2015 PLP 955 (MLD)

RAJA SAEED AKRAM KHAN, J.

This appeal by the leave of the court has been directed against the judgment and decree of the learned Shariat Court dated 17-4-2013, whereby, the appeal filed by the appellant was dismissed.

2. The relevant facts necessary for disposal of the instant appeal are that the spouses contracted marriage on 26-1-2008, in lieu of dower, Rs. 1,00,000 (in shape of 5 tola gold). Later on, the relations between the spouses became strained and they separated. Mst. Zahida Kausar, the respondent, filed a suit for dissolution of marriage, whereas, Maharban Hussain, the appellant, filed a suit for restitution of conjugal rights. The learned Judge Family Court consolidated both the suits and after necessary proceedings, the learned Judge Family Court dismissed the suit filed by the appellant for restitution of conjugal rights, whereas, the suit filed by the respondent for dissolution of marriage was decreed in her favour on the ground of Khula. Both the parties feeling aggrieved from the judgment of the trial Court, filed separate appeals before the Shariat Court. The learned Shariat Court consolidated both the appeals and after hearing the parties, dismissed both the appeals vide impugned judgment dated 17-4-2013, which is the subject matter of this appeal.

3. Ch. Muhammad Suleman, Advocate, the learned counsel for the appellant, argued that the judgment of the Shariat Court is against law and the facts which is not sustainable in the eye of law. He further argued that the learned Shariat Court fell in error while not taking into account that suit for dissolution of marriage was filed on the ground that the appellant is impotent and unable to perform his marital obligations and not on the ground of Khula. He contended that the learned Shariat Court could not take into account that the learned trial Court has deviated from the mandatory provision of the Dissolution of Muslim Marriages Act, 1939, while passing the decree for dissolution of marriage on the basis of Khula. He contended that by juxtaposing clause (C) of the proviso attached to section 2 subsection (v) of section 2 of the Dissolution of Muslim Marriages Act, it is observed that if a lady claims that her husband is impotent then the Family Court is under legal obligation to furnish a year's time to the husband while allowing him to remain live with his wife. If despite that the husband fails to perform his marital obligations, then the decree can be passed on the ground of impotency. Whereas, both the Courts below have ignored this important legal aspect of the case while passing the impugned judgments. He further contended that the respondent failed to prove that the appellant is impotent as the doctor has declared him fit for performing conjugal rights. In this way, the learned Judge Family Court was not justified to grant the decree on the ground of Khula as no other ground except impotency was raised by the respondent, therefore, the relief granted by the Courts below to the respondent is beyond the pleadings. He submitted that the respondent never sought the decree on the basis of Khula rather she claimed the decree on the ground of impotency which was not proved by her through any sort of evidence. He submitted that both the Courts below also misread the evidence. As per Nikkah Nama, the dower was fixed as Rs.1,00,000 along with 5 tola gold, but while passing the impugned judgment, the respondent has been ordered to pay only Rs.1,00,000 as consideration amount of Khula to the appellant, whereas, the value of 5 tola gold is more than Rs.2,50,

000. He lastly prayed that in case the Court comes to the conclusion that the impugned decree of Khula has rightly been passed then the decree of the learned Shariat Court is required to be, modified while granting the amount of Khula equal to 5 tola gold. He has relied upon they case reported as Mst. Ayesha Shaheen v. Khalid Mehmood and another 2013 SCMR 1049.

4. On the other hand, Hafiz Fazal-ur-Rehman Dar, Advocate, the learned counsel for the respondent, while controverting the arguments advanced by the learned counsel for the appellant has stated that there are concurrent findings recorded by both the Courts below, therefore, no interference is warranted by this Court. He argued that the learned counsel for the appellant has failed to point out any misreading or non-reading of the evidence. He further argued that according to verse No.229, Surah Al-Baqarah, of the Holy Quran, it is settled that in case the supposes feel apprehension that they will be unable to live together within the limits ordained by Almighty Allah, then it would be better for them to separate from each other. He contended that at every cost, the respondent was not willing to live with the appellant. He contended that according to the Islamic law as well as the law of the land, a wife cannot be compelled to live with her husband. As due to severe hatred it was not possible for the respondent to live with the appellant within the limits ordained by Almighty Allah, therefore, the learned trial Court was fully justified to pass the decree for dissolution of marriage on the basis of Khula. He further contended that as per Nikah Nama, dower was fixed at the time of Nikah as Rs.1,00,000, therefore, the argument of the learned counsel for the appellant that dower amount was fixed as Rs.1,00,000 along with 5 Tola gold, is ill-founded which is against the record.

