' Through this writ petition, Abdur Rehman Siddiqui seeks rescission of the decree dated 7-11-1993, delivered against him by Malik Muhammad Akram Awan, Judge, Family Court, Chichawatni. Mst.
Naseem Bibi alias Fauzia Bibi's suit for dissolution of marriage filed against Abdur Rehman on 16-9- 1992 was decreed and the counter case instituted on 18-10-1992 for restitution of conjugal rights by Abdur Rehman against Naseem alias Fauzia Bibi was dismissed.
2. I need not narrate the pleadings of the parties in the suits, for the same are fully reflected in the issues fixed for final determination by the learned Judge Family Court, the same being as below:---
(1) Whether attitude of the defendant remained habitually cruel towards the plaintiff during her Abadi?
(2) Whether the defendant has neglected to maintain the plaintiff for a period exceeding 2 years?
(3) Whether the plaintiff is entitled to Khula`, if so, on what terms and conditions?
(4) Whether the defendant is incapable to perform marital obligations, if so, its effect?
(5) Whether the defendant is entitled to get decree for restitution of conjugal rights in his favour?
(6) Relief.
3. The Family Court has discussed the evidence led by the parties and decided issues Nos. 1, 2, 4 and 5 against the lady. The only issue answered in her favour is No,3, the one relating to lady's entitlement to Khula` divorce. This resulted in dismissal of husband's suit for restitution of conjugal rights and success of wife's suit for dissolution of marriage.
4. Learned counsel for the writ petitioner has highlighted the inconsistency' inherent in the judgment, especially in the findings recorded under issues Nos.3 & 4. When it has not been possible for the wife to establish that her husband's treatment towards her has been cruel or that he has failed without sufficient cause to provide maintenance to her for a period exceeding two years, there was no justification for holding that she was entitled to separation, particularly when she had not succeeded in bringing home even her most forceful plea, the one relating, to sexual neglect on the part of her husband by reason of his impotency. The husband has brought on record a certificate dated 22-2-1993, issued by the Medical Officer, Tehsil Headquarters Hospital, Mian Channun, to the effect that he is physically and mentally and sexually fit. I have seen the certificate which is full of grammatical and spelling mistakes. The manner in which the doctor has arrived at the aforesaid conclusion, and the tests performed by him are not indicated, and the certificate seems to be quite vague and not entirely authentic. It also betrays lack of proficiency of the doctor.
5. Mst. Naseem also got her medically examined on 24-6-1993, but the lady doctor has given no opinion about the act of coitus having been performed with her or not, and has confined her finding to the girl being not pregnant and not having undergone any abortion. Other observations, namely, uterus being of normal size, being closed, there being no bleeding or any other complication, however, lead to an inference that she might not have been subjected, so far, to sexual intercourse.
6. Normally, a girl, unless she is herself 'fast' has gone adrift or has become bereft of usual female shyness, would hesitate to make such an insinuation (that of physical infirmity) against her husband, and would keep it a guarded secret, unless, of course, she is absolutely sure about husband's impotency being incurable or of eternal nature. Mst. Naseem is first cousin of Abdur Rehman and this marriage was performed in exchange of marriage between Naseem's brother and Abdur Rehman's sister, from which wedlock as many as six children have been born, as is stated by Naseem Bibi as P.W.1 herself. Her own marriage was performed about four years ago (2- 3/4 years before she made her statement in Court on 8-6-1993). She remained in the house of her husband for about a year and has been living apart from him over about three years last. She is putting up in her parental home, and the husband has not dared to accuse her of infidelity. Neither the girl is so pretty, nor has the young man that bad looks, and they are first cousins, as already said. There was no other cause for girl's aversion or repulsion against her husband and it seems certain that the only reason for the girl's disgust and her refusal to have reunion with her husband is his physical inability to perform his marital obligations. In open Court the girl and her brother have said that Abdur Rehman had approached their mother, his `mamani', with a request that he should be spared and not compelled to marry Mst. Naseem Bibi, as he would not be able to function as husband and establish marital relationship. It appears that he has become reactionary, on having been dragged in the Court, and he is insisting, much against facts, that he would be able to afford to his wife sexual satisfaction, similarly as he has been doing in the past.
About a month after institution of the suit for dissolution of marriage, he had filed suit for restitution of conjugal rights, in the manner of vindictiveness and reaction.
