1989 PLP 3829 (MLD)

(1) Is the defendant guilty of habitual cruelty and levelled a false charge of adultery ? OPP. (2) Is the defendant a bad character and an addict to intoxicants ? OPP. (3) Has the defendant misappropriated the ornaments and clothes of the Plaintiff ? OPP. (4) Whether the defendant wants to murder the plaintiff ? OPP (5) Whether the plaintiff is entitled to the decree for dissolution of marriage on the basis of Khula ? OPP. (6) Has the plaintiff received any benefits on marriage, if so, what is that ? (7) Whether this Court has no jurisdiction to try the case ? OPP. (8) Relief. The trial Court recorded the evidence of the parties and after going through the same decided all the issues against the petitioner and dismissed the suit vide judgment dated 5‑11‑1985. The petitioner's appeal was also dismissed by the learned Addl. District Judge vide his judgment dated 3‑6‑1986.

4. In the present petition the petitioner's learned counsel has primarily attacked the findings of the trial Court on issue No. 5 relating to the grant of Khula. In this connection he has referred to the statement of Mst. Zubaida Mai who appeared as PWl and stated that it was not possible for her to live with respondent No.l and that she wanted divorce. She also stated that shortly after the marriage respondent No. 1 gave out that his uncle was poisoned to death by the petitioner's mother and that he would take the revenge from the petitioner. She further stated that respondent No. 1 was a bad character and used to give abuses and physical beating to the petitioner. Respondent No.l. appeared as DW 1 and admitted that the petitioner's mother was married to his uncle: He further stated as under:‑‑ It is significant that in the written statement in reply to para 2 of the plaint it was specifically stated that the petitioner's mother had enticed away his uncle and later on poisoned him to death. She subsequently eloped with a person of Macho caste. These facts demonstrate the innate hatred of respondent No.l against the petitioner's mother. The petitioner's claim that respondent No.l tortured the petitioner on account of the hatred generated in his heart against the petitioner's mother rings true. This aspect of the matter was not properly adverted to by both the Courts below while dealing with issue No.5. The petitioner had categorically stated that it was impossible for her to live with respondent No.l. No doubt the findings on other issues had been recorded against the petitioner but that by itself was not sufficient to disentitle the petitioner from claiming dissolution of marriage on the ground of Khula. It is not open to the Court to objectively analyse the petitioner's claim. What is to be seen is her own state of mind and her subjective satisfaction that she could not possibly live in peace and harmony with her husband. As mentioned above she had categorically stated that she could not possibly live with respondent No. 1 as his wife. It is also deducible from the evidence on the record that respondent No.l entertained feelings of hostility against the petitioner due to the death of his uncle at the hands of the petitioner's mother. Hence the petitioner is entitled to dissolution of her marriage on the ground of Khula. On the question of the benefits received by the petitioner from her husband the learned counsel for the parties have agreed that Khula may be allowed subject to the payment of Rs. 2,000 by the petitioner to respondent No.l.

5. In this view of the matter this writ petition is allowed. The impugned judgments of the Courts below are set aside and the petitioner's suit for dissolution of marriage is decreed on the ground of Khula subject to payment of Rs. 2,000 to respondent No.

1. The said amount shall be paid by the petitioner to respondent No.l within one month against a written receipt. H.B.T./Z‑112/L Petition allowed.