' This judgment will dispose of Writ Petitions Nos.232 and 233, both of 1990, in which common questions of law and fact are involved.
2. Brief facts of the case are that Mst. Saadia Shirin, petitioner was married to Javed Ali Bhatti respondent No,1 on 26-4-1985. Their family life was not happy one which led to institution of a suit for dissolution of marriage by the petitioner on 11-3-1987. Respondent No,1 filed a suit for restitution of conjugal rights. The Family Court dismissed the petitioner's suit and decreed respondent No,l's suit for restitution of conjugal rights vide its judgment dated 20-6-1989. The petitioner's appeals against the judgments of the Family Court were dismissed by the learned Addl: District Judge, Islamabad vide judgment dated 14-2-1990.
' The petitioner's learned counsel has primarily assailed the findings of the Courts below on issue No,4 relating to dissolution of marriage on the ground of Khula`. He urged that the Courts below took an entirely erroneous view of the law in holding that no reasonable cause for grant of Khula` was shown because she had failed to prove issues Nos.1, 2 and 3. The learned counsel submits that the Courts below failed to take into account a number of relevant facts including the petitioner's own state of mind, who had developed fixed aversion against respondent No,1. He contends that subjective satisfaction of the wife that she could not lead a harmonious life with her husband within the limits of Allah is sufficient to entitle her to grant of Khula`. He states that in lieu of grant of Khula` the petitioner is prepared to surrender her claim for dower amounting to Rs, 10,000 and the maintenance. In support of his contentions he has placed reliance on the following judgments:--
(1) Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lahore 566.
(2) Mst. Khurshid Bibi V. Babu Muhammad Amin PLD 1967 SC 97.
(3) Abdur Rehman v. The Judge Family Court and another 1981 CLC 68.
' On the other hand the respondent's learned counsel contends that the wife has to prove reasons which give rise to hatred and in the absence of the same she is not entitled to the grant of Khula`. In this connection he places reliance on Muhammad Yasin v. Mst. Razia Begum and another 1986 CLC 1996 and Sh. Abdur Rehman v. Mst. Violet etc. 1986 CLC 1033. He further contends that the Courts below have considered the entire material and recorded findings of fact on issues Nos.1 to 4 which cannot be interfered with in the exercise of Constitutional jurisdiction. Places reliance on Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 in support of his contentions.
There is no dearth of authority on the point that Khula` is right of a wife and can be claimed successfully on the ground of fixed aversion against her husband.
' No doubt, Khula` is not granted by the Court on the mere asking of the wife or on her arbitrary desire to break the marital bond or to fructify some illicit love intrigue on her part. However, it may be granted if the Court apprehends that the parties cannot live together amicably within the limits of Allah for any cause including incompatibility of their temperaments or fixed aversion on the part of the wife against her husband. A wife may not succeed to prove any other ground for dissolution of marriage but can still be granted Khula` if she has developed fixed aversion against her husband. In such a case, an apprehension can legitimately be entertained by the Court that the parties would not be able to lead harmonious and pleasant life within the limits of Allah. This view finds support from the Full Bench Judgment of this Court in Balqis Fatima's case and that of the Hon'ble Supreme Court in Khurshid Bibi's case. Fixed aversion is relatable to the state of mind of the wife. Hence the Court has to depend, to a large extent, on the subjective satisfaction of the wife regarding the existence of innate hatred in her heart against the husband. The spouses alone know each others' true conduct and character and are the best witnesses regarding their inner feelings towards each other. Even in Muhammad Yasin's case relied upon by the respondent's learned counsel it was emphasised that the spouses should not be forced to live in an atmosphere saturated with suspicion, mutual distrust, disregard, and hatred for each other. The Court was pleased to maintain the decree passed by the Family Court. The argument that the finding regarding Khula` being one of fact cannot be reviewed in Constitutional jurisdiction, though finds support from Muhammad Yasin's case but with due deference I venture to observe that even findings of fact can be reversed if those are based on misreading or non-reading of evidence or erroneous or arbitrary inferences drawn from the proved or admitted facts. The question whether an inference follows or flows from certain facts or not is a question of law reviewable in writ jurisdiction as held in the cases of N.M. Khan and another v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another 1970 SCMR 158, Mst. Perveen Begum v. Muhammad Ali and another PLD 1981 Lah. 116 and Ali Haider Kazmi v. Mst. Naqi Bano 1980 CLC 1872. Muhammad ShariPs case relied upon by the respondent's learned counsel embodies the view that a Tribunal, having jurisdiction to decide a matter was competent to decide it rightly or wrongly. However, a different note was struck by the Hon'ble Supreme Court of Pakistan in the case of Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447. It was held that a Tribunal having jurisdiction to decide a matter mist decide it rightly and in accordance with the law. It was held in another case; Government of Punjab through Secretary, Services & General Administration Department of Punjab, Lahore v. Ch. Muhammad Mahmood Advocate and 22 others PLD 1988 SC 376 that the authority charged with the duty of deciding a matter affecting rights of other persons was obliged to do so in accordance with the law and the law alone.
