This judgment will dispose of Writ Petitions Nos.922-F/95-BWP and 921-F/95-BWP as similar questions of law and facts are involved in both these cases.
2. The facts, in brief, are that on 5-10-1989, the petitioner in both these petitions, instituted a suit for dissolution of marriage against the respondent Farzand A.I in the Family Court at Khanpur the subject-matter of W.P. 922--F/95-BWP on the grounds of cruelty, bad character, misappropriation of her dowry articles, non-maintenance and also on the ground of Khula'. It was further narrated in para. 6 of the plaint that she was living separately from the respondent for the period of three years prior to the institution of this suit. As a counterblast, the respondent instituted a suit for the restitution of conjugal rights on 6-11-1989 at Shakargarh the subject-matter of W.P. 921-F/95-BWP.
On the petitioner's petition, the respondent's suit was also transferred to the Judge, Family Court at Khanpur and both the suits were tried and heard together and consolidated issues were framed in the petitioner's suit for dissolution of marriage and after regarding of evidence of both the parties, the learned trial Court vide its consolidated judgment and decrees dated 5-12-1993 dismissed the petitioner's suit for dissolution of marriage and decreed that of the respondent for restitution of conjugal rights.
3. Learned Additional District Judge, Khanpur vide single judgment and decrees dated 9-2-1995 dismissed the petitioner's appeals, hence these Constitutional petitions.
4. None has turned up on behalf of respondent Farzand A.I. The report, of the process-server shows that he has refused to accept service and therefore, he is proceeded ex parte.
5. It is contended by the learned counsel for the petitioner that the petitioner instituted her suit for dissolution of marriage on 5-10-1989 i.e., almost 7 years age and from the period of three years prior to the institution of the suit she had been living separately from the respondent and is in litigation with him continuously which shows that she has developed extreme hatred against the respondent and she is not ready and willing to live with him at any cost, pre-trial and post-trial reconcilation efforts have also failed and in para. 7 of her plaint she has explicity stated that she has developed extreme hatred towards the respondent and she cannot live with him within the limits imposed by Allah and as such she is entitled to the decree for dissolution of marriage on the basis of Khula' and in her statement as P.W.2 also she has asserted that her settlement with respondent is impossible and these assertions were enough for the grant of dissolution of marriage on the basis of Khula'. It is submitted next that the statement of respondent Farzand A.I as D.W.3 shows that he is also having criminal litigation with the petitioner's family besides the civil litigation which, itself, describes the strained relations and in these circumstances the petitioner was able to establish beyond any shadow of doubt that she cannot live with the respondent Farzand A.I within the limit prescribed by Allah and, therefore, trial Court acted illegally in not dissolving the marriage on the basis of Khula'.
6.1 have seen the judgments of the Courts below and have also gone through the record, copies of which are attached with these petitions.
7. The continuous bitter litigation between the parties from the last about seven years shows that the relations between the spouses have become so strained that the petitioner is- not prepared to live with her husband in any circumstance whatsoever and the omission on the petitioner's part to ask for dissolution of marriage on the basis of Khula' in her statement as P.W.3 is not fatal. She has urged the ground of Khula' in her plaint and in her statement she has categorically stated that her settlement with the respondent is not possible In Mst. Ghulam v. Faiz Rasool and others 1988 MLD 1353, it was held that the omission on the part of the wife to use the particular words was not fatal to her plea of Khula'. In Mst. Nazir Begum v. Muhammad Aslam etc. 1988 CLC 1628, the words by wife in her evidence in support of her suit for dissolution of marriage were considered sufficient for the purposes of establishing ground of Khula and it has also been consistently held by the superior Courts including this Court that the wife would not be disentitled to Khula' even if the finding on issues relating to cruelty and non-- maintenance etc., are against her. Reference in this regard may be ' made to Muhammad Nawaz v. Ghulam Rasool and another 1979 CLC 174, Ghulam Mustafa v. Ghulam Sakina and another PLD 1986 Lahore 324 and Muhammad Anwar v. Nusrat Bibi NLR 1994 Civil 615. Learned first appellate Court has also disbelieved the petitioner's witnesses on the ground thatthey were close relatives of the petitioner. In the family suits, the close family A members can best depose as to how the spouses are being pulling on. In Khalil Ahmad v. Allah Rakhi and another 1994 MLD 119 (Lahore), it was held that the evidence of close relations was very relevant in family suits.
8. In view of the abovementioned, I am convinced that the petitioner cannot live with the respondent within the limits imposed by Allah and, as such, she is entitled to the grant of decree for dissolution of marriage on the basis of Khula' and in this regard to trial Court acted illegally in not granting her decree of dissolution of marriage and the judgment of the first appellate Court also suffers from illegality on this score. The abovementioned judgment and decree of both the Courts below arc, therefore, set aside. Ordinarily the proper course in these circumstances would have been to remand the case to the trial Court to decide the suits afresh, but, it is a family matter in which the cases are not to be remanded lightly because it will prolong the agony of the spouses.
The remand should be ordered only in the case where the parties were. Not given an opportunity to produce the evidence on the issues of dispute. In the present case the parties led their evidence which is available on the record of this petition as discussed above. In Muhammad Siddique v. Mst.
Kalsoom Bibi and others 1984 SCMR 523, the Family Court had dismissed the suit of wife for dissolution of marriage and the District Judge upheld the order of the Trial Court. The High Court after considering all circumstances of the case, being convinced that existing unhappy relations between the parties, held out no hope for their living together within the limits prescribed by God; decreed wife's suit on the basis of Khula' in the exercise of its Constitutional jurisdiction instead of remanding the case of the Trial Court to decide the same afresh. The honourable Supreme Court refused to interfere in the order of the High Court and dismissed the husband's petition. Similarly in Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329 while considering the scope of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, honourable Supreme Court held that High Court, in its Constitutional jurisdiction, can interfere if convinced that existing unhappy relations between the husband and wife held out no hope for their living together within the limits prescribed by God.
9.In view of the above discussion, both these petitions are accepted and the judgment and decrees of learned Additional District Judge, Khanpur and the judgment and decrees of learned Judge Family Court, Khanpur in both the suits C are set aside and the petitioner's suit for dissolution of marriage is decreed in her favour on the basis of Khula' with a condition that the petitioner shall not be entitled to the recovery of dower amount, if any, and the respondent's suit for restitution of conjugal rights is dismissed with no order as to costs.