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Writ Petition No. 1106 of 1985, decided on 24th March, 1986.

Khula', entitlement to‑Requirements-Failure of wife on issues other than Khula' ‑Effect‑Failure of wife on issues 9ther than Khula', held, would not necessarily disentitle her to decree for dissolution of marriage on basis of Khula'.

Muhammad Sadiq v. Mst. Asiha and others P L D 1975 Lah. 615 fol.

‑ Khula', grant of‑Requirements‑Wife deciding not to live with her husband for any reason and such decision being firm‑Court after satisfying its conscience that not to dissolve marriage would mean forcing woman into hateful union with min, held, could dissolve marriage on basis of Khula' ‑Court could satisfy its conscience by taking into consideration all attending circumstances.

‑‑ Khula', grant of‑In absence of proof of receipt of benefits from husband, wife, held, would be entitled to grant of Khula' without restoration of such unproved benefits.

‑‑ Khula'‑Where finding of Trial Court did not suffer from any legal infirmity muchless any jurisdictional defect, such finding, decreeing suit of wife on basis of Khula', held, could not be interfered with in constitutional jurisdiction of High Court Constitution of Pakistan (1973), Art. 199.

Malik Noor Muhammad for Petitioner.

Habib Ahmad Ansari for Respondent No. 1.

Petitioner through this constitutional petition calls in question the judgment of the learned Judge, Family Court. Ali Pur dated 21‑10‑1985 whereby suit for dissolution of marriage filed by Mst. Ghulam Sakina respondent has been decreed and the petitioner's suit for restitution of conjugal rights has been dismissed.

2. Facts giving rise to this petition, briefly stated, are that Mst. Ghulam Sakina respondent brought a suit for dissolution of marriage against the petitioner on the ground of habitual cruelty of the petitioner, non‑maintenance and misappropriation of her dowry. She also claimed decree on the basis of 'Khula' alleging that she had intense hatred against the petitioner and it would not be possible for them to live together as husband and wife within the limits prescribed by Allah. She alleged that she had not received any benefits from the petitioner. She further alleged that the petitioner had divorced her 10/12 months prior to the institution of the suit but divorce so pronounced by the petitioner was declared ineffective by the Arbitration Council.

3. Petitioner resisted the suit of the respondent by submitting a written statement wherein he denied all the allegations made by her. He, on the other hand, alleged that the respondent had gone with her brother to attend some marriage and while leaving the petitioner's house, she had taken away clothes and ornaments worth Rs. 5,000. Petitioner also filed a suit for restitution of conjugal rights. Both the suits were consolidated and the parties were put to trial on the following issues :‑

"(1) Whether the plaintiff habitually coercives the plaintiffs O. P. P.

(2) Whether the defendant has failed to maintain the plaintiff for more than 2 years O. P. P.

(3) Whether the defendant has misappropriated the belongings of the plaintiff O. P. P.

(4) Whether the plaintiff is entitled to seek dissolution of marriage on the basis of Khula If so, on what terms O. P. P.

(5) Whether the defendant, has actually divorced the plaintiff If so, its effect O. P. P.

(6) Whether the defendant is entitled to get decree for the restitution of conjugal rights O. P. D.

(7) Relief.

4. Parties led evidence in support of their respective contentions. Learned trial Judge decided issues No. 1, 2 and 3 against the respondent. It was found on Issue No. 1 that the respondent was not supported by her witnesses and that her solitary statement was not sufficient to prove the issue particularly when it stood rebutted by the evidence led by the petitioner. As regards Issue No. 2, finding of the learned trial Judge is that the evidence of the respondent is against her pleadings in so far as she deposed as a witness that the petitioner had failed to maintain her for the last four years whereas she had alleged in the plaint that she was living away from the petitioner for the last one year. It is, therefore, held that the respondent had not alleged non‑maintenance for a period of two years which was necessary for seeking dissolution of marriage. On issue No. 3, it is found that none of the witnesses examined by the respondent supported this issue. On issue No. 5, it has been found that no doubt the petitioner had pronounced the divorce but he revoked it within 90 days and as such the Chairman had declared it ineffective and rightly so. Issue No. 4 relating to 'khula' has, however, been decided in favour of the respondent with the finding that the factum of the peti tioner having pronounced the divorce had embittered the relations between the spouses and as a result thereof, the respondent had developed hatred against the petitioner. Note has also been taken of the fact that the efforts made for bringing about reconciliation between the parties have failed. It has been further found that the respondent had not obtained any benefits from the petitioner. Respondent's suit has thus been decreed on the basis of 'Khula' and consequently, the petitioner's suit for restitution of conjugal rights has been dismissed vide the impugned judgment.

