' This Constitutional Petition arises out of a matrimonial dispute. The petitioner Safia Bibi, was married to respondent No,1 Mulazim Hussain about 18 years ago. Seven children were born out of the wedlock, (four sons and three daughters), who are all alive. After some time differences developed between the parties, which became more intense on account of stated addiction of respondent No,1 who statedly sold all the household goods in 1997. In 1998 petitioner was finally thrown out of the house by the respondent alongwith her seven children after giving her severe beating. On 4-10-1999 the petitioner filed a suit for dissolution of marriage in the Family Court Tehsil Shorkot, District Jhang which was contested by respondent No, 1 . Subsequently he filed a suit for restitution of conjugal rights on 21-4-2000. Both the suits were consolidated by the learned Judge Family Court, Shorkot (respondent No,2). After hearing both the parties respondent No,2 dismissed the suit of the petitioner while decreeing the suit of respondent No,1 in his favour vide judgment dated 6-5-2000. The petitioner filed an appeal before the learned Additional District Judge, Shorkot (respondent No,3) on 18-5-2000. Her appeal was dismissed on 7-5-2001. Hence this Constitutional Petition.
2. Notice was issued to respondent No,1 on 12-6-2001 through telegram, but he did not enter appearance. Thereafter it was directed that service be effected on him through the agency of learned Judge Family Court, Shorkot, where the suit for maintenance filed by the petitioner was listed for hearing on 5-7-2001. Report of the process-server is to the effect that when he presented the summons/notice to respondent No,1, he refused to accept the same, therefore, the summons were pasted at his .Address. Today no one has turned up on behalf of respondent No,1 despite service of notice, therefore, he is proceeded against ex parte. .3. Learned counsel for the petitioner has argued that respondent No,1 was a bad character who was addicted to drugs, he never paid any maintenance to the petitioner and her children, he sold all the household goods, he used to beat the petitioner and her children and finally he threw her out of the house alongwith her children about two years ago. Ever since then the petitioner and her children have been living separately and they have been making their ends meet by petitioner doing stitching and embroidery, while the two older sons aged 17 and 14 years do work at various shops and also sell goods on Rehri (cart); that both the Courts below had dismissed the suit of the petitioner for dissolution of marriage merely on the ground that since the marriage had been subsisting for more than 17 years the petitioner had no valid reason to seek dissolution of marriage at this belated time in her life, both Courts attached importance to the allegation of respondent No,1 to the effect that the petitioner had developed illicit relations with one Bashir Arain and therefore, they held her disentitled to divorce even though there was not even an iota of evidence regarding this allegation. Further argued that although the petitioner had deposed that she could not live with respondent No,1 within the limits prescribed by God Almighty, since she had developed extreme hatred for the respondent No,1 on account of his bad habits and his failure to pay maintenance, which was adequate ground for granting her dissolution of marriage on the ground of Khula', respondents Nos.2 and 3 arbitrarily dismissed her suit and decreed the suit of respondent No,1 for restitution of conjugal rights. Learned counsel has argued that once the petitioner had expressed her extreme hatred for respondent No,1, respondent No,2 was bound to decree her suit in her favour. He prayed that the judgments of respondents Nos.2 and 3 be declared to be without lawful authority and of no legal effect.
4. I have heard the learned counsel for the petitioner and I have also examined the record.
According to the statement of respondent No,1, the petitioner was married to respondent No,1 after the death of her father and her mother made Rukhsati of the petitioner with the son of her sister, i,e, the petitioner and respondent No,1 are first cousins. It appears from the evidence of the parties that when problems arose between the parties, the petitioner left the matrimonial home with her children and filed the suit for dissolution of marriage. During the pendency of the suit, respondent No,1 allegedly abducted the petitioner regarding which occurrence the eldest son of the petitioner (Shafqat Abbas) had got an F.I.R. Registered against respondent No,1 and others. Respondent No,1 had filed a Writ Petition against the petitioner and his eldest two sons, which was subsequently dismissed.
5. Against this background of protracted litigation, the petitioner in her statement before respondent No,2 had categorically stated that she had developed extreme hatred for respondent No,1 and feared threat to her life from respondent No, 1 . However both the Courts below relied on the statement of respondent No,1 that he wanted to rehabilitate the petitioner and the only impediment was a man named Bashir Arain who had developed illicit relations with the petitioner.
Respondent No,2 in his judgment has observed that:-- ' Bashir Arain who has no good reputation wants to desert her and it is likely be appeared true (sic) that he has illicit relations with her. Therefore, plaintiff has not come in the Court with clean hand
(sic) and there is no justification for the dissolution of her marriage. Plaintiff has deadly failed to prove this issue (sic). I am not satisfied to dissolve the marriage of the parties at this stage (sic).
Moreover, plaintiff has not taken any specific ground for dissolution of marriage.
