' The petitioner filed a suit for dissolution of marriage against the respondent, amongst others, on the ground of `Khula" as well. The pleadings of the parties led to the framing of following issues:--
(1) Whether the defendant has treated the plaintiff with habitual cruelty? OPP
(2) Whether the defendant used to commit unnatural sexual intercourse, if so, its effect? OPP
(3) Whether a false charge of adultery was levelled against the plaintiff? OPP
(4) Whether the plaintiff is entitled to 'Khula", if so, on what terms and conditions? OPP
(5) Relief.
2. The Judge Family Court, Liaqat Pur, dismissed the petitioner's suit with no order as to costs vide judgment and decree dated 20-12-1990. The Additional District Judge, Rahimyarkhan, vide judgment and decree dated 4-3-1992, dismissed the petitioner's appeal with costs.
3. Being aggrieved thereby, the petitioner has invoked the Constitutional jurisdiction of this Court for setting aside the judgments and decrees of the Courts below and it is also prayed that the suit of the petitioner for dissolution of marriage on the basis of 'Khula" may be decreed in her favour.
4. I have heard the learned counsel for the parties at length and have gone through the pleadings of the parties and also the statements of the witnesses which are available on the record of this petition.
5. In para. 5 of the plaint, the petitioner has stated that due to the circumstances narrated in the preceding paragraphs, her life has become a constant torture and she has developed a great hatred, against the defendant/respondent and that she cannot live with the defendant/respondent within the limits set by Almighty Allah. In her statement as P.W. 1, in examination-in-chief, the petitioner/plaintiff stated that the respondent was already married to someone else before his marriage to the petitioner, used to commit sodomy with the petitioner, used to lock her up in the house and she was got recovered by the parents of the petitioner through the issuance of warrants under section 100, Cr.P.C., respondent also used to level allegations of adultery against the petitioner, he has misappropriated the dowry articles and now the parties cannot live as husband and wife and in the cross-examination, she categorically stated that it is wrong to suggest that the parties can live together as husband and wife.
6. The trial Court while dismissing the petitioner's suit decided Issue No,4 in regard to `Khula" also against the plaintiff/petitioner on the ground that she had failed to mention the terms and conditions of `Khula" in the plaint and that the defendant had produced evidence which reveals that there is a possibility of happy matrimonial life between the spouses and the first appellate Court dismissed the petitioner's appeal on the ground that she has not been able to prove the allegation of sodomy against the respondent and also failed to prove the charge of cruelty and as such, she is not entitled to the grant of decree of dissolution of marriage on the basis of `Khula".
7. It is argued on behalf of the petitioner that if a wife fails to prove cruelty or adultery, still she is entitled to the decree of dissolution of marriage on the ground of `Khula". The petitioner in the instant case had categorically stated that she has developed extreme hatred towards the respondent and she cannot live with him within the limits set by Almighty Allah and her statement alone to this effect was sufficientt and she was entitled to the grant of decree for dissolution of marriage on the basis of `Khula". Reliance is placed upon Nazir Begun. v. Muhammad Aslam etc. (NLR 1988 Civil 412), wherein, the words " {{URDU TEXT}} " alone were considered sufficient for the purpose of establishing the ground of `Khula". Reliance is also placed on Ghulam Mustafa v.
Ghulam Sakina and another (PLD 1986 Lahore 324) to contend that failure of wife on issues other than `Khula" would not necessarily disentitle her to the decree for dissolution of marriage on the basis of `Khula".
8. On the other hand, it is argued on behalf of the respondent, that the petitioner did not narrate any terms and conditions for 'Khula and did not make any offer of the return of benefits received by the petitioner from the respondent and as such, she was not entitled to the grant of `Khula". It is enough to state here that there is no proof of any receipt of benefits by the petitioner from the respondent and there is no such claim made by the respondent in his written statement or in the evidence produced by the A respondent and respectfully following the dictum laid down in Ghulam Mustafa v. Ghuiam Sakina and others (PLD 1986 Lahore 324), I hold that in the absence of any proof of receipt of benefits by the wife from the husband, the wife would be entitled to the grant of `Khula" without restoration of such unproved benefits and as such, the argument of the learned counsel for the respondent has no force and is accordingly rejected. It is also argued on behalf of the respondent that this petition is not maintainable because this Court in I B the exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, after setting aside the judgments of both the Courts below cannot dissolve petitioner's marriage and cannot grant decree for dissolution of marriage. This argument has also no force because of the law laid down by the Hon'ble Supreme Court in Abdul Rahim v. Mst. Shahida Khan (PLD 1984 SC 329) and Muhammad Siddiq v. Mst. Kalsoom Bibi and others (1984 SCMR 523), wherein, it was held that High Court, in its Constitutional jurisdiction, can interfere, if convinced that due to existing unhappy relations between husband and wife, there is no hope for their living together within limits prescribed by Almighty Allah.
9. In the instant case, I am convinced that there is extreme discord between the parties and that the petitioner has developed extreme hatred towards her husband/respondent, and the life has become a torture for her and as such, she cannot live with Khadim Hussain respondent within limits set by Almighty Allah and due to this, both the-Courts below have illegally denied her concession given to her in Islam for dissolution of marriage on the basis of `Khula". The judgments and decrees dated 20-12-1990 of Judge Family Court, Liaqat Pur and dated 4-3-1992 of Additional District Judge, Rahimyarkhan are set aside and petitioner's suit for the dissolution of marriage on the basis of `Khula" is decreed with costs.