MUHAMMAD SADIQ Versus AISHA

In this writ petition filed by a husband, the challenge is to a decree passed by a learned Family Judge whereby the marriage between the petitioner and respondent No. 1, was dissolved on the ground of Mina', despite the fact that on almost all individual issues relating to cruelty, non- maintenance, ere., the decision was in favour of the petitioner. His own suit for restitution of conjugal rights which had been consolidated with the other suit, was also accordingly dismissed. Learned counsel for the petitioner relying on some well‑known rulings on the question of Khula', including those of Bilqis Fatima (P L D 1959 Lah. 566) and Khurshid BIN (P L D 1967 S C 97), respectively, has contended that the decision on cruelty etc. having gone in favour of the petitioner, no case bad been made out for grant of decree of Khula. During the course of arguments the petitioner and the respondent's father remained present and it transpired on questioning them that: there is a continuous longstanding estrangement. between the parties; sister of the petitioner is married to the father' of the respondent; there was allegation of cruelty by the petitioner against. respondent's father qua his sister where upon the police intervened and took the petitioner's sister to police station and then to the petitioner's house; the petitioner's sister gave notice to the respondent so as to obtain maintenance through local council, but without any success; she took the matter before a civil Court for her own and children's maintenance; the application was only partly accepted; the petitioner as Attorney of his sister filed an application for execution of the maintenance order but did not succeeds however the petitioner further stated, there was a settlement between the parties as a result of which the petitioner sent his sister to the house of respondent's father; but the latter allegedly defrauded the petitioner by not sending his wife namely the respondent to his house‑the allegation of fraud has been denied by the respondent's father.

2. The learned Civil Judge had framed the following issues:‑

"(i) Did defendant treat plaintiff with cruelty?

(ii) Did defendant associate with women of evil repute?

(iii) Has defendant falsely accused plaintiff of adultery?

(iv) Has defendant failed to treat plaintiff equally with his second wife?

If so to what extent?

(v) Has defendant misappropriated the valuables of plaintiff?

(vi) Has defendant not maintained plaintiff for more than 2 years?

(vii) Has defendant failed to perform marital duties for more than 3 years?

(viii) Is plaintiff entitled to Khula'? If so on what terms?

(ix) Is defendant entitled to the restitution of conjugal rights?

(x) Relief."

Except for issues (iv) and (viii), all were decided against the respondent. With regard to those two issues, the findings of the learned Family Judge are as follows:‑

"Issues Nos. (iv) and (viii) ;

The following facts are gleaned from the evidence:

(a) It is admitted by defendant that he married plaintiff 20 years back and marriage was consummated 14 years back and a son aged 13/14 years is the offspring. The son does not need close supervision o both the parents all the time now.

(b) Defendant has contracted a second wife and there are 4 children from her and youngest one is 5 months of age.

(c) There is a litigation going on between both the parties and other cases are pending.

(d) Defendant is not holding any property in his own name. He gets monthly renumeration of Rs.

82. This is insufficient to maintain two families.

(e) Plaintiff was brought before me guarded by Police. I tried to con ciliate the spouses following the provision of law. Dialogues ex changed between the spouses diffused hatred and mutual malice got the impression that connubial bliss is a far off cry.

(f ) Equal treatment for two wives is to be gathered from the circums tances. The fact that plaintiff is poised against her husband that she did not even come for statutory conciliation without the police guard gives neonemtum (sic) to the idea that she did not have equal treatment.

(g) There is no evidence what plaintiff derived as benefit from defen dant which she should Le called upon to return in case of Khula' ?

(h) Circumstances of the case are such that spouses can't live together within the limits put by Islam and to the progress of society. Dis missal of plaintiff's suit is likely to entail more frustration, embitterment and litigation.

I decide both the issues in favour of plaintiff and fix a tentative amount of Rs. 800 as Zar‑i‑Khula'."

3. With regard to some of the other issues the findings of the learned Family Judge appear to have been given only in a half‑hearted manner. Issue No. (i) relating to cruelty, has been decided against the respondent for the reason that her evidence fell short of proving that her life "was not safe in the house of the defendant" and further that there is no evidence that "any grievous injury was inflicted" upon her. It has not been found as a fact that the petitioner never committed any other act of cruelty. On Issue No. (iii) which related to false charge of adultery by the petitioner against the respondent, the learned Judge observed that even though the respondent's witnesses had supported the assertion made in the plaint, the plaintiff herself while making the statement remained silent on this issue. On Issue No. (vi) the plaintiff stated that she and her uncle had been maltreated and then turned out by the petitioner. Her witnesses deposed that she was living with her parents for 4/41 years. Despite this evidence the only circumstance why the respondent was found not entitled to a decree for dissolution of marriage on ground of non‑maintenance was that there was no positive evidence that she "claimed maintenance and was refused." Similarly on Issue No. (vii) qua non‑performance of marital obligations, the learned Judge observed that no doubt the respondent was living with her father for about four years but the petitioner had no occasion to approach her; therefore, this was enough excuse for non‑performance of marital obligations.

4. The above aspects of the findings given by the learned trial Judge have been highlighted not with a view to give any decision on any of those issues contrary to what had been held by that learned Court. The purpose is only to show that if for any technical reason, some grounds when treated individually did not satisfy all the legal requirements, it does not mean that the other proved elements therein become irrelevant for purposes of khula. For example, notwithstanding the finding that 'cruelty' is not 'habitual' (on a technical‑legal consideration), in the circumstances of a particular case; it could be of such type which might have created deep hatred to the wife for her husband. Chopping off the nose or otherwise branding the face would apart from physical scars, leave behind permanent psychological knots and barriers. Similar, if not the same, effect might be produced by non‑main tenance for slightly less than two years by a rich husband who leaves his sick wife to feed herself on beggary. Examples and situations can be multiplied which might create grounds for and cause desire in the spouses to cross limits of God. 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 issues, which singly or when combined with other similar facts in other issues produce a strong impression 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 proba bility, to give raise 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 grounds would not necessarily mean that she has failed to prove the cir cumstances which would entitle her to decree for dissolution of marriage on the basis of khula'.

5. There is another aspect of the matter. The learned trial Judge while deciding the issues (iv) and (viii) came to a definite conclusion that the relation ship between the parties had reached such a stage that the spouses were poised against each other and it was futile in these circumstances to expect from the petitioner to give equal treatment to both the wives‑one, who has several children and lives with him and the other, the respondent (who has C grown‑up son) living with her father. Other circumstances have also been taken into consideration by the learned Judge. They, as it appears from his observations quoted in para. 2 of this judgment are enough by themselves to come to a conclusion as he did, that spouses in this case cannot live together within the limits of God.

6. In the light of the above discussion, I am of the view that despite the failure of the respondent to prove several individual issues for obtaining the decree for dissolution of marriage, she did succeed by production of enough material to satisfy the trial Court that notwithstanding her above‑noted failur she was entitled to a decree for dissolution of marriage on ground of khula'. This, of course, in addition to the ground arising out of the petitioner's failure "to treat the plaintiff equally as a second wife" was enough to decree the suit of the respondent. No justification has been made out for interference. This writ petition is, therefore, dismissed, but there shall be no order as to costs,

S. A. H Petition dismissed.