' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the Shariat Court dated 26-6-1999, whereby accepting the appeal filed by the respondent, herein, the suit filed by Abdul Khaliq for the restitution of conjugal rights was decreed and the suit for dissolution of marriage filed by 'the appellant, herein, was dismissed.
2. The brief facts of the case are that the appellant, herein, was married to respondent on 5-4-1993.
According to her, she lived with the respondent as his wife for about nine days and thereafter the respondent left for Saudi Arabia to earn livelihood. In his absence Muhammad Arif, the brother of the respondent, subjected her to illicit relations without her consent and consequently, she gave birth to an illegitimate child. The story of the said illicit relations was told by the appellant to her father-in-law but no action was taken by him. Instead, she was asked to keep quiet and was promised by her father-in-law that he would give her some medicines for abortion as to destroy her pregnancy. According to the appellant, subsequently, she was taken by Muhammad Naseer, the cousin of the respondent, to Murree, was left at bus stop alone and was deserted.
Consequently, she took refuge at Murree in the house of a widow and thereafter, she was sent by the said widow to Rawalpindi to reside with her daughter. During the period she remained away from the house of the parents of the respondent, the father of the respondent and his brothers were arrested by the police on some report made by the relatives of the appellant, who were subsequently released on bail. After taking necessary proceedings, the Family Judge came to the conclusion that the appellant, herein, was entitled to a decree of dissolution of marriage on the grounds of cruelty and the fact that it was no more possible for the spouses to live within the limits ordained by God. However, on appeal by the respondent before the Shariat Court, the learned Chief Justice has expressed the view that there was no fault on the part of the respondent, the husband of the appellant; rather the grievance of the appellant was against the parents and the brothers of the respondent and not the respondent. The learned Judge in the Shariat Court particularly relied upon a letter alleged to have been written by the respondent to his parents from Saudi Arabia wherein he has expressed his anguish on hearing the news of missing of the appellant, herein, from her house. The case of the respondent in the Courts below was that in fact the appellant, herein, left the house of his parents without any knowledge of any of his family members including Muhammad Naseer, his cousin, who is alleged to have taken the appellant, herein, to Murree and left her alone at a bus stop.
3. Sardar Muhammad Arif Khan Abbasi, Advocate, the learned counsel for the appellant, has argued that the learned Judge in the Shariat Court has drawn incorrect inference from the material on the record and particularly from the letter which was allegedly written by the respondent to his parents. He has referred to the contents of the said letter and has argued that the same are indicative of the fact that the respondent was aware of the plight of the appellant but he did not take any step to, provide safe refuge to her as a husband. The learned counsel has further argued that the learned Judge was also not justified to express the view that it was not a fit case to dissolve the marriage on the basis of 'Khula'. The learned counsel for the appellant has further argued that it is on the record that according to the stand taken by the respondent, a case was registered against the father and brothers of the respondent at the instance of the father and brothers of the appellant, herein, and they were arrested and were subsequently bailed out. He has further submitted that it also transpires from the record that Muhammad Naseer, the cousin of the respondent, took the appellant from the house of the parents of the respondent with the connivance of the parents of the respondent and left her deserted in Basian, Murree. According to the learned counsel for the appellant all these facts indicate that the respondent did not care to provide the appellant, herein, a safe accommodation and left her at the mercy of his parents and brothers, which resulted in her pregnancy as a result of illicit relations with Muhammad Arif, the brother of the respondent, forcibly developed with the appellant against her consent. The learned counsel has also referred to the statement of the appellant, herein, in support of his contention that despite the fact that the appellant, herein, informed her father-in-law about the adultery which Muhammad Arif, the brother of respondent, had been committing with her and the fact that she had become pregnant, he did not take any step and merely told the appellant that he would give her some medicine so as to effect abortion. The learned counsel has argued that all these circumstances bear testimony to the fact that it is no more possible for the spouses to live together within the limits ordained by God.
4. In reply, Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for the respondent, has controverted the arguments advanced on behalf of the appellant. He has argued that there is no evidence against the respondent to justify the separation of the spouses on payment of 'Khula'. He has maintained that the allegation of adultery committed by. Muhammad Arif, the brother of the respondent, is not substantiated by the record and that a criminal case was registered against the parents of the respondent at the instance of the relatives of the appellant would not justify the separation on the basis of 'Khula' when there is no fault on the part of the respondent. He has further argued that the mere fact that wife does not want to live with her husband or dislikes him without any valid reason, is not a ground for separation on the basis of 'Khula'. He has referred to the commentaries by Maulana Abul A' ala Maudoodi of Verses 15 and 16 on Surah 'Noor' and Verse 229 of Surah 'Baqarah' to support his contention that in the circumstances indicated above, separation on the basis of 'Khula' or on false allegation of adultery cannot be ordered in view of the dictates of Holy Quran. He has also submitted the following authorities in support of his contention that decree on the basis of 'Khula' cannot be ordered merely because the wife pleads that she did not want to live with her husband when there is no reasonable cause in support of such a plea:-- ' In case reported as Kaura v. Mst. Mansab Mai PLD 1981. Lahore 335, it was held that there was no sufficient material on the record to draw the conclusion that deep rooted hatred existed between the spouses; and the appeal was accepted observing that there was no valid reason for ordering separation on the basis of 'Khula'.
