P L D 1975 Lahore 805 (PLP)

(2) Whether the defendant has compelled the plaintiff to lead immoral life? (3) Whether the defendant has deprived the plaintiff of her ornaments and garments ? (4) Whether the plaintiff is entitled to khula` ; if so, on what terms? (5) Relief." In both the cases, all the issues were decided by the trial Courts against the wives. Both the learned appellate Courts concurred in the judgments of the trial Courts on all issues except that of khula` and in one case qua restitution of conjugal rights also. It is also interesting to note that in both the cases the learned appellate Courts granted decrees for dissolution of marriages on ground of khula` without the condition of payment of any compensation to, the petitioners (husbands).

4. Both the learned counsel for the petitioners addressed separate. arguments, but they can be jointly summarised as follows :‑ (i) that if a wife fails on individual issues relating to cruelty, etc., she: would not be entitled to the grant of dissolution of marriage through khula ; (ii) that ,the learned appellate Courts in both the cases have not advanced cogent reasons for coming to different conclusions than the decisions of the trial Courts on the question of khula` ; and (iii) that a mandatory condition as to payment of compensation to the husband on grant of dissolution of marriage through khula` has not been satisfied in these cases.

5. In the Writ Petition (No. 1397/69) filed by Mukhtar Ahmad. the learned District Judge, after discussing the other issues, made the following observations on the questions of khula` and return of benefits by the wife to the husband:‑

5. The question now to be considered is whether it is possible for husband and wife to live together as the wife also demanded dissolu tion of marriage on the basis of khula`. The marriage should be dissolved on the basis of khula` when Court comes to the conclusion that it is not possible for husband and wife to observe the limits of God. In this present case the only bond between the couple is the little girl born during the wedlock. Against this we have the allega tions and the counter‑allegations of the wife against the husband. The attitude of the appellant is apparent from the fact that she is not willing to live with the respondent under any circumstances. With this tension present I do not consider it wise that the husband and wife should be forced on each other and surely it is not possible that the husband and wife could make a happy living when the wife has so accused her husband. It is dangerous to accept this plea for dissolu tion of marriage because this will give a licence and put a premium on such allegations but the fact remains that once such allegations are levelled the couple cannot live together.

6. The question of payment of dower is another interesting question between the parties. A receipt has been produced to show that the wife received money. Some of the P. Ws. have stated that colour of the paper on which the receipt was written was blue when actually it is white. There is also discrepancy as to the place where the receipt was written. In any case the level of proof of payment of dower must be very high in similar cases. The wife is obviously under the active influence of the husband. Payment of dower is usually not made and it is not common to see that the wife should execute a receipt for receiving the dower money when relationship between the wife and husband is normal. I think further probe in the question is unnecessary on account of my above observations. Whether or not the dower money has been paid will become of secondary importance. I believe that marriage between Om‑i‑Kalsoom and Mukhtar Ahmad should be dissolved as it is no longer possible to visualize a happy married life between them. As the wife has not been able to prove the allegations of cruelty and immorality against her husband and theoretically at least is demanding a dissolution of marriage without any firm reason and should be disentitled from receiving the dower money if she has not been paid already. I, therefore, accept the two, appeals of the appellant and decree the suit for dissolution of marriage on the basis of khula` on the condition that the appellant should not demand the dower money. The decree of conjugal rights is also set aside for the same reasons. In view of tile peculiar circumstances the parties will bear their own costs throughout." In the Writ Petition (No. 1401 /71) filed by Muhammad Ashraf, the learned Addl. District Judge held as follows on the two questions:‑ "(14) Now I proceed to decide if it is a fit case where the marriage should be dissolved on the basis of khula`. This marriage has remained under complete suspension for the years 1967 and 1968. Again the parties lived together for ten or fifteen days in February, 1969 and since then the marriage is again under suspension. t believe that the wife has failed to establish that the fault was of the husband. What comes out of the evidence of both the parties is that pressure was exercised on the husband to live as Khana Damaad but he refused to do so. If this is the only reason for suspension of marriage it is not the fault of the husband. As far as the wife is concerned she also does not appear to be at fault. There is great possibility that under the present set up she might not be in a position to live with the husband on account of the family circumstances. If both the parties are not at fault than the prevailing circumstances must be seen if they can pull on together. My answer is in clear negative. In the past they lived together only for one or two years and then they had been living separately. Certain circumstances exist that they cannot live together. One of the circumstances is that the parents of the wife do not allow her to live with the husband. There may be other circumstances which are not known to this Court. The wife says that she hates the husband. She has failed to disclose as to why she hates him. Her reason was that he was a vagrant and forced her to lead immoral life but these facts have not been proved. For the purpose of khula`, it is not necessary that the true reasons for hatred must be brought forth. It is the conduct of the parties in past which can be one of the basis for khula`. As the marriage has remained under complete suspension for a long period, therefore I am of the considered opinion that it is not possible for the parties to live happily in future. I, therefore, hold that this marriage must be dissolved on the basis of khula` as it has totally failed. The issue is decided in favour of the wife. (15) The result is that appeal is accepted, the judgment and decree of the trial Court are set aside and a decree for dissolution of marriage is passed in favour of the wife on the basis of khula`. The husband has not proved that any benefits were received by the wife during the marriage. The wife shall, therefore, pay no compensation to the husband but she will not be entitled to get her dower‑debt or past maintenance from the husband. No order as to costs."

