This order disposes of this petition and the connected Writ Petition No.15675 of 1993 since the parties and the subject-matter in both are the same.
2. The Judge Family Court, Narowal, dismissed the petitioner's suit for dissolution of marriage and decreed the suit for restitution of conjugal rights filed by respondent No.3 Muhammad Sultan, husband of the petitioner, vide order, dated 1-10-1989. The petitioner filed two separate appeals but her appeals were dismissed by the learned District Judge, Narowal, who upheld the decision of the Family Court vide judgment, dated 7-1-1993. The petitioner, who is aggrieved by both these decisions, has approached this Court with the prayer that the judgments of both the Courts below be declared to be without lawful authority and of no legal effect.
2. The facts as stated in the petition are that the petitioner was married to respondent No.3 on 3rd April 1982. After some time differences arose, respondent No.3 turned the petitioner out of his house and she went to live with her parents. On 12-9-1987 respondent No.3 instituted a suit for restitution of conjugal rights while petitioner filed a suit for dissolution of marriage.
3. The Judge Family Court heard both the suits together and framed four consolidated issues as under:---
(1) Whether the defendant misappropriated the dowry articles of the plaintiff? OPP
(2) Whether the defendant failed to provide maintenance of the plaintiff for a period of more than two years? OPP
(3) Whether the plaintiff is entitled for the Khula` divorce? If so, on what terms and conditions? OPP
(4) Whether the defendant is entitled for the decree for restitution of conjugal rights? If so, on what terms and conditions? OPD
4. The Judge Family Court decided the first three issues against the plaintiff and Issue No.4 was decided in favour of the defendant. On Issue No.3 the observations of the Court were that the sister of the defendant is married with the father of the plaintiff and they are living amicably in the house of the father of the plaintiff. The marriage is based on exchange and if the petitioner is divorced it will seriously affect the peaceful matrimonial life of the sister of defendant (respondent No.3) and in that event serious complications are likely to arise. It was further observed that the plaintiff absolutely failed to substantiate her contention that she was turned out of the house of the defendant after beating and that she had miserably failed to bring on the file cogent, convincing and substantial evidence in support of her claim for Khula` divorce. It was observed that the plaintiff was ready to hand over her minor son to the defendant which was considered exceptionable by the Judge, Family Court who surmised that the plaintiff wanted to marry some one else and therefore she wanted to get rid of the defendant/respondent and if she hated the defendant it was not common sense that she should be ready to hand over her minor son to him.
The learned Family Judge held that if Khula` was granted to the present petitioner it would adversely affect the marriage of the father of the petitioner and the sister of the defendant 'and that reconciliation could be arrived at between the parties through intervention of the notables and elders. Khula' divorce was refused in consequence, and respondent No.3 was granted decree for restitution of conjugal rights without any condition.
5. The learned appellate Court upheld the findings of the Judge Family Court on Issues Nos. 3 and
4. In regard to Issue No. 3, the learned appellate Court observed that it was incumbent upon the appellant to substantiate the allegations that she has developed a strong hatred against her husband and the evidence furnished by the appellant was deficient in respect of this essential element for the grant of divorce on the ground of Khula`. The appellant had not deposed that she had developed strong hatred rendering it impossible for her to live with him within the limits prescribed by God Almighty. Consequently, the findings of the Judge, Family Court on Issue No.4 were also upheld and the appeals of the petitioner were dismissed.
6. Learned counsel for the petitioner has argued that the marriage took place in 1982, the petitioner remained with her husband for about two/three years but he turned her out of his house more than eight years ago and the petitioner is living in her parents' house ever since. It is contended that the petitioner very strongly expressed her aversion against living with the respondent. Her statement is supported by the statements of Muhammad Akram (P.W.2) and Muhammad A.I (P.W.31 who both stated that reconciliation was not possible between the parties. It is in evidence and has been observed by the Judge Family Court that the petitioner stated that she was not willing to live with her husband and was willing to give up her dowry articles, maintenance and her minor son for grant of Khula. It is also argued that respondent No.3 has deserted the petitioner since 1986 and since then litigation between the parties has been continued and thus there is no possibility of their reunion. Reliance is placed on Ahmad Nadeem v. Assia Bibi PLD 1993 Lah. 249 in support of his contention that when there is prolonged litigation between the parties and there is no likelihood of reconciliation, Khula` is to be granted. He has further argued that during the proceedings before the Judge, Family Court the respondent had made attacks upon the character of the petitioner and consequently the petitioner had developed hatred for the respondent and if there was any likelihood for reconciliation that was eliminated. That a period of seven years had passed since the institution of the suit for Khula` and no reconciliation had been effected, which itself supports the contention of the petitioner that reconciliation is not possible. He has also relied on Khurshid Bibi v.
