This Constitutional petition has been filed to challenge the legality of the judgment, dated 6-10- 1992 whereby the petitioner's suit for dissolution of marriage was dismissed by the Family Court and the judgment, dated 14-7-1993 whereby her appeal was dismissed by the learned District Judge, Sialkot.
2. Briefly stated the facts of the case are that Mst. Nasreen Bibi, the petitioner was married to Ata Muhammad respondent No. l somewhere in the year 1987. The spouses could not pull on well together and separated from each other several times but reconciled on the intervention of the elders of the family. Now the petitioner is living separately from her husband for the last about, for years. In her suit for dissolution of marriage the petitioner asserted that she was proposed to be married to Nawaz real brother of Atta Muhammad respondent No.1 but fraudulently her marriage was performed with respondent No.1. She further stated that respondent No.1 had been treating her with habitual cruelty. She further stated that she had developed profound hatred against respondent No.1 and could not live with him within the limits of Allah. In his written statement the respondent merely denied the contents of each para without giving any specific reply to the various factual averments of the plaint.
3. The petitioner's learned counsel urged that the petitioner was entitled to dissolution of marriage on the ground of Khula` notwithstanding the fact that she had failed to prove issue No.1 relating to habitual cruelty. He further submitted that the wife was not supposed to give objective reasons to justify her claim for Khula. She was entitled to get Khula` on showing that she had developed fixed aversion against her husband and could not live with him amicably within the limits of Allah. He added that the spouses are living separately for the last about for years and have not reconciled.
This is indicative of the gulf between them and the fixed aversion on the part of the petitioner against her husband. In this connection he places reliance on the following judgments:--- Muhammad Yamin v. Hajran Bibi 1987 CLC 653; Bashiran Bibi alias Bushra v. Addl. District Judge PLD 1987 Lah. 376.
4. On the other hand, the respondent's learned counsel strenuously urged that the spouses could amicably live together as husband and wife as they had been blessed with a son. He further submitted that the mere desire of the wife to claim Khula` was not enough for dissolving her marriage. In this connection he places reliance on the following judgments:--- Muhammad Yasin v. Mst. Razia Begum and another 1986 CLC 1996; Aali v. Addl. District Judge, I, Quetta and another 1986 CLC 27; Mst. Munawar Bibi v. Mehr Muhammad Nawaz Khan, Addl. District Judge, Lahore etc. 1982 CLC 1318; Muhammad Abbasi v. Mst. Samia Abbasi and others 1992 CLC 937,
5. After hearing learned counsel for the parties, I find that the petitioner had clearly made out her claim for dissolution of marriage on the ground of Khula` and that the Courts below ignored material evidence and illegally dismissed the petitioner's suit and the appeal. While appearing as P.W.3 in the trial Court, the petitioner had stated that she was proposed to be married to Nawaz, real brother of Atta Muhammad, respondent No.1 but on the day of marriage respondent No.1 was brought as a bridegroom. She further stated that she lived with respondent No.1 for a total period of about 3 years with intervals and that they often used to quarrel. The above assertions were not challenged by respondent No.1 in cross-examination. The petitioner also stated that she had developed profound hatred against respondent No.1 and that she could not pull on with him on any condition whatsoever. Ata Muhammad respondent No.1 appeared as D.W.3 and stated that he had been treating the petitioner nicely and added that he married the petitioner by way of `Wata, Satta' and had not committed any fraud. He denied the suggestion in cross-examination that his brother Nawaz was shown (to the petitioner's family) before marriage. The trial Court appears to have refused Khula` to the petitioner on the extraneous consideration that Watta marriage of the petitioner's brother with sister of Ata Muhammad respondent No.1 would be adversely affected if Khula` was granted to the petitioner. The consideration of Watta marriage was not relevant as held in the case of Mst. Khurshid Bibi v. Dildar and 2 others 1983 CLC 3309. The Court was supposed to decide the petitioner's claim of Khula` on the basis of the material brought on the record. The appellate Court was also unduly influenced by the fact that the spouses had a son and could amicably pull on together as husband and wife. The Court held, "had the relations of the parties been strained or they could not live together, then she could not have given birth to a child". The finding apart from being conjectural appears to be absurd. The evidence on the record clearly shows that the parties have been separating repeatedly and then reconciling. The petitioner had been living with respondent No.1 as his wife and no wonder that she had given birth to a child. The appellate Court did not care to go through the petitioner's statement carefully and altogether ignored her assertion that she had developed hatred against respondent No.1. Instead, the appellate Court gave weight to the denial of respondent No.1 regarding hatred of the petitioner against him. The appellate Court further held that the petitioner had failed to give any reason for her aversion against respondent No.1. It is well established that while claiming Khula` a wife is not supposed to come out with logical, objective, and sufficient reasons for claiming Khula`. This view finds support from judgments in the cases of Abdur Rehman v. Judge Family Court 1981 CLC 68; Khurshid Ali v. Mumtaz Begum 1980 CLC 1212 and Muhammad Yaqoob v. Mst. Shagufta Begum and another 1981 CLC 143. True, mere desire of the wife to break the marital bond, per se is not sufficient to entitle her to claim Khula'.. However, if the Court finds that she has actually developed hatred against her husband, for whatever reason, and that there was no possibility for the spouses to live together amicably within the limits of Allah, then the wife is entitled to dissolution of marriage on the ground of Khula as held in the case of Mst. Balqis Fatima v. Najam-ul-Ikram Qureshi PLD 1959 Lah. 566 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97. In case fixed aversion is proved, then wife is entitled to grant of Khula' as of right as held in the case of Muhammad Akram v. Mst. Yasmin and another 1983 CLC 3098. In the present case, the spouses were not able to pull on together amicably right from the beginning. They separated often. They were living separately for the last more than 4 years and could not reconcile. This is indicative of the fact that the rift between them is irremediable. The petitioner refused to live with respondent No.1 in the pretrial proceedings before the Family Court as well. These facts lend support to her claim that she had developed profound hatred against respondent No.1. Despite the presence of a son and possible adverse effect on the 'Watta marriage' of the petitioner's brother with the sister of respondent No.1, the petitioner has opted to claim dissolution of her marriage. These facts strengthen the petitioner's claim of aversion against her husband. The judgments relied upon by learned counsel for respondent No.1, proceed on their own distinguishable facts and need no elaborate discussion.
Suffice it to say that in the facts and circumstances of the present case the petitioner's claim for dissolution of marriage on the ground of Khula' is clearly made out.
6. For the foregoing discussion, this writ petition is allowed, the impugned judgments and decrees of the Courts below are declared to be without lawful authority and of no legal effect and the petitioner's suit for, dissolution of marriage on the ground of Khula' is decreed. Since, (he petitioner was not shown to have derived any benefit from her husband during the subsistence of marriage, the question of return of benefits to respondent No.1 does not arise. The parties are left to bear their won costs.