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Writ Petition No.210 of 1982, decided on 11th March, 1984.
---S.2--Muslim Family Laws Ordinance (VIII of 1961), S.7--Khula'-- Relations between parties becoming strained within a period of four years of marital life to the extent that they could not live happily together--Wife not only was beaten and thrown out from house of husband on one or two occasions but also character of her husband was bad and insisting on her to lead immoral life--Observations of Appellate Court that such fact could be hardly termed as habitual cruelty or would not be taken into consideration for purpose of Khula', held, were not proper--Case remanded to Appellate Court for disposal after considering plea of Khula' and satisfying its conscience that wife, if forced to live with husband would not be observing limits prescribed by God, and after fixing benefits, if any, to be returned by wife to her husband as consideration of Khula'.
---S.2--Muslim Family Laws Ordinance (VIII of 1961), S.7--Khula'- Marriage could be dissolved on basis of Khula'--Return of benefits within a fixed period, held, could not affect dissoI4tion in any way but merely raised a civil liability.
Muhammad Yasin v. Mst. Rafia Bibi P L D 1983 Lah. 377 rel.
Muhammad Sharif Butt for Petitioner.
M.A. Zafar for Respondent.
Date of hearing: 11th March, 1984.
The background in which this writ petition was filed is this. The petitioner filed a suit for .dissolution of her marriage as against the respondent before the Judge Family Court at Bhakkar and the following issues were framed:-
(1) Whether the defendant treated the plaintiff with habitual cruelty
(2) Whether the defendant misappropriated the ornaments and dowry belonging to the plaintiff
(3) Whether the defendant is a man of bad character and discourteous
(4) Relief.
The Judge Family Court decided all the issues against the petitioner and as a result her suit was dismissed with costs. Thereafter, she filed an appeal which was heard by the Additional District Judge, Mianwali. In the course of the hearing of the appeal at the arguments stage a plea of dissolution of marriage on the basis of Khula was taken up on her behalf on the ground that she could not live with the respondent within the limits prescribed by God and that as such, she was entitled to dissolution of her marriage with the, respondent. On this point the appellate Court made the following observations:-
"During the arguments the learned counsel for the appellant vehemently argued on the point of Khula and stated that the appellant could not live with the respondent within the limits prescribed by Allah and as such, was entitled to dissolution of her marriage with the respondent. In this connection, the learned counsel produced a couple of rulings to the effect that the point of Khula could validly be raised at the stage of appeal even if the same had not been taken up at all earlier. I am inclined to agree with the learned counsel and say that the powers of the Family Court Judge would remain unfettered to adjudicate upon the delicate matter of the relationship of man and wife with particular reference to the question of Khula. I agree that a Family Court Judge can and should take into consideration the question of Khula at whichever stage it has been agitated before him. But the question is as to whether the appellant brought some material on record to substantiate the question of Khula. Besides herself she has produced only one witness and in her entire evidence there is not a single reference to the effect that the situation had in any way worsened to an extent that she could not live with her husband within the limits prescribed by Allah. Even if a rustic village has given a beating to his wife once or twice in the period of about five years the same could hardly be termed as habitual cruelty and would not be 'taken into consideration for the purposes of Khula in favour of wife. I, therefore, hold that there is no material 'on record to substantiate even the point of Khula in this case. For what has been said above, I agree with the findings of the learned trial Judge to the effect that Mst. Razia Khatoon, the plaintiff-appellant, has failed to make out a case to justify her dissolution of marriage with the respondent. In view of this, there is no force in this appeal and the same is dismissed without any order as to costs."
