1. ' Granted.
2. 2 and 3. The learned Judge of the Family Court, upon a close examination of case-law touching the concept of Mule notably, Mst. Bilqis Fatima v. NajmulIkram Qureshi PLD 1959 Lahore 566; Mst.
3. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, Rashida Bibi v. Bashir Ahmed (PLD 1983 Lahore 549) and Muhammad Abbasi v. Mst. Sarnia Abbasi and others (1992 CLC 1973) has allowed dissolution of marriage to the respondent. The petitioner-husband has preferred this Constitutional petition.
4. ' The learned counsel for the petitioner has urged that the Family Court has not applied mind on the material issue viz. "Whether parties cannot live together within the limits of Almighty Allah?"
5. Short answer to that plea is that such issue has been dealt with under the head of Issues Nos. 4 and 5 because the residuary Issue No, 5 namely. "What should the decree be?" has been referred to twice in the impugned judgment manifestly showing a typographical error.
6. ' On merits it is contended, as said by Malik Muhammad Qayyum, J. In Muhammad Abbasi v.Mst.
7. Sarnia Abbasi ibid., that Khula' could not be equated with the right of a husband to pronounce Talaq. There can be no cavil with the proposition that while Khula' is a right of Muslim wife it is distinct from the power of Talaq vested by Muslim law in a husband, subscribing to that faith. Talaq can be pronounced unilaterally, the only constraint, apart from procedure, being the all pervasive admonition from Allah that Talaq is the most abhorred of all things made permissible by Him. On the other hand, and in consonance with the precepts of Muslim Law, Khula cannot be pronounced unilaterally by a wife but such can only come about upon the intercession of the Qazi coming to the conclusion that the parties, if made to live as husband and wife, are not likely to observe the limits of Allah. For this, as pointed out in Re: Mst. Bilqis Fatima above there is a tradition of the Holy Prophet, where Khula' was Accorded upon the expression of firm aversion by a wife to live with her husband. To such purpose, as affirmed in the case of Mst. Khurshid Bibi ibid, Islam does not force on spouses a life of disharmony and unhappiness and, if the parties cannot live together, permits a separation. I am also in respectful agreement withe the dictum of Javed Iqbal, J. (as he then was) in the matter of: Rashida Bibi where it was observed that if a woman had decided not to live with her husband for any reason and that decision was firm and final, the Court, after satisfying its conscience that not to dissolve the marriage would mean forcing the woman to a hateful union, could accord Khula' For such purpose it is not necessary for the woman to produce evidence of facts and circumstances to show the extent to hatred or aversion. None of this runs counter to the observation of the Supreme Court in Re: Akhlaq Ahmad (PLD 1983 SC 169), that a Judge seized of a matter touching the claim of Khula' has to take note of and suitably address the question whether the parties if made to live as husband and wife could not live within the limits of God and this has to be done also during the course of reconciliation proceedings and the trial and that being so every factor contributing or detracting from such proposition is to be taken into account.
8. Thus, no hard and fast rule can be put down as regards the facts and circumstance which must be shown to exist to obtain the relief of Khula' . All that seems are be required is that conscience of the Court is saitisfied that if the parties are made to live together they are not likely to observe the limits of Allah. For obtaining relief mere word of the wife may be sufficient provided that it is firm and convincing. As against this testimony of a number of witnesses in support to Khula' may be liable to be discarded if it is found that it is not the aversion, dislike or disinclination of the woman herself but it is that of those around her, who may have prevailed upon or otherwise contrived circumstances so as to make the claim of Khula' inescapable what must, in such cases, always be seen is that in a free Muslim Society, where all human and fundamental rights are discoverable from the tenets of Islam, no two persons can be forced to live together, muchless as husband and wife, professing the Muslim faith. Needless to add that marriage of a woman under Muslim Law is not the equivalent of bondage. It is a contract and the contracting woman does not become subservient to her husband. Therefore, she develops aversion towards him and seeks Khula' , all that she has to show to the Court is that she and her husband cannot live together nor can they satisfy the limits of Allah. If so, the right to Khula' matures and has to be accorded to her, determining the marital tie. Such is, however, conditioned upon her making good the property received by her from the husband.
9. ' Keeping in mind all such requirements the learned Presiding Judge has made the following observations in the impugned judgment: "Plaintiff has clearly deposed that she hated the defendant and wanted dissolution of her marriage on the basis of Khula' . The attitude of plaintiff towards the defendant was very much hostile during the reconciliation proceedings, thus natural hatred was quite evident. The plaintiff suffered much mental torture and faced agony which had resulted into hatred and evidence brought on record showed that spouses could not live together within the limits prescribed by Allah as relations between the spouses were beyond repair and there was no probability of their living together."
10. ' Again: "In the present case, the spouses were not able to pull on together amicably right from the beginning. They are separated for last more than 12 years and could not reconcile. This is indicative of the fact that the rift between them is irremediable these facts lend support to her claim that she had developed profound hatred against the defendant and has strengthened the petitioner's claim of aversion against her husband. Suffice it to say that in the facts and circumstances of the present case , the plaintiff's claim for dissolution of marriage on the ground of 'Khula' is clearly made out."
11. ' In view of the foregoing, I am satisfied that the impugned judgment was correctly and fairly handed down and does not merit interference. Matters at Serial Nos. 1 and 2 dismissed.