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Civil Appeal No.19 of 1987, decided on 5th October, 1988.

Khula" Decree for dissolution of marriage by way of Khula" is only passed when the Court, after the objective appraisal of the evidence on record, comes to the conclusion that there is left no trace of harmony in the life of the spouses and there living together as husband and wife is not possible within the limits ordained by God Where no such finding could be given by the Court, discretion exercised by the Court in dissolving the marriage by way of Khula" was arbitrary and capricious and could not be upheld.

(b) Muhammadan Law

Khula" Court based its findings that the parties would not live within the limits ordained by God if they were compelled to live as husband and wife mainly on the ground that the wife in her examination had stated that she was not prepared to live with the husband in any case and would prefer death to her living with him Such statement of wife, held, was not sufficient to hold that if the parties were made to live together as husband and wife, it would not be possible for them to do so within the limits ordained by God Tangible and independent proof on record to give such finding must exist.

Divorce Both trial and lower Appellate Court came to the conclusion that wife had failed to prove that husband treated her with cruelty while she was living with him No fault was found on the part of the husband for the separation of his wife from him and her living with her parents Wife left house of her husband of her own free will and refused to come back despite many efforts made by husband for reconciliation and bringing her back to live with him Held, there existed no other ground for grant of decree for dissolution of marriage after it was found that the husband did not mete out ill or cruel treatment to the wife during the period they lived as husband and wife. [ Khula"].

Khula" Wife never claimed divorce by Khula" in her plaint nor asked for it in her statement No issue was framed by the Trial Court in respect of the question of divorce by Khula" Court, held, was not justified in passing a decree for dissolution of marriage between the parties by Khula" on payment of the amount received by the wife and dower money without sufficient proof required for doini; so under the law.

Khula" Decree for dissolution of marriage by way of Khula", passed on the condition that the suit of wife sh ill stand dismissed if she failed to pay the Khula" money to the husband within the period specified in the decree Held, decree for dissolution of marriage by Khula" would be complete as soon as it was passed and no condition such as laid down by the Court could be imposed Khula" money to be paid to the husband was a civil liability to the recovered as such from the woman obtaining decree on payment of benefit received from husband.

Kh. Abdus Samad for Appellant.

Abdur Rashid for Respondent.

Date of institution: 11th March, 198

This second appeal is directed against the judgment and decree of the District Judge, Muzaffarabad, dated 26 2 1987, whereby he, on appeal of the respondent, set aside the judgment and decree of Sub Judge, Muzaffarabad, dated 20 8 1986, and granted the respondent decree for dissolution of her marriage with the appellant, on the ground of Khula" on payment of Rs.10,000.

2. The brief facts giving rise to this appeal are that on 24 1 1983, Mst. Shamim Akhtar, respondent filed a suit for dissolution of marriage against the appellant in the Court of Sub Judge, Muzaffarabad. The case of the respondent was that her marriage with the appellant had taken place on 19 11 1981 in lieu of dower of Rs.10,000 out of which only Rs.6,000 were paid to her at the time of her marriage and for the payment of remaining amount Umar Farooq son of Abdul Majid, resident of Muzaffarabad had stood surety. It was her further case that during the period she lived with the appellant, she was treated cruelly by him who used to beat her and that as a result of ill treatment she was compelled to live separately from him with her parents.

3. The above suit was resisted by the respondent who, in his written statement, denied the allegation of the respondent that he had been meting out cruel treatment to the respondent and took up the plea that she went to the house of her uncle to condole the death of his wife but did not return home to live with him despite his efforts for the purpose. The appellant also filed a suit for restitution of conjugal rights in the said Court on 2 1 1985.

4. Both the above suits were consolidated by the trial Court which dismissed the suit of the respondent for dissolution of her marriage while granted that of the appellant for restitution of conjugal rights vide its judgment and decree dated 20 8 1986. The respondent filed an appeal against the above judgment and decree of the Sub-Judge, Muzaffarabad, before the District Judge, Muzaffarabad, who vide his judgment and decree dated 26 2 1987, set it aside and passed a decree for dissolution of the marriage of the respondent by Khula" on payment of Rs.10,000 received by her as dower money from the appellant till 5 5 1987, failing which the appeal of the respondent would be deemed to have been dismissed.

5. Feeling aggrieved by the above judgment and decree of the District Judge, the appellant has filed this appeal against the same.

6. The respondent has also filed cross objections alleging therein that she was entitled to the decree for dissolution of her marriage on the grounds of non maintenance of the respondent for a period of two years and that of the appellants meting out cruel treatment to her. It was further alleged in the cross objections that the payment of the whole of the dower money to the respondent by the appellant was not proved for which reason decree for dissolution of marraige was to be passed on returning the amount of dower actually received by her and that the appeal of the respondent could not be ordered to be dismissed on non payment of Khula" money upto a specified date and that the decree for dissolution of marriage is complete and irrevocable as the Khula" money to be paid to the appellant was only a civil liability of the respondent.

