' Through this appeal, the judgment and decree of Judge Family Court, Mirpur, dated 31-8-1998 has been called in question, whereby a suit for dissolution of marriage tiled by the respondent, herein was dismissed.
2. The facts precisely stated are that the spouses were married to each other on 19-5-1993 at Chattar Pari, Mirpur and have been living together when the respondent brought a suit before Judge Family Court, Mirpur, on 29-12-1997 seeking dissolution of her marriage on various grounds including cruelty, maintenance etc. She also averred that because of the hatred she will not live with the appellant at any cost but prefer to die: The appellant filed his written statement on 28-1- 1998 and refuted the allegations levelled by the respondent. He also submitted that the dower was paid to the respondent and she took away golden ornaments and expensive dresses with her. It was also averred that when he demanded his loan from Muhammad Rafique, brother of the respondent, the respondent refused to live with him. The trial Court framed 5 issues in the light of the pleadings of the parties and decided issue No,1 against the respondent but decided issue No,3 in her favour while issues Nos.2 and 4 were decided against the appellant. Consequently, the trial Court passed a decree in favour of the respondent on payment of Khula' to the appellant to the tune of rupees five hundred on 31-8-1998. Hence this appeal.
3. Chaudhry Muhammad Hussain, the learned cot nisei for the appellant, vehemently contended that the respondent has not taken the plea of Khula' in her plaint but the trial Court has erroneously decreed the suit on basis of Khula' which cannot be upheld. He also argued that the golden ornaments worth Rs,I7,225 are in possession of the respondent but the trial Court has fixed consideration for Khula' rupees five hundred only. He pointed out. That the respondent's witnesses belong to Chatter Pari but the appellant resides in Sabz Kot, Tehsil and District Kotli, thus, cannot be relied upon. He agitated that respondent lived with her husband for five years but now she has declared that the respondent is impotent which cannot be believed. He further submitted that the fact of cruelty has not been proved by the respondent but the trial Court did not appreciate the evidence in a legal fashion. Therefore, the judgment and decree cannot he maintained. In support of his contentions he referred PLD 1984 Lah.
365.
4. On the contrary, Mr. Abdul Hamid, the learned counsel for the respondent zealously , contended that the respondent had proved through her evidence that it has become impossible to live with her husband. Therefore, the. Trial Court has rightly dissolved the marriage on the basis of Khula'. In this respect, he referred the statement of the appellant, whereby according to him, he has admitted himself that he has contracted the second marriage and he has got no issue from both the wives. The learned counsel for the respondent defended the impugned judgment and submitted to uphold the same. In support of his arguments he cited 1993 SCR 330.
5. I have considered the respective contentions of the learned counsel for the parties and perused the record with care. The fact of cruelty has amply been proved through evidence led by the respondent, in this respect, the statements of respondent and the witnesses Muhammad Rafique (P.W.1), Muhammad Sharif (P.W.2) and Makhan (P.W.3) can be referred who categorically corroborate the respondent's stand and deposed that they had themselves seen injuries on the person of the respondent. On the contrary. The appellant refuted the fact of cruelty and produced Mushtaq Ahmed (P.W.1), his real brother and Raja Muhammad Hussain (P.W.2). Both the witnesses stated that the spouses led a happy life. A perusal of the statement of Mushtaq Ahmed, his brother, reveals that he wants to help his brother, respondent, at any cost. The statement of Raja Muhammad Hussain (P.W.2) is self-contradicted, thus, cannot be relied upon. In this view of the matter, the trial Court has rightly recorded that the behaviour of the appellant was cruel and inhuman towards the respondent.
6. I cannot accept this argument of the learned counsel for the appellant that P. Ws. Belong to Chattar Pari. Therefore, their statements cannot be relied upon. As it has been mentioned above that Muhammad Rafique is real brother of the respondent who can be a best witness of the behaviour of the appellant with her sister. Furthermore. He, Muhammad Sharif (P.W.2) and Makhan (P.W.3) are the eye-witnesses of the injuries upon the person of the respondent. Therefore, their evidence cannot be ignored.