6. Before proceeding further, it would have to be observed that after hearing the learned counsel at some length in each case and going through the record available on these files, I felt satisfied that the learned appellate Courts in each case applied full mind to the entire facts and circumstances of the case and there was no question of misreading of evidence. I also felt convinced that both the learned appellate Courts were satisfied on the question that the spouses had gone through such an estrangement that it was not possible for them to live a harmonious life and thus there was apprehension of their crossing the limits of God. In the first mentioned case (W. P. No. 1397; 69), the learned Judge noticed: that both the parties had made allegations and counter‑allegations against each other; that the wife had exhibited an apparent attitude showing that she was not willing to live with the husband "under any circumstances"; that there existed tension between the parties in which it was not wise "that the husband and wife should be forced on each other"; that it was not possible that a husband and wife would live a happy life after the wife had accused the husband in a serious manner; that even though it was dangerous to accept the plea for dissolution of marriage on the mere ground that the wife had made serious accusations against her husband because it would give licence to her and would put a premium on such allegations, the fact in the case before the learned Judge remained that once such allegations had been levelled, "the couple" could not live together; that on the quest ion of payment of do Ner by the wife, the husband had produced a receipt the authenticity of which was under heavy cloud; and lastly (the learned Judge had earlier noticed while stating the facts) that according to the wife, the assertion of the husband that the dower had been paid through a receipt was nothing but a hoax and the result of a fraud. It needs also to be noticed that during the arguments in this Court, it transpired that the wife had met an accident and she was a cripple, but despite that the petitioner insisted on the restoration of conjugal relations on the basis of an assertion that he loved her. On the contrary, the mother and brother of the wife who were present during some part of the arguments controverted the assertion of the husband and the mother, in reply, asserted that the husband is a very bad man. He has dangerous designs and that he was earlier responsible for murdering her son, i.e., the brother of his wife. It has also to be noticed that the learned Family Judge, despite his efforts to effect a compromise between the parties, had not succeeded and it will be presumed that he must have made efforts at two stages‑one, before the trial, and, the other, after the close of the evidence. It also cannot be ignored that even after six years of separation (the contest through writ petition alone is pending in this Court for the last five years), the parties have not been able to settle their differences and efforts made by tubs Court have also failed miserably. At the end, it cannot be lost sight of that even at the stage of the written statement the husband had made a serious allegation of theft and criminal misappropriation (qua articles alleged to be belonging to him worth Rs. 4,000) against the wife.

