1985 PLP 225 (MLD)

Abdul Fahim for Petitioner. A.R. Mirza for Respondents. Dates of hearing: 15th and 16th May, 1984 This Constitutional petition directed against the judgment and decree, dated 5-12-1983 passed by the 29th Civil Judge Second Class and Family Judge, Karachi whereby the marriage of the respondent Mst. Nusrat Rashid was dissolved on the basis of Khula'.

2. The admitted facts are that the petitioner had married respondent in 1971-72 and they had lived for about 10 years as husband and wife but differences developed and in 1981 according to the respondent she was turned out of the house by the petitioner on 19-5-1981 and according to the petitioner he took her to her parents on that day without any quarrel. It is however, an admitted position that the parties have been living separately since that date and both the parties have claimed that they had tried to bring reconciliation but reconciliation has not been possible between them. The respondent filed suit for dissolution of marriage in 1982 and that the petitioner filed suit for restitution of conjugal rights in the same year and both suits were consolidated and tried together. The dissolution of marriage had been claimed on the basis that the petitioner had concealed the factum of his previous marriage from the respondent and after 3/4 years of marriage she came to know that he was a married man and he had two children arid the respondent had confronted the petitioner with-that situation who had forbidden her from disclosing about that to her parents but she disclosed the same and this disclosure enraged the petitioner who started taking revenge, he used to abuse and physically torturer the respondent over triffle matters and made life of the plaintiff miserable due to cruelty of his conduct and that finally on 19-5-1981 the defendant had mercilessly beaten the plaintiff and thrown her out of his house in her three clothes. It was also stated by the respondent in the plaint that she had developed deep sense of hatred against the defendant and it was not possible for her to live with him within the limits prescribed by Al-mighty Allah and she was ready to forego the dower. The petitioner had denied all these allegations in his written statement and had stated that the respondent was acting under the influence of her sister Mst. Nargis Rasheed. It was also stated in the written statement that nothing had been concealed from the respondent in respect of early marriage of the petitioner and his two children and that on 11-6-1981 the respondent had asked for divorce at the instigation of her sister. It was further averred that the petitioner made efforts for reconciliation but he was forced by the relations of the respondent to divorce her and he was even pressurised by the police to divorce the respondent. The petitioner had also taken up position that the respondent was practising illegally as M.B.B.S. Lady doctor and he had, therefore, asked her to stop doing that and that the defendant was willing to take her back as he love her. After framing all the issues the Civil Judge examined the parties. Nusrat Rasheed and Mst. Nargis Rasheed her sister, deposed for the plaintiff /respondent. Nusrat Rasheed gave a huge number of incidents of torture and she stated that she was kept like a prisoner, she was not allowed to meet her relations, she was made to serve as maid-servant and she was not taken for shopping and she was once beaten and several times abused. However, she did not state that on 19-5-1981 she had been beaten by the petitioner. She also stated that she had developed hate against the petitioner. Her statement was supported by Miss Nargis Rasheed. Both these women were cross- examined at great length. The petitioner was able to get admission from Mst. Nusrat Rasheed that two children of the petitioner had come to live in his house after 2/3 years of the marriage. But otherwise the statements of these two witnesses in respect of mental torture and beating etc. remained unshaken. Mst. Nusrat Rasheed denied that she was acting under the instigation of Miss Nargis and Nargis denied that she was instigating Nusrat to get a divorce.

3. The Civil Judge came to the conclusion that mental torture had been established. He also came to the conclusion that the parties cannot live within the limits of God as respondent had developed internal A disliking to the petitioner.

4. Mr. Fahim, counsel for the petitioner has argued that the details of torture had not been given by the respondent in her plaint and the only detail of 19-5-1981 which had been given was not stated on oath as a fact in her statement. He, therefore, argued that it was completely different case which had been pleaded by the respondent whereas the evidence had been in respect of different other things. Counsel relied upon section 7 of the Family Court, 1964 where facts are directed to be mentioned in the plaint. He also relied upon rule 2 of Order VI, C.P.C. which requires mention of facts in the plaint.