Muhammad Amin PLD 1967 SC 97 in support of his assertion that Khula` is to be granted to the wife once she has stated that it is not possible to live with her husband and reconciliation cannot be effected. Learned counsel further argues that the consideration before the Judge Family Court that marriage of the sister of respondent No.3 to father of the petitioner would be adversely effected if Khula` was granted, is merely a surmise since the parties in that marriage are living happily and had not been affected by the litigation between the parties.
7. Learned counsel for respondent No.3 has seriously opposed this petition on the ground that both the Courts below have given decision against the petitioner. Reliance is placed on Muhammad Yasin v. Razia Begum 1986 CLC 1996. He has also argued that Khula` cannot be allowed on the mere asking of a wife. She has to provide cogent reasons and substantial grounds for grant of Khula` and, it must be shown that she has developed hatred and cannot live with her husband. He has also argued that since the first three issues framed by the Judge, Family Court were decided against the petitioner, she is not entitled to Khula` and restitution of conjugal rights as decreed by the Family Court is not to be disturbed. That vested rights have been created in favour of the respondent by the decree of the Judge, Family Court in his favour, which has been upheld by the District Judge in appeal. In these circumstances, the petitioner is not entitled to get Khula.
8. I have heard the arguments of the learned counsel for the parties. The petitioner is before me in person. She has vehemently stated that she has developed feelings of very strong hatred towards her husband and she is not willing to live with him under any circumstances. She alleges that he has mistreated her and in consideration of Khula` she would forego her claim for return of dowry articles and maintenance.
9. A bare perusal of the record shows that the Judge, Family Court did not grant her divorce on the basis of Khula` for the main reason that there is a Watta Satta marriage. The sister of the husband of the petitioner is married to the father of the petitioner and they are Bying happily together.
Learned Judge Family Court was of the view that serious complications would arise and that reconciliation should be arranged between the parties. The learned appellate Court also relied on the same reasons and dismissed the petitioner's appeals. I find that the consideration which weighed with both the Courts below in dismissing the petitioner's suit for Khula` was the likely adverse effect on Watta Satta marriage of petitioner's fattier to sister of respondent No.3. This consideration is irrelevant to the merits of the present case, since in considering grant of Khula` it is the relationship between the parties to the suit which is relevant for the purpose of adjudication.
Admittedly, the parties had not been living together for a period of about three years before the institution of the suit for dissolution of marriage. A period of more than five years has passed during pendency of litigation. If there were any possibility of reconciliation, the same would have been affected during this long period. It is a matter of serious concern that the parties should be subjected to such protracted period of waiting for the outcome of a family matter when there are repeated directions of the superior Courts that family matters should be decided expeditiously. The marriage of Watta Satta is not likely to be affected by the outcome of the proceedings between the present parties since petitioner's father and sister of respondent No.3 have been living happily together throughout the period of litigation. The observation of both the Courts below that cogent reasons have not been put forward by the petitioner in support of her application for Khula; are based on misreading of evidence. Petitioner has vehemently stated that she cannot live together with respondent No.3 within the limits prescribed by God Almighty and it is already on record that they have been living separately for the last eight years. Both the Courts below have ignored the settled law on the subject of Khula` while dismissing the petitioner's suit and appeal. The basis and foundation of Khula` is verse 2:229 of the Holy Qur'an which is translated as:--- "Divorce must be pronounced twice; then either retain them in honour or release them with kindness. And it is not lawful for you that you take back from women anything out of what you have given them unless they both fear that they cannot observe the limits imposed by Allah. But if you fear that they cannot keep within the limits prescribed by Allah, then it is no sin for either of them in what she ives up to be free (i.e. Ransoms herself. These are the limits imposed by Allah. Transgress them not. For whoso transgress Allah's limits, it is they who are the wrongdoers."
The earliest precedent in the matter of Khula` is the Sunnah of the Holy Prophet (peace be upon him). The Holy Prophet (p.b.u.h.) held in the case of Harairah that if the woman is not willing to live with her husband since she has developed strong aversion towards him, she is entitled to be released from the I marriage tie provided that she returns any benefit she has received from her husband in consideration of the marriage. This precedent of Holy Prophet (peace be upon him) has been followed in the case titled Khurshid Bibi v. Muhammad Amin cited at PLD 1967 SC 97.
10. In the present case, the petitioner is willing to forego her dowry' articles as well as maintenance and Haq Mehr, if any, in exchange for grant of Khula`. In such circumstances, it is neither just nor equitable to keep the petitioner bound by the marriage, which is abominated by her. I respectfully follow the precedents cited above and I feel no hesitation in declaring that the judgments of both the Courts below are without lawful authority and of no legal effect. Consequently, the decree for restitution of conjugal rights no longer holds the field. I further declare that the petitioner is entitled to divorce on the basis of Khula`.
11. Both the petitions (W.Ps. Nos.15674 and 15675 of 1993) are accepted and the petitioner is granted divorce on the basis of Khula` There will be no order as to costs.