7. In the second case (W. P. No. 1401/71), the learned appellate Court took note of the circumstances : that the marriage therein remained under complete suspension" for the years 1967‑68; that there was a lull of only 10 or 15 days before another storm in February, 1969 and since then the marriage is again "under suspension"; that the blame cannot be apportioned exclusively either against the wife or the husband'‑'nonetheless, there is a great possibility that under the present conditions the wife was not in a position to live with the husband on account of family circumstances; that notwithstanding the finding that none of the parties is individually at fault, their existing circumstances were such that they could not pull on together; that them are many circumstances due to which they cannot live together, one of them being that the parents of the wife do not allow her to live with the husband; that there are other circumstances not disclosed to the Court on account of which the wife said "she hates the husband": that the wife had falsely accused the husband of vagrancy and forcing her to lead immoral life; that even though it was not necessary that true reason of hatred might be disclosed, it is the conduct of the parties in the past which can be considered as basis for khula'‑and because the marriage had remained under "complete suspension for a long period", therefore, it was thought that it was not possible for the parties to live together happily and lastly, that for all the dissolved through a decree for dissolution on the basis of khula. In this case, certain developments took place after the initial decision by the Family Court, which cannot be ignored by this Court. For example, the parties admittedly, have remarried and have no intention of seeking dissolution of marriage from their respective spouses in the second marriages. It is also important to note that the trial Court had failed in electing a reconciliation between the parties; that the parties remained estranged for at least five years including the period of pendency of this petition for the last 3/4 years; and that efforts made in this Court for reconciliation have failed. It needs to be noticed that in both the cages, at one or the other stage a point had been raised that, as held in cost. Mumtaz Mai v. Ghulam Nabi P L D 1969 B J, notice under section 7 of the Family Laws Ordinance was necessary' and that the said provision not having been complied with, the entire pro ceedings before the learned Family Courts were illegal. But when it was realised that the said ruling has been dissented from in subsequent recent rulings of this Court, the point was not pressed any further. These rulings are‑Mst. Manzoor v. Allah Wasaya and 4 others P L D 1973 B J 36 and the unreported ruling in Yaqoob v. Mst. Wasson and another Writ Petition No. 565 of 1974 decided as recently as on 9‑5‑1974). In view of the latest pronouncements of this Court, there is no force in the point raised on behalf of the petitioners.

