JUDGMENT MALIK MUHAMMAD QAYYUM, J. - Mst. Razia Begum, petitioner 1 herein, was married to Muhammad Hussain, respondent No. 3 in the year- 1990. After about 1 year of her marriage, she filed a suit for dissolution of marriage against respondent No. 3 on various grounds inter alia, habitual cruelty; mis-appropriation of ornaments and property, bad character and khula. The suit was contested by the respondent. The Family Court framed the following issues arising out of the pleadings of the parties:
(1) Whether the defendant treated the plaintiff with habitual cruelty?OPP
(2) Whether the defendant has misappropriated the ornaments of the plaintiff? OPP
(3) Whet her the defendant is a man of ill-repute? OPP
(4) Whether the plaintiff has developed intensive hatred for the defendant and there is no possibility of living together of the spouses within the limits prescribed by "Almighty Allah" and the plaintiff is entitled to a decree for dissolution of marriage? OPP
(5) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(6) Whether the plaintiff is estopped to file this suit by her on. Word and conduct? OPD
(7) Whether the defendant is entitled to special costs u/S. 35-A of CPC?OPD .
(8) Relief.
2. In support of her case, the petitioner apart from appearing as her on. Witness as P.W. 1 examined Nazir Ahmad, as P.W. 2 and Muhammad Aslam as P.W.3. In rebuttal the respondent produced his two brothers Khadim Hussain D.W. 1 and Muhammad Din, D.W.
2. All the issues were found by the Family Court against the petitioner with the result that her suit was dismissed on 2.6.1992.
Aggrieved, the petitioner went in appeal where she sought dissolution of marriage only on the ground of Khula but the appeal was dismissed by the District Judge, Jhang on 10.10.1992. Hence this petition.
3. The learned counsel for the petitioner has contended that while dismissing the suit of the respondent, the Courts below have acted against, the law declared by the Superior Courts of Pakistan particularly in the case of Dr. Akhlaq Ahmad Vs. Mst. Kishwar Sultana and others (PLD 1983 S.C. 169) wherein it was ruled that if from the circumstances of the case, it becomes clear that it was not possible for the parties to live as husband and wife within the limits prescribed by the Almighty Allah, the marriage must be dissolved.
4. The learned counsel for respondent No. 3 has, on the other hand, defended the impugned judgments and decrees.
5; It is unfortunate that certain important features of the case which are patent on the face of the record have not received consideration at the hands of the Courts below. These were that, the suit was filed after about 2 year of the marriage: that there was no issue from it; that the respondent is residing at Kuwait and it is only off and on that he visits Pakistan while the plaintiff lives in Pakistan and most importantly that the respondent has failed to appear as his on. Witness to support his case nor did he examine any one as his attorney.
6. It is also to be seen that despite best efforts made by the Courts below the petitioner remained adamant in her refusal to live with respondent. No. 3. This Court tried to persuade her to live with her husband but she has declined to do so stating that it was not possible for her to do so. In these circumstances, the law declared by the Supreme Court of Pakistan in Dr. Akhlaq Ahmad Vs. Mst.
Kishwar Sultana (PLD 1983 S.C. 169) clearly becomes attracted. The petitioner while appearing as her on. Witness had apart from levelling allegations against respondent No. 3 denied the suggestion that, it was possible to bring about reconciliation between the spouses. She was supported in this behalf by Nazir Ahmad, P.W.2, as also by Muhammad Aslam, P.W.3. Another fact which is worthy of notice is that the real sister of the petitioner was married to Muhammad Yousuf, the brother of respondent No. 3, who has since been divorced by him . The Courts below have failed to appreciate that in these circumstances refusal to grant Khula would tantamount for forcing the parties to live in a hateful union which would be contrary to all norms of justice.
In view of what has been stated above, this petition is allowed, the impugned judgments and decrees are declared to he without lawful authority and of no legal effect and the suit filed by the petitioner against respondent No. 3 is decreed as prayed for. No order as to costs.