SARDAR MUHAMMAD NAWAZ KHAN, J.- This appeal is to challenge the validity of judgment and decree dated 30-4-1995 passed by Family Court Muzaffarabad whereby a suit for dissolution of marriage was dismissed and a cross suit for restitution of conjugal rights was allowed by the said Court.
2. Two suits by respondent Muhammad Shafi for restitution of conjugal rights and other by the present appellant Saleem Akhtar for dissolution of marriage were instituted before Sub-Judge Muzaffarabad which later on stood transferred to Family Court Muzaffarabad on account of change of forum by the enactment of law known as Family Courts Act. The trial Court after due process of law decreed the suit of respondent and dismissed the suit instituted by the appellant Saleem Akhtar through the impugned judgment and decree. Hence this appeal.
3. The learned counsel for the appellant while assailing the impugned judgment and decree argued that evidence on record was not considered by the trial Court which resulted into a wrong judgment and decree. According to the learned counsel, the trial Court while appreciating the evidence, ignored some very important evidence in shape of certified copies of judgments and different other documents. The learned counsel further submitted that the evidence on record was of such a nature which suggested to dissolve the marriage on the basis of Khullah as spouses could not live within the limits ordained by Almighty Allah.
4. The learned counsel for the respondent controverted the arguments on the opposite side and contended that the appellant failed to establish her claim for dissolution of marriage on the basis of Khullah and the trial Court acted in right direction while dismissing her suit for dissolution of marriage on the basis of Khullah. According to the learned counsel, the spouses could live within Hadood- Allah and there was no such evidence on record which suggested to dissolve the marriage on the basis of Khullah. The learned counsel further submitted that the appellant lived happily with the respondent for about 22/23 years and she gave birth to seven children out of which three were alive and were young then.
5. This case has got a chequered history behind it. According to the allegations made by the appellant in her suit, she was maltreated by her husband Muhammad Shafii and allegations of immorality were also levelled against her by the husband and consequently she was turned out of the house by her husband. She went to Sargodha where her parents were living initially and filed a suit for dissolution of marriage there at Sargodha in some competent Court. Meanwhile an attempt was made by the respondent to reconcile the matter and as a result the appellant came back to Muzaffarabad where the controversy between the spouses was reported to have been settled- down by Maqbool War, Advocate, the then Councillor of their Ward. But after some time according to the appellant, she was again maltreated by her husband and consequently she left the house of her husband. On this, a case under Sections 10, 16 and-19 ZHA was registered against appellant and some other persons at the instance of the respondent Muhammad Shafi. The police concerned after registration of the case, proceeded to Sargodha whereupon the appellant was taken into custody and was brought to Muzaffarabad. She remained in police custody for some days and later-on she was released on bail by the competent Court. The case registered against the appellant and some other persons including her reported paramour Muhammad Altaf the defendant No. 4 remained under trial for some time. The trial Court in the case after due completion of process of law acquitted the appellant alongwith the co-accused by giving them the benefit of doubt. The prosecution challenged the validity of the order of the trial Court before different competent forums including Supreme Court of Azad Kashmir but the fate was the same as all the appellate Courts upheld the judgment of the trial Court in that case.
6. The appellant also moved an application under Section 14 of Qazi Act to dissolve her marriage by adopting the process of li'an. This application was moved before District Court of Criminal Jurisdiction Muzaffarabad which was disallowed by the said Court. It was observed by the said Court that a case for dissolution of marriage was sub-judice before the competent Court so it was not within the jurisdiction of the said Court to dissolve the marriage by adopting the procedure of li'an. The aforesaid judgment was also challenged by the appellant before the Shariat Court of Azad Kashmir and the said Court upheld the judgment recorded by the District Court of Criminal Jurisdiction Muzaffarabad.
