1994 PLP 1255 (MLD)

Khula'

Evidence on record established that wife due to 'conduct of husband had a feeling of aversion against him which was to such an extent that' time factor could not overcome that aversion and she could not five with her husband within limits laid down by God Almighty

Better course for spouses would be to get apart, in early phase of life (marriage having been performed two years back) in youth so that both of them might go in for second marriage, at proper age, for it had become genuinely difficult for wife to lead a happy life with her husband

Wife was, thus, entitled to Khula` divorce with no conditions attached to it. Muhammad Arif Alvi for Petitioner. Khan Abdul Haq Khan for Respondent. Date of hearing: 28th November, 1993. Khurshid Mai's suit for dissolution of marriage, filed against her husband, Sadiq Muhammad, on 20-3-1991, was dismissed by the learned Judge Family Court, Shujabad, Mr. Khalil Ahmed . Anwar, on 18-3-1992, and the judgment was upheld in appeal on 14-5-1992 by the learned Additional District Judge, Multan, Mr. Muhammad Khalil Chaudhry. Khurshid Mai has preferred this Constitutional petition, reiterating her prayer for liquidation of this marital tie, which, according to her, cannot possibly subsist, as it has become impossible for her to live with the husband and within the limits laid down by God Almighty.

2. I need not narrate the averments of the parties and reproduce the issues, which have arisen out of the divergent pleadings, as all the allegations levelled by the wife against her husband have been disbelieved as having not been substantiated on the strength of the evidence led by her. Even the general plea of Khula` invoked by the lady has not been upheld by the two Courts below, which are unanimously of the opinion that the marriage having been performed only a couple of years before, and the separation also having taken place not long ago, and the spouses being maternal-cousins, there is every likelihood of their rehabilitation or smooth-sailing of matrimony through intervention of elders of the-family or respectables of the locality.

3. The reason why the wife has developed hatred against the husband, as stated by her, is that a little less than a week following the marriage, an accusation of theft was directed against her. She was alleged to have stolen away jewellery worth Rs.18,000 and Rs.5,000 in cash. She maintains that it was an absolutely incorrect insinuation. She says that she could put up with her husband for hardly a month, during which period she used to be administered beating by him and she was ultimately turned out of doors. The defendant respondent has given a lie to this averment; and assertions of the parties on that count remain confined to oral evidence. If indeed it had happened like that, and the defendant or his mother or sisters had suspected theft having been committed by the bride, either owing to their susceptical nature or due to some other misunderstanding, and the poor girl had actually no involvement, it would not be difficult for any body to gauge the extent of aversion the newly?wed girl would have harboured in her mind against her husband, his parents and other family members. Development of hatred is a phenomenon, which it is difficult for any body to measure or assess in concrete terms, for it is the person, stating to have been driven into that unfortunate state of mind, who can express herself or himself in that regard and the manner in which such expression is made may or may not convince the listeners.?????????????

4. In the assessment of the Courts below, there are chances of a happy re-union, especially as the matrimony brought about in exchange is pulling on peacefully. Defendant's sister is living with the plaintiff's brother all right. Time spent by the spouses, following their marriage, is also very short, and it cannot be concluded, with certainty, that if they are re-united, they will still not be able to pull on amicably: The assessment made on the basis of these two factors however may be the other way round. Why after all has the girl, who is not at all pretty, nor even educated or affluent, chosen to disassociate herself from her husband, and has pursued her cause right up to High Court. She seems to be quite a simple and noble girl, who does not appear to have gone adrift or been misled by some undesirable infiltrator. It seems to be genuine case of development of disgust between the spouses, to an unbridgeable extent. She is first cousin of her husband and lived with him for hardly a month, as she pleads. According to the defendant, this period is about one year. Even if it is so, it cannot be treated as a long span of matrimonial life. Her husband's sister is living happily with her brother as his wife. Still she has chosen the path of separation and has given a positive impression that the discord in the relations and the rift with the husband has come to such a pass that it has become well? nigh impossible for her to continue with this marital union. For having it liquidated, she is even prepared to give up her claim to her dowry articles, ," as also dower.

5. It has beautifully been observed by Mushtaq Ahmad Khan, J. in a judgment reported as PLD 1993 Lah. 249, Ahmad Nadeem v. Asia Bibi, that right to claim divorce on the basis of Khula` by wife is a right at par with the right of pronouncement of `Talaq' by husband, with one difference. Husband can pronounce `Talaq' himself, but the wife has to file a suit in that behalf. It is the conscience of the Oazi that has to be satisfied and he has to judge if it is possible for the spouses to pull on or it has become too difficult for them to renew their ties as wife and husband. There is no method or mechanism, by which mathematically it may be determined as to whether the wife is right or is at fault for the split-up. A noble husband, having a very charming personality, A may not be liked by his wife, for reasons best. known to her, and a subjective satisfaction has to be made by the Qazi, on that count, on studying the attendant circumstances and reviewing the overall spectrum of matrimony. Judgment is to be that of the wife herself; and if she feels that she cannot possibly live with her husband, or she would not be in a position to observe the limits ordained by Allah; and this is a genuine feeling, springing from a noble thinking the marital tie -may be snapped. In the hierarchy of Family Courts, the appellate Court and even the High Court has the same powers for making such an assessment, as is the function of the trial Court, or the Oazi, in the context of Islamic Jurisprudence and even-handed administration of justice, with emphasis on equity, justice and fairplay for the womenfolk. A lady cannot be pinned down to live with a man, against whom she has developed utmost aversion, and with whom she is finding it increasingly difficult to live a normal life as wife. It cannot be said that there is lacking, in the instant case, a valid premises, a concrete basis and a satisfactory justification for separation of the spouses on applicability of doctrine of Khula`.

6. I honestly feel that it would be better for the spouses to get apart, in early phase of life, in youth, so that both of them may go in for second marriage, at proper age, as it seems to have become genuinely difficult for the lady, in this case, to lead a happy life with her husband. She is held entitled to Khula` divorce, with no conditions attached to it. The writ petition succeeds; and the suit stands decreed, with no order as to costs. AA./K-124/L ????????????????????????????????????????????????????????????????????????????????????? Petition accepted.