5. The argument that Khula' cannot be granted unless reasons giving rise to hatred are proved positively is not acceptable. In Abdur Rehman's case it was held that a wife who had developed fixed aversion and adamantly refused to live with the husband could be granted a decree on the ground of Khula`. The same view was expressed in the case of Khurshid All v. Mst.Mumtaz Begum 1980 CLC 1212 and Muhammad Yaqub v. Shagufta Begum 1991 CLC 143. In Khurshid Ali's case the grounds on which dissolution was claimed were not proved. However, marriage was dissolved on the ground of Khula`. It was held that the reasons for rift between the spouses need not be gone into by the Court while granting Khula`, the Court was pleased to note that the husband got a theft case registered against the wife and that the wife had since contracted another marriage (after grant of Khula and a child had been born to her. In Muhammad Yaqoob's case it was held that the wife need not come out with logical/objective and sufficient reasons for grant of Khula. If for any reason mutual discord and disharmony dominates the family life giving rise to innate hatred in the heart of the wife she can claim Khula` as of right.
6. In the present case the facts established on the record are that after the marriage the spouses soon fell apart and the petitioner, at one stage, was either turned out of the house by respondent No,1 or had to leave it due to maltreatment of her husband. She got a report (Ex.P2) recorded against respondent No,1 at P.S. Margala. She stated therein that her husband used to quarrel with her over trivial matters, abuse and beat her. She further stated that on 25-12-1986 respondent No,1 had a serious quarrel with her and then brought her at the house of her parents and left her there.
She added that respondent No,1 had even poisoned the mind of Khizar Hayat brother-in-law of the petitioner so that he may turn against her sister. It was mentioned in the said report that even earlier the parties had separated in the month of March but through the intervention of the elders of the family and a friend of respondent No,1, they reconciled but shortly thereafter respondent No,1 again adopted the old attitude. She expressed an apprehension that respondent No,1 would involve her in some false theft case. Respondent No, 1 while appearing as D.W. 2 stated that on 25-12-1986 the petitioner had taken away articles worth Rs, 70,000 from his house, whereupon he got a report lodged at the police station but no action was taken against her. The report was actually lodged against the petitioner's brothers. Thus it is proved on the record that the rift between the spouses was so serious that the petitioner lodged a report against respondent No,1 while he lodged a theft report against the petitioner's brother. While appearing as P.W.1 the petitioner made a statement similar to the one incorporated in Ex.P. 2 and added that respondent No,1 had once brought wine for making her drink and also left a stranger in her company. She further stated that she could not pull on with respondent No,1 as she had developed hatred against him. On being questioned by me in the Court, the petitioner stated that she had fully and cool-mindedly considered the pros and cons of the matters during the last about 4 years of her separation from respondent No,1 and was firmly of the view that she could not lead a harmonious life with respondent No,1 and that she had profound hatred against him. It is thus evident that an irremediable rift has been created between the parties. The petitioner has developed fixed aversion against her husband and is not prepared to live with his on any condition whatsoever.
7. The learned counsel for respondent No,1 prayed that in case of grant of Khula', the petitioner be directed to pay back Rs,70,000 regarding the household articles which she had taken away in the absence of the petitioner. Respondent No,1 had levelled an allegation in his report that the household articles worth Rs, 70,000 were stolen. Hence it cannot be said that benefits worth Rs,70,000 were willingly or voluntarily conferred by respondent No,1 on the petitioner. The petitioner's learned counsel however, states that in lieu of Khula the petitioner abandons her claim for maintenance and the dower amount. This in my view is sufficient consideration for the grant of 'Chula'.
8. In view of the above discussion, I allow this petition and declare the impugned judgments of the Courts below to be without lawful authority and of no legal effect and decree the petitioner's suit for dissoultion of marriage on the ground of Khula subject to the condition that the petitioner shall not claim maintentance or dower amount from respondent No,1. The parties are left to bear their own costs.