Through this writ petition, the petitioner, husband of respondent No,2 Mst. Humaira Bibi, conjures that the judgment and decree dated 22-11-2002 passed by learned Judge Family Court in a case of dissolution of marriage, be held illegal, without jurisdiction and without lawful authority.
2. Facts, in brief, are that the petitioner was married to respondent No,2 on 10-3-2002. Rs,1,00,000 were fixed as dower amount which was to be paid on damand. Still ceremonial performance of `Itukhsati' had not taken place when respondent No,2 instituted the suit for grant of decree for dissolution of marriage on the basis of 'Khula' in the Court of learned Judge Family Court, Bahawalpur/respondent No,1 The petitioner opposed and contested the grant by filing a written statement in the said Court. In para. No,2 of the written statement, he claimed to have delivered to respondent No,2 some articles and net cash not only to plaintiff-respondent No,2 but also to her father in consideration of this marriage. The learned Judge Family Court, after evaluating and appreciating the evidence of the parties, granted decree of dissolution of marriage in favour of respondent No,2 on 22-11-2002 on the basis of `Khula' without awarding any `Zar-e-Khula' or the return of benefits received by plaintiff.
3. Learned counsel appearing on behalf of the petitioner has assailed the impugned judgment and decree on the following grounds:
(i) That `Rukhsati' having not taken place, the aversion could not have developed, especially within two months, when the parties had not lived for a moment with each other; and
(ii) That the learned Court had failed to frame an issue with regard to the benefits delivered by the petitioner to respondent in consideration of the marriage although the Court was duty bound to frame such an issue and grant opportunity to the parties to adduce their evidence.
To amplify the arguments, learned counsel for the petitioner has submitted that there were no grounds to support revulsion having developed in the heart of the plaintiff so that it could be a reason for filing of the suit for dissolution of marriage. It has been pleaded that the petitioner categorically asserted in his written statement regarding the delivery of articles and the amount in consideration of the marriage but no issue having been framed by the learned Court below, it has caused prejudice to the case of the petitioner. It has further been vehemently argued that the plaintiff has not denied specifically in her statement in the examination-in-chief that the amount and articles as detailed in thewritten statement were not delivered to her, therefore, without grant of benefits to the petitioner in consideration of dissolution of marriage on the basis of 'Khula' was illegal. It has further been argued that as the learned Judge Family Court has not performed his duty by not framing an issue with regard to the benefits received by the plaintiff-respondent No,2, the petitioner has been prejudiced to prove his case on this point. It has further been argued that without return of benefits, the impugned judgment and decree passed in favour of the plaintiff- respondent No,2 was liable to be set aside. He has referred to Zulfiqar Ahmad v. The Judge Family Court and others 2003 CLC 1954, Aali v. Additional District Judge-1, Quetta and another 1986 CLC 27, Muhammad Abbasi v. Mst. Samia Abbasi and others 1992 CLC 937, Rehmat Ullah v. Mst. Shamim Akhtar 1989 CLC 3 (Siddiq v. Mst. Sharfan PLD 1968 Lahore 411 and Mst. Khurshiu Bibi v. Baboo Muhammad Amin PLD 1967 SC 97.
4. Opposing the contentious arguments of the learned counsel for the petitioner, learned counsel for respondent No,2 has referred to PLJ 2002 Lahore 1107 (Mst. Daulan v. Muhammad Hayat), 2000 MLD 52 (Muhammad Amin v. Judge Family Court, Multan and another), 1997 CLC 1317 (Mst. Surria Bibi v. Additional District Judge, Khanpur and others), 1994 CLC 230 (Shakila Bibi v. Muhammad Farooq and another), 1991 CLC Note 284 at p.218 (M. Ramzan v. Additional District Judge, Jhang and another), NLR 1986 SCJ 58 (Abdul Rasul v. Mst. Shah Jehan Begum), 1985 CLC 2540 (Ghulam Muhammad v. Mst. Noor Bibi) and 1984 CLC 1688 (Ghulam Sarwar v. Mst. Muniran and others) to assert that non-framing of specific issue could not be made basis for the judgment to be vitiated and that for the return of benefits the petitioner could knock the door of Civil Court. As regards the plea that the ceremony of 'Rukhsati' was not performed and respondent No,2 had not lived in the house of the petitioner, so the aversion could not grow up, for that the learned counsel has replied that disliking or hatred can develop at any time, if the parties have not lived together even for one day.