7. Mst. Naseem Bibi seems to be a simple and noble girl. Her father is Imam Masjid. In her pleadings, as also in evidence, she has emphatically averred and deposed that her husband suffers from impotency. She is supported by her witnesses, Iftikhar Hussain and Atta Muhammad. According to Atta Muhammad P.W.3, the defendant had acknowledged before a Panchayat' about his disability, and even Naseem Bibi's mother had made the witness aware of this fact. Abdur Rehman, defendant, appearing as D.W.1, has refuted the plaintiff's assertion, made in that behalf, maintaining that he is physically and sexually alright. His witness, Mushtaq Ahmad D.W.2 has also deposed to that effect, but has not elaborated as to how he is aware of Abdur Rehman's claim of being sexually fit. On cross-examination he has said that it is his guess. In the circumstances, and in the light of this evidence, I am inclined to differ with the finding of the learned trial Court under issue No,4. It A seems certain that the defendant is not capable of performing his marital functions.
I would reverse the finding, without the same having been assailed through cross-objections.
8. Naseem Bibi, as P.W.1, has said that in no event she is inclined to go back to the house of her husband for reunion. She has expressed readiness to give up her claim to maintenance for the past, in case her husband signifies his willingness to divorce her. Well, this is the consideration for her claim to Minh' divorce. Learned counsel for Abdur Rehman has drawn attention of the Court to the fact that the learned trial Judge has left the matter undecided, by observing that the plaintiff would be bound to return all the benefits, she had derived from her husband, without determining the nature and extent of the same. Here it may be mentioned that in his written statement, that Abdur Rehman filed in Nasim Bibi's suit for dissolution of marriage, he had laid no concrete claim to the return of benefits, in response to Nasim bibi's plea about her entitlement to Khula` divorce, embodied in para. 7(d) of the plaint. In his suit for restitution of conjugal rights, Abdur Rehman Siddiqui had, of course, averred that his wife Nasim Bibi had left the house on the pretext of participation in some marriage function, and had, while leaving his house, taken away with her golden ornaments weighing 5 tolas, 10 silken garments, and an amount of Rs,4,000 in cash. In reply to para. 5 of the plaint of the said suit, Naseem Bibi had said in her written statement that all the articles of dowry given to her by her parents were still lying in the house of her husband. In evidence, Mushtaq Ahmad, Abdur Rehman defendant's witness, had deposed that before a Panchayat it had been revealed that Naseem Bibi had taken away valuables with her, while leaving her husband, on 10-9-1992. Members of such `Panchayat' could very well be examined by the defendant to establish the aforesaid fact. His oral assertion, not substantially supported by his only witness, would not be enough to convince the Court that when his wife had gone from his house to her parental home, in complete state of'harmony and homogeniety, she was not supposed to have packed up, in an unusual manner, whole of her belongings and carried the same to the house of her parents. The defendant's plea and evidence on this count do not really inspire confidence, and I do not think that Abdur Rehman was that affluent and prosperous, so as to have stored in his house so much jewellery and cash etc. And would have allowed his wife to take away the whole of it, at the time of her departure from his house.
9. It is submitted that Khula' divorce cannot be pronounced merely on the asking of the wife and the Qazi has to satisfy himself about incompatibility of the temperament of the spouses, about total lack of equation between the two, and about impossibility of resumption of matrimonial ties.
Unless, on an objective analysis and appraisal of the entire evidentiary material, Qazi comes to the conclusion that the spouses will not be able to observe the limits laid down by God Almighty, if tagged into a hateful union, decree ought not be awarded readily and in an indulgent manner.
Reliance is placed on Lal Muhammad v. Gul Bibi PLD 1986 Quetta 185 and Muhammad Yasin v.
Razia Begum 1986 CLC 1996 (Lahore).
10. Learned counsel for the respondent repels it, relying on Sughran Begum v. A.D.J. And others 1992 CLC 1733 (Lahore) and maintaining that right of dissolution of marriage, on the basis of Khula` is an independent right and wife's failure to establish other grounds, invoked by her, would not D prejudice her right. Law enjoins upon the Family Court to determine such right independently and earnestly. In the instant case, it appears that the breach is irremediable and unbridgeable, and the Courts should not expect, much against facts, that the wife would agree to lead the rest of her life with her husband and make a happy home. It would be an inequitable, unfair and unkind act on the part of the Court, if the young girl is forced to resume living with her husband, for the sake of only giving him compan in his house, with no physical liaison between the couple and with no hope of begetting progeny, the purpose for which marriage is performed. The risk inherent in such a forced union, with sustained aversion of the wife for her husband must not be lost sight of, for she may ultimately go amiss, if compelled to lead the whole of her life with a person, who has no capability of performing physically as a husband. This being the situation, I would endorse the finding of the learned Family Judge, recorded under issue No,3. Judicial conscience of this Court is satisfied that the girl has earned an eminent entitlement to invoke the rule of 'Khula' for liquidation of this marital tie. She was awarded decree of dissolution of marriage, and the husband in his counter-case for restitution of conjugal rights was non-suited, not without justification, by the trial Court. The husband has not been able to make out any worthwhile justification for annulment of the decree. The writ petition having no force is hereby dismissed.