This judgment shall also dispose of Writ Petition No.13855 of 1994 in which the same impugned judgment of the learned Additional District Judge, Faisalabad, has been assailed and which is between the same parties.
2. The brief facts giving rise to these Constitutional petitions are that Shazia Nasim (petitioner in W.P. 12096-94) was married to Fazal Hussain respondent No.2 herein (petitioner in W.P. 13855-94) on 2-11-1990 and the petitioner Shazia Nasim resided with Fazal Hussain for one night only. On 11-5- 1991 she filed a suit for dissolution of marriage before the Judge, Family Court, Faisalabad. Fazal Hussain resisted the suit. On the pleadings of the parties the trial Court framed the following issues:---
(1) Whether plaintiff has no cause of action to bring the present suit?
(2) Whether the plaintiff is estopped by her words and conduct from bringing the present suit? OPD
(3) Whether this Court lacks territorial jurisdiction? OPD
(4) Whether temperamental incapability does exist between the parties due to the demarcable difference of the age? If so, its effect? OPP
(5) Whether the marriage was result of fraud and misrepresentation? If so its effect?OPP
(6) Whether the plaintiff is entitled to decree for dissolution of marriage on the basis of Khula`? If so on what terms and conditions? OPP.
(7) Relief.
Both the parties adduced their evidence and the learned trial Court tried to effect reconciliation between the parties which proved futile. Thereafter the trial Court after appraising evidence, found issues 1 to 6 against the petitioner and as a sequel to its findings dismissed the suit of Shazia petitioner, vide judgment dated 28-6-1992. The petitioner Shazia filed an appeal before respondent No.1, Additional District Judge, Faisalabad, who vide judgment dated 26-9-1994 upheld findings of trial Court on issues 1 to 5 against the petitioner observing that the marriage between the parties had not been effected through fraud since the petitioner had signed the Nikah Nanra, she knew that the respondent Fazal was already married and she had failed to prove that this fact of previous marriage of Fazal had not been disclosed to her. Learned appellate Court also observed that the respondent Fazal had obtained certificate from the competent authority to contract second marriage and on the basis of this certificate she could know that Fazal had been married earlier. However, on issue No.6 the appellate Court, respondent No.1, reversed the finding of the trial Court and observed that there was vast disparity between the ages of the spouses who have been residing separately; conciliation efforts at pre-trial and post-trial stages failed and this indicated that there is no chance for the parties to live together as husband and wife within the limits prescribed by God Almighty as Shazia petitioner had stated that she cannot live with Fazal respondent as his wife at any cost. On the basis of these observations respondent No.1 held that Shazia petitioner was entitled to divorce on the basis of Khula`. Respondent No.1 further, observed that Nikah Nama Exh.Dl shows that at the time of marriage the petitioner had derived benefit of 20 tolas of ornaments from the respondent and she was legally bound to restore such benefits to the respondent as consideration for Khula`. Consequently the petitioner was held entitled to dissolution of marriage on the basis of Khula` subject to return of golden ornaments weighing 20 tolas or in the alternative payment of Rs.80,000, its market price, in the trial Court within one month, failing which her suit would automatically stand dismissed. Both the parties have approached this Court through these Constitutional petitions against the impugned judgment.
2. The grievance of Shazia Nasim, petitioner, is that the Khula` could not have been made conditional to deposit of 20 tolas golden ornaments or Rs.80,000 in lieu thereof within one month and this award of compensation was illegal. Contention of the learned counsel for the petitioner is that the compensation was never demanded by Muhammad Fazal respondent nor did he state in his written statement that 20 tolas ornaments be returned to him. He placed reliance on Abdul Majid v. Mst. Razia Bibi PLD 1975 Lah. 766, Noor Muhammad v. Judge, Family Court PLD 1989 Lah. 31 and Mst. Rukhsana Kausar v. Muhammad Abbas and others 1992 ALD 84 to contend that where the husband had not claimed return of benefits given by him, the Court could not order return of the same as condition precedent for grant of Khula`. The learned counsel further argued that in the Nikah Nama, which has been made basis of the impugned order in respect of 20 tolas golden ornaments having been received by the petitioner Shazia Nasim, it is not mentioned at all as to whether the ornaments were made of gold or of some other metal. Therefore, there is no evidence on record to show that the ornaments were made of gold or they were worth Rs.80,000. Learned counsel also relied on Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana PLD 1983 SC 169 and Aziz v. Mst.
