SHAKILA BIBI vs MUHAMMAD FAROOQ And ANOTHER

Mst. Shakila Bibi was married to Muhammad Farooq in 1987. Unfortunately, the relations between the parties became strained with the result that petitioner filed a suit for dissolution of marriage on 15-12-1987 against respondent No.l, who, in turn, instituted a suit for restitution of conjugal rights.

Both these suits were consolidated and the following consolidated issues were framed by the learned trial Court:--

(1) Whether the defendant has been treating the plaintiff with habitual cruelty ? O.P.P:

(2) Whether the defendant has levelled false allegation of adultery against the plaintiff. ? O.P.P.

(3) Whether the defendant has relations with a woman of ill-repute and he asks the plaintiff to lead an immoral life? O.P.P.

(4) Whether the defendant has misappropriated the dowry of plaintiff ? O.P.P.

(5) Whether the plaintiff is ent;tled to Khula`, if so, on what terms and conditions ? O.P.P.

(6) Whether this Court has got no territorial jurisdiction to try the present suit; O.P.D.

(6A) Whether the defendant is entitled to a decree for restitution of conjugal rights ? O.P.D.

(7) Relief.

In support of her case, the petitioner appeared as P.W.1, in addition to which she examined Mastajab Khan (P.W.2) and Liaquat Hayat Khan (P.W3). In rebuttal, apart from his own statement respondent No.l, examined Altaf Hussain as D.W.2 and Muhammad Khalil as D.W.3.

2. By means of judgment and decree dated 20-4-1991, the learned Judge Family Court proceeded to dismiss the suit filed by the petitioner and decreed the suit filed by the respondent. The petitioner went in appeal but that appeal was also dismissed by the learned Additional District Judge, Gujrat vide his order dated 9-12-1991. Hence this petition.

3. I have heard learned counsel for the petitioner; no one has appeared for the respondent with the result that he is proceeded against ex parte.

4. Learned counsel for the petitioner has contended that it stands proved on the record that the relations between the parties had deteriorated to such an extent that it has become impossible for them to live together as husband and wife and the refusal of the Courts below to dissolve the marriage on the ground of Khula` not only tantamounts to forcing the parties into a hateful union but is also contrary to the law declared by the superior Courts.

5. It is unfortunate that the Courts blow in proceeding to decide the suit of the petitioner, did not examine it in its correct perspective. It is by now well-- settled and has repeatedly been held by the superior Courts that if from the prevailing circumstances and from the evidence on the record, it is proved that it shall not be possible for the parties to live together as husband and wife A within the limits prescribed by Allah Almighty, they should be separated and not forced to live in a hateful union. It is also well-established in law that a wife is not supposed to justify the reasons, on account of which she had developed hatred for her husband. It is sufficient, if it is shown that the wife has fixed aversion and hatred towards her husband and there was no possibility of any reconciliation between them.

6. In the present case, the petitioner while appearing as P.W.3 has categorically stated that there was no chance of any reconciliation between the parties. In addition thereto she had leveled serious allegations against respondent No.3 including that of sodomy. There is noissue from the marriage. The case of the petitioner also finds support from the statement of Mustajab Khan, her father who appeared as P.W.2. The respondent, while appearing as D.W.1, admitted that for the last three years, the parties were living separately. He also admitted that despite his best efforts and also the intervention of some other individuals, the petitioner had refused to return her conjugal society to him. It is evident from these circumstances that it is not possible for the parties to live together as husband and wife and refusal of the Courts below to grant Khula` to the petitioner is dearly without lawful authority.

In view of what has been stated above, this petition is allowed and the suit of the petitioner is decreed on the basis of Khula` with no order as to costs.