P L D 1971 Supreme Court 192 (PLP)

Dates of hearing : 10th and 11th November 1970. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat, in a second appeal. This appeal arose out of a suit for dissolution of marriage on the ground of habitual cruelty, non-maintenance for more than two years and misappropriation of her property in the form of ornaments, etc. This suit was decreed by the trial Court, but on appeal the Additional District Judge, Lyallpur, reversed the decision of the trial Court and dismissed the suit for dissolution of marriage. In second appeal before the High Court the learned counsel for the present respondent conceded that he was not in a position to assail the findings of fact with regard to cruelty and non-maintenance, but he maintained that the relations between the spouses had become so highly strained that it was impossible for them any longer to live together in amity and goodwill. In the circumstances, it was prayed that the High Court should, applying the principles laid down by this Court in the case of Khurshid Bibi v. Mohd. Amin (P L D 1967 S C 97) and by a Full Bench of the High Court itself in the case of Bilqis Fatima v. Najmul 1kram (P L D 1959 Lah.566), grant a decree for dissolution of marriage on the basis of "Khula' ", particularly, since the respondent was prepared to purchase her liberty by paying such compensation as may be determined by the Court. As against this, the learned counsel for the present appellant argued that the High Court could not grant a decree for "Khula' ", as there was no evidence on the record to show that the living together of the spouses had become impossible or that they will not be able to observe the limits of Allah: It was further contended that a wife, who is unable to convince the Court that she cannot go back to the husband and live with him in amity and goodwill, is not entitled to separation even by way of "Khula' ". In support of this contention reliance was placed on several decisions in the cases of Mst. Umatul Hafeez v. Talib Hussain (A I R 1945 Lah. 56), Muhammad Ali v. Ghulam Fatima (A. I R.1935 Lah.-902) and Majida Khatoon Bibi v. Paghalu Muhammad (P L D 1963 Dacca 583). The High Court, however, took the view that even if the respondent's appeal failed, the husband would not be in a position to take the wife back forcibly, with the result that he would be under no obligation to maintain her and the wife will remain in a "Mullaqa". In the circumstances, the High Court felt justified in allowing the appeal and granting a decree for dissolution of marriage by way of "Khula' " conditional `on payment of compensation. The judgment of the first appellate Court was, accordingly, set aside and the case was remanded to the trial Court for determining the amount of compensation payable to the appellant. Leave was granted in this case to consider whether the High Court could decree the suit on a ground not raised in the plaint. Learned counsel for the appellant has strenuously con tended that the learned Judge could not suo motu, in the absence of any plea to that effect, grant a decree on a cause of action which was not pleaded in the plaint and which the defendant in the suit had no opportunity to traverse. The best, it is urged, that the High Court could do was to allow the respondent to amend her plaint and ask for dissolution of her marriage with the appellant by way of "Khula' ". It is further contended that the decision of this Court in the case of Mst. Khurshid Bibi v. Babu Muhammad Amin did not, at any place, lay down that the mere wish of the wife to dissolve the marriage tie was sufficient to entitle her to a divorce by way of "Khula` ". This right of "Khula' " is not an absolute right by which the wife can herself dissolve the marriage. It is a right which is dependent upon the "person in authority", which term includes the Kazi, ordering separation after being satisfied that unless this is done the spouses will not be able to live within the limits of Allah. The view taken in the case of Mst. Bilqis Fatima v. Najmul Ikram Qureshi is to the same effect. There is substance in the contention, for, even in Khurshid Bibi's case this Court did point out as follows:- - "In the present case, on the facts, it has been found that there is no possibility left, of the parties residing together in amity and goodwill. There has been litigation between them. The wife had to be brought away from the husband's house, on a warrant issued under section 100, Criminal Procedure Code. She may have taken an intense dislike to her husband, after he contracted his second marriage, but ever since that time, she has consistently declined to share the connubial bed with him. In the circumstances, it would be idle to have recourse to the formality of appointing hakams to attempt a reconciliation between them, considering that a panchayat, convened by the defendant's father, also failed, in this respect. I would, therefore, hold that the plaintiff is entitled to separation from her husband, by "Khula' ", in the circumstances of the instant case. It has further to be pointed out that in the plaint itself in that case there was an alternative prayer for dissolution of marriage by way of "Khula' ". In the present case no such relief has been sought in the plaint. Learned counsel appearing for the respondent has, however, relied on the decision of a learned Single Judge of the Dacca High Court in the case of Majida Khatoon Bibi, but there is nothing in this decision to support the contention of the respondent that the course adopted by the High Court was proper. That was a case where the suit for dissolution of marriage on the ground of non-maintenance had failed in the first appellate Court on the ground that a wife who withhold herself from her husband without any justification was not entitled to maintenance. The Dacca High Court too hold in that case that non-maintenance simpliciter was not sufficient to entitle the wife to dissolution of the marriage tie. The decisions in the cases of Mst. Umatul Hafiz and Mahmud Ali also deal with the question of non-maintenance of wife as a ground for divorce. They have no relevance on the question of "Khula' " divorce. It is no doubt correct that this Court, did, in Khurshid Bibi's case, lay down that the Courts do possess the power to grant a "Khula" divorce where the husband is unwilling to dissolve the marriage tie even though it is no longer possible for the spouses to live within the limits prescribed by Allah but this Court did not say that this could be done without observing the fundamental norms of judicial procedure. It is a basic principle of all judicial process that the defendant should have an opportunity of rebutting the case sought to be made out against him. A decree cannot be passed against anyone who has not been given this opportunity, particularly, where the question is one of fact. Learned counsel has not been able to draw our attention to any material on the record which would have established the condition upon which alone the Court or the Kazi could interfere and compel an unwilling husband to dissolve the marriage tie at the request of the wife. The learned Judge was not, therefore, in our opinion, right in granting a divorce by way of "Khula` " after the suit for dissolution of marriage on the ground of cruelty and non-maintenance had failed upon the findings of fact accepted by him. The present appellant, who was the defendant in the suit, was, certainly, entitled to an opportunity to produce rebutting evidence if it was sought even at this late stage to convert the suit into a suit for "Khula` " divorce. The procedure adopted by the High Court was, in our view, highly improper, for, it denied the defendant d in the suit any opportunity of contesting this issue. We would, therefore, allow this appeal, set aside the order of the High Court and remand the case back to it to allow the parties to amend their pleadings, raising a specific issue with regard to this question, namely, as to whether the plaintiff is entitled to divorce by way of "Khula` ", and to determine the same by taking evidence, if necessary. Having regard to the time that has already elapsed since the suit was originally instituted in 1964, we would suggest that the High Court should itself take evidence on this issue and if it comes to the conclusion that the issue has been established by the plaintiff. then to also determine the com pensation payable to the husband. We also hope that the High Court will give this matter some priority and decide it as expeditiously as possible. When leave was granted in this case the appellant had undertaken to defray the expenses of the respondent in defending the appeal regardless of the ultimate decision. In this view of the matter it had been ordered that instead of furnishing security he should deposit Rs. 1,000 in this Court to be made available to the respondent for payment of fees to her own counsel. In the circumstances there will be no further order as to the costs of this appeal, but out of the amount deposited by the appellant under the directions of the Court the taxed costs of the respondent will be paid to the extent o Rs. 1,000 only. The balance, if any left over, will be returned to the appellant. K. B. A. Appeal accepted.