' This Constitution petition has been filed to call in question the judgments and decrees, dated 840- 1991 and 12-12-1991 passed by the learned Judge, Family Court and the learned Additional District Judge, respectively. Mst. Zarina, petitioner was married (somewhere in the year 1980) to Muhammad Bakhsh respondent No,3. They lived together for 4/5 years but remained issueless.
Their relations became strained and respondent No,3 allegedly gave beating to the petitioner and turned her out of the house whereupon she filed a suit for dissolution of marriage on 28-5-1990, inter alia, on the ground of Khula`. Respondent No,3 also filed suit for restitution of conjugal rights on 10-6-1990. Both the suits were consolidated and after recording evidence of the parties the petitioner's suit was dismissed while the respondent's suit was decreed by the Judge Family Court vide judgment and decree dated 8-10-1991. The petitioner filed two appeals which were dismissed by the appellate Court vide judgment and decree. dated 12-12-1991. It may be mentioned that the petitioner had earlier filed another suit for dissolution of marriage in 1987 and the respondent filed a suit for restitution of conjugal rights. Both the suits were disposed of in 1988 on the basis of a compromise between the parties. Thereafter, the petitioner lived with respondent No,3 for some time.
2. The petitioner's learned counsel contends that the petitioner had developed fixed aversion against respondent No,3 and was entitled to dissolution of marriage on the ground of Khu!a`. He further submits that the Courts below misread the evidence on the record and drew wrong conclusions therefrom. In support of his contentions he places reliance on (1) Muhammad Rafiq v.
Mst. Surayya Bibi and others 1990 ALD 549, Mst. Rashidan Bibi v. Bashir Ahmad and others PLD 1983 Lah. 549 and Shahid Javed v. Saba Jabeen 1991 CLC 805. On the other hand, respondent's learned counsel submits that the solitary statement of Mst. Zarina without corroboration is not enough for grant of Khula`. he adds that the petitioner had failed to substantiate other grounds relating to cruelty and levelling of false allegations of adultry by respondent No,3. Lastly he submits that the Courts below have rightly held that the spouses can still live together amicably within the limits of Allah.
3. There is considerable force in the arguments raised by the petitioner's learned counsel. The petitioner appears to have developed fixed aversion against respondent No,3 which can be fairly gathered from her firm assertion before the trial Court that she might be killed but would not agree to live with respondent No,3. The petitioner had sought dissolution of marriage even earlier but then entered into a compromise with her husband and started living with him as his wife. However, again separation took place between the spouses which led to the institution of the present suit.
The mere fact that the petitioner had failed to substantiate other issues relating to cruelty and levelling of false allegation of adultry against her by respondent No,3 is not sufficient to disentitle her to grant of Khula`. The all important thing to be ascertained is whether there is an irremediable rift between the spouses due to fixed aversion on the part of the wife against her husband. In the present case the petitioner stated before the Family Court (in the examination-in-chief as well as in the cross-examination) that she might be killed but would not be prepared to live with respondent No,3 as his wife. This assertion speaks volumes of the innate hatred and fixed aversion on the part of the petitioner against her husband. For claiming Khula` a wife need not come out with logical, objective and sufficient reasons as held in the case of Muhammad Yaqoob v. Shagufta Begum 1981 CLC 143. She is not required to give reasons amenable to an objective test for grant of Khula` as held in the case of Abdur Rahman v. Judge, Family Court 1981 CLC 1968. Even if she fails to prove other grounds on which dissolution of marriage is claimed, she can still press her claim on the ground of Khula`. This view finds support from the cases of Khurshid Ali v. Mumtaz Begum 1980 CLC 1212, Muhammad Rafiq v. Surraya Bibi 1990 ALD 549 and Shahid Javed v. Saba Jabeen 1991 CLC
805. In the case of Mst. Rashidan Bibi, relied upon by the petitioner's learned counsel it was held:--- "If a woman states that she would not live with her husband even if she was shot with a bullet and thereafter the reconciliation attempts by the Judge Family Court fail, in my view it is sufficient to satisfy the conscience of the Judge, Family Court that the two parties could certainly not live together within the limits prescribed by God and consequently in such circumstances the woman is entitled to get the marriage dissolved on the basis of Khula`."
' I fully subscribe to and respectfully follow the view expressed in the above-quoted judgment.
4. The petitioner is living separately from her husband and no reconciliation could take place during the proceedings before the Family Court or thereafter during the pendency of the present writ petition. This further strengthens the view that there exists an irremediable rift between the spouses emanating from fixed aversion on the part of the petitioner against her husband. The parties cannot live together amicably as husband and wife within the limits of Allah. Hence the petitioner is entitled to a decree for dissolution of marriage on the ground of Khula`. There is no evidence to show that the petitioner had derived some benefits from respondent No,3 during her stay with him. The claim of respondent No,3 that while leaving his house the petitioner had taken away some ornaments, cash and clothes, even if true, cannot be equated with benefits received by the petitioner from the husband. Hence, no order need be passed directing the petitioner to return the said articles to respondent No,3.
5. For the foregoing discussion, I accept this petition and 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`. The parties are left to bear their own costs.