P L D 1992 Peshawar 13 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J. ‑‑This petition in constitutional jurisdiction by Mst. Gul Shahbah, petitioner, calls in question the judgment and decree dated 17‑6‑1990 of the learned Judge Family Court, Haripur, respondent No.l, and the appellate judgment dated 8‑1‑1991 passed in affirmance by the learned Additional District Judge‑II, Haripur, respondent No.2.

2. The facts giving rise to this petition are that the petitioner instituted against respondent No.3. Suit No.4/F.C. for dissolution of her marriage on the grounds of the respondent's cruelty; his refusal to pay her dower debt amounting to Rs.500 depriving her of her golden ornaments and; apprehension of danger to her life at the hands of her husband. The answering respondent not only resisted the suit but also by way of counterblast filed Suit No.11/F.C. against the petitioner for restitution of his conjugal rights which was obviously contested vehemently by her. These two suits were consolidated by respondent Noa. The consolidated issues thus settled were as under:‑‑ (1) Whether plaintiff has cause of action? (2) Whether plaintiff is estopped to sue the defendant? (3) Whether attitude of defendant husband was harsh and cruel towards the plaintiff wife and he had ousted her from his house after maltreatment? (4) Whether defendant, has neither paid doer nor maintenance to the plaintiff, if so, what amount of dower has been fixed for the marriage? (5) Whether plaintiff is deliberately avoiding to live with defendant at the instance of her parent? (6) Whether, defendant husband i.e. plaintiff in cross‑suit is entitled to the decree for restitution of conjugal rights? (7) Whether plaintiff/wife is entitled to the decree for dissolution of marriage on the basis of Khula` on the grounds given in para.4 of plaint? (8) Relief. The parties produced their evidence. On conclusion of the hearing, respondent No.l, as stated earlier, while dismissing the suit of the petitioner for dissolution of marriage on 17‑6‑1.990 granted to the respondent a decree for restitution of his conjugal rights. The petitioner, feeling aggrieved, filed an appeal which too was dismissed by the learned Additional District Judge (respondent No.2) on 8‑1‑1991.

3. Mr. Taj Muhammad Khan, learned counsel for the petitioner, contended with vehemence that the learned trial Court had not at all adverted to the claim of dissolution of marriage of the petitioner on the ground of `Khula' whereas the learned appellate Court had misconceived the concept of dissolution of marriage on the ground of `Khula'. In this context, reference to ground `D' of para.4 of the plaint was made which reads as under:‑‑ The learned counsel placed reliance on: (1) Mst. Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97, (2) Muhammad Siddiq v. Mst. Ghufran Bibi (PLD 1971 SC 192), (3) Mukhtar Ahmad v. Mst. Ume Kulsoom and others (PLD 1975 Lah. 805) and (4) Sayed Dilshad Ahmad v. Mst. Sarwat Bi (PLD 1990 Kar. 239) for the proposition that the following conditions must be fulfilled for due application of the rule, viz: (a) Apprehension of the husband and the wife that they cannot live within the limits of Allah. (b) It is the wife who seeks a separation from the husband. (c) It must be she who is to pay the consideration. The learned counsel thus maintained that it is a valid apprehension of the wife that her life has become troublesome and that her matrimonial relations with her husband had become impossible which gave her a right to seek separation and that the Court of Qazi has to approach the proposition on the ground of objective satisfaction in contradistinction to subjective approach as has been wrongly made by the learned appellate Court.

4. Qazi Muhammad Shehryar, learned counsel for the respondent, on the other hand, referred to: (1) Muhammad Akram v. Mst. Majeed Begum (PLD 1984 Azad J&K 36) and (2) Mst. Shagufta Jabeen v. Muhammad Tariq and others (PLD 1989 Pesh. 1) to canvass the proposition that offer by the wife to claim separation from the husband was sine qua non and it is not the Qazi who can himself come to the conclusion that the husband and wife would not be able to observe the limits of God without any such assertion by the wife. According to the learned counsel, the petitioner did not utter a single word in the witness box exercising her right of Khula' accompanied by restoration of whatever she had received from her husband and, therefore, both the Courts below were legally justified to have not granted decree to the petitioner for divorce on the basis of `khula'.

