith-al-Muatta, Vol. II, page 160 which was quoted at page 116 of the report in the following words:- "Even if she obtains 'Khula' without any reason (apart from personal dislike) it is lawful but not approved. The reason is that the Prophet and the Companions never inquired from her the reason for her seeking khula."
Viewed in this light, the statement of the petitioner referred to hereinabove expressing her intense aversion towards the respondent in unmistakable terms and pleading for 'Khula' by stating that it was not possible for her to live with the respondent and showing her willingness to forego the dower as also her conduct during the reconciliation proceedings before the Family Court were the most relevant circumstances which the learned Courts below ought to have taken into consideration for deciding the petitioner's entitlement to the grant of 'Khula'. Unfortunately, however, these important factors having direct and material bearing on the issue of 'Khula' in view of the legal position aforenoted have not been given any consideration by the Courts below.
Reference may here be made with advantage to the following observations of the Supreme Court made in a case reported in PLD 1983 SC 169:-- "As a matter of fact, how the parties conduct themselves during the proceedings, particularly during the reconciliation efforts by the Judge have to be taken note of and suitably given effect to.
The question whether the parties if made to live as D husband and wife would be living within the limits of God is a question which has to receive the full and continuous attention of the Judge Family Court once that issue has been raised. He has to attend to every factor which may contribute or detract from it."
8. Apart from what has been said above; the learned Courts below have proceeded on incorrect premises in taking the view that because the petitioner had failed to prove the allegations of cruelty etc. There was no valid basis for her aversion towards the respondent and as such she was not entitled to the grant of 'Khula'. The mere fact that the petitioner has not been able to prove her allegation that she was subjected to habitually cruel treatment by the respondent does not mean that she has also failed to prove the circumstances justifying her aversion for the respondent entitling her to a decree on the basis of 'Khula'. It was so held in Muhammad Sadiq v. Mst. Aisha and another PLD 1975 Lah. 615. In that case, hr. Justice M.A. Zullah (as his Lordship then was) observed"
In such like cases I am of the view that despite the failure of the wife on individual issues on technical grounds; if there are elements in the evidence qua those issues, which singly or when combined with other similar facts in other issues produce a strong impression creating satisfaction of the conscience of the Judge; that the relations between the parties had deteriorated beyond repair; and also that the malady was such as was likely in all probability to give rise to further more and socialwrongs and indiscreet acts by the spouses towards such other so as to lead to disrespect for the limits of God it would become a case for grant of decree of Khula. Thus, on this reasoning the failure of the respondent to prove any of the issues in this case on technical grounds would not necessarily mean that she has failed to prove the circumstances which would entitle her to decree for dissolution of marriage on the basis of Khula."
Now, even if there was no independent evidence in support of the allegations forming the subject- matter of issues Nos.l to 3 as held by the learned Courts below, it was their duty to consider whether in the back ground of strained relations between the parties followed by litigation particularly the registration of a criminal case against the respondent at the instance of the petitioner's mother , wherein very serious allegations of abduction, illegal confinement and torture were made and in which case the respondent was also arrested, it was at all possible for the parties to live together as husband and wife within the limits prescribed by Allah. Learned Courts below have given no consideration to these vital aspects of the case. Learned Additional District Judge, as noted above, gave no weight to the F.I.R. EXh.P.l holding that no presumption of truth attached to the facts contained therein which have not been proved through any independent evidence. This view, it may be pointed out, is based on misreading of record. Learned Additional District Judge has failed to note that the fact that the criminal case was registered against the petitioner and others vide F .
I . R . Exh. P.1 was alleged in the plaint and was not denied in the written statement. Moreover, the respondent also admitted in his evidence that he was arrested in that case. So, irrespective of the correctness or otherwise of the allegations made in the F.I.R., the adverse effect thereof on the future matrimonial life of the parties should have been taken into consideration but this has evidently not been done. The registration of criminal case against the respondent was a sufficient pointer to the fact that the rift between the parties had reached a point of no return and the marriage had broken down irretrievably with no hope or prospect whatever of the parries living a happy and harmonious matrimonial life. This important circumstances which needed full attention of the Courts has been brushed aside on wholly untenable premises.
9. The foregoing discussion quite clearly shows that the petitioner's plea for 'Khula has been rejected by the Courts below in a perfunctory manner without due regard to the principles governing the grant of 'Khula' and without giving any consideration to the material evidence and the relevant circumstances noticed hereinabove. The impugned judgments are accordingly declared to be illegal and without lawful authority. The result, therefore, is that the writ petition is allowed and the case is now remanded, in interest of expeditious disposal of the matrimonial dispute, to the learned District Judge, Gujranwala, who will treat the petitioner's appeal as pending and may either decide it himself or entrust it to any Court of competent jurisdiction for disposal in accordance with law and in the light of the observations made above, of course, after hearing both the parties. There shall be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.