5. Mr. A.R. Mirza on the other hand relied upon section 2(viii) of the dissolution of~ Muslim Marriage Act where it is stated that "where the husband treats her wife with cruelty, that is to say: (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment; or (b) associates with woman of evil repute or leads an infamous life etc. are the incidents of cruelty, mentioned in the act itself. He submitted that since these are requirements of law, therefore, no further mention of the facts was necessary in this regard. However, I find that in the plaint there was a mention about the abases having been given and beating having been given. It is correct that the incidents of 19-5-1981 has not been proved by the respondent but she did make a statement that she was several time abused and she was not cross-examined on that aspect. She also made a statement that her sister visited her house. In any case making the life miserable is a vague expression and the law has allowed making of that allegation as a question of fact in a suit for dissolution of marriage and, therefore, the same could be mentioned as such without further elaboration. Mr. Fahim is of course right when he submitted that the facts as such should have been mentioned and not the legal result of facts but in view of correspondence that has passed between the parties in the form of letters Exhs.P.2 to P.6. It is apparent that these various allegations which Mst. Nusrat Rasheed went to prove had been made in the notices sent on behalf of Mst. Nusrat Rasheed before filing of this suit' of dissolution of marriage and consequently the petitioner had notice of those allegations and if he wanted he could meet the same. However, if we take a technical view of it and even exclude those portions of the evidence which do nut completely support the pleadings in the various paragraph of the -plaint still the fact remained that abuses have been proved by the respondent and to that extent there is no inconsistency between the pleadings and the plaint. Since I am not dealing here with the evidence in the appellate capacity and I am only concerned with examining whether there was some justification on record for the finding of the Civil Judge, therefore, I am of the view that there is substance in respect of proof' of finding of abuses and to that extent the allegations have been substantiated.

6. What has worried me however, is that the basis in the plaint was that it was the disclosure made by the respondent to her parents about previous marriage of the petitioner which enraged the petitioner and cause of trouble started but that has been proved to be wrong as she admitted in her cross-examination that the children had started living with them after 3 years of marriage which would be 1974 and, therefore, there was a subsistence of reasonable good relationship of married life for about 5 or 6 years. This has not been explained by the respondent in any manner and this does reflect upon her evidence in respect of misconduct of the husband. However, as I said above, I am not sitting here in an any manner and this does and, therefore, I cannot declare the impugned judgment as illegal merely because I am taking a different view of a part of the evidence from that of the Civil Judge. More important fact is that there was a reasonable justification for granting Khula in this. It is an admitted position that the parties have been separately since 1981, that they have filed suits against each other but they had are staying from each other but hey had levelled serious allegation against each other. The petitioner has been instrumental in getting the medical registration of the respondent cancelled which she or someone else on her behalf and obtained by fraudulent representation. This must have been possible for a good deal of dispute between two of them. Even the police has been involved in this matter as the petitioner has himself stated in his written statement that the police had called him et the police station but eventually the matter was patched up. It is an admitted position that on 6-1i-1981 Mst. Nusrat Rasheed had requested the petitioner to pronounce divorce upon her and it is, therefore, clear that in June, 1981 the parties had reached almost on the point of separation. Various efforts made by the petitioner which appear to be quite serious efforts' at reconciliation, have not turned fruitful and the respondent and her' relation have always insisted in having the marriage dissolved. In these circumstances I am of the view that the Civil Judge was justified in' granting Khula' to Mst. Nusrat Rasheed. In this respect attention is invited to P L D 1967 S C 97: In Sayyeeda Khanum's case, the verse bearing on the right of Khula', was not noticed, though the Hadith in respect of Jamila, wife of Sabet-bin-Qais was discussed. The opinion was expressed, in that judgment that the decision of the Prophet in that case was not to be regarded as a decree, awarded by him in the capacity of a Judge or as the Head of the State of Islam. It was thought that, as the husband was agreeable to the separation, on the delivery back to him, of his garden, this was a Separation by mutual consent, and it was in consequence of this that the Prophet gave his direction. It would be more consistent, in my humble opinion, with the letter and spirit of the Quran which places the husband and the wife on and equal footing, in respect of rights of one against the other, to construe this incidents a meaning that the person in authority, including the Qazi, can order separation by Khula even if the husband is not agreeable to that cause. Of course the Quranic conditions must be satisfied that it is no longer possible for the husband the wife to live together in harmony and in conformity with their obligations. The result is that this petition is dismissed but I will not pass any order as to costs because according to me attitude of the petitioner has been constantly for reconciliation. H . B . T . Petition dismissed.