5. We have heard the learned counsel for the parties and also perused the record made available. Both the supposes filed separate suits before the trial Court, i.e., the suit for dissolution of marriage and the suit for restitution of conjugal rights, respectively. The suit of the appellant for restitution of conjugal rights was dismissed by the trial Court, whereas, the suit filed by the respondent for dissolution of marriage was decreed in her favour subject to payment of Rs.1,00,000 as consideration amount of Khula. It is spelt out from the record that the respondent appeared before the trial Court and recorded her statement where she stated that:-- The other witnesses, produced by the respondent, namely, Maqsood Begum and Muhammad Imtiaz, categorically stated in their statements that if the doctor issued a certificate that the appellant is fit and potent person and able to perform the conjugal rights, even then the respondent is not ready to live with him. The relevant portion of the statement of Mst. Maqsood Begum, mother of the respondent, is reproduced as under:-- Whereas, relevant portion of the statement of Muhammad Imtiaz, witness, the brother of the respondent, is as under:--

6. In view of the statements referred to hereinabove, there is no ambiguity in our mind that when a wife categorically states that at every cost she wants separation and is not willing to live with her husband, no law can compel her to live with him. According to the Qur'anic verse No.229 of Surah Al-Baqarah, if the supposes think that difference and hatred between them is much developed and they cannot live together within the limits ordained by Almighty Allah, then the proper course is separation. It will be useful to reproduced here the translation of above said Holy Qur'anic verse, which reads as follows:-- "Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah it is those who are the wrongdoers." After going through the glimpses of the statements of P.Ws. and the Qur'anic verse we are of the affirmed view that if in the prevailing circumstances of the evidence on the record, it is spelt out that it would be impossible for the supposes to live together within the limits ordained by Almighty Allah, they should be separated.

7. Although the main ground for seeking the decree for dissolution of marriage was that the appellant is impotent, however, at the same time, from the statement of the respondent it can be conceived that she does not seem to live with the appellant as a wife. In these circumstances, it would be immaterial to discuss that whether the appellant is potent or impotent. Therefore, the argument of the learned counsel for the appellant that the respondent never sought the decree on the basis of Khula rather she claimed the decree on the ground of impotency which was not proved by her is not convincing in nature. It is not necessary that marriage can only be dissolved on the basis of Khula rather the same can be dissolved on the ground of variety of circumstances on the basis of which the Court is satisfied that the spouses cannot live as husband and wife within the limits ordained by Allah. Reliance can be placed on a case reported as Mst. Naqeeba Begum v. Abdul Khaliq 2004 YLR 1719 wherein it has been held that:-- "

5. We have given due consideration to the arguments raised at the Bar. It may be stated that this is well settled principle of Shariah that a decree on the basis of 'Khula' can be passed if the Court comes to the conclusion that it was no more possible for the spouses to live together within the limits ordained by the God. Obviously, the question as to whether the spouses can live within the limits ordained by God or not is a question of fact which depends on the circumstances of each case. It is not necessary that the marriage can only be dissolved on the basis of 'khula' if there exists a deep rooted hatred between the husband and wife, rather the same can be dissolved on the basis of variety of circumstances which satisfy the Court that it is not possible for the spouses to live as husband and wife as is ordained by the God." Our this view is further fortified from another case reported as Shakila Bibi v. Muhammad Farooq (1994 CLC 230) wherein it has been observed as under:-- "

5. It is unfortunate that the Courts below 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 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."

8. So far as the other argument regarding the decree in consideration of Rs.1,00,000 as the amount of Khula is concerned, according to the contents of Nikah Nama, the dower was fixed as Rs.1,00,000, in shape of gold ornaments weighing 5 tolas, at the time of Nikah. Relevant column of Nikah Nama reads as under:-- A careful study of the above said column of Nikah Nama reveals that the words and are printed as such permanently in the column of Nikah Nama, whereas, the entry made at the time of Nikah consists of the words . Thus, it is clear that 5 tolas gold of Rs.1,00,000 was paid at the time of Nikah and both will be read together. Therefore, the argument of the learned counsel for the appellant that the five tolas gold and Rs.1,00,000 in cash were paid at the time of Nikah is against the record which is hereby repelled. In view of what has been discussed above, the appellant has failed to point out any illegality or irregularity in the impugned judgment to call for interference by this Court. Both the Courts below attended the controversy in a legal manner and passed the impugned judgments while assigning the solid reasons. Therefore, finding no substance, this appeal stands dismissed. No order as to the costs. AG/17/SC(AJ&K) Appeal dismissed.