' The proposition raised in the second appeal confines to dissolution of marriage on the plea of `khula'.
2. Mst. Sandal Begum brought a suit for divorce on the ground of cruelty and `khula', on February 11, 1985. It was alleged that the parties married 25 years earlier. A sum of Rs.32/- was fixed and paid as the dower money. There were 3 issues out of the wedlock. Among them two were sons and one daughter. The wife ascribed ill-treatment to her husband from the beginning of their marriage and stated that despite his ill-treatment, she carried on till two months before when Khalida Bibi, their daughter was to be wedded. Her husband wanted to give the hand of the girl to his illiterate nephew to which the girl disliked and expressed her unwillingness. This was taken ill by the husband who forcibly turned out of his house to his wife, daughter and a son. His daughter brought an action against her father in the Court button the interference of the elders of the vicinity, parties reached a compromise as Bassan Muhammad, respondent undertook to maintain his wife and children and to refrain from quarrel and ill-treatment in future. Nevertheless, it was alleged that at the time of marriage of their daughter, a buffalo was given in dower. The husband made a report of theft of his buffalo given in dower to the daughter, against the wife, daughter and son-in-law. The local police registered the case, recovered the buffalo and restored it to respondent. The aforesaid event led to a quarrel between the spouses resulting in separation. In view of the aforesaid situation, the appellant developed hatred against her husband and decided not to go back to him in any condition. The husband repudiated the claim of the wife. However, it was admitted that the marriage of their daughter took place against his wish and choice. He also brought a counter suit for restitution of conjugal rights and perpetual injunction on November 28, 1985, i.e. 9 months after the suit of the appellant. In counter suit, Bassan Muhammad impleaded, in addition to his wife, Khalida Bibi, his daughter, Muhammad Shafique, son-in-law and Muhammad Akbar, father of Muhammad Shafique. In the counter suit the husband claimed a happy state of affairs and good relations between the husband and wife with the exception that his wife separated for unknown reasons on the incitement of other defendants. The suits were consolidated and disposed of together. The suit of the husband was decreed and the counter suit was dismissed. The order was passed on June 30, 1987 by the Additional Sub-Judge Kotli. This order was maintained in appeal, by the learned District Judge.
3. Mr. M. Naseem, the learned counsel for the respondent, raised a preliminary objection that the appeal was liable to be dismissed as the memorandum of appeal was unaccompanied by a copy of the decree of the trial Court. Reference was made to Abdul Rehman's case (PLD 1979 SC (AJ&K)
117).
4. This is second appeal. The rules of procedure applicable to second appeal under Order 41, Rule 1, C.P.C., are the same as are admissible in case of !, first appeal contemplated under Order 41, Rule 1 of the Code. The presentation of memorandum of second appeal is deemed valid when the memorandum is accompanied by copy of the judgment and decree appealed from and the judgment of the Court of first instance. These three documents should essentially accompany the memorandum of second appeal. However, it is mandatory that the memorandum of second appeal he accompanied by the decree appealed from as well as the judgment unless the appellate Court dispenses with the copy of the judgment appealed from and the copy of the judgment of the Court of first instance. In the present case, the required documents, namely, the decree, the judgment appealed from and the judgment of the trial Court, accompanied the memorandum of second appeal. Presentation of appeal was, therefore, not defective as suggested by the learned counsel for the respondent. It appears that the learned counsel for the respondent was under the impression that the memorandum of second appeal must he accompanied by the decree of the Court of first instance. This is why, that on his objection at the earliest hearing, the learned Counsel for the appellant presented the copy of the decree of the trial Court and sought condonation of delay. This application was obviously apposed by the learned counsel for the respondent. Be that as it may, the fact remains that the appellant complied with the mandatory provisions of the procedure applicable to second appeal. The objection is not sustained.
5. Both the Courts below rejected the plea of the wife to grant divorce by `khula' as, in their opinion, there was no sufficient material to satisfy that the spouses could not live their married life within the limits ordained by Almighty Allah. One of the main considerations weighing with the subordinate Courts was long period of married life in addition to grown up children of the spouses.
6. The leading case of Pakistan jurisdiction propounding the scope of divorce by ichula' is the case of Mst. Balqees Fatima (PLD 1959 Lahore 566). The view of Mr. Justice Late B.Z. Kaikaus, on critical analysis of the term `Khula' and its scope as contemplated in Islam was supplemented by another celebrated judgment recorded in Mst. Khurshid Bibi's case (PLD 1967 SC 97). The rest of authorities relating to `Khula', followed the dictum of the Supreme Court. Therefore, considering the consensus of judicial pronouncement about Ihula' and its scope, an identical proposition was resolved by this Court in Mst. Parveen Akhtar's case (PLD 1981 Azad J&K 94). The pith and substance of the principle of `Khula' as enunciated in the aforementioned authorities, is that "the ground of `Khula' can be invoked by wife to seek divorce through the Court on the proof that on account of unhappy state of relationship between the spouses she developed an aversion towards her husband, so much so that it was impossible for them to live together within the limits, ordained by Almighty Allah." The emphasis was laid on the point that in order to invoke divorce by `khula', it was enjoined upon the wife to satisfy the Judge that she nursed aversion against her husband and that there was least likelihood of reconciliation between them. On assertion of aversion by the wife against the husband, it was equally enjoined upon the Qazi or Judge to ensure that the aversion alleged by the wife was not artificial but rested on legitimate circumstances.
