SHAH BEGUM Versus DESTRICT JUDGE, SIALKOT

This judgment will dispose of Writ Petitions Nos. 1732 and 1733 of 1994, as they arise out of common questions of law and facts between the parties.

2. The petitioner (Mst. Shah Begum) by way of the instant petition has challenged the concurrent findings of the learned Judge, Family Court, Sialkot who vide judgment, dated 3-5-1993 dismissed the suit for dissolution of marriage filed by the petitioner and decreed the suit for restitution of conjugal rights in favour of the respondent No.3.

3. The petitioner filed an appeal against the said judgments and decrees which was also dismissed vide judgment, dated 20-12-1993 passed by the learned District Judge, Sialkot.

4. The petitioner has assailed both the judgments and decrees on the ground that while passing the impugned judgments and decrees the learned Courts below have not applied their mind to the extreme hatred and aversion expressed by the petitioner in her written statement filed in the suit for restitution of conjugal rights, her plaint and in her own statement before the Judge, Family Court while appearing as a witness in her own case.

5. The main contention of the petitioner is that the impugned judgments are against the Injunctions of Holy Qur'an in respect of her right of Khula` and that the judgments are the outcome of misapplication of the mind of the Courts below in the; rightful direction.

6. The learned counsel appearing on behalf of respondent No.3 submits that in fact there is no dispute between the spouses; the respondent No.3 was a Ghar Damad and used to live in the house of her parents and bear all expenses of petitioner's parents. Eventually he got fed up and he was expelled from the house. The petitioner filed a suit for dissolution of marriage in Sialkot and withdrew the same. She further filed a suit in Kharian which was also withdrawn by her and resultantly the present suit was filed by the petitioner She has no locus standi to file the same. He further contends that the finding of the learned Judge, Family Court, Sialkot and that of the learned District Judge, Sialkot are passed in accordance with the law and the petitioner has failed to discharge the issues successfully.

7. On the request of the learned counsel for the respondent I have directed the petitioner to appear in person in case she is ready for conciliation with her husband. She is present in person. She states that she has immense hatred against the respondent No.3 as the respondent No.3 has been litigating and dragging her and her father in the criminal litigation. She further states that she has developed a constant aversion against the respondent No.3 who is not a Syed although at the time of marriage he deposed to be a Syed which was completely wrong as the respondent's caste is Awan. She will never be happy with him and she wants her right of Khula`.

8. 1 have heard learned counsel for both the parties, perused the record and also gone through the judgments of the Courts below. The petitioner and her father appeared as P.Ws. in the suit for dissolution of marriage on the basis of Khula and the petitioner and her brother appeared as DWs in the suit filed by the respondent for restitution of conjugal rights. The learned Judge, Family Court while deciding issue No.l has observed that the petitioner has said that the marriage was solemnised by the respondent No.3 fraudulently as he had told his caste as "Syed" so she could file a suit for jectitation of marriage and in this way he decided issue No.l against the petitioner. On issues Nos. 2 and 3 the Court below has given a finding that the evidence produced by the petitioner is not reliable and the petitioner has not proved the cruelty or other allegations against the respondent No.3. Her previous suits had been dismissed and since she has failed to discharge the onus of these issues the same are decided against her and in this way the learned Judge, Family Court decided issue No.4 in favour of respondent No.3. After carefully weighing the findings of the learned Judge, Family Court, I am constrained to say that the findings of the learned Judges' Family Court and that of the appellate Court are not based on legal premises. The petitioner had filed a suit for dissolution of marriage claiming her right of Khula and there was no question that she should have filed a suit for jectitation of marriage since there was clear admission of Nikah between the parties. In fact the learned Courts below have not applied their mind that the plaintiff was demanding her right of Khula` on the basis of immense hatred developed- against her husband and at the time of appearing as her own witness she had stated that she does not want to spit on her husband. The fixed aversion of a wife and extreme hatred were the relevant factors which were to be looked by both the Courts below.

Whether it is a Court of Jud ge. Family Court or a Court or District Judge a or High court as soon as woman demands her right of dissolution o marriage a on the basis of Khula' the Courts have not to see whether the other relevant factors which are otherwise the basis of dissolution of marriage stand proved or not Ev en then the Courts wi11 be governed by the dictates of Holy Qur'an. (Underlining is mine). However, this is distinguishable that it is for the Court to see and scrutinise with all prudence and reasonable caution the facts and circumstances of each and every case where a woman is demanding her right of Khula`. The case of a woman who leaves her family house with her paramour and spits on her husband in order to avoid the legal implications is completely different of a woman who is subject of mental agony, torture incompatibility of temperament, humiliation, disrespect and dishonour due to the behaviour of her husband.

The Holy Qur'an places the husband and wife on equal footing in respect of the right of one against the other and none of them are permitted to transgress the rights of other duly protected by Holy Qur'an. Where a marriage is purely a civil contract and whenever there is no hope of their living together B in perfect harmony, love and affection due to some aversion or extreme incompatibility of temperament and there is no hope left for peaceful conjugal rights then Holy Qur'an places certain conditions mentioned in Surah Baqara which reads: .

