2022 PLP 968 (MLD)

RAJA SHAKEEL AHMAD, J.

This revision petition is directed against the judgment/decree dated 13/03/2019 passed by the learned District Judge Ghizer in CFA No. 34/2017, whereby the learned first appellate Court decreed the suit in favour of respondent/plaintiff by setting aside the judgment/decree passed by the learned Senior Civil Judge Punial/Ishkoman in Civil Suit No. 44/2016.

2. The concise track as per record of the case is that the respondent/plaintiff entered into contract of marriage with petitioner/defendant during the year 2000. Three children (2 sons and 1 daughter) have born out of their wedlock and the youngest child is 9 years old. As per plaint, the attitude of petitioner turned towards cruelty to behave worst with the respondent/plaintiff. The respondent/plaintiff filed a civil suit bearing number C. Suit No. 44/2016 against the petitioner/defendant for dissolution of marriage on the basis of Khula. However, she mentioned an amount of Rs. 1810200/- taken loan from bank for construction of house, Rs.50,000/- marriage expenses and Rs.25525 dower amount, out of which 2000/- was paid. The petitioner/defendant contested the suit and denied the averments of plaint filed by respondent/plaintiff. In the light of divergent pleadings of the parties, the learned Trial Court framed 12 issues including relief and proceed the case. After completion of recording the evidence as per issues and hearing final arguments, the learned trial Court dismissed the suit of respondent/plaintiff. The relevant portion of the judgment/findings dated 17/08/2017 of learned trial Court is reproduced as under:- "Issue No.12 Plaintiff has failed to prove issues 1 to 5 therefore not entitled for a decree of Khula. Resultantly suit of the plaintiff stands dismissed. File after due completion be consigned to record room."

3. The respondent/plaintiff felt aggrieved and preferred an appeal bearing number CFA No. 34/2017 against the judgment/findings dated 17/08/2017 for redressal of her grievances. The learned first appellate Court framed only two points for determination of the appeal i.e. Whether there is sufficient ground for dissolution of marriage of the appellant? And relief and focused the same. As per available evidence and record of the case in the light of arguments of learned counsel for both the parties, the learned first appellate Court accepted the appeal by setting aside the judgment of trial Court. The operative part of the impugned judgment/decree passed by the learned first appellate Court in CFA No. 34/2017 reproduced hereunder:- "

8. In the light of foregoing reasons, the appeal is allowed. The impugned judgment and decree are set aside. The suit of appellant is decreed as prayed for against the respondent. However, she shall pay Rs. 100,000/- to the respondent in consideration of dissolution besides waiving remainder of her dower as she is the seeker of dissolution without resorting to conciliatory attitude and without making some sacrifice in saving the marital bond and welfare of her own children. The Nikah of appellant with the respondent is hereby dissolved. The appellant shall be at liberty to contract marriage with any man of her choice after expiry of her Eddat period counting from 13/03/2019 or expiry of statutory period of appeal against this decision (whichever may be longer). The parties to bear their own costs. Record of trial court be sent back along with an attested true copy of this judgment. This file be consigned to record room after due completion."

4. The petitioner/defendant feeling aggrieved filed the instant revision petition against the impugned judgment/decree dated 13/03/2019 passed by the learned District Judge Ghizer with following prayer:- "It is therefore respectfully prayed that the subject revision petition may kindly be allowed and the impugned judgment/decree dated 13/03/2019 may graciously be set aside and after maintaining the judgment/decree of trial Court dated 17/08/2018 suit of plaintiff/respondent may very kindly be dismissed for the ends of justice."

5. The learned counsel for petitioner contended that the impugned judgment/decree is incorrect, baseless, against the facts and law. The impugned judgment is ambiguous, misconceived and is the result of non-reading and misreading of evidence. The learned first appellate Court has failed to discuss each and every issue as such the impugned judgment has no legal weight. The learned first appellate Court taken one sided view of the material available on record while decided the matter, as such the impugned judgment is the result of misconception based on suppositions and conjectures. The impugned judgment is outcome of wrong conclusion of the evidence and misinterpretation of law. The learned trial court has rightly dismissed the suit of respondent being an ambiguous one. The learned counsel for petitioner lastly prayed for acceptance of the petition by setting aside the impugned judgment/decree dated 13/03/2019 and maintaining the judgment dated 17/08/2018 passed by the trial Court.