7. In the present case, Mst. Sandal Begum, appellant disclosed in her pleadings that she suffered ill- treatment from her husband right from the beginning but tolerated it throughout till the time of settlement of marriage of their daughter. Their daughter was Matriculate. The respondent made the proposal of his nephew for the marriage of his daughter which she turned down. The respondent disliked the rejection of proposal made by him, as such quarrel broke up in the family, in consequence of which the wife, the daughter and younger son were forced out of the residence.
This state of affairs is amply borne out by the evidence of the parties. Bassan Muhammad, in his not statement, admitted that the marriage of his daughter was the cause of dispute between the spouses. In addition to that, the ugly part of the story which spoiled the relations between the spouses, was the incident of report of theft made by Bassan Muhammad against his wife, the daughter and the son-in-law. According to the wife, the buffalo was brought up by her, as such she was its owner. She gifted the buffalo to her daughter at the time of wedding. On the other hand, her husband made counter claim of ownership of the buffalo and alleged that it was stolen from his house by his daughter at the time of her `rukhsati'. The police registered the case, recovered the buffalo and restored it to him. This aspect of proposition is squarely admitted in the evidence of Bassan Muhammad and other witnesses. It appears that the appellant finally resolved to separate herself on account of this ugly incident. It suggests that the whole family except the respondent who made a report, took it as a biting insult to them as an ending and unlikely to reconciliation.
8. The subordinate Courts took this incident very lightly and held that such an incident was immaterial, not sufficient to develop hatred and aversion. Moreover, according to the subordinate Courts, as there was no conclusive evidence in support of the allegations of cruelty and ill- treatment, there was hardly a reason, in their view, to grant divorce by `Ichula'.
9. It is correct that the concurrent finding of facts is not interfered lightly in second appeal unless it is satisfied that the subordinate Courts or either of them misread, misconstrued or omitted to read the evidence on record. In the present case, the subordinate Courts definitely misconstrued the evidence consisting of testimony of Bassan Muhammad, Mst. Sandal Begum Asmatullah and others. In addition to the pleadings of the parties, both parties were in agreement that the dispute between the spouses arose on account of difference of opinion about the choice of husband for the wedding of their daughter. Although the choice of the daughter and mother prevailed and 'rukhsati' took place in peaceful manner, yet the respondent took it as a bitter pill and took his revenge by making a report of theft. May be that the buffalo was given as gift by the mother to the daughter. Conversely, even if the buffalo was not given in gift, even then ordinarily, a father was least expected to lodge report of theft of buffalo taken away by daughter as marriage gift at the time of her 'rukhsati'. This was obviously an extraordinary and very annoying action of the father against his daughter, wife and son-in-law.
10. In village community, people do take care of their honour. They assert their dignity and pose stature among the relations and neighbours. Sometimes they undergo a heavy debt to celebrate the marriage of their children with pump and show. Likewise is the value and consideration of the gifts given to the bride by parents and relations at the time of wedding. It was a common practice in villages to give a buffalo as marriage gift to the daughter. In view of this background of the custom in village community, father was least expected to report to police of theft of buffalo taken as wedding gift by daughter. The evidence led by the parties obviously leads to the inference that as a sensitive perception, the appellant nursed aversion against her husband.
11. Be that as it may, the fact remains that the wife having repeatedly stated at the bar, in her testimony in the Court and in her pleadings that she was not prepared to live with her husband, coupled with the attending circumstances, was enough to pronounce her determined aversion against her husband. Denying the decree for divorce would serve no purpose as by such denial and allowing decree for imitation of conjugal rights, she cannot be compelled to go back to her D husband, to have harmonious matrimonial life. The preponderance of evidence is weighty in favour of wife.
' The appeal is allowed. The findings of the subordinate Courts are hereby set aside and the suit of the plaintiff-appellant for divorce is decreed. The counter suit for restitution of conjugal rights and perpetual injunction is dismissed. No order as to costs. The amount of dower admitted by the parties was Rs.32. In the circumstances, the amount of dower in the sum of Rs.32 shall be returned by the appellant to the respondent. This amount may be deposited in the trial Court for its payment to the defendant-respondent.