Mst. NAZLI MUSTAHSAN Versus ADDITIONAL DISTRICT JUDGE, RAWALPINDI

Through this Constitutional petition the judgment of the learned Additional District Judge, Rawalpindi dated 28‑10‑2000 affirming the judgment/decree of the learned Judge Family Court, dated 18‑7‑2000, has been called in question.

2. The facts culminating into filing of this writ petition are that the petitioner married with respondent No.3 on 13‑7‑1983. Out of the wedlock two children (a son and a daughter) were born who are living in the custody of respondent No.3. The petitioner filed a suit on 17‑4‑2000 for dissolution of marriage on the ground of Khulla alleging that the defendant/respondent uses filthy language and that she has developed intense disliking and aversion for respondent. The suit was resisted denying all the allegations stating that the petitioner had left the house of the respondent on her own. The plaintiff/petitioner had made a demand for separate house for her which the respondent husband could not afford as he had limited means, his salary was only Rs.6,500 in which he was supporting his daughter and as soon as well. The following issues were framed:‑

ISSUES:

(1) Whether the defendant treated the plaintiff with habitual cruelty? OPP

(2) Whether the plaintiff has developed hatred with the defendant and she is entitled to get her marriage dissolved on the basis of Khula, if so on what terms and conditions? OPP

(3) Relief.

The learned Judge Family Court dismissed the suit on 18‑7‑2000. The appeal before the learned Additional District Judge, Rawalpindi also met the same fate on 28‑10‑2000.

3. Learned counsel for the petitioner contends that both the Courts below erred in law in not granting Khula to the petitioner. He has drawn my attention to the plaint wherein it is clearly stated that the respondent used filthy language against her and that she had developed intense disliking against him. Learned counsel has referred to the testimony of petitioner, who appeared as P. W.1, wherein she testified to the effect that:‑‑

I am conscience of the fact that the Courts below have discussed the question of Khula' in detail and came to the conclusion that the petitioner was not entitled to Khula. The Honourable Supreme Court in the famous case of Mst. Khurshid Bi v. Muhammad Amin (PLD 1967 SC 97) has laid down the law clearly which has been followed consistently by the Courts. Under Muslim 'Law, the wife is entitled to the Khula if she satisfied the conscience of the Court that it will otherwise mean forcing her into a hateful union. From the averments in the plaint and from her statement quoted above it seems that the petitioner has developed intense disliking and aversion for the respondent/husband, and in such circumstances she would certainly be transgressing the limits of God if forced to live with her husband. After going through the judgments of the Courts below and the evidence on the record I am of the view that the petitioner has developed intense aversion towards her husband, and it is quite evident that the husband and the wife cannot live a life of harmony.

4. For what has been stated above, the impugned judgments of the Courts below are declared to be without lawful authority and of no legal effect and remand the case to the learned Additional District Judge, Rawalpindi, for re‑writing the judgment keeping in view the observations made above.

H.B.T./N‑225/L Order accordingly.