' Mst. Manzooran Bibi, petitioner herein, filed a suit for dissolution of marriage against respondent No,1, on the grounds that she was deprived of her articles of dowry, extended threats of murder, the respondent was a man of bad character, non-payment of maintenance and also on the ground of Khula'. Nikah of the petitioner was performed on 18-10-1992 and in exchange the sister of respondent No,1 was married to the brother of the petitioner. The parties are in issue, as to the plea if the Rukhsati had taken place as according to the petitioner, Rukhsati did not take place while respondent pleaded that she had stayed for few months in his house.
2. The suit was resisted by respondent No,1 who denied the allegations raised in the plaint and pleaded that his sister, who was married to the brother of the petitioner had died and that the brother of the petitioner had been pressurizing his family for marrying the second sister of respondent No,1, which being not accepted, the relations between the two parties, were destroyed by him.
3. The learned Judge Family Court dismissed the suit on 23-11-1994 by returning the findings on Issues Nos.1 and 2 against the petitioner which judgment was maintained in appeal by the learned District Judge, Faisalabad, vide judgment, dated 22-3-1995.
4. The judgments of the two Courts below have been assailed in this Constitutional petition on the ground that the view taken by the two Courts below is arbitrary, the issue of Khula' has not been considered in its true legal perspective, the circumstances justifying release of petitioner from the marital tie were completely overlooked and Khula' was refused on an illegal assumption that the petitioner having failed to prove the other issues pertaining to misappropriation of property and bad character of respondent No,1 could not claim Khula'.
5. Learned counsels for the parties have been heard. It has not been denied that the petitioner in her statement, had specifically stated that she had been receiving threats of life from the respondent No,1 and that on any condition she was not willing to live with him and also that efforts for reconciliation in pretrial and post trial proceedings could not succeed and that the petitioners throughout remained adamant in her stand that she would not live with the respondent No,1 in any circumstance. It is also a fact that Nikah took place on 18-10-1992 and that the matrimonial relations are under suspense for the last more than five years as the petitioner is staying with her parents.
6. The learned Judge Family Court, was mainly influenced by the fact that the petitioner could not prove the issue of misappropriation of dowry articles and that the evidence indicated that it was a marriage in exchange and there might be a chance for reconciliation. He did not, consider the pre- requisites for grant of Khula' and on the contrary denied relief for the reason that in his view the petitioner having failed to prove other issues could not be granted Khula'. The learned District Judge, agreed with the argument that the wife had a right to dissolution of marriage on the ground of Khula' but still he declined the relief as he was also influenced by the reasoning that the issue of misappropriation of articles of dowery or other allegations about the character of respondent No,1 could not be proved, despite the fact that he was involved in a criminal case. The two Courts below while recording findings on the other issues were mainly influenced by the fact that the petitioner had received information about the character of respondent No,1, through, her brother. It may be relevant to take note of the fact that sister of respondent No,1, who was married to the petitioner's brother has already died and according to the respondent, relations became strained as the brother of the petitioner had been pressing for marrying the second sister of respondent No, 1 .
Whatever may be the reason, one fact, at least, which come from the defence of the respondent was that the relations between the parties were not cordial, and that the marriage was practically broken as the matrimonial relations were under suspense for a considerable time.
7. In Shahid Javed v. Sabba Jabeen and others 1991 CLC 805, it was observed that right of dissolution of marriage on the basis of Khula' was independent right and failure of wife to establish grounds other than Khula' taken by her would not prejudice her right to seek Khula' divorce and family Courts are enjoined to determine this right independently. It is, also a settled rule that if dissolution of marriage is claimed on number of grounds including Khula' then the mere fact that the wife could not establish her allegations qua other grounds would not disentitle her to seek independent determination of her right for dissolution of marriage on the ground of khula'. The Court cannot on the basis of decision on the other issues decline Khula' on erroneous assumptions that the basis could not stand. In Mst. Rashida Bibi v. Bashir Ahmed and others PLD 1983 Lah. 549, it was held that if the woman stated categorically that she would not live with her husband and was willing to forego all her claims in case her marriage would be dissolved on basis of Khula', this would be sufficient for the Court to satisfy that the two parties could certainly not live within the limits prescribed by God and woman entitled to get the marriage dissolved on the basis of Khula'.
