1997CLC319 (PLP)

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Validity‑‑‑Wife is entitled to Khula' if she satisfies conscience of Court that parties would not observe limits of God if marriage subsists‑‑‑Evidence on record was sufficient to prove that in spite of having seven children, wife was not prepared to live with her husband‑‑‑Such fact showed deep hatred the wife had developed towards her husband‑‑‑Wife's statement about hatred towards her husband was sufficient for Court to grant Khula' which wife could claim as a matter of right‑‑‑Islam being liberal religion imposes no restrictions on two adult human beings to enter into marriage if otherwise permissible‑‑‑Wife having proved to the satisfaction of Court that she hated husband and that she could not live with him within limits prescribed by God, she was entitled to grant of Khula' straightaway‑‑‑Grant of Khula' by Trial Court was affirmed in circumstances. Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 rel. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calles in question the judgment of the Family Judge, Faisalabad dated 26‑5‑1994 by which the suit for dissolution of marriage filed by respondent No.2 against the petitioner was decreed.

2. The brief facts of the case are that Mst. Parveen, respondent No.2 filed a suit for dissolution of marriage, inter alia, on the ground of Khula'. The learned Judge Family Court after going through the pleadings of the parties framed the following issues:‑‑‑ (1) Whether the defendant treated the plaintiff with cruelty? O.P.P. (2) Whether the defendant has failed to provide maintenance to the plaintiff for the last more than two years? O. P. P. (3) Whether the plaintiff is entitled for Khula'? If so, on what terms? O.P.P. (4) Whether the plaintiff has no cause of action? O.P.D. (5) Relief. The defence of the petitioner was closed under Order XVII, Rule 3, C.P.C. and after recording the evidence produced by Mst. Parveen, respondent, the Court decreed the suit in favour of respondent No.2. The main ground on which the suit was decreed was ' Khula .

3. The learned counsel for the petitioner contended that the learned Judge Family Court did not consider the case of the petitioner in its true perspective. It was further contended that evidence was misread and therefore, the decree granted by the learned Judge Family Court was liable to be set aside. It was further contended that the judgment of the learned Family Judge was illegal and against the principles of Islam because the learned Family Judge erred in holding that the requirements for obtaining Khula' was fulfilled in the present case. I am afraid this contention of the learned counsel is devoid of any force. It is well?settled in that under Muslim Law a wife is entitled to Khula' as of right if she satisfies the conscience of the Court that it will otherwise create hatred in the mind of the wife. It has been held by this Court in various judgments that a wife is entitled to the dissolution of her marriage provided she proves that the parties will not observe the limits of God if the marriage subsists. This conclusion was arrived at after considering Qur'anic Injunctions on the subject. In Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, it was held: "It is well‑settled, that marriage among Muslims is not a sacrament but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. In this respect, Islam, the Din‑al‑Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as 'holy dead‑lock' . " The question that fell for consideration in the case was whether a wife, under the Muslim Law, is entitled, as of right, to claim Khula', despite the unwillingness of the husband to release her from the matrimonial tie. The only test for Khula' is the satisfaction of the Court that there is no possibility of their living together consistently with their conjugal duties and obligations. Again in the same judgment of the Supreme Court, it was observed that the basis and foundation of Khula' in Verse 2: 229 of the Holy Qur'an, though the word "Khula" finds no mention therein or in the Holy Qur'an. It has been translated as "Divorce must be pronounced twice; then either retain them in honour or release them with kindness. And it is not lawful for you that you take back from women anything out of what you have given them unless they both fear that the, cannot observe the limits imposed by Allah. But if you fear that they cannot keep within the limits prescribed by Allah, then it is no sin for either of them in what she gives up to be free i.e. ransoms herself. These are the limits imposed by Allah. Transgress them not. For who transgresses Allah's limits, it is they who are the wrong‑doers".

4. The evidence, if read in the context of the judgments of the Supreme Court clearly proves that although the spouses have seven children, the eldest being 16 years and youngest being 2 years, the wife was not prepared to live with the petitioner. This shows the deep hatred that the wife had developed for ' the petitioner. She stated before the Court that she hated the petitioner and in my view this statement was sufficient for the Court to grant a decree for dissolution of marriage on the ground of Khula' which the respondent No.2 could claim as a matter of right. Islam is a liberal religion and it imposes no restrictions on two adult human beings to enter into a marriage if otherwise permissible. It is true that a husband can divorce his wife without the intervention of a Qazi or a Court but the wife cannot get herself released without the intervention of the Qazi or the Court but at the same time, it is also true that the moment the wife proves to the satisfaction of the Court that she hates the husband and that she cannot live with the husband within the limits prescribed by God Almighty, she is entitled to the grant of Khula' straightaway.

5. For all that has been said above, I dismiss this petition in limine. A.A./H‑14/L ?????????????????????????????????????????????????????????????????????????? Petition dismissed.