' Mst. Balqees Bano petitioner herein, was married to Shamim Ahmad, respondent No,1, on 11th December, 1986. Unfortunately, the spouses could not pull on together. On 1st of September, 1987, the petitioner filed a suit against the respondent seeking a decree for dissolution of marriage on the ground of cruelty, misappropriation of dowry and Khula. Apart from defending this suit, respondent No,1 on 17th September, 1987 also filed a suit for restitution of conjugal rights. Both these suits were consolidated and tried together by the Family Court. The following issues arising out of the pleadings of the parties were framed:-
(1) Whether the treatment of the defendant with the plaintiff was based upon cruelty? OPP.
(2) Whether the defendant subjected to the plaintiff with physical and mental torture? OPP.
(3) Whether the defendant has misappropriated the valuable belongings of the plaintiff including jewellery articles as well as dowry articles? If so, with what effect? OPP.
(4) Whether the defendant levelled false charges of adultery against the plaintiff? OPP.
(5) Whether the plaintiff has developed hatred against the defendant and she is entitled to Talaq on the basis of Khula? If so, on what terms and conditions? OPP.
(6) Whether the defendant is entitled to a decree for restitution of conjugal rights? OPD.
(7) Relief.
2. Both the parties led their evidence in support of their respective cases. The petitioner examined two witnesses apart from appearing herself as P.W.
3. Similarly, respondent No, 1 also examined two witnesses and appeared as D.W.
3.
3. By means of its judgment and decree dated 27th June, 1989, the suit filed by the petitioner for dissolution of marriage was dismissed while that of respondent No,1 for restitution of conjugal rights was decreed by the Family Court. Aggrieved, the petitioner filed an appeal which too was dismissed by the Additional District Judge, Faisalabad, on 1st of March, 1990. Hence this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
4. Ch. Muhammad Hassan, learned counsel appearing on behalf of the petitioner has challenged the finding of the Courts below on issue No,5 alone and has contended that while refusing Khula to the petitioner, both Courts have acted contrary to the law declared by the superior Courts and the impugned judgments also suffer from misreading of the record and non-consideration of material evidence.
5. Mr. Yusuf Ali Khan, Advocate, appearing for the respondent has supported the impugned judgments and has also objected to the maintainability of the petition on the ground that the concurrent findings of fact recorded by the Courts below were not liable to be interfered with in the constitutional jurisdiction of this Court.
6. After having heard the learned counsel for the parties and perused the record, I find force in the contention of the learned counsel for the petitioner that the issue relating to Khula has not been decided by both the Courts in accordance with, law. Unfortunately, while holding that the petitioner was not entitled to Khula, both the Courts approached the case from an absolutely untenable angle. Admittedly, after the marriage between the parties, which took place about 4-1 \ 2 years ago the parties have lived together for 15 days only and there is no issue from the marriage. In her plaint, the petitioner had categorically stated that she would rather die than live with respondent No,1. While appearing as PW 3 it was again reiterated by the petitioner that she had developed aversion towards respondent No,1 and was not willing to live with her husband under any circumstances. The efforts made by the Family Court to bring about reconciliation had failed. It was evident from the circumstances of the case that there was no harmony left between the spouses.
7. Unfortunately, although the Additional District Judge took note of the fact that there was no issue from the wedlock, still he brushed this fact aside by observing that there appears to be no hurdle in the way of the parties to live together. The refusal of the petitioner in all circumstances to restore her conjugal society to the petitioner, was not given due weight. Similarly, the trial Court while dismissing the suit of the petitioner observed under issue No,5 that the plaintiff has not proved in evidence any misconduct on the part of the defendant through 8 which it should be proved that she had developed hatred against the defendant. By now it is well settled that it is not necessary for the wife to prove reasons and circumstances justifying her aversion and hatred towards the husband.
8. In Dr. Akhlaq Ahmad'v. Kishwar Sultana (PLD 1983 SC 169), it was observed that the question whether the parties, if made to live as husband and wife would be living within the limits of God, is a question which has to be received full and continuous attention of the Family, Court particularly re- conciliation efforts by the judge must be taken note of and given effect. In Mst. Rashidan Bibi v.
Bashir Ahmad and 2 others PLD 1983 Lah. 549 it was observed:- "It is strange that the Additional District Judge, Faisalabad, also failed to appreciate that when a woman has stated categorically that he would prefer to be shot dead rather than to go and live with the husband and that she was ready and willing to forego all her claims in case her 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."
' Also see Mst. Shahida v. Abdul- Rahim PLD 1984 Lah.
365. It is thus apparent that the Courts below while refusing Khula` to the petitioner have acted in disregard of these principles and the law declared by superior Courts. This Court can, therefore, in the exercise of its constitutional jurisdiction interfere in the matter. (Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 245 refer).
9. As regard the benefits to be restored, respondent No,1 in lieu of Khula, c it is to be seen that no demand was made by respondent Not for return of benefits either in the written statement or in his statement as P.W.3.
As a result of what has been stated above, the judgments and decrees of both the Courts below are declared to be without lawful authority and of no legal D effect, and the suit filed by respondent No, 1 for the dissolution of marriage is decreed on the ground of Khula` The parties are left to bear their own costs.