9. The other technical contention, that if a Family Court decides individual issues like those of cruelty, non‑maintenance, desertion, etc., against the wife then it (decision) would militate against the grant of decree for dissolution of marriage on the basis of khula', was considered by me in an unreported judgment (now published) in Muhammad Sadiq v. Mst. Aisha and another P L D 1975 Lah. 615 Writ Petition No. 1774 of 1968 decided on 20‑11‑1974). After careful consideration of the pros and cons of this question, I came to the conclusion that no such general proposition can be laid down. In each individual case the issue of khula' would have to be considered on its own merits; and despite the failure of the wife on other issues, there might be some elements in and facets of those other issues which either individually or when combined together might furnish sufficient ground for dissolving the marriage on the ground of khula'. 10, The next argument of the learned counsel with regard to the material before the learned lower Courts in these cases for coming to a conclusion that the wives were entitled to decrees of khula' is, in reality, a corollary of the question which has been dealt in the preceding paragraph. As held in the well‑known case of Khurshid Bibi P L D 1967 S C 97 under Muslim law, the wife is entitled to khula as of right if sate satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union. It is an admitted position. that the provisions of the Evidence Act, 1872 do not apply to proceedings C before Family Courts conducted under the Family Courts Act in matters of dissolution of marriage. The substantive law which has to be applied in cases of khula' is that which is contained in the Qur'an and Sunnah and lima' as defined and discussed by their Lordships in the case of Khurshid Bibi. The provisions of the Evidence Act having been excluded, the satisfaction of the conscience of the Court would depend upon several factors including those procedural principles which are the hall‑mark of Islamic jurisprudence in the field of procedural law. One such principle is the preference of "inquisitorial" method as against the "adversary". I will not go to the extent of laying down as an immutable rule that in such like cases those procedures, which are adopted in an adversary trial, are excluded altogether. However keeping in view the practice followed by Courts in Pakistan for a very long time, it would be difficult rather impracticable to give up that method of trial altogether even if there are no limitations qua procedure and evidence. When the choice is left to the Court, it would be permissible to employ both the methods, of course with a leaning in favour of the inquisitorial one. It is for that reason, probably, that in such like cases it has been held that when the conscience of the Court is satisfied, there will be no procedural hindrances to decide the question of khula' one way or the other. The satisfaction of D conscience can be reached either through the procedures laid down in the Evidence Act or through the combination of those and other procedures including the inquisitorial ones. Thus, the statements and attitude of the parties, their representatives and counsel when appearing before Court would have a considerable influence on the question of satisfaction of conscience. This, of course, is further subject to individual differences in comprehension and logical reasoning. In the two cases which are the subject‑matter of these petitions, I have tried to analyse the facts which influenced the mind of the learned appellate Courts (from the material contained in their written judgments,) but it cannot be assumed that all impressions formed by the presiding officer of the Court get transcribed in a photographic manner on the written judgment. The details of the influencing mechanism on mental for mulations, of course, remain the underlying material for the visible written judgment. Unless there are reasons to suspect the honesty of the person forming impressions and opinions, the results if they satisfy another reasonable mind qua satisfaction of conscience, would not, in such cases, be set aside on mere general assumptions that the material was insufficient. In writ jurisdiction, the scope for reappraisal of the material before a lower Court is limited. Keeping in view the above principles and the analysis made in this judgment of the reasoning contained in the decisions of the two learned appellate Courts, I am convinced that their conscience was satisfied that in these two cases, if the dissolution of marriages through Khula' had not been granted, they would have forced upon respective parties, hateful unions.

11. I might clarify at this stage the attitude of the learned trial Courts in so far as the question of reconciliation between the spouses is concerned. Undoubtedly, one aid towards the satisfaction of the conscience in these matters is to see whether the breach is not reparable. At the trial stage, attempts were made to bridge the marital break up through statutory reconciliation but it had failed. I agree that this failure alone by itself (before the trial Courts) might not be sufficient for coming to a conclusion that the breach is irreparable. But to say that, if failure of the parties and/or their relations, to reconcile the differences between the parties and to make them live together, continues for a long time through litigations even before the higher Courts (the consequences of which can be well‑under stood by the parties), this circumstance would also not furnish a ground for reaching the satisfaction of conscience, is not correct. In both these cases, the trial Courts failed to bring about reconciliation. The parties did not reconcile during the pendency of appeals before the District Courts. They have not settled the differences even up to the decision of the writ petitions despite efforts at reconciliation in the High Court‑the entire period in each .case having taken about five years. Thus even the hope expressed by the leaned Family Judge in one of these cases, that the parties might reconciles 'in future', has, it is proved, not materialised during this entire period of continued estrangement and bitterness between the parties. In the light of the above discussion it is concluded that it is not correct to say that in any of these cases the material before the learned appellate Court, was not enough to grant decree for dissolution of marriages through Khula'.

