' Through this Constitutional petition, Mst. Huma Hafeez, petitioner, who is wife of Shaukat Javed respondent has challenged the judgment and decree dated 14-3-1991 passed by Judge Family Court whereby her suit seeking dissolution of marriage was dismissed and suit filed by the respondent for restitution of conjugal rights was decreed and the judgment and decree dated 18- 9-1991 whereby the appeal filed by her against the judgments and decrees referred to above had been dismissed.
2. Facts of the case out of which this writ petition has arisen are that the parties were married on 22-12-1986. The petitioner filed a suit seeking dissolution of marriage on the ground of Khula` in the Court of Judge Family Court, Rawalpindi. She also alleged that the respondent is treating her with habitual cruelty and has failed to pay maintenance and has also deprived of her belongings. This suit was contested by the respondent, who also filed a suit seeking restitution of conjugal rights. On the basis of pleadings of the parties, learned Judge Family Court settled various issues and vide judgment and decree dated 14-3-1991 dismissed the suit filed by the petitioner and decreed the one filed by the respondent. Judgments and decree referred to above were challenged by the petitioner in appeal which has been dismissed by the learned Additional District Judge, Rawalpindi vide judgment and decree dated 18-9-1991. These judgments and decree have been challenged in this Constitutional petition.
3. Hafiz S.A. Rehman, learned counsel appearing for the petitioner has argued that the petitioner has acquired an affixed aversion towards the respondent and there is absolutely no possibility of living the petitioner with the respondent as his wife. Learned counsel contended that even if other grounds alleged in the plaint are not proved, a decree for dissolution of marriage can be granted as it stands established that the parties cannot live together as husband and wife within the limits laid down by the God Almighty. Learned counsel has further contended that failure of the petitioner to prove any of the issues in this case on technical grounds would not necessarily mean that she has failed to prove the circumstances which would entitle her to decree for dissolution of marriage on the principles of Khula`. According to the learned counsel, the petitioner is not at all willing to live with her husband as his wife and all the efforts made for the purpose of settlement of the dispute between the parties have failed. The petitioner has vehemently contested the suit for dissolution of marriage up to this Court and therefore, no hope is left for rapprochement between the parties.
Hence the two judgments rendered by the Courts below are without a lawful authority.
' Mr. Muhammad Munir Peracha, learned Advocate appearing for the respondent, on the last date of hearing had stated that the respondent is making an effort to settle the dispute with the petitioner hence he sought some time for making the effort. Hence the main writ petition was admitted to regular hearing and was fixed for today. Learned counsel for the respondent has been asked as to whether the efforts for arriving at a compromise with the petitioner have succeeded or not? The learned counsel is also not in a position to controvert the legal proposition that a decree for dissolution of marriage on the ground of Khula` can be granted in favour of a wife who is unwilling to live with her husband as his wife and has acquired affixed aversion, even if the other grounds taken up in the suit are not proved by the evidence. Learned counsel has, however, argued that in case this writ petition is accepted it is not a fit case for grant of dissolution of marriage on the principle of Khula` and at the most it may be a case of remand to the trial Court, inasmuch as both the Courts below have refused to dissolve the marriage on the ground of Khula.'
4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. The parties are living separately since long. The petitioner has made a categorical statement in the Court that there is absolutely no possibility of her living a happy life with the respondent. She has fully explained that the treatment of the respondent has not been proper and in fact he was previously married which fact had not been disclosed at the time of marriage. According to the petitioner, misrepresentation was practised upon her even with regard to his business and after marriage he went to Saudi Arabia, but did not send maintenance allowance to her. She stated that there is no possibility of her living with the respondent as his wife.
She stated that one daughter was born out of the wedlock, who has died. As against the above evidence, the respondent has himself appeared as D.W.1 and has produced Abdul Qadir as D.W.2.
He has admitted that he went out of the country in March 1988. However, he has denied that he was previously a married person. He denied his signatures on the Nikahnama Mark-I. He has admitted that daughter of the parties had died. He has also admitted that during his absence, the petitioner has been living in the house of her parents. He denied the petitioner having been cruelly treated..
D.W.2 has stated that the efforts were made for the settlement of the dispute between the parties but did not succeed. However, according to him, there was no quarrel between the parties.
5. Above resume of the evidence produced in the cdse clearly shows that the parties did not have any living issue. They are admittedly living separately for the last few yeaRs, The petitioner has come up to the level of High Court to seek decree for dissolution of marriage. The factum of previous Nikah of the respondent although denied by him but the fact remains that there is a Nikahnama, which prima facie shows that he was previously married. The very existence of the document can create a genuine doubt in the mind of the wife, inasmuch as, in our society, wife will not like the name of her `Sautan' even written on the wall. The fact that the respondent has been living outside Pakistan and during the interregnum the petitioner has been living with his parents also corroborates her version that she was not living a happy life, keeping in view the general trend in our society that the wives are not properly treated by the parents in the absence of husband. In the case in hand, the petitioner has made a categorical statement that treatment of parents of the respondent was cruel. None of the parents of the respondent has appeared as witness to rebut this statement. Statement of respondent No,1 as well as the statement of D.W.2 is also not of much value, inasmuch as the major portion thereof is based upon hearsay. Statement of the petitioner is the only statement about which it cannot be said that it is based upon hearsay. In the circumstances of this case, she is the best person to depose the treatment of her husband as well as the parents of her husband. Consequently, even from the evidence it stands established that there was genuine reason on the basis whereof the petitioner acquired an affixed aversion towards her husband and therefore, if she had deposed likewise, there is nothing unnatural thereabout. It has been held in case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 7) that wife who has acquired affixed aversion against her husband is entitled to decree for Khula` and an unhappy union should not be forced upon a wife who cannot live with her husband. In the case referred to above, Hon'ble Supreme Court has held that the right of divorce on the principle of Khula` given to the wife is equal to the right of Talaq given to the husband with the only difference that the husband can himself pronounce Talaq whereas the wife is to satisfy the "Qazi" to get a decree for dissolution of marriage on the ground of Khula`.
' In view of the above, and, from the evidence and circumstances of this case, it is a fit case where the petitioner is entitled to grant of a decree for dissolution of marriage on the ground of Khula`.
The two learned Courts below have illegally held otherwise. Hence the findings recorded by the two Courts below on the issue of Khula` are reversed and it is held that the petitioner is entitled to a decree for dissolution of marriage on the principles of Khula`. Resultantly, the judgments and decree passed by the two Courts below are declared to be illegal, without lawful authority and are set aside and the suit for dissolution of marriage filed by the petitioner is decreed and a decree for dissolution of marriag on the basis of Khula` is granted in her favour, and the suit for restitution of conjugal rights filed by the respondent is dismissed. The parties shall bear their own costs.