1. ' This appeal is directed to challenge the judgment and decree of Judge Family Court, Bagh, dated 6-1-1998 whereby a suit for dissolution of marriage by the respondent was allowed on the ground of Khula'.
2. ' A suit for dissolution of marriage by the respondent Mst. Shakoor Akhtar was filed in the Court of Family Judge, Bagh on 8-8-1996. It was claimed in the suit that the respondent was married to the appellant on 10-5-1991 for a consideration of dower amount of Rs,50,000. An amount of Rs,13,000 according to the plaint was paid in shape of ornaments at the time of wedlock but the ornaments were taken back forcibly by the appellant and the respondent was turned out from the house of her husband on account of maltreatment. It was averred in the plaint that the behaviour and conduct of the appellant while living with the respondent was always cruel. She left the house of her husband and thereafter, she was living with her parents. The spouses also gave birth to two children out of their wedlock. The female issue who is elder in age is living with the appellant whereas the male issue is living with the respondent (mother). -According the pleadings of the plaintiff-respondent she had developed a severe hatred against her husband and she could not live within "Hudood Allah" nor she was in position to observe the rights and liabilities in accordance with the law of "Sharia", therefore, a decree was sought on account of maltreatment, non-payment of maintenance allowance etc. ' The appellant-defendant appeared in the Court in response of a notice issued to him by the trial Court and submitted his written statement on 25-2-1997. It was claimed through the written statement that the respondent left the house of the appellant on 15-6-1995 on account of death of some relative and thereafter, she refused to go back to the house of the appellant on account of persuasion by her parents. The appellant, according to his claim has been trying to reconcile but despite his efforts the respondent flatly refused to go with him for living as spouses.
3. ' The trial Court conducted the pretrial proceedings in order to reconcile the spouses failing which the issues were framed and the parties were directed to produce evidence. Firstly, the plaintiff- respondent produced Maqsood Hussain son of Mir Hussain, Muhammad Sharif Khan son of Muhammad Karim Khan, Ghazanfar Hussain Shah son of Zafar Hussain Shah, Muhammad Mehmood son of Muhammad Karim, Muhammad Sarwar son of Saien Khan and recorded her own statement as witness. Thereafter, the appellant-defendant produced Muhammad Jumas Khan son of Hussain Khan, Molvi Misri son of Bahader, Nizam Din son of Bahader, Muhammad Mumtaz son of Atta Muhammad and got his own statement recorded on 16-10-1997.
4. ' A second attempt by the trial Court for reconciliation was made but the respondent refused to accept the appellant as her husband anymore. Therefore, the arguments in the instant case were heard and the suit of the respondent was allowed on the principle of Khula' vide judgment and decree, dated 6-1-1998. Hence this appeal by the defendant-appellant.
5. ' The learned counsel for the appellant argued that the trial Court fell in error while dissolving the marriage on the principle of Khula' for the 'reason that there was no request to dissolve the marriage on the ground of Khula'. And furthermore, no issue was framed regarding Khula'.
6. Therefore, according to the learned counsel the trial Court travelled beyond its jurisdiction. It was further submitted that the grounds alleged by the plaintiff-respondent for dissolution of marriage were not proved as rightly held by the trial Court but despite the fact the marriage was dissolved on the ground of Khula', which was not warranted under law keeping in view the facts of the case and the law on the subject.
7. ' On the other hand the learned counsel representing the respondent argued that though the grounds taken by the respondent in her pleadings were not proved nevertheless a case of Khula' was made out through the evidence on record and the trial Court acted in right direction while dissolving the marriage on the principle of Khula'. According to the learned counsel, the trial Court was competent to dissolve the marriage despite the fact that no specific mention was there in the pleadings. It was further submitted that according to the law on the subject if the Court was satisfied that the spouses could not live within the limits ordained by Almighty Allah, the marriage could be dissolved by observing the principle of Khula' and it was rightly done by the trial Court.
8. ' The learned counsel for the appellant raised an objection that the marriage could not be dissolved by the Court because it was sole right of the husband to divorce his wife on the principle of Khula'. The learned counsel vehemently argued that the Talaq-eKhula' is only possible by mutual consent of the spouses while living in an Islamic Society. This view cannot be accepted for the reason that this point came under discussion before the Superior Courts in Pakistan and Azad Kashmir time and again and now it is well settled principle of law that the marriage in Islam may be dissolved by the Court on the ground of ithula' provided the conscience w A the Court is satisfied that the spouses cannot live within the limits ordained by Almighty Allah. Therefore, this objection is not tenable and is brushed aside.