7. During the trial of the case for dissolution of marriage, an application was moved by the appellant to the Court to issue a temporary injunction against the respondent including the real sons of the spouses. The allegations in the application was that the respondent Muhammad Shafi and his/her sons were threatening her to pick her forcibly from the house of her father who was an old man at the relevant time. A temporary injunction was issued by the trial Court against Muhammad Shafi and others but despite the fact they forcibly picked up the appellant and she was taken to the house of respondent Muhammad Shafi. An application under Section 100, Cr.P.C, was moved before the competent Magistrate at Muzaffarabad and she was recovered in response of a warrant issued by the Magistrate. A statement by the appellant Saleem Akhtar was recorded before the Magistrate wherein she alleged that she was wrongfully confined by the respondent Muhammad Shafi and his/her sons in the house of respondent. She, in her statement, requested the Magistrate to send her to Darulkafala but she was again sent to the house of her father. The whereabouts of the appellant are still unknown to the respondents as they stated before this Court at the time of hearing of arguments. She is being represented through her counsel before this Court.
8. As earlier stated, the history of this case shows that the appellant is not ready to live as wife of the respondent at any cost. The allegations made by her in her suit are of maltreatment, non- payment of maintenance allowance and of immorality. It is also stated in the plaint by the appellant that she prefers death than to live with her husband Muhammad Shafi. The trial Court also attempted to reconcile the spouses at to different stages while conducting the pre-trial and posttrial proceedings but the appellant did not agree to go with the respondent. A case under Sections 10j 11, 16 and 19 ZHA was also registered on the allegations of the respondent against his wife, the appellant. This case was contested up to Supreme Court of Azad Kashmir by the parties.
An application under Section 14 of Qazi Act and a decision by the Court is also on the file. The attested copies of the judgments of different Courts regarding the case under Sections 10, 11 ZHA are also on record. The certified copies of an application under Section 100, Cr.P.C, the order of the Magistrate for the production of appellant and the statement of the appellant is also part of the file. Another complaint under Section 107, Cr.P.C, was also made by the appellant against her husband and sons. The aforesaid facts stand admitted by the respondent. Therefore, the parties are in agreement about the strained relations between the spouses and long long litigation in criminal and civil matter before different Courts. It is also admitted that Muhammad Altaf the reported paramour has died. He was arrayed as defendant in the suit by the respondent.
9. The trial Court while recording the judgment observed that as the appellant remained as wife of the respondent for 22/23 years and she gave birth to children also. Therefore, it was possible for the spouses to live within Hadood Allah. It is correct that she remained with her husband for couple of years and gave birth to children but the trial Court while recording the judgment, failed to view the other side of the picture. A woman who was married 30 years back and gave birth to 7 issues out of three are alive and are young now preferred to live separately and seeks for dissolution of marriage shows nothing but a severe hatred against her husband. Had there been any chance to live together, she would have not preferred to seek dissolution especially when she spent her young life with the respondent as her husband.
10. A happy union is always bilateral. A lady who lived with her husband for 22/23 years and then she left the house of her husband and constantly facing agony of criminal and civil litigation since long and still insists to dissolve her marriage cannot be said to live within the limits ordained by Almighty Allah.
11. The trial Court while recording the judgment mainly relied upon the statement of the son of the spouses namely Muhammad Rafique. This statement did not matter very much in the instant case for to reason: Firstly he appeared to be a partisan on father's side as the record shows. According to the record, the appellant was forcibly taken away from the house of her father by the respondent with the help of the aforesaid witness namely Muhammad Rafique she was recovered in pursuance of a warrant issued under Section 100, Cr.P.C, and secondly she has to live as wife with the respondent Muhammad Shafi whom she does not tolerate at any cost. Therefore, the observations made by the trial Court mainly on the basis of statement of the aforesaid witness (sons of the spouses) does not carry any weight.
The history of this case revealed that she left the house of her husband time and again and is not ready to accept the respondent Muhammad Shafi as her husband. The reported paramour is also dead but even then she prefer to dissolve her marriage on the ground of Khullah. The contention of Muhammad Shafi is that the rift created in between spouses as he wanted to marry Mst. Salim Akhtar. Had it been true, the matter would have been settled at the death of so-called paramount.