"In case of divorce you are not allowed to receive whatever you have given to your wives provided if those things are an obstruction in the way of their separation and the husband and wife cannot live together in harmony or in conformity to perform their matrimonial obligations within the limits of God the husband can receive the benefits and the wife can relinquish some or all benefits."

Holy Qur'an has strongly prohibited the condemnation of the wife with false. As a marriage in Islam is not a sacrament; it is a civil contract, there is a clear indication in Holy Qur'an in case of dissolution of marriage by virtue of Talaq or otherwise, either to take back the wife in most respectful way or to let her go with "Ahsan". This is the most natural reasonable and respectful separation of the spouses bound by the civil contract. There are two ways to dissolve the contract:

One is by way of Talaq by the husband and the other is by a plea of Khula`. The plea of Khula' is further divided into two ways one is by mutual consent when the parties coming to the conclusion that they will transgress the limits of God by their hateful union in view of their remote chances of living in peace, affection and harmony. If there is a mutual consent in respect of Khula` then no one is needed, the spouses can exercise the same without interruption of a Qazi or a Judge.

The second is where the wife does not find any fault in her husband but otherwise due to certain hatred or aversion or extreme incompatibility of mind it is proved that they will not be able to lead a life within the limits of God, then this right is fallen to the wife to claim Khula` on the basis of aversion 1 against her husband. '

Right of Khula` is not an absolute right. Holy Qur'an has put certain conditions upon the exercise of this right by the wife. If she can convince the Judge that her life with her husband will be completely and miserable life, E devoid of harmony and based upon hateful union then she will have to restore all the benefits received by her from her husband. At that juncture the Judge or a Qazi will intervene.

As far as a matrimonial life is concerned all the fundamental laws are contained in Holy Qur'an where a man or a woman are at equal footing in respect of a right of one against the other. So when a husband is possessed of a right to divorce, the wife is entitled to Talaq by means of Khula`. These rights are based on the legal premises. The Holy Qur'an has expressly stated that E women have a right against the men; similar to those men have right against the women. If a husband does not give consent for dissolution of marriage ties he is not allowed to cling to the woman to cause injury to her honour for the rest of her life and let her lead a miserable life devoid of love. affection and harmony. The husband has not been given the right to release the woman from matrimonial bond it is the Qazi who will intervene and enforce Qura'nic Injunctions. An elaborate judgment has been given in that concern in Mst. Bilquis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lahore 566 where it was expressly held that the wife is entitled to Khula` as of right if she satisfies the conscience of a Court that it will otherwise mean forcing her into hateful union.

In a Full Bench authority i.e. Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, it was held that if the wife had incurable aversion to the husband, it was sufficient basis for Khula`. In this judgment the Ahadith of Holy Qur'an and also the cases of Ibne Sabat are discussed where the Holy Prophet released a woman who came and showed her aversion towards her husband being ugly and repulsive; the right of divorce was given to the woman as the Holy Prophet came to the view that the spouses could not live in conformity and perform their conjugal rights in a pleasant union.

In Shahid Javid v. Sabba Jebeen etc. 1991 CLC 805 it was considered that the right of Khula` was an independent right and failure of wife to establish grounds other than Khula` taken by her would not prejudice her right. The Family Courts have to see this right independently.

9. In the instant case the wife was so adamant that she expressed her hatred by saying that she waists to spit on her husband. She was maintaining her aversion and deposing the same on all the occasions that is to say in hat plaint, her written statement in a suit for restitution of conjugal rights and m her statement before the Judge. Family Court, her appeal filed before the learned District Judge and her statement before this Court in person. Islam does not force a woman to lead sinful life and this is why it does not permit a wife to go wrong if dissolution is not ordered. The learned Courts below could otherwise in case of her failure to prove the grounds for dissolution of marriage see that she had a right of Khula` and that was a right given to her by the dictates of Holy Qur'an. They were under a duty of law to pass a judgment on this factum_ They have failed to do so. I have perused the suit filed by the respondent No.3 where he has alleged that he has given the ornaments weighing five tolas to the petitioner. There is no evidence on this score. The petitioner in her statement has stated that 5/6 tolas of ornaments given by the respondent to her, were taken back. She has also said that her Haq Mehl which is fixed as Rs.5,000 has not been paid by the respondent Nn_3 while the respondent appearing as D.W. has categorically stated that he has paid Rs.5,000 to the petitioner. There is no other evidence of receiving the Ornaments except the statements of the parties. The petitioner has alleged that her Haq Mehr has not been paid to her. Even in consideration of forgiving of Haq Mehr the petitioner is entitled to the right of Khula`. ;

10. In view of. the above observations, I hold that the findings of the learned Courts below are based upon the misapplication of their mind to the injunctions of Holy Qur'an in respect of the right of Khula` and are not in conformity with law and the judgments of the superior Courts in that connection. I set aside the order of the learned Judge, Family Court, dated 3-5-1993 and that of the learned lower appellate Court, dated 20-12-1993 . being passed without lawful authority and jurisdiction, accept the instant petition of the petitioner and decree her suit for dissolution of marriage on the basis of her right of Khula` and dismiss the suit of the respondent for restitution of conjugal rights. il. There shall be no order as to costs.

M.BA./S-528/L