5. 1 have considered the submissions of both the learned counsel with their forceful arguments and have consulted the record of the case. The crux of all the judgments produced by both the parties is that learned Judge Family Court, who is seized of the case has got ample power to decide through his judicial conscience as to whether between the parties hatred has developed to such an extent as the .Parties would not live within the limits of law. If the learned Judge Family Court comes to the conclusion that there are strained relations between the parties due to some occurrence, incident, litigation or repulsion having developed in the mind of the wife-respondent No,2. Then he can dissolve marriage of the parties. The reasons that as there was no 'Rukhsati', therefore, nohatred could be developed is unfounded on facts and on legal plane. The plaintiff- respondent No,2 has given out all those reasons, which were the cause of development of aversion in her mind. According to the plaintiff-respondent, Muhammad Farooq, petitioner started making illegal demands through supply of dowry articles, which the plaintiff and her parents were not able to fulfill. She had unequivocally stated in her plaint that due to the unethical and moral down- trodden approach of the defendant, the petitioner had developed strong hatred in her mind. All these facts were supported by her deposition recorded on oath while plaintiff had appeared as'
P.W.1 in her suit. She had boldly stated that she was not ready to live with the defendant in any Case as she had developed strong disliking towards the defendant.
6. Disliking, hatred, abomination, detestation, repulsion or revulsion can be given birth by any incident of single worth. It is not necessary that there must be physical mishandling or manhandling, beating or cruel treatment. A single slap with disliking can create hatred whereas many slaps with blows would not be taken into consideration by any wife. The causes, grounds and the reasons can differ from one human being to another. It is a mindset of a person who is moved from an incident in which the disliking, hatred or loathing is created. There are women who are roped in hateful unions yet do not want dissolution and are ready to live even in those disgusted and disappointed unions. So criteria would not be that a woman who had not lived with her husband cannot develop hatred. It is the subjective and unconscious thinking, which gives birth to an objective action. Therefore, no hard rule can be framed for that purpose. The learned Judge Family Court has to judge it from the facts and circumstances of the case as well as from the appearance of the parties during the conciliation efforts and has to satisfy its judicious 'conscience as to whether marriage bond between the parties could any longer be sustained or to annul the contract of marital tie. Therefore, findings of fact having been found against the petitioner with regard to aversion, I do not find any illegality or unlawfulness in it, while granting decree for dissolution of marriage in favour of respondent No,2.
7. As regards the return of benefits and the non-framing of issue, I have found that issue framed by the learned Judge. Family Court was not coached in the proper form. It had not covered the plea, which had been raised by the petitioner. It was the duty of the learned Court below to frame such an issue as to whether the plaintiff had received any benefits and if so, was bound to return and up to what extent? As the wife has been granted charter by Islam to get the decree for dissolution of marriage on the basis of `Khula'. In the same way and with the same right, husband has also been granted right to get benefits returned from his wife when she is going to get decree for dissolution of marriage on the basis of `Khula.. So this right of husband has not been properly taken into consideration by the learned Court below. This valuable right has in fact been denied to the writ petitioner. Accordingly, I remand the case to the learned Judge Family Court, to decide afresh with regard to the benefits received by wife at the time and in consideration of marriage and the extent to which she is liable to return those benefits to her husband by framing of proper issues in this regard and permitting the parties to produce evidence, and rendering his final judgment on this point. The decree to the extent of dissolution of marriage is, however, maintained. As much time has already passed from the date of announcement till the delivery of this judgment, the reversion of it would create complications for both the parties. With these observations, the writ petition is disposed of.