' Mst. Rasoolan Bibi, the petitioner through this Constitutional petition has challenged the legality to the judgment dated 28-11-1993 whereby the petitioner's suit for dissolution of marriage was dismissed by the learned Family Court and the judgment dated 8-9-1994 whereby her appeal was dismissed by the learned District Judge, Sialkot.
2. Briefly, facts of the case are that the petitioner was married to respondent No,3 somewhere 14 years ago; the spouses could not pull on well together and separated from each other several times but reconciled on the intervention of the elders of the family. Now, the petitioner is living separately from her husband for the last 5/6 years. In her suit for dissolution of marriage she stated that respondent No,3 had been treating her with habitual cruelty; further stated that she had developed hatred against respondent No,3 and could not live with him within the limits of Allah and the respondent has been levelling false charges of adultery and sought dissolution of marriage on the basis of Khula' .
3. The suit was resisted by the respondent No, 1 .
4. Learned counsel for the petitioner vehemently contended that the petitioner was entitled to dissolution of marriage on the ground of Khula' notwithstanding the fact that she has failed to prove issues which she had to prove particularly issue No,1 relating to habitual cruelty. Learned counsel further contended that the petitioner was not supposed to give objective reasons to justify her claim of Khula' ; she was entitled to get Khula' on showing that she had developed hatred against respondent No,3 and could not live with him amicably within the limits of Allah as the spouses are living separately for the last 5/6 years in spite of having six children out of their wedlock and have not reconciled.
5. Learned counsel for the respondent contended that the petitioner is permanent resident of District Sialkot, has shifted to Lahore all alone at the instance of one Shaukat alias Tara with whom she has illicit relations and that the mere resile of the petitioner to claim dissolution on the basis of Khula' was not enough for dissolution of marriage under the peculiar circumstances.
6. I have heard the arguments advanced by the learned counsel for the parties and have perused the record. I find that the petitioner had clearly made out her case for dissolution of marriage on the ground of Khula' and that the Courts below ignored material evidence and illegally dismissed the petitioner's suit and the appeal. The Courts below were supposed to decide the petitioner's claim on the basis of Khula' and the material brought on the record. The Courts below were unduly influenced by the fact that the spouses have four children who have gone astray but because of her disassociation, said children being below 12-14 years badly needed her affection, love as well as care. The learned lower Courts observed that the petitioner is living with one Shaukat alias Tara not related to her within the prohibited degree and sought her divorce at the instance of said Shaukat alias Tara.
7. It is well established that while claiming Khula' as the wife is not supposed to come out with logical objective and sufficient reasons for claiming Khula' as observed in the cases of Abdul Rehman v. Judge Family Court 1981 CLC 68, Khurshid Ali v. Mumtaz Begum 1980 CLC 1212, Muhammad Yagoob v. Mst. Shagufta Begum and another 1981 CLC 143 and Mst. Nasreen Bibi v. Ata Muhammad and 2 others PLD 1994 Lahore 276.
8. True, mere desire of the wife to break the marital bond, per se, is not sufficient to entitle her to claim Khula' as held by their Lordships of the superior Courts. However, if the Court, as observed by their Lordships of Supreme Court in case Khurshid Bibi v. Babu Muhammad Amin PLD 1967 SC 97 and in case Mst. Balqees Fatima v. Najam-ul-Ikram Qureshi PLD 1959 Lahore 566 finds that the wife has actually developed hatred against her husband for whatever reasons, and that there was no possibility of the spouses to live together amicably within the limits of Allah then the wife is entitled to dissolution of marriage on the ground of Khula' . In the present case, the petitioner in the open Court in the presence of, respondent No,3 and her real brother stated that the spouses were not able to pull together amicably for four years of marriage and now living separately for the last 5/6 years and there is no chance of reconcile. This is indicative of the fact that the petitioner has developed to found hatred against respondent No,3 and has refused to live with him despite the four children.
9. The spouses are still involved in litigation which wipes out any hope of reconciliation and in this situation the petitioner be legitimately claimed dissolution on the basis of Khula' on the basis of dictum laid down in case Muhammad Siddiq v. Mst. Kalsoom Bibi and others 1984 SCMR 523.
Further it has been held in case Mst. Rashidan Bibi v. Bashir Ahmad PLD 1983 Lah. 549 that:--- "The principle of Khula' is based on the fact if a woman has decided not to live with her husband for any reason of this decision is firm then the Court after satisfying its consciousness that not to dissolve the marriage would mean forcing the men to hateful union with the man and it is not necessary on the part of the woman to produce evidence of fact and circumstances to show the extent of hatred to satisfy the conscious of the Judge Family Court or the Appellate Court."
10. The outcome of the afore going discussion is that this petition is allowed, the impugned judgments and decrees of the Courts below are declared to be without lawful authority and of no legal effect and the petitioner's suit for dissolution of marriage on the ground of Khula' is decreed subject to payment of Rs,5,000.