1. ' The petitioner has assailed the judgments dated 15-9-1988 and 2-3-1991 passed respectively by the learned Judge Family Court, Mianwali and the Additional District Judge, Mianwali, dismissing her suit for dissolution of marriage on the basis of Khula and decreeing the suit filed by respondent No,3 for restitution of conjugal rights.
2. ' The facts in brief are that the petitioner entered into a marriage with respondent No,3 in the year 1986. There was hardly a stay of less than one month's period between the spouses when the relations between them became strained. The petitioner filed, a suit for dissolution of marriage on 9-3-1987 on the basis of cruelty and also claimed dissolution on the basis of Khula. Respondent No,3 controverted the claim of the petitioner and also filed suit for restitution of conjugal rights, as a counterblast. Both the suits were consolidated and the following issues were framed:-
(1) Whether the defendant had been cruel to the plaintiff? OPP.
(2) Whether the plaintiff is entitled to Khula, if so, on What terms and conditions? OPP.
(3) Whether the defendant is entitled to decree for restitution of conjugal rights? OPD.
(4) Relief.
3. ' The parties led their respective evidence. The learned Judge Family Court through his order dated 15-9-1988 dismissed the suit for dissolution of marriage. Aggrieved with this the petitioner filed an appeal which too was dismissed by the learned Additional District Judge through his order dated 2-3-1991. Hence, this Constitutional petition.
4. ' I have considered the contentions. Since I have heard both the parties at length as such this case is decided as a Pacca matter. The marriage in this case took place more than five years earlier and the spouses hardly stayed less than a month's period together. The relations between them became strained at the very threshold. The petitioner is trying to secure release from her husband by resorting to these proceedings since then. I have noticed that the two Courts below refused to grant dissolution on the basis of Khula mainly on the ground that since the petitioner was married on the basis of a Watta marriage and that having not succeeded, the claim of the petitioner for her dissolution in these circumstances for this reason was without any just cause. The failure of the petitioner to establish cruelty on the part of respondent No,3 was also taken note of. It is pertinent to mention at this juncture that the divorce had already been effected of the Watta marriage in exchange of which the petitioner was married to respondent No,3. In these circumstances there is no hope left for any reconciliation between the parties. It is evident from the evidence brought on record that immense hatred has developed between the parties and it has now become impossible for the petitioner to live with respondent No,3 within the limits prescribed by Allah Almighty. The petitioner substantiated this aspect through her evidence as also the testimony of her other two witnesses. The learned two Courts below have not appreciated this aspect of the case in its true prospective and were mainly swayed by her failure to establish cruelty and alleged prospects of reconciliation in the Watta marriage. Even otherwise the right of dissolution of marriage on the basis of Khula is an independent right and the failure of the petitioner to establish the grounds other than Khula taken by her shall not prejudice her right. Family Courts are enjoined to determine this right independently. Reliance in this regard is placed upon Suleman v. Asima Bibi 1983 CLC 2400.
5. ' It has been held in Mst. Rashidan Bibi v. Bashir Ahmad PLD 1983 Lah. 549 that:- "The principle of Khula is based on the fact 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.
6. Onus of establishing hatred required to secure the dissolution on the basis of Khula shall not be made so strict as to compel the petitioner to live in an unhappy union. The Hon'ble Supreme Court in a case titled Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329 has approved the above view taken by the learned Judge and has further augmented this principle by narrating two famous instances relating to Sabit Ibn-e-Qais, wherein the Holy Prophet (Peace be upon him) pronounced Khula simply on the ground of hatred developed in the minds of the two wives of Sabit Ibn-e-Qais namely, Jamila and Habiba by quoting passages from the Full Bench case titled Mst. Bilqis Fatima v. Najma-ul-Ikram Qureshi PLD 1959 (W.P. Lah. 566). The learned Judges of the Supreme Court quoted from the Full Bench judgment as under:- "In neither case was Sabit in any way to blame, and so far as Jamila is concerned, she had expressly said that she found no fault with him and that the sole reason why she wanted a release was that he was ugly and she could not bear him, she being herself a handsom woman. In neither case did the Holy Prophet make any pronouncement as to the reasonableness of the attitude of the wife. He was just satisfied that the husband and wife could not amicably live together. He never asked for the consent of the husband."
7. ' It has further been observed by the Full Bench at page 582 that:- "Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any resuscitation. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received."
8. ' The learned Judge in the Supreme Court after quoting the aforestated passages from the Full Bench judgment observed as under:- "The above view of the Full Bench was not only accepted in Mst. Khurshid Bibi v. Baboo Muhammad Amin which was judgment delivered by a Bench of Five Judges of this Court but the doctrine was further discussed and elaborated. It was found that in case of dislike by the wife of her husband, Islam concedes the right to the wife, in circumstances of extreme discord and where life becomes a torture for both, on account of the fixed aversion on the part of the spouses, to seek dissolution of marriage on the ground of Khula. This right, however, is not an absolute right by which the wife can herself dissolve the marriage but is a controlled right. The success of her right depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God. However, the Court while coming to a conclusion on this question, shall bear in mind that it would be more consistent with the letter and spirit of the Quran which places the husband and the wife on an equal footing in respect of rights of one against the other to construe the classical incident of Sabit-binQais as meaning that the person in authority including the Qazi, can order separation by Khula even if the husband is not agreeable to the course."
9. In the case in hand the present discord between the parties who are still involved in the litigation wipes out any hope of re-conciliation and in this situation the petitioner can legitimately claim dissolution on the basis of Khula.
10. ' Keeping all the features of the case into consideration and the longstanding litigation between the parties, I am of the view that there is no scope left for reconciliation. In arriving at this conclusion I am fortified by a judgment delivered by a learned Single Judge in W.P. No, 1527-83 (Mst. Kalsoom Bibi v. Muhammad Siddique) where in similar circusmtances a learned judge of this Court granted decree of dissolution on the basis of Khula to the lady who had failed to secure the same from the two Courts below. The august Supreme Court upheld this view in Muhammad Siddique v. Mst.
11. Kalsoom Bibi and others (1984 SCMR 523).
12. Accordingly, I accept this writ petition declaring the impugned judgments of the two Courts below to be without lawful authority and of no legal effect. The petitioner's suit on the basis of Khula is decreed on the condition that she will not claim her dowry or maintenance from respondent No,3.
13. There is no order as to costs.