Mst. NASEEM AKHTAR vs MUHAMMAD RAFIQUE and others

' JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment dated 31-10- 2002 passed by a learned Single Judge of the Lahore High Court (Rawalpindi Bench) in Chambers whereby Constitutional petition preferred on behalf of petitioner has been dismissed and the judgment and decree dated 5-9-2002 whereby the appeal filed by the petitioner was dismissed and decree dated 16-4-2002 passed by the learned Judge Family Court dismissing the suit for dissolution of marriage was kept intact.

2. Precisely stated the facts of the case are that petitioner was married to Muhammad Rafique (respondent No,1) in 1972 but due to strained relations between the parties, a suit for dissolution of marriage was filed by the petitioner mainly on account of habitual cruelty and nonpayment of maintenance which was dismissed by the learned Family Judge, Rawalpindi vide judgment/decree dated 16-4-2002. Being aggrieved, an appeal was preferred which met the same fate and finally the Constitutional petition preferred on behalf of the petitioner has also been dismissed vide judgment impugned.

3. Heard Mr. Mehr Khan Malik, learned Advocate-on-Record on behalf of petitioner at length. It is mainly contended on behalf of petitioner that the legal and factual aspects of the case have not been examined in its true perspective which resulted in serious miscarriage of justice. It is argued that the suit for dissolution of marriage was filed on 6-12-2000 by the petitioner and suit for restitution of conjugal rights as a counter-blast was instituted by the respondent No,1 on 3-4-2001 which aspect of the matter has been ignored. It is argued that had the respondent No,1 been interested to continue his matrimonial life, the suit for restitution of conjugal rights would have been filed much earlier as the petitioner was kicked out from the house three years back. It is also contended that no maintenance whatsoever was provided to the petitioner for more than three years which itself is sufficient for dissolution of marriage. It is also pointed out that the petitioner had mentioned in the plaint as well as in her statement that she will prefer to die rather than to live with respondent No,1 which speaks about the hatred and aversion of the petitioner.

4. Mr. Razzaq A. Mirza, learned Advocate Supreme Court appeared for respondent No,1 and vehemently controverted the view point as canvassed at bar by the learned Advocate-on-Record on behalf of the petitioner and supported the judgment impugned for the reasons enumerated therein. It is contended emphatically that the concurrent findings of facts recorded by the learned Trial as well as Appellate Court, determination whereof was upheld by the learned High Court, cannot be reversed in the absence of any perversity, irregularity, misreading or non-reading of evidence which could not be pointed out by the learned counsel on behalf of petitioner. It is also pointed out that the entire family would be ruined in case the marriage is dissolved because they have five grown up children including one married daughter and presence of mother in the house would be inevitable enabling the family to lead a normal and harmonious life.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. It mainly prevailed on the Court below that the petitioner could not substantiate the alleged hatred and aversion which in our view would be an extraneous consideration to determine such sort of family disputes. It is worth-mentioning that no yardstick can be fixed to define or determine the factum of hatred which can be inferred on the basis of circumstances of each case specially the statement of wife got recorded by the Court.

It hardly needs any elaboration that emotion of love and hatred cannot be adjudged on rational basis and the only aspect which, requires consideration: in such-like would be as to whether husband and wife can live together in order to perform their matrimonial obligations and not the solid proof qua hatred or aversion. A similar proposition was discussed by this Court in case "Amanullah v. District Judge, Jaranwala (1996 SCMR 411) wherein it was held as under: ".. When the contesting respondent stated that she had developed hatred towards the petitioner her assertion could not be rejected summarily; it may also be mentioned that the relationship between the husband and wife is of a very intimate nature. It may also be too embarrassing for either of them to disclose to the Court what has transpired between them in the privacy of their home. That being so, there can hardly be any standard for assessing the substance in the wife's assertion that she has developed hatred for her husband. Apparently, the learned District Judge was oblivious of the view taken by his own Court in a number of cases on the right of a woman to seek dissolution of marriage on the ground of Khula'. Some of these have been reported as Rashida Bibi v. Bashir Ahmad PLD 1983 Lahore 549, Ghulam Zohra v. Faiz Rasool 1988 MLD 1353 and Shahida Khan v. Abdul Rahim Khan PLD 1984 Lah.

365. (Emphasis provided).

In the light of what has been discussed hereinabove, it can be inferred safely that the hatred and aversion neither can be prescribed nor confined within the limited sphere and no mechanism has been evolved so far to express "hatred or aversion" precisely and in a definite manner. It is an admitted feature of the case that a suit for dissolution of marriage was filed by the petitioner on 6- 12-2000 which itself is demonstrative of the fact that the petitioner does not want to live with her husband which indicates the degree of hatred and aversion. The petitioner who remained present during the course of arguments, submitted that this Court may hang her and whatever may be the circumstances, she is not prepared to live with her husband, what else the hatred or aversion could be?

6. Muhammad Rafique (respondent No,1) was also present along with his elder son and both of them have expressed serious reservations and doubts about the character of Mst. Naseem Akhtar (petitioner) which speaks a volume about the atmosphere she will have to face in the house if directed to live with her husband which would not be in consonance with the settled norms of justice on the one hand and in violation of Islamic purposes concerning KHULA. The Courts below have avoided to dissolve the marriage in view of five grown up children including one married daughter and long duration of thirty years which they both had spent as husband and wife. It reflects a positive attitude on the part of Courts below to save the family from the crises but the ground realities and bitterness developed with the passage of time cannot be overlooked. On the basis of prevailing circumstances, the only inescapable conclusion would be that it is impossible for the parties to live as husband and wife within the limits prescribed by God Almighty.

7. In sequel to above-mentioned discussion, this petition is converted into appeal and allowed, the judgment impugned is set aside and the suit for dissolution of marriage is hereby decreed in favour of the petitioner with no order as to costs. These are the reasons of our short order dated 3- 12-2004 which is reproduced thereinbelow for ready reference.

"For the reasons to be recorded separately, this petition is converted into appeal and allowed. The decree of Khula' is hereby awarded as sought by the petitioner."