Mumtaz Bibi 1988 CLC 1688 to contend that the Court cannot make return of benefits as condition precedent for grant of Khula` and once dissolution of marriage has been granted on the basis of Khula` the same attains finality and the claim of benefits by the husband at best creates a civil liability which can be claimed through appropriate civil proceedings and the same cadnot operate as an impediment in the grant of Khula`.
Fazal respondent is also aggrieved of the same judgment and he has assailed it on the ground that no evidence was available on the basis of which it could be determined by respondent No.1 that Shazia petitioner had developed hatred and aversion for Fazal, her husband. She had only stayed with him for one night which period was not sufficient in itself to enable her to develop feelings of hatred towards him; that she had signed the Nikah Nama herself and marriage had been arranged through father of Mst. Shazia who himself had laid the condition that certificate be obtained from the Chairman Union Council for second marriage by Fazal and that in such circumstances both the Courts below have rightly held that Shazia had not been made to enter into the marriage through fraud and she was fully aware of the earlier marriage of Fazal and that vast disparity of ages in itself is no ground for grant of Khula` nor had any effort been made for reconciliation between the parties, nor any independent witness was produced by Shazia to the effect that it was impossible for her to live with Fazal within the limits prescribed by God Almighty. In these circumstances it is asserted that judgment of respondent No.1 is arbitrary and based on no evidence in respect of Khula` and, therefore, it is without lawful authority. He also stated that Fazal had spent almost two lacs of rupees on the marriage benefits given to Shazia as well as to her family and as such Shazia was not entitled to obtain dissolution of marriage on the basis of Khula` after having lived with Fazal only for one night.
3. I have heard the learned counsel for the parties and have also examined the impugned judgments, and the relevant law on the subject. It has consistently been held by the Superior Courts that for the purposes of Khula` the mere statement of the wife that she has developed hatred for the husband is sufficient to entitle her to grant of Khula. The first precedent in this regard is of the Holy Prophet (peace be upon Him) Himself who allowed dissolution of marriage on the basis of Khula` to Jamila on her mere statement that she disliked her husband and no further evidence was sought in this regard. In such circumstances the argument of learned counsel for Fazal that there was no evidence before respondent No.1 to grant Khula` to Shazia is without merit. It is also pertinent to note that there is vast disparity in ages between the parties and effort of conciliation at pre-trial and post-trial stages before the Judge, Family Court had failed.
Proceedings remained pending in appeal for almost two years and no conciliation was effected which also indicates that conciliation is not possible between the parties. Thus the judgment of respondent No.1 granting dissolution of marriage on the basis of Khula` to Shazia petitioner is unexceptionable.
Grievance of Shazia Nasim petitioner to the effect that return of golden ornaments weighing 20 tolas or Rs.80,000 in the alternative could not be made a condition precedent for the grant of Khula` has force. It has been correctly pointed out by the learned counsel for Shazia that it has nowhere been mentioned in the Nikah Nama or in the evidence adduced by Fazal respondent, that the 20 tolas ornaments given to Shazia were made of gold; nor has any claim for return of the said ornaments had been made by Fazal in proceedings before the trial Court or in his submissions before the learned appellate Court. In such circumstances the judgments cited by the learned counsel for Shazia petitioner are relevant to the effect that grant of Khula` to Shazia could not have been made conditional to return of 20 tolas golden ornaments or payment of Rs.80,000 in lieu thereof and as such placing of this condition as a prerequisite to grant of Kliula` by respondent No.1 is without lawful authority. In the circumstances the petition of Shazia (W.P. 12096-94) is. Accepted, the judgment of respondent No.1 to the extent that Khula` granted to her is subject to return of 20 tolas golden ornaments or payment of Rs.80,000 in lieu thereof, is set aside. The dissolution of marriage on the basis of Khula` granted to Shazia is maintained and it attains finality without any impediment. Fazal respondent may seek proper remedy, if so advised, for claiming return of benefits, if any, given to Shazia. Writ petition filed by Fazal is hereby dismissed. There will however, be no order as to costs.