9. ' Another objection was raised by the learned counsel for the appellant that neither the respondent pleaded the ground of Khula' nor any issue was framed in this connection but the trial Court at its sown dissolved the marriage by applying the principle of Ithula'. Therefore, according to the learned counsel, the marriage could not be dissolved on the basis of Khula' without a request by the respondent (wife). This objection is also not valid one. The Apex Court of the State of Azad Jammu and Kashmir in a case titled Mst. Suraya Koser v. Sheikh Abdul Qayoum, decided on 11-6- 1995 has observed as under:- "A Court of law is well within its competence to dissolve a marriage, on the basis of Khula', if from the material brought on record and the evidence led by the parties, it comes to the conclusion that spouses cannot live a happy and harmonious life within the limits ordained by God."
10. ' In the above referred case two suits one for restoration of conjugal rights and other for jactitation of marriage and perpetual injunction remained under trial. The trial Court and the first appellate Court arrived at conclusion that no marriage between the parties took place and as such the suit of Turaya Koser was decreed by dismissing the counter suit by Sheikh Abdul Qayoum. On appeal, the Shariat Court of Azad Jammu and Kashmir reversed the findings of both the Courts below and held that the fact of marriage was proved and resultantly dissolved marriage on the ground of Khula'. Honourable Supreme Court upheld the view of the Shariat Court. In this case there was no plea for Khula' but the case simpliciter on the part of Surya Koser was that she never entered into wedlock with Sheikh Abdul Qayoum. The Shariat -Court and the Apex Court of the State dissolved the marriage despite the fact that there was no request to dissolve the same on the principle of Khula' therefore, under Constitution, the dictum of our own Supreme Court is binding on the Subordinate Courts, and it is the law of the land. Thus by following the law laid down by the Apex Court, this objection also stands repelled.
11. It is correct that the grounds taken by the respondent in the instant for dissolution of marriage are not proved by the direct evidence but at the same time it is very different rather impossible to prove the cruelty by direct evidence. It is somethin, to he inferred by the conduct, behaviour and temperament of the husband while living together. It is only possible by a close association with spouses by watching different happenings during wedlock and their habits they inherit. A mental torture by. The husband also amounts to cruelty and similarly non-coincidence of feelings and thoughts may also result into discomfort and hardship to live a harmonious life. Even otherwise despite the tact that the grounds given in section 2 of Muslim Marriages Act, 1939 are not proved, the marriages can he dissolved on the ground of Khula'.,In the instant case the objective appraisal of evidence on record shows that the respondent left the house of the appellant time and again despite the fact that they had two issues also. Different "Punchayats" and "Jirgas" were held and according to the father of the respondent, she was sent back to the house of the appellant for five times but even then she was compelled to leave the house of her husband. She was not ready to live with her husband under any circumstances. She is not ready to accept the appellant as her husband any more as she has developed sever aversion against him. She has pleaded the fact of hatred in his plaint and made a categorical statement in the Court that she could not live as wife of the appellant anymore.
12. ' The evidence on both the sides is also in agreement that she cannot live with her husband and she is bent upon to obtain divorce. For this purpose the reference may be had to the statements of Mr. Mehmood, Muhammad Sarwar, the father of the appellant and her own statement recorded in the Court. Mr. Muhammad Jumas Khan who appeared as a witness on behalf of the appellant also testified the fact that the respondent was not ready to live as wife of the appellant any more.
13. Another attending circumstance which may help to arrive at right conclusion is that she, despite that fact that she has two issues from the wedlock, is reluctant to accept the appellant as her husband in future. It means that there is definitely some compelling reason behind the curtain to seek dissolution of marriage on the ground of Khula'.
14. It may be correct that the appellant is ready to accept her as his wife but nevertheless the fact remains that a happy union is always bilateral. A harmonious life is only possible in an Islamic Society when the spouses accept each other mentally and observe the corresponding rights and liabilities imposed on them by law of "Sharia". Therefore, the evidence on record is suggestive of the fact to dissolve the marriage on the principle of Khula' and there is no justification to reverse the impugned judgment and decree.
15. ' The appeal being devoid Of force is hereby. Dismissed.