5. I have heard the learned counsel for the petitioner as also the learned counsel for respondent No. 1 who has appeared at the limine stage.

6. It was contended by the learned counsel for the petitioner that the Trial Court had not held the pre‑trial and post trial conciliation pro ceedings. To examine this contention, record of the Trial Court was summoned. Perusal of the record shows that the learned Trial Court had fixed the case for the purpose of conciliation both before the commencement of the trial and after recording the evidence and it was observed that conciliation had failed.

6‑A. Learned counsel for the petitioner has next submitted that the issues regarding the cruelty, non‑maintenance and misappropriation, dowry having been found against the respondent, she was not entitled to the grant of .the decree in the form of Khula'. Submission has no force. The mere fact that the Court on consideration of the evidence on the record has come to the conclusion that the respondent has failed to prove other issues does not mean that it could not look at the facts and circumstances existing on the record to satisfy itself about the possibility of the parties living together as husband and wife within the limits .of God. If any authority is needed for this proposition, reference may be made to Muhammad Sadiq v. Mst. Asiha etc. (P L D 1975 Lah. 615) wherein M. A. Zullah, J. (as his Lordship then was) held : "in such like cases I am of the view that despite the failure of the wife on individual issues on technical grounds ; if there are elements in the evidence qua those issue, which singly or when combined with other similar facts in other issues produce a strong impres sion creating satisfaction of the conscience of the Judge ; that the relations between the parties had deteriorated beyond repair ; and also, that the malady was such as was likely in all probability, to give rise to further moral and social wrongs and indiscreet acts by the spouses towards each other so as to lead to disrespect for the limits of God it would become a case for grant of decree of Khula. Thus, on this reasoning the failure of the respondent to prove any of the issues in this case on technical rounds would not necessarily mean that she has failed to prove the circumstances which would entitle her to a decree for dissolution of marriage on the basis of Khula'."

7. As regards the grant of 'Khula', law is very well settled that if at woman has decided not to live with her husband for any reason and this decision is firm then the Court after satisfying its conscience that not to dissolve the marriage would mean forcing the woman into a hateful union with the man would dissolve the marriage on the basis of khula' and the Court can satisfy its conscience by taking into consideration all the attending circumstances. In the instant case, respondent appearing as P. W. 1 categorically stated that the petitioner had turned her out of the a house after beating her and as a result, of the beating, she had suffered an injury and her father after getting the report from the Doctor got a case registered. She further proceeded to state that the petitioner had divorced her and that the resumption of marital relationship was not possible. She firmly stated that she did not want to live with the petitioner as wife. No doubt, learned trial Judge has found that solitary statement of the respondent was not sufficient to prove the issue of cruelty but the incident of beating coupled with her , categorical assertion that she did, not want to live with the petitioner and the fact of the petitioner having divorced the respondent (though the divorce was subsequently revoked) was sufficient to create an aversion in the mind of the respondent against the petitioner. Learned trial Judge has also taken note of the fact that the efforts made for reconciliation proved abortive. This circumstance also indicates that the respondent was firm in her decision not to live with the petitioner Considering all these circumstances, no exception can be taken to the conclusion arrived at by the learned Judge, Family Court that it is not possible for the parties to live as husband and wife within the limits prescribed by Allah.

8. Learned Counsel for the petitioner then contended that the learned Judge has erred in law in holding that the respondent had not received any benefits from the petitioner. He has submitted that the respondent appearing as P. W. 1 admitted that she had taken away the petitioner's ornaments with her. According to the learned counsel, Khula should have been granted on restoration of those ornaments. The submission made by the learned counsel is not quite correct. I have seen the statement of the respondent. Relevant portion of her statement relied upon by the learned counsel is as follows :‑

The aforequoted statement does not support the contention of the learned counsel that it was admitted by the respondent that she had taken away the petitioner's ornaments while leaving his house. On the contrary, the statement made by the respondent is that her father had taken her to the petitioner's house and she took the petitioner's ornaments alongwith her. To me, it appears that this part of the respondent's statement related to some earlier event when her father had brought her back to the peti tioner's house. Even otherwise, it is significant that the petitioner when appearing as D. w. 1 has not deposed that the respondent had taken away her ornaments. In these circumstances, learned trial Judge has rightly held and that the respondent had not obtained any benefits from the, petitioner. That being so, there was no question of ordering restoration of any benefits.

9. In view of the foregoing discussion, learned trial Judge proceeded on correct premises, legal as also factual, in decreeing the respondent's suit on the basis of 'Khula'. Impugned judgment does not suffer from any legal infirmity much less any jurisdictional defect. This petition has, therefore, no merit and is accordingly dismissed in limine.

A. A. Petition dismissed.

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