5. The concept of `khula' has been subject of judicial pronouncements m various cases particularly those of: (1) Bilqis Fatima v. Najmul Ikram (FLD 1959 Lah. 566), (2) Khurshid Bibi v. Muhammad Amin (PLD 1967 SC 97), (3) Muhammad Akram from Azad J&K cited above and (4) Syed Dilshad Ahmed v. Mst. Sarwat Bi (PLD 1990 Kar. 239). Respectfully following the ratio in all these cases particularly of the precedent of Syed Dil‑had Ahmad cited above, the following conditions shall be satisfied, namely‑‑‑ (a) The wife asserts before the Oazi her right to claim divorce on the basis of `khula'. (b) Apprehension of the Qazi that husband and wife cannot live together within the limits of Allah. (c) The wife is ready to restore whatever she has been given in lieu of her Nikah with the husband.

6. The learned trial Judge did not take up issue No.7 covering the entitlement of the petitioner to the dissolution of her marriage on the basis of `khula' but had answered it in the negative by merely observing that on account of his detailed discussion on issues Nos.3 and 5, the petitioner was not entitled to `decree prayed for. The learned trial Judge was legally required to have recorded independent finding on the claim of the petitioner for divorce on the basis of `khula' without being influenced by his finding on the other grounds for dissolution of marriage. By mixing up the two separate reliefs in his judgment, the learned trial Judge has violated the provision of Order XX, Rule 5, C.P.C., which lays down that the judgment should contain a finding on all the issues B separately unless parties do not rely on an issue. The wife has not abandoned the relief of `khula' in this case. The learned appellate Court, on the other hand, was of the view that the petitioner has not been able to furnish any reason for seeking divorce by `khula'. 1n the case of Muhammad Akram from the jurisdiction of Azad Jammu and Kashmir cited by the learned counsel for the answering respondent, a similar objection was repelled by Abdul Majeed Mallick, C.J., as his Lordship then was, and observed as under:‑‑ "The first objection pertains to absence of reason for seeking divorce by `khula'. It is well accepted that `khula' is permissible on satisfaction of the Judge that the spouses cannot live as such within the limits of Allah. Gulf in relationship between the parties may be due to fault of either one of them but once it is expressed in terms of hatred and despise entertained by wife against husband, whereby chances of reconciliation are found completely eliminated, `khula' is, obviously, enforceable."

7. In the oft‑quoted cases of Jamila and Habiba the superior Courts of the country held that the Holy Prophet (p.b.u.h.) administered `khula' on expression of hatred by wife against husband, "without going into the depth of reasonableness shaping attitude of the wife". It has been rightly observed in the case of Muhammad Akram from the jurisdiction of Azad J and K, referred to above, that on satisfaction that spouses could not live amicable and harmonious life, they were allowed separation on return of garden in first case and on return of whatever was given to Habiba by her husband, in the second case. It would be seen that the Judge was to satisfy himself that the attitude of wife was such that there was least chance of restitution of happy and harmonious life of the spouses and there‑was apprehension that the wife may not observe the limits ordained by God. It would thus be noticed that the absence of reasons for seeking divorce on the basis of `khula' is not a legal requirement. The learned appellate Court has thus fallen into an error to have refused the right to the wife on this ill‑conceived hypothesis.

8. After going through the file, we find that this writ petition had been admitted in order to determine the question as to whether in the circumstances of the case, the marriage between the spouses could have been dissolved by the Courts below by invoking the principle of `khula'. The petitioner, as stated earlier, has taken this ground in her suit and then issue No.7 as reproduced above was framed to that effect. The petitioner in her statement before the Judge Family Court has clearly stated, that the relations between the parties were strained and that she did not live with her husband. The learned Judge Family Court while dismissing the suit for dissolution of marriage on the grounds other than that of `khula' and granting a decree for restitution of conjugal rights to respondent No.3 did not at all advert to the claim of the petitioner on the basis of `khula. The learned appellate Court refused to grant divorce to the petitioner on the basis of `khula' because she had failed to put forth any reason therefor which, as observed earlier, is not a legal requirement.

9. In this view of the matter, the judgments of both the Courts below on the point of `khula' are declared to have been illegally passed. In consequence, the case is remanded to the learned trial Judge for reappraisal of evidence in the light of the case‑law cited above on the point of `khula', record a separate finding on issue No.7 with independent and unbiased maid and then decide the case afresh in the light of the observations made by us in this judgment. The parties shall be summoned by the trial Court on receipt of the record and the case shall be decided expeditiously. Costs to follow the event. AA./1277/P Case remanded.