TANVIR AHMAD KHAN, J.- The petitioner through this Constitutional petition has taken exception to the judgments dated 8.6.1989 and 5.5.1991 passed respectively by the Judge Family Court, Sheikhupura, and the District Judge, Sheikhupura, dismissing her suit for dissolution of her marriage.
2. Facts briefly are that the petitioner entered into a marriage contract 26 years earlier with respondent No. 3 Muhammad Siddique and out of the wedlock five children were bom. The relations between the parties became strained which resulted into filing of suit for dissolution of marriage by the petitioner in the early part of 1986 which was returned by the Judge Family Court, Sheikhupura, on 1st of December, 1986 simply on the ground of territorial jurisdiction. The petitioner filed another application on 11th of December, 1986 out of which the present litigation has emanated. Respondent/defendant filed the written statement and out of the pleadings of the parties the following issues were framed:-
(1) Whether the suit is barred due to principle of res judicata? OPD
(2) Whether this Court lacks territorial jurisdiction to try this suit? OPD
(3) Whether the plaintiff has not come to the Court with clean hands? OPD
(4) Whether the defendant is entitled to special costs under section 35-A. CPC? OPD
(5) Whether the defendant has been treating the plaintiff with habitual cruelty? OPD
(6) Whether the mutual district and arrangement has rendered the parlies, unable to reside with the limits prescribed by "Almighty Allah"? OPP
(7) Whether the defendant failed to provide the maintenance to the plaintiff for a period of three years? OPP
(8) Whether the defendant alleged the plaintiff of adultery? OPP
(9) Whether the plaintiff is entitled to a decree for dissolution of her marriage on the basis of "Khula"? OPP
(10) Relief.
The parties led their respective evidence and the Judge Family Court dismissed the suit on 8th of June, 1989. Aggrieved with this judgment the petitioner preferred an appeal which too was dismissed both on the grounds of maintainability as well as on merits by the District Judge, Sheikhupura, on 5th of May, 1991. Hence, this Constitutional petition.
3. It is argued that both the Courts below have not appreciated the evidence brought on record in its true perspective and the plea of divorce on the basis of Khula has been arbitrarily declined.
4. I have considered the contentions of the leamed counsel for the petitioner. Leamed counsel for respondent No. 3 has not entered for the last two hearings. As far as the jurisdiction of the Judge Family Court, Sheikhupura is concerned the earlier return of the plaint by the Judge Family Court on the ground of lack of territorial jurisdiction would not come into her way. Lt is open to the wife to approach again if she successfully establishes that she is ordinarily residing with the jurisdiction of the Family Court. Rule 6 of the West Pakistan Family Courts Rule, 1965 provides as under:-
6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which
(a) the cause of action wholly or in part has arisen,
(b) where the parties reside or last resided together. Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.
The proviso of this rule has conferred special concession upon the wife whereby she can bring a suit for dissolution of marriage or her dower within the local limits of the Court where she ordinarily resides. What is to be seen is whether the petitioner is residing ordinarily within the local limits of the Judge Family Court. There is no hard & fast rule to determine ordinary residence of a wife. Her intention and the attending circumstances are to be taken into consideration for determining the place of her ordinary residence. Length of residence at a particular place would not be a material factor. A-Division Bench of Sindh High Court in a case reported in Mahbub Ahmad v. First Additional District Judge, etc. (PLD 1976 Karachi 978) while interpreting the words "ordinarily resides" held as under:- The proviso by the very nature of its language is an enabling provision and is for the benefit of wife.
The words "ordinarily resides" must, therefore, be constructed in the context of an estranged wife who has left her husband's abode and has sought residence at any other place of her own choice.
It will be that place which should answer to the concept and the interval of time therefore has no relevancy, for it will be an anomaly if three days residence would not be sufficient but a three months stay would enable her to maintain her suit. Therefore, in such an event it is the intention of the wife to stay at a particular place, which is material, and if time factor is the sole criterion, then it would amount to putting a premium on the suit which she could legitimately file after her relations became strained for the dissolution of marriage or dower and that could not be the legislative intent. The very language of the proviso, therefore, would enable to file a suit for dissolution of marriage at any place where she has come to reside.
The petitioner in this case has produced sufficient evidence on record to establish her stay at Sheikhupura. Even before the Ilaqa Magistrate Sheikhupura. When she appeared in response to warrant under section I0O Cr.P.C, on 13.1.1987, she made a categorical statement that she was residing at Ganj Road Sheikhupura and the Magistrate accepted her stance. Before him she also stated about the pendency of the dissolution suit before the Family Court at Shiekhupura. In these circumstances, it cannot be said that the petitioner was not ordinarily residing within the jurisdiction of the Judge Family Court Sheikhupura and earlier return of the plaint on this issue would not create any bar in the adjudication of the subsequent suit. Reliance is also placed upon Muhammad Aslam v. Mst. Sofia Bibi etc. (1981 Law Notes (Lahore) 621), Dost Muhammad v. Mst.