7. I have heard the learned counsel for the parties and have also gone through the record of the case. It is contended by the learned counsel for the appellant that there was no ground for granting a decree for dissolution of marriage in this case by Khula" and as such the discretion exercised by the first appellate Court in favour of dissolving the marriage of the respondent by way of Khula" is arbitrary and capricious. It is further contended by him that the Khula money has rightly been determined as there is ample proof on the record that the appellant had paid Rs.10,000 as dower money to the respondent at the time of the marriage and that his treatment with the respondent was that of love and affection and never ill treated her during the period they lived together as husband and wife.

8. The learned counsel for the respondent, on the other hand, has contended that the appellant had only paid Rs.6,000 as dower money to the respondent at the time of their "Nikah" and thus the respondent was entitled to obtain decree for dissolution of her marriage on the ground of Khula" on payment of Rs.6,000 only. It is further contended by him that from the evidence of the respondent, it is proved that the appellant used to beat the respondent and treated her with cruelty and, as such, the respondent was entitled to the grant of decree for dissolution of her marriage on that account alone. It is also contended by the learned counsel for the respondent that the District Judge has erred in making the order that the suit of the respondent shall stand dismissed if she fails to pay the dower money within two months as the conditional decree is not lawful and the payment of dower money by way of Khula" is only a civil liability of the respondent.

9. I have given my due consideration to the above contentions of the learned counsel for the parties and have also gone through the record of the case, after which I am of the opinion that the first appellate Court was not justified in setting aside the judgment and decree of the Court below and granting a decree for dissolution of marriage to the respondent by way of Khula". Such a decree is only passed when the Court, after the objective appraisal of the evidence on record, comes to the conclusion that there is left no trace of harmony in the life of the spouses and there living together as husband and wife is not possible within the limits of God but in this case no such finding can be given and thus the by the District Judge in dissolving the marriage between by Khula", is arbitrary and capricius, which cannot to upheld by this Court. The District Judge has besed his finding that the parties, could not live within the limits of God if they are compelled to live as husband and wife mainly on the ground that the respondent in her cross examination has stated that she was not prepared to live with the appellant in any case and would prefer death to her living; with him. This statement of her was not sufficient to hold that if the; parties are made to live together as husband and wife, it would not be possible for them to do so within the limits ordained by God. If such an assertion by wife is made the basis for dissolution of her marriage by Khula", then it would amount to making it easy for a woman to obtain the decree of dissolution of her marriage from the; Court invariably in a matrimonial ,,t without any further proof to the effect that the parties in it cannot live together they should and their life is devoid of harmony and happiness for which reason, their living together within the limits of God is not possible as it would be very convenient for a wife to make such a statement either in her plaint or in her evidence before the Court. There must exist tangible and independent proof on the record to give the above finding that the incompatibility of temperament and hatred of the wife for her husband has reached such a stage that there would be no question of their living as husband and wife within the limits of God. In the instant case, such a proof is lacking. The trial Court had come to the conclusion that the respondent had failed to prove that the appellant treated her with cruelty while she was living with him and this finding has been upheld by the first appellate Court by not only holding in its judgment that the trial Court had correctly given findings on the issues framed in the case but also by maintaining them. No fault is found on the part of the appellant for the separation of his wife from him and her living with her parents. It appears that she left the house of her husband of her own free will and refused to come back despite many efforts made by the appellant for reconciliation and bringing her back to live with him from the house of her parents. There existed, in this case, no other, ground recognised by the Muslim Law for the grant of decree for dissolution of marriage after it was found that the appellant did not mete out ill or cruel treatment to the respondent during the period they lived as husband and wife.

10. The respondent never claimed divorce by Khula" in her plaint asked for it in her statement. No issue was framed by the trial nor Court in respect of the question of divorce by Khula". Thus, the Court below was not justified in passing a decree for dissolution of marriage between the parties by Khula" on payment of the amount received by the wife as dower money without sufficient proof required for doing so under the law.

11. There is, of course, much force in the argument of the learned counsel for the respondent that the conditional decree, as has been passed by the District Judge, was not lawful and a decree for dissolution of marriage by Khula" is complete as soon as it is passed and no condition, such as laid down in this case that the suit of the plaintiff respondent shall stand dismissed if she failed to pay the Khula" money to be appellant within the period specified in the decree. E can be imposed. The Khula" money to be paid to the husband in a case of dissolution of marriage by Khula" is a civil liability to be recovered as such from the woman obtaining decree for dissolution of her marriage on payment of benefits received from husband.

For the reasons stated. above, accepting this appeal, the judgment and decree of the District Judge dated 26 2 1987 is set aside and the judgments and decrees of the Sub Judge, Muzaffarabad, dated 20 8 1986, passed in the suits for dissolution of marriage and for restitution of conjugal rights, are restored.

"4 The parties shall bear their own costs, throughout.

M.B.A "346/H.C.A Appeal accepted

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