' After making these observations against the petitioner, respondent No,2 has observed that:-- ' Respondent No,1 has stated that he has great love and affection for his wife. He is ready to obey her each and every condition (sic). In these circumstances defendant has fully proved (his case).
' Respondent No,2 accordingly dismissed the suit of the petitioner for dissolution of marriage and decreed the suit of respondent No,1 for restitution of conjugal rights.
6. The appeal of the petitioner was dismissed by respondent No,3 with the observation that:-- ' The appellant had spent prime-time of her life with the respondent. There are seven children from the parties. After lapse of 17/18 years, in my view personal life of the spouses becomes of little importance as against the life of the children and their career after lapse of such- a' time when children have grown up and going to lead practical life (sic) it is but not fair (sic) for the appellant to disturb them by seeking divorce.
7. Both the Courts below have dismissed the suit of the petitioner for dissolution of marriage for irrelevant considerations. If the petitioner had spent 17/18 years in misery, while putting up with respondent No,1, there was no reason to condemn her to spend the rest of her life in misery with a person whom she abhors. The ground that the marriage must be kept intact for the sake of the children is also not valid, since admittedly the children have not been living with their father nor is he maintaining them. The older boys are earning their own livelihood and are also supporting their younger siblings.
8. It appears that the petitioner had been enduring the mistreatment of respondent No,1 for many years for the sake of her seven children who were too young to manage for themselves and she could not support them single-handedly. When they were slightly less dependent and the treatment meted out to the petitioner and her children by respondent No,1 became intolerable, they all left the house of respondent No,1 and started fending for themselves. The alleged abduction of the petitioner by respondent No,1 and ensuing litigation further exacerbated the discord between the parties to the extent that normal relations between the parties could not be restored. Today the petitioner is present in the Court alongwith her eldest son Shafqat Abbas. On Court's query she has stated that she would rather die than live with respondent No,1 since he has been making her life miserable and has never maintained her and her children. Her son Shafqat Abbas supports her stand and has confirmed that he and his brother are supporting the rest of the family alongwith their mother who earns by doing tailoring and embroidery work.
9. It is clear from the above discussion that there is no likelihodod of reconciliation between the petitioner and respondent No,1 and it would only add to her difficulties if she was compelled to remain in a matrimonial tie which she clearly abhors. It has been held in the cases cited as Abdul Aziz v. Mst. Malika and another 1997 SCMR 1599; Mst. Nasreen Bibi v. Atta Muhammad and 2 others PLD 1994 Lah. 276 and Ahmad Nadeem v. Assia Bibi and another PLD 1993 Lah. 249 that solitary statement of the wife that she cannot live with her husband within the limits prescribed by God Almighty is enough for the Court to grant her dissolution of marriage on the basis of Khula' and even if she had asked for dissolution of marriage and her other grounds were not substantiated, the Court could grant her dissolution on the ground of Khula'. In the judgment cited as Inamul Hague v. Mst. Sharifan Bibi and 2 others 1993 CLC 46 it has been held that where relationship between the parties became so strained that it was not possible for them to live within the limits prescribed by God Almighty, it was better to annul such marital tie in order to save two living souls from the agony of hateful union. In the case of Ahmad Nadeem (supra) it has been held that the right to claim divorce on the principle of Khula' by a wife is a right equal to the right of pronouncement of Talaq by the husband except with one difference that husband can pronounce Talaq himself but the wife has to file a suit seeking dissolution of marriage on the principle of Khula' in the Court of Qazi, which in Pakistan is the Family Court. A woman is not chattel and there is no method by which she could be forced to live with her husband if she herself had acquired hatred for him.
10. In this case serious allegations have been levelled against her husband by the petitioner with regard to his maltreatment towards his wife and children. There is also protracted litigation between the parties which shows 'that there is no likelihood of patch-up. Furthermore the husband has levelled allegations of unchastity against the petitioner which have not been substantiated.
Both the Courts below have dismissed the suit of the petitioner for dissolution of marriage for irrelevant considerations. As held by the Superior Courts in the judgments cited above, the only difference between a woman's and a man's right of divorce is that the husband can divorce his wife without the intercession of the Court, while a wife must approach the Court in order to obtain dissolution of marriage. Once the wife approaches the Court for dissolution of her marriage on the basis of Khula', the Court has no option but to accede to her request, since she is entitled to divorce on the basis of Khula' ex debito justitiae (as of right).
11. In view of the above discussion, this writ petition is allowed. The impugned judgments and decrees of the Courts below are declared to be without lawful authority and of no legal effect.
Resultantly, the petitioner's suit for dissolution of marriage is decreed on the basis of Khula'. Since the petitioner was not shown to have derived any benefit from her husband during the subsistence of marriage, the question of return of benefit does not arise, therefore, the 'Chula' is granted unconditionally. No order as to costs.
Writ .