7. I also see no substance in this argument of the learned counsel for the appellant that in absence of the plea of Khula' in the plaint, the Court cannot dissolve the marriage. It will be relevant to note here that in para.I0 of the plaint the respondent clearly stated that she will not live with the appellant at any cost because of the hatred and aversion rather she will prefer to die. It will be appropriate to reproduce para. No,10 for convenience which reads as under-- {{URDU TEXT}} ' A perusal of the abovementioned paragraph makes it crystal clear that the appellant has taken the plea of Khula' in an unequivocal. Manner. The absence of word Khula' is not sufficient to ignore the plea of Khula'. If, for the sake of the arguments, it may be admitted that the appellant has not taken the plea of Khula' even though the Court after satisfying its conscious can dissolve the marriage when it reaches to the conclusion that the wife had once for all decided to leave her husband and she is firm with her stand that she will not live more with him. A woman cannot be forced to hateful union with the man because when the spouses cannot hire together within the limits ordained by Almighty Allah then it will always be better to separate them. In this respect, the statements of Muhammad Rafique (P.V.1). Muhammad Sharif (P.W.2) and Makhan (P.W.3) can be referred wherein all the three witnesses have categorically stated that the respondent cannot live with her husband within the limits ordained by Almighty Allah rather she states that in case of forceful union she will commit suicide but these statements were not challenged in cross- examination. Furthermore. The respondent herself stated in clear words that she cannot live with her husband at any cost and she wants divorce. It is also on the record that appellant had already contracted a marriage and according to him he has divorced his first wife. It is also proved that there is no issue to the appellant from both the wives. It is also admitted that the brother of the appellant Muhammad Adrees had divorced his three wives and his other brother Younas had also divorced his wife. It is again admitted by the appellant that Mst. Khadija, wife of his brother, Adrees, had committed immolation. The respondent has also levelled an allegation of impotency against the appellant. All these facts and circumstances coupled with the evidence of the respondent when weighed, the conclusion is that the respondent has developed feelings of aversion for the appellant and now the spouses cannot live within the limits ordained by Almighty Allah. Therefore, the trial Court has rightly decreed the suit on the basis of Khula'. In the instant case the issue of cruelty has been decided in favour of the respondent, even though if the main issues were decided against the respondent, the Court was competent to order the dissolution of marriage on payment of Khula' if the circumstances of the case so warranted and no hard and fast rule can be laid down in this respect. Makhdoom Hussain v. Mst. Habib Begum and others (1993 SCR 330).
8. As far as the authority reported as PLD 1984 Lah. 365 referred by the learned counsel for the appellant is concerned, the principle enunciated in the aforesaid authority advances the case of the respondent rather than the case of the appellant.
9. It was also argued by the learned counsel for the appellant that the golden ornaments are in possession of the respondent which may be declared as consideration for Khula'. In this respect, we again advert to the evidence led by the parties. The learned counsel for the respondent has pointed out that Muhammad Rafique (P.W. I) has admitted that the dower was fixed R5.17,000 in the shape of golden ornaments which were handed over to the respondent at the time of Nikah but the learned counsel for the appellant ignored this part of the statement of Muhammad Rafique (P.W.1) where tte' deposed that when the respondent came home, she was injured and she did no bring anything with her but this statement was not challenged in the cross-examination. The respondent also stated that his golden ornaments which were given to her in lieu of dower, were also snatched away by the appellant at the time when she was forcibly ousted by the respondent from his house but this statement was also not challenged by the appellant in cross-examination. Mushtaq Ahmed ( P. W. I ) and Raja Muhammad Hussain (P.W.2) did not state a single word about this issue in their statements. The burden of proof of issue No,2 was on the shoulders of the appellant who failed to discharge the same. Thus. The trial Court has rightly decided issue No,2. Against the appellant. In this state of affairs rupees five hundred are appropriate consideration for Khula' which needs no interference.
' The nutshell of the above discussion is that finding no force in this appeal, it is hereby dismissed.