6. Conversely, the learned counsel for respondent opposed the contention of learned counsel for petitioner and contended that it is an admitted fact that the petitioner and respondent were remained in wedlock for about 16 years after their marriage and they are facing courts since 2016 and it is not possible to rejoin their matrimonial life again. The learned first appellate Court has rightly decided the dispute and accepted the appeal for dissolution of marriage in the larger interest of both the parties. The learned first appellate Court rightly concluded the matter as it is not possible for a woman to live together with man to whom she prosecuted for about more than 5 years. Finally, the learned counsel for respondent/plaintiff prayed for dismissal of revision petition by maintaining the impugned judgment/decree 13/03/2019 passed by the learned District Judge Ghizer.

7. I have heard the arguments advanced by the learned counsel for the parties at length and perused the record of the case. 8. 'Khula' in fact, is a right available to a wife for dissolution of marriage in consideration of the right of divorce vesting in a husband. Where dispute and differences, in the family life, arise because of an attitude of the wife not acceptable to the husband, the latter has the power to divorce. The right of Khula accrues to a wife for the redressal of irreconcilable grievance against her husband. Need to seek Khula can arise in two situations. First, the wife may be aggrieved of unbecoming attitude of her husband and secondly, she may for her own personal reasons such as abhorrers, or disliking for the husband, may claim Khula. In the history of Muslim Jurisprudence, the well reputed case of Habiba Bint-e-Sohail, seeking Khula against her husband namely Sabit (may Allah be pleased with him) provided as guidance that in the case, where the disliking or hatred of the wife is not because of coercion, duress or other un towards behavior of the husband, the wife may seek separation by the restoration of dower, but in the depth analysis of the circumstances leads to infer that the case where the wife is constrained to seek divorce because of the obnoxious nature or behavior of the husband, her position and rights are decipherable from the case of Habiba Bint-e-Sohail. No yard stick can be fixed to define or determine factum of hatred. Emotion of hatred can be inferred on the basis of circumstances of each case, specially from the statement of wife recorded by courts. Only aspect which requires consideration is such cases would be as to whether husband and wife can live together in order to perform their matrimonial obligation, when the wife deposes before the court, and submits that this court may hang her and whatever may be the circumstances, she is not prepared to live with her husband, what else the hatred or aversion could be.

9. Perusal of statements of witnesses shows that the dispute between the petitioner and respondent was going on since long ago soon after their marriage. This fact has been brought on record through evidence of both the parties. Their relatives tried their best to solve the matrimonial dispute, but all in vain. The respondent filed the suit for dissolution of her marriage is the result of final step towards separation through order of Court. After filing the suit by the respondent/plaintiff passed more than 5 years long precious period of their lives, but the parties did not recall their mind to be entered in a compromise, rather tried their best to defeat the opposition. The plaintiff claimed through plaint that she spent money from her salary for expenses of children, but despite judgment/decree passed by learned District Judge Ghizer for waiving her remaining dower and order to pay Rs. 100,000/- to the petitioner for dissolution of her marriage, she did not file any appeal or revision before this Court for reduction of the fixed amount or other claims, which clearly shows attitude of respondent that she is unable to survive her life with the petitioner. It is also came on record in the statement of respondent during course of trial that she tried two times for committing suicide and further disclosed her aim regarding losing her life in case of non-dissolution of her marriage. The learned first appellate Court has rightly decided the matter by fixing the amount of Khula. The impugned judgment/decree passed by the learned first appellate Court does not call for any interference by this Court.

10. An upshot of above discussion is that the judgment/decree passed by the learned first appellate Court is true and correct as per evidence available on record. No any illegality or infirmity found in the impugned judgment/decree, called for interference by this Court. The petition bearing number Civil Revision No.33/2019 is hereby dismissed being devoid of merits. Civil Miscellaneous No.162/2019 annexed with this revision petition is disposed of accordingly. Parties to bear their own costs. File. ZH/8/GB Revision dismissed.