1999 PLP 812 (MLD)

"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 hateful 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."

6. In Bashiran Bibi v. Bashir Ahmed and 2 others (PLD 1987 Lahore 376), it was held as follows:- "Viewed in this light, the statement of the petitioner referred to herein above expressing her intense aversion towards the respondent in unmistakable terms and plea mg or `Khula' by stating that it was not possible for her to live with the respondent and showing her willingness to forego the dower as also her conduct during the reconciliation proceedings before the Family Court were the most relevant circumstances which the learned Courts below ought to have taken into consideration for deciding the petitioner's entitlement to the grant of 'Khula'."

7. The Hon'ble Supreme Court in Mst Khurshid Bibi v. Baboo Muhammad Amin (PLD 1976 SC 97) held that:- "Under Muslim Law, the wife is entitled to 'Khula' as of right, if she satisfies conscience of the Court that it will otherwise mean forcing her into a hateful union." At page 116 of the report the learned Supreme Court referred to the views of Shah Wali Ullah of Delhi stated in ,AI-Musawwa-min-Ahadith-al-Muatta', (Vol.,,, p. 160) in the following words:- "Even if she obtains 'Khula' without any reason (apart from personal dislike) it is lawful but not approved. The reason is that the Prophet and the Companions never inquired from her the reason for her seeking Khula."

8. Learned counsel for respondent No.1 on the other hand could not dispute this legal position. He, however, argued that for obtaining decree for dissolution of marriage on the basis of Khula, wife has to return the benefits received by her from the husband. He referred to paragraph No.5 of the written statement filed by respondent, wherein it was stated that present petitioner in his absence had taken away the gold ornaments, details whereof are given in the written statement, and other house-hold articles besides rupees five thousand in cash.

9. It is not mentioned in the written statement that those gold ornaments did not belong to the petitioner/plaintiff herself. Similarly, details of the house hold articles which belonged to respondent No.1 are not given there. When respondent No.1 entered in witness-box as D.W (1) he stated that the present petitioner had taken away gold ornaments weighing 7 tolas, Rs.5,000 and some house-hold articles with her. But there is no proof of this assertion, excepting bare statement of respondent Munir Ahmad as D.W.1. However, in the end, he stated that he would divorce the petitioner if she returned ornaments to him.

10. The suit for dissolution of marriage was instituted by the petitioner on 9-5-1993, which was contested and the parties had produced evidence before the learned trial Court. The petitioner has not admitted having received any benefit from Munir Ahmed respondent. No proof, documentary or oral, was produced by respondent No.1 that any benefit was received by the petitioner from the respondent which the former is to return as a condition for grant of Khula. Today, before me respondent No.1 expressed willingness to accept plea of 'khula', if maintenance of the minors was abandoned by the petitioner. This also shows that no benefits, returnable as a consideration for 'Khula', were received by the petitioner. Therefore, on the basis of the solitary statement of respondent No.1, which was controverted by the petitioner, the learned appellate Court was not justified to hold that "She did not agree on return of benefits, therefore, there is nothing on the record to believe that she is entitled for divorce, even on the basis of ' Khula".

11. As observed above, respondent No.1 has failed to prove that the petitioner had received any benefit from the former which the latter had to return as consideration for obtaining decree of 'khula'. The only condition put forward before me by respondent No.1 was with regard to the maintenance of two children who are with the petitioner. There is no nexus between the payment of maintenance allowance to the children by respondent No.1 and the demand for dissolution of marriage on the basis of 'Khula' by the petitioner. Therefore, such a demand by respondent No.1 can neither be the consideration for decree of dissolution of marriage on the basis of 'Khula' nor can such a consent be given by the petitioner with regard to the maintenance allowance to which the minors are entitled and the petitioner has no right whatsoever to forego the same.

12. However, the question which now arises is as to whether I should pass such. a decree in exercise of the Constitutional jurisdiction under Article 199 read with Article 203 of the Constitution of Pakistan, 1973 or the matter be remitted to the learned Appellate Court for this purpose. On examining the record, I find that the parties are litigating since long. The suit for dissolution of marriage was filed by the petitioner in the learned Family Court at Shakargarh on 9-5-1993. If I remit the case to the learned Appellate Court, it will take further time to get the matter finalised and would, thus, prolong the agony of the parties to this litigation. I, therefore, exercising extraordinary writ jurisdiction under Article.199 and supervisory jurisdiction under Article 203 of the Constitution of Pakistan and following the observations of the Supreme Court in Khurshid Bibi case that, "It would be more consistent, in my humble opinion with the letter and spirit of the Qur'an which places the husband and the wife on an equal footing, in respect of rights of one against the other, to construe this incident a meaning that the person in authority, including the Qazi, can order separation by Khula even if the husband is not agreeable to that course. Of course the Qur'anic, condition must be satisfied that it is no longer possible for the husband and the wife to live together in harmony and in conformity with their obligations", shall on the basis of the record available before me, decide this matter myself.

13. The learned appellate Court has rejected the petitioner's plea for khula and observed as follows:- "Admittedly she is mother f 7 children out of whom one daughter is major and if she lived for 14/15 years with her husband for the sake of future of her children She did not agree on return of benefits, therefore, there is nothing on the record to believe that she is entitled for divorce, even on the basis of khula."

14. There is no doubt that it is obligation of the parents to sacrify their own interest for the sake of better future of their children, yet that would not be a ground for dismissing the suit for dissolution of marriage on the basis of Khula. If the Court is satisfied that the parties cannot live as husband and wife within the prescribed limits, the decree has to be passed.

15. In the plaint as well as in the statement, the petitioner has stated that she wanted divorce on the basis of Khula as she could not live with the contesting respondent. Before me also she stated that she has developed aversion against respondent No.1 and was not prepared to live with him as his wife. Even respondent No.1 stated before me that he was prepared to accept the plea of khula of petitioner provided she foregoes the maintenance allowance of the two daughters, granted by the Court.

16. In these circumstances and on the basis of the evidence on record, it is not difficult to visualise that it is no longer possible for the petitioner and respondent No.1 to live as wife and husband in harmony and in conformity with their obligations. It is not desirable to allow such a hateful union to continue. Therefore, petitioner is entitled to the decree for dissolution of marriage on the s basis of khula as they cannot live together as husband and wife, within the limits prescribed by Allah.

17. With regard to the payment of consideration for passing the decree of dissolution of marriage on the basis of Khula, the Court has td ascertain and come to the conclusion that any benefits were received by wife from the husband, as observed by the Supreme Court in Khurshid Bibi's case that, "Therefore it is necessary for the Court to ascertain in case of Khula what benefits have been conferred on the wife by the husband as consideration of the marriage." No doubt respondent No.1 in written statement and in his statement as D.W.1 has deposed that the petitioner took away ornaments and Rs.5,000 in cash and other house hold articles alongwith her at the time when she left his house. But there is no proof on record to that effect. Respondent No.1 failed to produce oral or documentary proof in support of his claim. Besides, he stated before me that he would accept the plea of Khula, if the petitioner was prepared to forego the amount of maintenance allowance of the two daughters. This also show that no benefits, which under the law are returnable. were received by the petitioner, respondent No.1. Learned Judge, Family Court and the learned appellate Court has not recorded the finding that any specific benefits were received by the petitioner from respondent No.1.

18. I, therefore, declare that the judgments and decrees impugned therein are without lawful authority and of no legal effect and that the petitioner is entitled to the decree for the dissolution of marriage on the basis of Khula against respondent No.1. The learned Judge, Family Court (respondent No.3) shall accordingly prepare the necessary decree sheet. No order as to costs. A.A/R-69/L Petition accepted