Maqsoodan Bibi etc. (PLD 1985 Lahore 340), Fazal Khitab v. Naheed Akhtar etc. (NLR 1979 Civil SC- 654) and Muhammad Ilyas v. Mst. Zarina (PLD 1983 Lahore 462). As far as the ground of Khula was concerned both th$ Courts below were mainly swayed to non suit her on the grounds of her failure to substantiate the allegation levelled in the suit. The plea of Khula in the circumstances were not considered in its proper perspective. The leamed District Judge has not given any cogent reason for declining her right of dissolution on the basis of khula v)which is an independent right. It has been consistently held by the Superior Courts that the failure of the petitioner to establish the grounds other than khula taken by he\in the suit for dissolution shall not prejudice her right. Family Courts are Enjoined to determine this right independently. Reliance in this regard is placed upon Suleman v. Asima Bibi (NLR 1983 Civil 143).
It has been held in Mst. Rashidan Bibi v. Bashir Ahmad(l (NLR 1983 Civil 584) that- The principle of khula is based on the fact that if a woman has decided Opt to live with her husband for any reason and this decision is firm then the^Court after satisfying its conscience that-not to dissolve the marriage would mean forcing the woman to a hateful union with the man, and it is n6t. Necessary on the part of the woman to produce evidence of facts and circumstances to show the extent of hatred to satisfy the conscience of the Judge. Family Court or the Appellate Court".
Onus of establishing hatred required to secure the dissolution on the basis of Khula shall not be made so strict as to compel the petitioner to live in an unhappy union. The Hon'ble Supreme Court in a case titled Abdul Rahim v. Mst. Shahida Khan (PLD 1984 329) has approved the above view taken by the leamed Judge and has further augmented this principle by narrating two famous instances relating to Sabit-ibn-e-Qais, wherein the Holy Prophet (peace be upon him) pronounced Khula simply on the ground of hatred developed in the minds of the two wives of Sabit- ibn-e-Qais namely, Jamila and Habiba by quoting passages from the Full Bench case titled Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 (W.P) Lahore 566). The leamed Judges of the Supreme Court quoted from the Full Bench judgment as under:- "In neither case was Sabit in any way to blame, and so far as Jamila is I concerned, she had expressly said that she found no fault with him and that the sole reason why she wanted a release was that he was ugly and she could not bear him, she being herself a handsome woman. In neither case did the Holy Prophet make any pronouncement as to the reasonableness of the attitude of the wife. He was just satisfied that the husband and wife could not amicably live together. He never asked for the consent of the husband".
It has further been observed by the Full Bench at page 582 that:- "Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but Judge may take into Consideration reciprocal benefit received by the .
Husband and continuous living together also may be a benefit received".
The leamed Judge in the Supreme Court after quoting the aforesaid passages from the Full Bench judgement observed as under: "The above view of the Full Bench was not only accepted in Mst. Khurshid Bibi v. Baboo Muhammad Amin which was judgment delivered by a Bench pf Five Judges of this Court but the doctrine was further discussed and elaborated. It was found that in case of dislike by the wife of her husband,, Islam concedes the right to the wife, in circumstances of extreme discord and where life becomes a torture for both, on account of the fixed aversion on the part of the spouses, to seek dissolution of marriage on the ground of khula. This , right however, is not an absolute right by which the wife can herself dissolve the marriage but is a controlled right. The success of her right depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God. However, the Court while coming to a conclusion on this question, shall hear in mind that it would be more consistent with the letter and spirit of the Quran which' places the husband and the wife on an equal footing in respect of rights of one against the other to construe the classical incident of Sabit-bin-Qais as meaning that the person in authority including the Qazi, can order separation by khula, even if the husband is not agreeable to that course".
In the case in hand the parties are litigating for the last more than 10 years. Even at this juncture the petitioner is not ready and willing to stay with her husband. She has categorically stated in her testimony that it has become impossible for her to live with the respondent within the limits prescribed by Allah Almighty. In these circumstances it would be unjust and hard to keep the petitioner in this State of uncertainty.
Keeping in view the long drawn out litigation between the parties I am of the view that it would not be in .The interest of justice to remand this case at this stage to. Determine the plea of khula which amply get supports from the evidence brought off record. Accordingly the judgments/decrees of the two Courts below dated 8.6.1989 and 5.5.1991 are hereby set aside as having been passed without lawful authority and of no legal effect. There shall be, however, no order as to costs.