MIAN NAZIR AKHTAR, J.- Through this petition the petitioner has assailed the orders dated 29-4-1991 and 11-1-1992 passed by the Judge Family Court and the learned Addl. District Judge, Rawalpindi, respectively.
2. Mst. Ghazala Yasmin, petitioner was married to Muhammad Azad, respondent No. 3 on 26-2-1984 and out of the wedlock a son named Wasim was born on 25-12-1985. The spouses could not pull on together, whereupon the petitioner instituted a suit for dissolution of marriage on various grounds including Khula. Respondent No. 3 resisted the suit and also Hied a suit for restitution of conjugal rights. Both the suits were consolidated and ultimately the learned Judge Family Court dismissed the petitioner's suit but decreed that of respondent No. 3. The petitioner's appeals were dismissed by the learned Addl. District Judge, through a consolidated judgment dated 11-1-1992.
3. The petitioner's learned counsel strenuously urged that the failure to prove the grounds of habitual cruelty, non-maintenance and mis appropriation of the petitioner's ornaments by respondent No. 3 was not sufficient to disentitle the petitioner to claim Khula. He submitted that the spouses could no longer lead a harmonious life within the limits of Allah because the petitioner had developed innate hatred against her husband. He added that the mere fact that the spouses had a male child was no ground to force them to live in hateful union. In this connection he placed reliance on the case of Mukhtar Ahmad vs. Mst. Ume Kalsoom and another (PLD 1975 Lahore 805).
On the other hand the learned counsel for respondent No. 3 urged that there was no serious rift between the spouses and that they could amicably live together as husband and wife. He also added that the decree for restitution of conjugal rights was not challenged by the petitioner. He referred to the cases of Mst. Khurshid Bibi vs. Baboo Muhammad Amin (PLD 1967 SC 97) and Aali vs. Addl. District Judge-I, Quetta, etc. (NLR 1986 Civil 87).
4. There is considerable force in the argument of the petitioner's learned counsel that failure to prove the grounds of cruelty, non-maintenance and sale of ornaments etc. Was not sufficient to dis entitle the petitioner to claim Khula. This view finds support from the judgment in the case of Khurshid Ali vs. Mumtaz Begun (1980 CLC 1212). In matrimonial matters the parties can best judge as to whether they can live together amicably within the limits of Allah. A wife need not come out with logical objective and sufficient reasons regarding her claim for Khula; as held in the cases of Muhammad Yaqoob vs. Mst. Shagufta Begum and another (1981 CLC 143) and Abdur Rehman vs. Judge, Family Court, Gujranwala and another (1981 CLC 68). For grant of Khula, it is enough to show that a wife has developed fixed aversion against her husband. In the present case, the petitioner was married to respondent No. 3 in the year 1984 and at that time respondent No. 3 was employed in foreign country. The relations between the spouses became strained and the petitioner came back to the house of her parents come where in the year 1986 (as claimed by her). It appears that respondent No. 3 used to come to Pakistan every year on leave for about a month or so. Perhaps this was one factor which militated against development of proper understanding between the spouses. The petitioner firmly asserted that she could not possibly live with respondent No. 3 as his wife. She also denied the suggestion that she had filed the suit for dissolution of marriage at the instance of her parents and added that she herself wanted to obtain divorce. She admitted that she had taken away the articles of jewellery. These facts indicate that the petitioner had developed hatred against respondent No. 3 and had firmly made up her mind not to live with him as his wife.
True, in her statement before the Family Court she did not specifically say that she had developed hatred against respondent No. 3 but it can be safely inferred from a reading of her entire statement. It may be mentioned that reconciliation efforts before the trial Court proved to be ab ortive. In this Court, the spouses were given an opportunity of an exclusive meeting for about hour for a dialogue for compromise. However, after the meeting, the petitioner stated that there was no possibility of compromise with respondent No. 3. This fact is duly mentioned in the interim order dated 27-6-1992. Again before the final arguments on 8-7-1992, the parties were present in the Court and efforts were made to bring about reconciliation between them. This time, the petitioner stated in un-ambiguous terms that she deeply hated respondent No. 3 and was not prepared to live with him on any condition, whatsoever. It is evident that hatred between the spouses has subsisted during the last about six years of separation. For that reason, all efforts to bring about reconciliation between them have proved fruitless. The-courts below appear to have declined to dissolve marriage on the ground of Khula because they hoped that the parties would come to terms for the sake of their son. Ordinarily, if the rift or hatred is not deep-rooted, the spouses having a child settle their differences and arrive at a compromise. However, in the instant case, even the presence of a son could not persuade the parties to patch up their differences. This also indicates the depth of differences and hatred between them. In the case of Mukhtar Ahmad, relied upon by the petitioner's learned counsel it was held that even if issue of cruelty, nonmaintenance, desertion etc. Were found against the wife, she could still be granted decree for dissolution of marriage on the basis of Khula. The Court gave weight to the fact that the parties could not reconcile over a number of years till the conclusion of proceedings in the High Court. The relevant portion reads as under:- "In both these cases, the trial courts failed to bring about reconciliation. The parties did not reconcile during the pendency of appeals before the District Courts. They have not settled the differences even up to the decision of the writ petitions despite efforts at reconciliation in the High Court the entire period in each case having taken about five years. Thus even the hope expressed by the learned Family Judge in one of these cases, that the parties might reconcile 'in future; has, it is proved, not materialised during this entire period of continued estrangement and biterness between the parties. In the light of the above discussion it is concluded that it is not correct to say that in any of these cases the material before the learned appellate Court was not enough to grant decree for dissolution of marriage through Khula."
Hatred is an antinuous phenomenon and gives a fresh cause of action to a wife on each day.
Hence, the mere fact that a decree for restitution of conjugal rights was passed in favour of husband, at one stage, cannot stand in the way of the Court to dissolve marriage on the ground of Khula. The judgment in Khurshid Bibi's case relied upon by the respondent's learned counsel also lays down that a wife is entitled to Khula as of right if she satisfies the conscience of the Court that it would otherwise mean forcing her to a hateful union. In Aali's case it was held that Khula was not an unconditional right of a wife and that it could be granted upon complete satisfaction that there was such hatred, intense dislike and incurable aversion on the part of wife that it was not possible for spouses to live together and perform their marital obligations within the limits prescribed by Allah. Keeping, in view all the facts and circumstances of the present case, I am convinced that there is an irremediable rift between the spouses and that the petitioner has developed deep and incurable hatred against her husband and that the parties can no longer live a peaceful and harmonious life within the limits of Allah.
5. I, therefore, accept this petition, declare the impugned judgments and decrees of the courts below to be without lawful authority and of no legal effect and decree the petitioner's suit for dissolution of marriage on the ground of Khula. Since there was no material to show that the petitioner had derived any benefit from respondent No. 3, I need not go into the question of return of benefits to the husband by the petitioner. The parties are left to bear their own costs.