8. The law does not require that the wife should give objective reasons for seeking dissolution on the ground of Khula'. If the wife is adamant and all attempts for reconciliation had failed, there is little choice for the Court except to grant decree for the consequences in adopting any other course may be disastrous. In Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, it was ruled as follows: ' .Under Muslim Law, the wife is entitled to Khula', as a right if she satisfies the conscience of the Court. It will otherwise mean forcing her into a hateful union."
' Shah Wali Ullah of Delhi in Al-Musawwa-min-Ahadith-al-Muatta, Vol.II, P.160, goes to the length of saying that 'even if she obtains Khula' without any reason (apart from personal dislike) it is lawful but not proved. The reason is that the Prophet and Companions never inquired from her the reason for her seeking Khula'." Referring to the Hadith of the Holy Prophet (p.b.u.h.) Barariah and Mughis, it was concluded that "this shows that a woman cannot be compelled if she had a fixed aversion with husband to live with him.
Khula' is a release, from matrimonial bond which right according to the dictates of the Holy Qur'an can be exercised if the circumstances indicate that it is impossible for the parties to live within the limits prescribed by Allah Almighty and their re-union will give birth to hateful union. The Courts are bound to grant this right of Khula' to a woman where she expressly claims or omits to claim in her pleadings and even if the other grounds for seeking dissolution of marriage could not be proved. In Mst. Zarina Bibi v. Additional District Judge, Jhang and others 1993 MLD 1507, it was held that where the wife has developed fixed aversion against the husband, the separation had taken place, the wife claiming Khula' need not to come out with any logical, objective and sufficient reasons for dissolution of marriage. It was ruled that if the wife was living separately from her husband, no reconciliation could take place during the proceedings before the Family Court and thereafter, this would be good enough to strengthen the view that irremedial rift existed between the parties emanating from fixed aversion on the part of wife against husband and, therefore, the parties could not live together amicably as husband and wife within the limits of Allah Almighty. It was also held that mere fact that the wife had failed to substantiate other issues relating to cruelty and levelling of false allegations against her husband will not be sufficient to disentitle her to the grant of Khula'.
10. In Mst. Shakila Bibi v. Muhammad Farooq and another 1994 CLC 230 it was held that if from the prevailing circumstances and evidence on record, it was proved that it would not be possible for the parties to live together as husband and wife within the limits prescribed by Allah Almighty they should be separated and not to be forced to live in hateful union. It was further observed that a wife was not supposed to justify the reasons on account of which she had developed hatred for her husband, and it was sufficient that there was no possibility for any reconciliation between them.
11. Mst. Razia Begum v. District Judge, Jhang, 1995 CLC 657, it was held that where the wife had stated that it was not possible to bring about conciliation and that during the efforts made by the Court, the wife remained adamant in her refusal to live with her husband, refusal to grant Khula' to the wife in such circumstances, tantamounts to force the parties to live in hateful union which would be contrary to all norms of justice.
12. In the present case, Nikah took place on 18-10-1992, the petitioner is living with her parents for the last more than five years, the litigation is pending for the last four years, during the proceedings before the learned Judge Family Court, the petitioner in her statement expressly deposed that she was not willing to live with respondent No,1 in any circumstance and on any condition, the efforts for reconciliation in pre-trial proceedings and post trial proceedings remained unsuccessful and the parties could not agree for any reconciliation during the proceedings before the First Appellate Court and even during the proceedings of this petition, which remained pending for more than two and half years. The evidence on record is indicative of the fact that the relations between the two families were strained. The matrimonial relations are under suspense and marriage virtually broken as separation has taken place for more than five years, the possibility of reconciliation which was expected by the learned Judge Family Court without any basis could not materialize as no reconciliation could take place during such long time. In these circumstances, it can be safely held that the parties cannot live together within the limits prescribed by Allah Almighty and refusal to grant Khula' to the wife would tantamount to forcing the parties in hateful union which Would be contrary to all norms of justice.
13. Faced with this situation, the learned counsel for the respondent No,1 submitted that respondent No,1 had some claim against the petitioner for the return of certain articles. Neither any benefits of marriage were alleged to have been received by the petitioner nor sufficient evidence exist on record to make out any case of return of benefits of marriage. Be that as it, the claim being subject-matter of civil litigation, the respondent, if so advised, can file a separate suit for the return of the benefits if any.
14. For the reasons above, this petition is allowed, the impugned judgments and decree are declared to be without lawful authority and the suit filed by the petitioner against respondent No,1 is decreed on the basis of Khula', with no orders as to costs.