12. The next point relates to the well‑known rule applicable in dissolu tion of marriage through Khula', namely, that a major condition for the wife is to return the benefits to the husband; in other words, to compensate him qua those benefits. Both the learned counsel tried to show that dissolution through Khula' cannot at all be achieved except through return of benefits/ compensation. In these cases. compensation has not been awarded to the petitioners. In Writ Petition No. 1397/69, the reason mentioned in the judgment of the learned District Judge is that the husband had asserted payment of dower through a receipt but it had not been proved. And it appears, that as the husband had not claimed any other compensation, the learned Judge dissolved the marriage without payment of any compensation to the husband except for the rider that this "dissolution of marriage on the basis of Khula` is on the condition that the appellant (respondent herein) should not demand the dower money". The argument of the learned counsel that both the learned lower Courts had given a finding that dower money had been paid to the wife is, to say the least, misconceived. The learned trial Judge had in this behalf observed that taking into consideration the material on record he was "convinced that actual payment might not have been made, but the plaintiff has thumb‑marked with her own free‑will and consent and accepted the payment". For the formality mentioned in the later part of the finding, the learned Judge, it appears, only technically decided the question of payment of dower against the wife, otherwise in pith and substance he felt satisfied that actual payment bad not been made. The learned appellate Court, however, went a step further and observed that "payment of dower is usually not made and it is not common to see that wife should execute a receipt for receiving the dower money when relationship between the wife and husband is normal". The infirmities in the evidence produced by the husband were noted in some detail and it was observed that "the level of proof of payment of dower must he very high in similar cases". Obviously, this comment was necessitated on account of the miserable disarry in the evidence produced by the husband on the question of payment of dower. Learned counsel for the petitioner in this behalf also tried to argue that apart from the dower, the husband had made other claims of grant of certain benefits by him to the wife. According to him, the jewellery, and other valuable articles belonging to the husband were‑ taken away by then wife at the time of estrangement. Firstly, after having accused the wife in the: written statement of having committed theft and misappropriation the point, it appears, was not pressed; and secondly, this is not an instance of voluntary gift having been made by the appellant to favour of the wife. She has been accused of criminal offence and there is no proof at all that the same had been. committed in this behalf nor any effort was made to prove it before the trial Court. In the other case (Writ Petition No. 1401/71), the learned appellate= Court disposed of the question of compensation/benefits in a short observa tion that "the husband had not proved that any benefits were received by the wife during the marriage". Even during the arguments in this Court, it was not alleged that any particular tangible returnable benefit passed from the husband to the wife during the subsistence of the wedlock.

13. The position that emerges from the foregoing discussion in this behalf is that apart from the assertion of payment of dower in one case, which has not been substantiated, there was neither any assertion that certain gifts or other benefits passed from the husband to the wife nor there was any demand for their return. Their Lordships of the Supreme Court were pleased to bold in the case of Khurshid Bibi that not only there should be a demand for return from the side of the husband but also it should appear that he insists on such a demand at least qua the benefits other than dower. Their Lordships at page 121 of the report observed as follows:‑ "Though, according to the Hedaya, it is abominable on the part of the, husband to have more than the dower itself, in a case of separation by khula`, yet if he insists, it is legally permissible for him to demand something more than the dower, and to the extent that he might have been out of pocket, in respect of gifts, given to the wife on marriage, he may, in law, demand restitution. This would necessitate an enquiry into the facts and the final decision as to what compensation must be paid by the wife for her release, must rest with the Court." Properly analysed, the dictum appears to be that the husband must claim ascertained benefits and gifts which might have passed from his side to the wife. He should insist on their return and then also clearly make a demand for the restitution. In these cases, subject to what I have discussed above about the dower and the subject of alleged theft in one case, there was neither any conscious realisation on the part of the husbands that they would seek the restitution nor there was any demand, not to talk of any insistence. Keeping in view all these circumstances, the dissolution of marriages in these cases without direction for any compensation is unexceptionable.

14. Learned counsel for the petitioner (in Writ Petition No. 1401/71) half‑heartedly also argued that Khula` is dependent upon the will of the husband alone and unless he permits, the Court has no authority to grant divorce on the basis of Khula`. The argument has not taken note of the ruling of the Supreme Court in the case of Khurshid Bibi on this subject, wherein the opinion has been approved that if the husband permits, it is Well and good ; otherwise, the Court can grant divorce on his behalf. It is not necessary to further comment on this part of the ruling as it is too obvious to be explained.

15. None of the contentions raised in these petitions succeeds. They are therefore, dismissed. There shall be no order as to costs. K. B. A. Petitions dismissed.