12. Another factor which perhaps persuaded the trial Court to dismiss the suit by appellant was that she failed to prove the maltreatment by direct evidence. It is correct that the appellant pleaded many other grounds for her marriage to be dissolved besides the ground of Khullah but nevertheless it is the independent right of a wife to seek dissolution of her marriage on the basis of Khullah and if she fails to establish grounds other than Khullah taken by her shall not prejudice her right of Khullah. It is very difficult to prove physical and mental torture through direct evidence. It is something to be assessed by viewing different factors and happenings during wed-lock. When the conscience of the Court is satisfied that the spouses cannot observe their obligations while living together, the right course is to dissolve the marriage on the principle of Khullah. This view find support from 1987 C.L.C. 256, 1990C.L.C. 39(a), N.L.R. 1992 Civ. 361(a) 1991 C.L.C. 805 (806 and 807).
In 1987 C.L.C. 256(a) it was held as under:- "a" West Pakistan Family Courts Act, Sections 5 and 14-Dissolution of Muslim Marriages Act, Section- 2-Khula-Habitual cruelty-Mere fact that wife had not been able to prove habitual cruelty in accordance with requirements Section-2 of Dissolution of Muslim Marriages Act, 1939, held, would not per se lead to conclusion that disaffection and rough treatment deposed by her had also not been meted out to her by husband-Existence in a wife of hatred from various factors and happenings during coverture and was not always easy to be proved by direct evidence."
In 1990 C.L.C. 30(a) the Honourable Judge made the following observation- la) Dissolution of Muslim Marriages Act-Section 2~Khula~Wife's right to seek divorce on the principle of 'Khula' is not contingent on the consent of husband but is dependent upon reaching a conclusion on the part of Judge, that spouses can no longer live within the limits of God- Grounds mentioned in Section-Dissolution of Muslim Marriages Act, 1939 could be taken by a wife, besides the ground of her version against the husband and in case she fails to substantiate, such grounds, \ still her plea of aversion cannot be brushed aside on that score alone- Court has to arrive at a conclusion whether as per facts on record husband and wife can or cannot live together in harmony or conformity with their obligations and as such within limits of God-Once the answer is in negative, Court can order separation of spouses by 'Khula', disagreement of husband notwithstanding."
In N.L.R. 1992 Civil 361(a) the following observation made by the Judge is as under: -
(a) Khula-Wife's right of dissolution of marriage on basis of khula is an independent right-Her failure to establish grounds other than khula taken by her shall not prejudice her khula right-Onus of establish hatred required to secure 'khula' will not he made out so strict as to compel wife to live in an unhappy union--Discord between husband and wife involved in litigation wipes out any hope of reconciliation entitling wife to dissolution of marriage on Khula ground.
In 1991 C.L.C. 805 (806 and 807) it was held as under: -
(a) Muhammadan Law. Dissolution of Marriage by 'Khula' principles stated.
Page 807 The principle of 'khula' is based on the fact that if a woman has decided not 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 a hateful union with the man, and it is not 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.
13. In the instant case the long litigation between the parties and series of allegations including the allegation of Zina against each other suggest nothing but to dissolve the marriage by following the principle of 'khula'. The litigation in criminal and Civil Courts fro a long time wipes out any chance of harmonious life to be led by the spouses by observing corresponding rights and liabilities.
Therefore, this Court is fully satisfied that the spouses cannot live within the limit ordained by Almighty Allah.
14. Thus the result is that by accepting the appeal the judgment and decree dated 30-4-1995 is set aside, The suit by the appellant succeeds on the principle of 'khula' and the marriage between spouses stands dissolved. The suit by the respondent Muhammad Shafi for restitution of conjugal rights consequently fails, There is nothing on record to show that to what extent the dower was fixed at the time of wed-lock or to what extent it was paid to the appellant Mst. Saleem Akhtar. However, the respondent himself stated before the trial Court that amount of 525 was fixed and the same was paid to the respondent. The statement of the respondent is accepted to be correct and the respondent is entitled to payment of Rs.525/- by the appellant.