1999 PLP 1725 (YLR)

Through this appeal, the judgment and decree of Family Court Mirpur, dated 30th of November, 1998, has been called in question, whereby the suit filed by the appellant, herein, was dismissed.

2. The brief facts giving rise to the present appeal are that the appellant and respondent married to each other on 4th of December, 1992 and lived together till October, ‑ 1997. On 4‑6‑1998 the appellant filed a suit for dissolution of marriage on various grounds including cruelty, maintenance and on payment of Khula'. The respondent was proceeded ex parte: The trial Court after recording the evidence of the appellant, dismissed the suit filed by her on 30‑11‑1998. Feeling aggrieved by the said order the appellant has filed this appeal. The respondent was summoned but despite of substituted service he did not make himself present in the Court and was again proceeded ex parte.

3. Mir Khalid Mehmood, the learned counsel for the appellant vehemently contended in support of his appeal that the learned Judge Family Court while dismissing the appeal did not appreciate the evidence in its true perspective and was misconceived. He also argued that the appellant has clearly mentioned in her suit that a decree may also be granted on the payment of Khula' and she has amply proved her case but the trial Court arrived at the wrong conclusion while holding that the appellant has failed to prove her case. In this respect, the learned counsel for the appellant referred to the statement of the appellant and her two witnesses, whereby it has been categorically stated that because of the strained relations of the parties it has now become impossible for her to live together within the limits ordained by Almighty Allah. Thus, it was a fit case where the decree on the basis of 'Khula' was to be passed. In support of his contentions he relied upon the following cases:‑‑‑' (i) PLD 1986 Azad J&K 73. (ii) 1993 SCR 330. (iii) 1999 MLD 1679.

4. I have given my due consideration to the arguments addressed at the Bar and examined the record of the case with utmost care. It has been argued by the learned counsel for the appellant that the trial Court has committed an error while holding that the appellant failed to prove her case. The appellant has produced two witnesses, Khalid Hayat Bhatti, a neighbour and her mother, Shamim Akhtar, in support of her stand.

5. Mr. Khalid Hayat Bhatti, the witness for the appellant, deposed that the appellant lived with her husband for five years in Karachi but during this period they have been quarrelling with each other and now the relations of the parties have become so strained that the appellant has openly declared that she will not live with her husband.

6. Mst. Shamim Akhtar, the mother of the appellant, also stated that from very first day the parties could not lead happy life and the respondent always has been criticizing the appellant and stating doubts about her. She further deposed that the respondent does not enjoy a good reputation and uses alcohol and Charas. She further stated that she advised the parties to enter into a compromise but respondent told her not to interfere with.

7. The appellant Rukhsana Ahmed categorically stated that from the very beginning a dispute arose between appellant and the respondent. It was further deposed that the respondent gambles inside of his house and also uses alcohol and Charas. She testified that the respondent has sold out her ornaments and dowary but she has been living with her husband for the respect of her parents and for the future of her children in spite of the respondent's bad habits. She also stated that her father‑in‑law drinks alcohol and for this reason he did not take any notice of the dispute. It was also stated by the appellant that she is living with her parents for the last 8 months but during this period the respondent neither contacted her nor provided her maintenance. She deposed in unequivocal manner that now she does not want to live with him at any cost and she has developed hatred against the respondent. She only wants the dissolution of her marriage because the respondent has always been doubting her conduct and telling her that she does not bear a good character. Therefore, in these circumstances she cannot think of living with the respondent.

8. A perusal of statements of the appellant's witnesses and especially the statement of Mst. Rukhsana Ahmad, it has become very much clear that even after 7 years of marital relations the parties could not lead a happy life. Even the birth of two children could not develop some love and affection between them. It will be relevant to note here that the appellant has categorically deposed before the Trial Court that because of the respondent's attitude and his bad character and habits, she cannot live with the respondent at any cost and she wants dissolution of marriage.

9. It is also to be taken into the consideration that the respondent was proceeded ex parte in the trial Court as well as in this Court. The suit for dissolution of marriage was instituted on 4‑6‑1998 and the separation took place in October, 1997, but during this period the respondent did not contact her or the minor children and never bothered to defend his case. He also did not show any love or affection towards his wife and minor children. He did not institute a suit for conjugal rights. All these facts and circumstances when coupled with the evidence of the appellant, particularly her statement makes it manifestly clear that now it has become impossible that the parties could live together and lead a happy life within the limits ordained by Almighty Allah. Thus, sufficient grounds do exist to justify the dissolution of marriage on payment of Khula'.

10. It is settled principle that when hatred and disrespect develops between the spouse and while a wife refuses to stay with her husband and expresses the view that she does not like her husband then the Court has only option to pass a decree on the basis of Khula'. In this respect reference can be made to a case reported as Saleem Akhtar v. Judge Family Court and 2 others (1999 MLD 1679), where it was opined as under:‑‑ ‑‑‑'Khula'‑‑If the spouses have developed so much hatred, disrespect and discomfort against each other it is advisable to dissolve the marriage on the basis of 'Khula' which is the right of wife."

11. It was held by the trial Court that the appellant failed to prove the grounds of cruelty and non‑payment of maintenance and in alternative she prayed for the dissolution of marriage on basis of Khula'. No doubt that the appellant failed to prove the facts of cruelty and non‑payment of maintenance but it is to be noted that she has not taken the plea of Khula' as an alternative plea but the plaint reveals that the appellant has taken the ground of Khula' as an independent issue. Even otherwise if the facts and circumstances of the case warrant the dissolution of marriage on payment of Khula' the Court is quite competent to annul the marriage on the basis of Khula'. In this respect, the case of Makhdoom Hussain v. Mst. Habibi Begum and others (1993 SCR 330), can be referred, wherein it was observed as under:‑‑‑ "‑‑‑Khula'‑‑‑If the main issues were decided against the respondent the Court was competent to order the dissolution of marriage on payment of Khula', if the circumstances of case so warrant no hard and fast rule can be laid down. " From the above referred case‑law it has been abundantly proved that if the parties are living in an atmosphere of suspicion, doubts, non‑confidence, mutual disrespect, discord and hatred, it will be better to separate them.

12. In the 'instant case, I do not see any ray of hope for the re‑conciliation or happy future of the spouses and the marriage clearly seems to be frustrated. Therefore, the trial Court failed to make an appraisal of the evidence led by the appellant in a legal fashion and appellant has proved her case. In these circumstances, I have reached the conclusion that a decree of dissolution of marriage on basis of Khula' be passed in favour of the appellant.

13. Now the question arises what should be made the basis of Khula'. As it has been averred by the appellant that the dower was fixed as rupees five hundred fifty and no claim of any gift etc., has been brought forward by the respondent. Therefore, rupees five hundred and fifty are fixed as consideration of Khula', which shall be paid to the respondent by the appellant. In the light of what has been stated above, I accept the appeal, set aside the judgment and decree of Judge Family Court, Mirpur, dated 30‑11‑1998 and decree the suit for dissolution of marriage in favour of the appellant against the respondent on payment of Khula', mentioned above. H.B.T./83/Sh.C.(AJK) Appeal accepted.