ORDER RAJA MUHAMMAD KHURSH1D J. - This Constitutional Petition s instituted by the petitioner/defendant to challenge order dated 21.11.1996 passed by Mirza Razzamatazz, learned Judge Family Court, Gujrat whereby the suit for dissolution of marriage filed by Mst. Sajida Bibi respondent/plaintiff was decreed and the counter suit for restitution of conjugal rights filed by the petitioner was dismissed.
2. The brief facts are that parties were married on 29.4.1991. Soon after the marriage, the respondent/Mst. Sajida Bibi (wife) discovered that her husband i.e. Mahmood Hussain petitioner was alcoholic and used to mix up with persons of had reputation. She asked the petitioner to deist from immoral activities upon which he got infuriated and stalled maltreating her. From this unhappy marital union three children were born but all of them did during their infancy. The respondent/plaintiff fell ill and got anaemic, but was not got treated by the petitioner. Ultimately she was turned out of the house by the petitioner in 3 clothes. She went over to the house of her brother and started living there. She filed a suit for dissolution of marriage against the petitioner in which she contended that she was treated with cruelty; that the petitioner was a man of bad character; that he misappropriated her ornaments and garments. She prayed for the dissolution of marriage on the basis of khula with the plea that the relation between the spouses had become so bad that it was not possible to observe the limits of God.
3. The petitioner also instituted a suit for restitution of conjugal rights on the ground that the respondent/wife had deserted him without any just cause and that he was prepared to take her back in his house. In this connection it was contended that respondent/plaintiff was willing to live with him as his wife, hut her parents being greedy were not allowing her to do so. The suit for restitution of conjugal lights was resisted by the respondent/plaintiff on the ground that it was a counter blast to the suit for dissolution of marriage; that the petitioner/defendant was never serious os- keen to take respondent/plaintiff to his house as His wife and to discharge marital Obligations according to Sharia.
4. The learned trial Judge consolidated both the suits and framed common issues to settle the controversial points between the parties. The learned trial Judge after taking into account the evidence brought. On record came to the conclusion that the petitioner/defendant treated the plaintiff with habitual cruelty by subjecting her to mental torture which was considered to he worst than physical beating. The learned Family Judge also came to the conclusion that the behaviour of the petitioner defendant towards the respondent / plaintiff was not proper which rendered the life of the latter as miserable. The learned Family Judge ultimately concluded that it was not possible for the spouses to live together according to the limits of God. The marriage was. Therefore, dissolved by invoking the rule of khula and also because of the torture to which the respondent/plaintiff was subjected by the petitioner.
5. The learned Counsel for the petitioner assailed the judgment of the learned Trial Court on the ground that there was mis-reading and non- reading of evidence; that the respondent/plaintiff failed to prove the issue regarding mis-appropriation of ornament and garments. It was, therefore, alleged that respondent that she would not like to live with the petitioner at any cost. This statement of the plaintiff/respondent clearly speaks of her mind that she had developed hatred against her husband to whom she had despised from the core of her heart. The argument of the learned counsel cannot be accepted that the petitioner should not be allowed dissolution of marriage on the ground of khula only because she refused to live with her husband. In the instant case, there is genuine ground for refusal on the part of the wife. She was led to a situation on account of cruelty on the part, of the petitioner/husband that she had started hating and despising her husband i.e. The petitioner. In such a situation, it can to be safely inferred that spouses could not live an amicable and harmonious life nor they would be in a position to observe the limits of God. It is usually noticed that spouses who unite in the wedlock of marriage of free will, affection and by choice, their relations as such may strain at any stage of marriage sometime for genuine reason and sometime for entertaining mis-conceived apprehension or ill- founded suspicions.
Ordinarily relations of spouses hinge upon mutual behaviour towards each other. As long as good behaviour is reciprocated from both sides, the marriage continues to be affectionately blended and mutually respected. In such a situation there is seldom a reason for suspicion or inhibition between the parties. Thus the harmonious life may turn into disharmony in a moment for breach of one of the essentials to maintain happy life. It is true that the marriage should not be dissolved on every passing whim or un-sustained fear or suspicion of the part of the wife, but if there are circumstances leading to a conclusion that it will not be possible for the parties to live in harmony in accordance with the Injunctions of Islam, it is proper to take the bitter decision of dissolving the marriage. In the instant case the respondent/plaintiff stated that she had danger to her life at the hands of the petitioner/defendant, which plea is also sustained from the evidence brought on record because she was subjected to mental agony due to improper behaviour of the petitioner. In such a situation, the best solution is to invoke the rule of khula, which has been rightly invoked by the learned trial Court in this case.
7. In view of my above discussion, I find no legal or factual defect in the impugned judgment which does not call for interference on the Constitutional jurisdiction of this Court. This writ petition is accordingly- dismissed in limine