1994 PLP 732 (MLD)

Mst. Riffat Sultana, petitioner, was married to the respondent on 19-3-1964. Initially the parties lived together amicably for about five years but thereafter as per allegations levelled by the petitioner, the respondent started treating the petitioner with habitual cruelty as he was narcotics addict and misappropriated her golden ornaments.

2. It is alleged by the petitioner that in January, 1989, the respondent turned out the petitioner from her house and consequently she came to her brother and filed a suit for dissolution of marriage on 7-6-1989 on the ground of cruelty, for non-payment of maintenance and Khula etc. This suit was contested by the respondent who also filed a suit for restitution of 'conjugal rights. Both the suits were consolidated and ultimately were dismissed by the Judge, Family Court vide judgment and decree dated 6-4-1991. Petitioner's appeal was dismissed by the learned Additional District Judge, Lahore vide order dated 1-10-1991. It may be mentioned here that during the interim case, F.I.R. No.240 dated 8-6-1989, under section 10 of Zina Hadood Ordinance read with section 380, P.P.C. with Police Station Mughalpura, Lahore was also registered at `the behest of the respondent against the petitioner and one Muhammad Tanvir and it was alleged that the petitioner has been abducted by Muhammad Tanvir referred to above who is committing Zina with her. Both the accused were acquitted by the learned Additional Sessions Judge vide order dated 9-1-1991.

3. Learned counsel for the petitioner has argued that both the learned Courts below while refusing decree for dissolution of marriage have failed to follow the law, declared by this Court as well as by the Supreme Court of Pakistan in this behalf, hence the judgments and decree rendered by both the learned Courts below are without lawful authority. Elaborating his arguments, learned counsel for the petitioner argued that it stands established on the record that a false criminal case of commission of Zina was registered against the petitioner wherein she was acquitted. The parties are admittedly living separately since, 1989. There is absolutely no possibility for reconciliation. The parties have reached at a stage where it is not at all possible to persuade them to live together as husband and wife. Although there are five children out of the wedlock yet they being major even this circumstance will not make any difference in view of the affixed aversion acquired by the petitioner towards the respondent. The respondent has also not challenged the decree of dismissal of his restitution suit. Consequently, this is a fit case where a decree for dissolution of marriage on the principle of Khula should have been granted by the Courts below but they have failed to exercise jurisdiction vested under the law. Learned counsel has relied upon PLD 1989 Lah. 31 Noor Muhammad v. Judge, Family Court, Burewala, District Vehari and another.

4. As against the above arguments of learned counsel for the petitioner, learned counsel for the respondent has argued that it is correct that there is no possibility of the spouses living together as husband and wife yet the respondent has no objection if the marriage is dissolved after the marriage of a young daughter of the parties. Learned counsel has argued that in fact respondent does not seriously contest the grant of dissolution of marriage to the petitioner but it is only a question of `Zid' and he wants that the petitioner should not get a decree for dissolution unless and until the young daughter of the parties is married. Factum of period of separation and filing of a criminal case referred to above and acquittal of the respondent is not denied.

5. Argument of the learned counsel for the respondent is misconceived and is without any lawful basis and justification merely because it is a question of i.e. `Zid' of a husband, a woman cannot be forced to live with him. She is not a chattel and law does not favour the continuance of an unhappy and immoral union. Consequently, I hold that the petitioner is entitled to a decree for dissolution of marriage and hence the impugned judgments and decree are without a lawful authority.

6. Resultantly, this writ petition is accepted. Both the judgments and decree passed by the two learned Courts below are declared to be illegal and without a lawful authority and hence suit of the petitioner for grant of a decree for dissolution of marriage is decreed on the ground of Khula. As the respondent has neither claimed nor proved the payment of any benefits hence the petitioner is not obliged to return any thing in lieu of Talab-i-Ishad. Parties are left to bear their own costs. AA./R-62/L Petition accepted.