' In case reported as Mst. Barkat Jan v. Habib Khan PLD 1985 SC (AJ&K) 69, it has been observed that no serious grievance or allegation of maltreatment was established against the husband; and no rift between the parties was found to exist to justify that it was no more possible for the spouses to live as husband and wife within the limits ordained by God. Thus, the petition for leave to appeal was rejected.
' In case reported as Muhammad Abbasi v. Mst. Sarnia Abbasi 1992 CLC 937, it was observed that the decree on the basis of 'Khula' cannot be granted merely because the wife demanded the same; it was observed that before separation is ordered on the basis of 'Khula', the Court must be satisfied that it is no more possible for the spouses to live as husband and wife within the limits prescribed by God.
' In case reported as Rehmatullah v. Mst. Shamim Akhtar 1989 CLC 3, it was held that the decree on the basis of 'Khula' can only be passed if the Court comes to the conclusion on the basis of evidence that it was not possible for the spouses to live within the limits ordained by God. The Court further observed that if no such findings are possible, it would not be legally correct to order separation on the basis of 'Khula', especially so when the decree on the basis of 'Khula' was not claimed in the plaint and no issue was framed in that regard.
5. We have given due consideration to the arguments raised at the Bar. It may be stated that this is well settled principle of Shariah that a decree on the basis of 'Khula' can be passed if the Court comes to the conclusion that it was no more possible for .The spouses to live together within the limits ordained by God. Obviously, the question as to whether the spouses can live within the limits ordained by God or not is a question of fact which depends, on the circumstances of each case. It is not necessary that the marriage can only be dissolved on the basis of 'Khula' if there exists a deep rooted hatred between the husband and wife, rather the same can be dissolved on the basis of variety of circumstances which satisfy the Court that it is not possible for the spouses to live as husband and wife as is ordained by God. In the instant case, irrespective of the fact that the respondent had some soft corner for the appellant, the fact remains that he went away to Saudi Arabia after nine days of his marriage; subsequently, when the fact came to his knowledge that the appellant was pregnant due to some foul-play, he did not come home to take appropriate steps by making proper arrangements for her separate accommodation; it is also on the record that the appellant, herein, made complaint to the father of the respondent that Muhammad Arif, the brother of the respondent, had been committing adultery with her and she was pregnant, he did not take any step to save her. Thereafter, a case was registered against the father and brothers of the respondent at the instance of the relatives of the appellant under Hudood Ordinance and Azad Penal Code; the relatives of the respondents were arrested which made the relations between the families of the spouses more strained. It cannot be accepted that subsequently, when the present litigation started between the parties, the respondent was till not aware of the fact that the appellant was subjected to illicit intercourse by his brother. Thus, under these circumstances, it is not possible to accept the contention of the learned counsel for the respondent that the respondent was not responsible for the plight of the appellant, herein, or that there are no circumstances which justify the inference that it is not possible for the spouses to live together as husband and wife. Taking into consideration the moral values and social set up of our society, it cannot be said by any stretch of imagination that the appellant can still live with the husband as his wife within the limits ordained by God.
6. The learned counsel for the appellant has also argued that no findings have been given by the Courts below with regard to the amount which was to be paid by the appellant, herein, for getting separation on the basis of 'Khula'. The perusal of the record shows that in fact no findings have been given as to the amount which the respondent was entitled to receive in case of a decree on the basis of 'Khula'. However, the perusal of the record shows that there is no dispute between the parties that Rs.7,200 were fixed as dower which was paid to the appellant. The appellant has taken the stand that the ornaments which were given in lieu of the dower are with the respondent.
However, there is no tangible evidence on the record to prove that the said ornaments were returned by the appellant or she was deprived of the same by the respondent before she left the house of the parents of the respondent. Under these circumstances, we are of the considered opinion that the respondent was entitled to Rs.7,200, the dower amount for the decree of dissolution of marriage on the basis of 'Khula'.
' In the light of what has been stated above, we accept the appeal, set aside the judgment and decree of the Shariat Court and amend the judgment and decree of the trial Court in terms that the decree of dissolution passed by the trial Court in favour of the appellant, herein, would be effective on the payment of Rs.7,200, the dower amount which was paid to the appellant, herein, in form of the ornaments. Consequently, it is directed that the appellant, herein, shall deposit Rs.7,200 in the trial Court on which the decree of dissolution of marriage passed in her favour by the trial Court shall be effective.