2020 PLP 49 (CLCN)

SARDAR MUHAMMAD EJAZ KHAN, J.

The captioned appeal has been directed against the impugned judgment and decree of Additional District Judge/Judge Family Court, Mirpur, dated 18.02.2019 whereby, suit filed by plaintiff-respondent, herein, for dissolution of marriage was decreed.

2. Precise facts forming the background of captioned appeal are that plaintiff-respondent, herein, filed a suit for dissolution of marriage in the Court of Additional District Judge/Judge Family Court, Mirpur, against the defendant-respondent, herein. The learned Judge Family Court, Mirpur, vide order dated 18.02.2019 conducted pre-trial proceedings and recorded the statement of plaintiff-respondent then the suit was decreed in favour of plaintiff-respondent on the basis of Khullah vide impugned judgment and decree dated 18.02.2019, hence, this appeal.

3. Sardar Shakeel Zaman, the learned counsel for appellant contended that the learned Judge Family Court committed illegality while passing the impugned judgment and decree. The learned counsel contended that the learned trial Court was not competent to pass a decree during pre-trial proceedings. The learned counsel forcefully argued that under the relevant provisions of law the Court can decide a matter after recording evidence, therefore, by accepting this appeal, the impugned judgment and decree may be set-aside.

4. The learned counsel for respondent while controverting the arguments of the learned counsel for appellant defended the impugned judgment and decree on all counts and prayed for dismissal of appeal.

5. I have heard the learned counsel for parties and gone through the record of case with utmost care.

6. As far as the contention of the learned counsel for appellant that the learned trial Court decided the matter without considering the facts whereas the appellant also filed a suit for restitution of conjugal rights in the Court of Family Judge Fatehpur, Thakyala, on 17.11.2018 which is still subjudice, hence, the impugned judgment and decree has wrongly been granted in favour of plaintiff-respondent during pre-trial proceedings is concerned. From perusal of record it transpires that the plaintiff-respondent sought a decree for dissolution of marriage on the basis of non-payment of maintenance allowance and cruelty and in alternate she sought the decree for dissolution of marriage on the basis of Khullah. The plaintiff-respondent in suit alleged serious allegations against the defendant-appellant who also stated to have developed stern disgust against the appellant, hence, she is not ready to live with the defendant-appellant at any cost.

7. It is relevant to mention here that trial Court conducted pre-trial proceedings as provided under law. Both the parties appeared before the Court and during the proceedings, trial Court recorded statement of plaintiff-respondent on 18.02.2019 in which she deposed the following words:-

8. As the plaintiff is a teacher and educated lady. So when she at any cost does not want to live with the defendant-appellant, the trial Court for the best satisfaction of its conscientiousness reached at the conclusion that amicable relation between wife and husband is not possible within the limits of Almighty Allah then the trial Court rightly dissolved the marriage on the basis of Khullah. However, for the sake of arguments, if other evidence is recorded by the trial Court in the given circumstances of the case even then no fruitful purpose will be served. Admittedly, at the time of Nikah dower amount in shape of gold ornaments amounting to Rs.2,97,000/- was written to have been paid for which plaintiff-respondent has not denied rather she is ready to return the same, hence, in such like circumstances, the trial Court has no option except to grant the decree of dissolution of marriage on the basis of Khullah, however, if the plaintiff-respondent filed a suit for maintenance allowance, dowry articles or by seeking dissolution of marriage on other available grounds in which the matter can only be resolved by recording evidence but the situation in the suit for dissolution of marriage on the basis of Khullah is totally different. My this view finds support from a case titled Mst. Rashidan Bibi v. Bashir Ahmed [PLD 1983 Lahore 549] in which it has been opined as under:- "The principle of Khula is based on the fact that if a woman has decided not to live with her husband for any reason and this decision is firm then the Court after satisfying its conscience that not to dissolve the marriage would mean forcing the woman to a hatful union with the man, and it is not necessary on the part of the woman to produce evidence of facts and circumstances to show the extent of hatred to satisfy the conscience of the Judge Family Court or the Appellate Court." Identical views have been expressed in a case titled Bashir Ahmad v. Mst. Nasreen and another [1991 CLC 1234] wherein it has elaborately opined that:- "Respondent had levelled serious allegations regarding character of the petitioner. In these circumstances to refuse Khula would tantamount to forcing the parties to live in a hateful union. The view formed by the Family Court, is neither arbitrary nor perverse and does not call for interference by this Court, in the exercise of its constitutional jurisdiction."

9. In this backdrop of the case, the learned trial Court committed no illegality and infirmity while passing the impugned judgment and decree dated 18.02.2019 which warrants no legal interference by this Court.

10. The epitome of the above discussion is that finding no force in this appeal, the same is hereby dismissed and consigned to record. SA/3/HC(AJ&K) Appeal dismissed.