The observations of learned Additional District Judge clearly indicate that he agreed with the learned counsel for the petitioner on the principle that the point of Khula could be validly rained on behalf of the wife at the stage of appeal when it had not been taken up as a plea in earlier stages of a suit for dissolution of marriage instituted by the wife. However, he proceeded to find if there were any grounds for the dissolution of marriage on the basis of Khula inferable from the statement of the petitioner recorded by the Judge Family Court when the plea of Khula had not been taken up before him and no issue to that effect had been framed. After a perusal of that statement of the petitioner the Additional District Judge erroneously arrived at the conclusion that even if the husband was to give beating to his wife once or twice in a period of about five years, it could not be termed as habitual cruelty and would not be taken into consideration for the purposes of Khula in favour of the wife. If the Additional District Judge accepted the principle that the plea of Khula can be raised at any stage even at the appellate stage or in the course of arguments, then what he required to do was only to satisfy his conscience that the wife had decided not to live with the husband and he could have satisfied his conscience by enquiring from the petitioner and satisfying himself. But he did not proceed to do so. On the contrary, while conceding, that the plea of Khula can be raised at any stage he attempted to find ground for the same in the statement of the petitioner which had been made before the trial Court in the absence of the plea of Khula having been raised. I have gone through the statement of the petitioner made before the trial Court. From that statement it appears that the relations between the parties had definitely become strained within a period of four years of marital life to the extent that they could have not lived happily together. He had not only beaten her and thrown her out from his house on one or two occasions during the brief period in which she had stayed with him, but according to her, he was a bad character and insisted on her to lead an immoral life. Furthermore, according to her, even one of the sisters of the respondent was a woman of easy virtue and had illicit connections with strangers. At the last time. when her brothers had brought her back from the house of the respondent, she had been beaten by the respondent to the extent that she had fallen unconscious.
In the light of this statement at least to me it appears that with these allegations one could not draw an inference to the effect that this could be hardly termed as habitual cruelty or would not be taken into consideration for the purposes of Khula in favour of the wife as observed by the Additional District Judge. At least in my view it is evident from the statement that their relations had become so strained that it would not have been possible for them to live together happily. Anyway, the Additional District Judge in order to satisfy his conscience could have enquired from the petitioner even at the arguments stage that if she was asking for dissolution of marriage on the ground of Khula, then had she finally decided not to live with her husband and that if it was so, then was she willing and prepared to return such benefits taken from her husband and thereafter he could have proceeded to determine as to what were the benefits which she might have received from her husband and which she was expected to return as consideration of Khula. For this purpose he could have even enquired from the respondent in order to satisfy his conscience. Thereafter, he could have proceeded to dissolve the marriage on the ground of Khula fixing the value of benefits if any which the petitioner was expected to return to the respondent as consideration of Khula. In the light of the principle laid down in Muhammad Yasin v. Mst. Rafia Bibi, P L D 1983 Lahore 377, the marriage can be dissolved of the basis of Khula and the return of the benefits within a fixed period cannot affect the dissolution in any way but merely raise a civil liability. Consequently, if the petitioner was- prepared to return such benefits to the respondent under the orders of the Additional District Judge, he may receive the same, but if not, then the respondent can only take steps by moving an appropriate forum and claim the said benefits as constituting civil liability on the petitioner. However, the decree for dissolution of marriage would remain unimpaired and it cannot be considered as conditional.
2. In the light of what I have observed above, the judgment dated 22-9-1981 passed by the Additional District Judge, Mianwali, in this case is hereby set aside as illegal and having been passed without lawful authority. The case is remanded to the District Judge, to re-hear the appeal of the petitioner either himself or entrust it to any other Additional District Judge for disposal, considering the plea of Khula having been raised on behalf of the petitioner, satisfying his conscience that the petitioner, if forced to live with respondent, would not be observing the limits prescribed by God and after fixing the benefits if any to be returned by the petitioner to the respondent as consideration of Khula to proceed to dissolve the marriage on the ground of Khula. The parties are directed to appear before the District Judge, Bhakkar, on 14-4-1984. The District Judge, Bhakkar, is further directed that since it is a matrimonial matter, it should be finally disposed of by the end of May 1984. With this observation this writ petition is accepted but there shall be no order as to costs.
M. A. K. /3048/L Case remanded.
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