2000 PLP 3043 (YLR)

2. The facts precisely stated are that: Mst. Imtiaz Bibi, respondent herein, presented a suit for dissolution of marriage on the grounds of cruelty, non‑payment of maintenance and on the basis of Khula' on 16‑6‑1998 before Judge Family Court, Mirpur. The appellant also filed a cross suit for restitution of conjugal rights. Both the suits were consolidated by the Court below and the following issues were framed in the light of the pleadings of the parties:‑‑‑ (i) Whether the appellant has been treating the respondent with cruelty and has ousted her from his house?(O.P.P:) (ii) Whether the parties cannot live together within the limits ordained by Almighty Allah? Thus, the plaintiff is entitled to a decree for dissolution of marriage? (O.P.P.) (iii) In case issues Nos. l and 3 are not proved, whether the defendant is entitled to a decree for restitution of conjugal rights? (O.P.D.) (iv) Relief.

3. After completion of the trial, the Family Court reached the conclusion that because of the peculiar facts and surrounding circumstances, the parties cannot live together within the limits ordained by Almighty Allah and dissolved the marriage of the spouses on the ground of Khula', whereas the suit for restitution of conjugal rights was dismissed. Feeling aggrieved, the appellant has challenged the judgment and decree, abovementioned, before this Court through the instant appeal.

4. Haji Muhammad Anwar, the learned counsel for the appellant, vehemently contended that the respondent did not utter a single word about the ornaments in her 'statement. He also pointed out that the appellant has categorically deposed that ornaments weighing one and half tolas were fixed as dower which were paid to the respondent but this statement of the appellant stands unchallenged in the cross‑examination. Thus, it has been proved that the ornaments are still in the possession of the respondent but the trial Court fell in error while holding that this fact cannot be ascertained by the evidence of the parties. The learned counsel pressed into service the submission that the Court below did not appreciate the evidence in its. true perspective and arrived at a wrong conclusion that the parties cannot live together within the limits of Allah rather there is an ample chance of reunion of the spouses. In this respect, he referred to us the statement of Nazim Hussain, a witness for the respondent, whereby according to the witness, the parties can arrive at a compromise. In support of his contentions he cited 1998 CLC 1711.

5. In reply, Ch. M. Sarfraz, the learned counsel appearing on behalf of the respondent, frankly conceded the point of ornaments raised by the learned counsel for the appellant. He further submitted that Mst. Robina, sister of the appellant, has also presented a suit for dissolution of marriage against the brother of the respondent. According to him, the parties could not live together happily for a period of more than 10 years and now it has become impossible for the spouses to lead a happy life especially when the appellant has also contracted a second marriage. He further contended that the learned trial Court after proper appraisal and due appreciation of the evidence brought on record arrived at the conclusion that it was not possible for spouses to live together within the limits ordained by Almighty Allah. The learned counsel maintained that if plea of Khula' is not specifically raised in the plaint and no issue is framed even then the Court can dissolve the marriage on ground of Khula' on the basis of evidence, if a case is made out. The learned counsel relied upon the following case‑law:‑‑ (i) PLD 1981 Azad J&K 94. (ii) NLR 1983 Civil 701

6. In the light of the arguments addressed at the Bar, I have carefully examined the record and the case‑law cited by the learned counsel for the parties. It appears from the evidence that the marriage between the spouses took place in year 1990 and after lapse of 10 years they could not lead a happy life and there is no likelihood of their coming back to a happy reunion especially when the appellant has also contracted a second marriage which shows that he is not interested to live with the respondent any more. The reasons of the separation have been given in detail by the respondent in her plaint which have been proved by her evidence. Abdul Qayyum and Ghulam Hussain, witnesses for the respondent, have clearly corroborated the version of the respondent who in unequivocal terms deposed before the Court that ‑now the spouses cannot live together within the limits of God, therefore, opinion of Nazim Hussain, witness for the respondent, does not damage the case of the respondent. It is also admitted on the record that sister of the appellant Mst. Robina, is wife of the brother of the respondent who has also instituted a suit for dissolution of marriage against her husband. Thus, in the prevailing circumstances it is impossible for the spouses to reconcile and the relations of the parties are strained beyond repair. In this view of the matter, I do not see any ray of hope for the re‑union of the spouses.

7. It is admitted position of law that the plea of Khula' can be invoked by a wife on proving that she has developed an aversion and a hatred to her husband so much that it has become impossible for them to live within the limits ordained by Almighty Allah. This view is finally settled in the cases reported as Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97), Muhammad Khan v. Mst. Zareena Begum (PLD 1975 Azad J&K) 27.

8. In the present case the respondent has categorically invoked the ground of Khula' in her plaint as well as in her statement and the same has been clearly proved by her evidence, therefore, the learned Judge Family Court was left with no option except to pass a decree on the basis of Khula' and the same was done by him.

9. As far as the consideration of Khula' is concerned, it has not been fixed properly by the Court below. As it has been conceded by the learned counsel for the respondent that the ornaments weighing one and half tolas are in the possession of the respondent which were given to her by the appellant at the time of marriage ceremony. Therefore, the ornaments have to ‑be returned to the appellant as consideration of Khula'. No other benefits have been claimed by the appellant to be given to the respondent at the time of the marriage or thereafter. Thus, we see no other reason to differ with the findings of the Court below on the main Issue No.2.

10. I do not want to discuss the authorities referred to by the learned counsel for the parties in detail because of distinguishable facts.

11. For the reasons listed above, I partly accept the appeal and modify the impugneu judgment and decree to the extent that the respondent shall hand over the ornaments weighing one and half tolas to the appellant or Rs.8,000 as consideration of Khula' till 23rd of July,. 2000. Consequently, the decree for dissolution of, marriage in favour of the respondent is maintained and the cross‑suit of the respondent for restitution of conjugal right stands dismissed. Order accordingly Q.M.H./M.A.K l7.Sh.C(AJ&K)