P L D 1984 Supreme Court 329 (PLP)

NASIM HASAN SHAH, J. -This order will govern Civil Petition No. 566 of 1984 and Civil Petition No. 567 of 1984, which are directed against the common judgment passed by a learned Single Judge of the Lahore High Court declaring the orders of the learned Additional District Judge, Lahore decreeing the suit for conjugal rights of the petitioner against the respondent and dismissing the suit for dissolution of marriage by the respondent against the .petitioner to be without lawful authority and of no legal effect. The crucial question, on which the fate of both these petitions depends, is whether the resp3ndent Mst. Shahida Khan was not entitled to the dissolution of her marriage on the basis of Khula'. The learned trial Court (Family Judge) as well as the learned Additional District Judge, on appeal, held that she was not so entitled but the learned Judge in the High Court dealing with this matter in its writ jurisdiction held that both the learned Additional District Judge and the learned Family Judge having ignored some material pieces of evidence and also not having-considered the question of Khula' with seriousness that it deserved but dealt with only in perfunctory manner, set aside the judgments of the said two Courts below. He further held that, as the learned Additional District Judge had riot disposed of the appeals in accordance with law, the effect of his order would be that the said, two appeals shall be treated as still pending, and requiring disposal in the light of the observations made by him in his judgment. The learned Family Judge and the Additional District Judge refused the dissolution of marriage on the basis of Khula on the ground that Mst. Shabida Khan had not proved the factum of any cruelty by her husband, nor had she brought anything on record nor to show any mal-treatment nor attributed any act of bad character to the husband. The Addittional District Judge further noted that since the parties had three children the breaking up the parental home was not desirable. In this connection, he observed :- "No doubt, Islam entitles a woman to seek divorce on the basis of Khula', but the Qazi has also to keep in view the attending circumstances (sic) which the eldest is a daughter who was about thirteen years of age (in December, 1981)." He further observed : "That the daughter must be grown up girl and she needs a united house that holds true even for the other two children. A broken house would make the lives of the children miserable, moreover, the plea of `Khula' is not to be used as a tool, but the conscience of the Court should be satisfied that the parties cannot live within the limits of God. At least the conscience of this Court is not satisfied so as to bold that the parties cannot live within the limits of God. Some time concerted efforts have to be made in this behalf." The learned Judge, in the High Court, however, did not agree with this view. His opinion on this point was expressed in these words : "It is, no doubt, true that when the parents separate it is the children who suffer the most, but I do not see how a home where one of the spouses intensely hates the other could be a healthy place for the children to grow up. * On the other hand I think it will be in the welfare of the children that they should live in an atmosphere free of acrimony and discord without having to suffer the agony of seeing their parents in a state of continuous conforntation." He further held that while the Courts below had been influenced by the circumstances that the respondent had not been able to prove any cruelty or give any cogent reasons why she did not wish to live with her husband, they bad completely overlooked the important aspect that the wife had clearly stated that she had developed such an aversion towards her husband that she could not live with him. within the limits prescribed by Allah. He further observed that the view taken by the Courts below that before a wife could claim dissolution of marriage on the ground of Khula she had to explain the basis for the sAd aversion towards her husband and the sufficiency or other wise of this was subject to be judicially examined, was not the correct approach in these matters. He went on to add : "The emotions of love and hatred may not invariably have a rational basis and I think that all that the Courts have to see is whether there is any possibility of the parties ever living together in order to perform their marital obligations. If after examining all the circumstances the Court comes to the conclusion that the marriage has irretrievably broken down and there is no hope of the parties ever living together to perform their marital obligations a case for the invocation of the doctrine of Khula is made out." In this connection, be referred to a recent judgment of Javed Iqbal, Actg- C. J. in the case of Rashida Bibi v. Bashir Ahmad (P L D 1983 Lab. 549), wherein the learned Acting Chief Justice observed : "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 Courts." According to the learned Judge, the present case stood on the same footing as the case just cited and since the learned Additional District Judge, while disposing of the two appeals, had not at all adverted to the above aspect of the case and disposed of the plea of Khula` taken by the wife in an unsatisfactory and a perfunctory manner, his judgment and decree, in both the appeals, were liable to be declared to be without lawful authority. These petitions for leave to appeal have been filed to challenge the above judgment of the learned Judge in the High Court. Sh. Shaukat Ali, learned counsel for the husband submitted that the' learned Judge could not have interfered with the findings of the Family Judge upheld by the learned Additional District Judge in writ jurisdiction, which is a very special jurisdiction and cannot be invoked in such matters. We do not agree. In fact, in a very similar situation this Court upheld the interference by the High Court with the orders of the Family Judge which were upheld by the learned District Judge. See Muhammad Siddiq v. Mst. Kalsoom Bibi and others (1984 S C M R 523). We are further of the opinion that the finding recorded by the learned Judge in the High Court that in the present case the learned Family Judge and the learned Additional District Judge, while deciding whether the marriage could be dissolved on the basis of Khula, had over looked to consider the aspect that fixed aversion of the wife and extreme incompatibility of temperament was a very relevant factor and should not have been ignored, is a correct. In fact, we are surprised that the learned Judge has omitted to refer to two celebrated judgments delivered by the Courts of this country wherein this aspect has been discussed and emphasized, namely, the Full Bench Decision of the Lahore High Court in Mst. Balqis Fatima v Najm-ul-lkram Qureshi (P L D 1959 Lab. 566) and this Supreme Court's judgment in Khurshid Bib! v. Muhammad Amin (P L D 1967 S C 97). In the first mentioned judgment, the learned Judges, after reproducing Verses from the Holy Quran, the practice of the Holy Prophet and of the rightly guided Caliphs found : "that if the Judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state; as envisaged by Islam, will not be possible then he will grant a dissolution." In the Full Bench judgment of the Lahore High Court the learned Judge, after discussing the two instances relating to Sabit Ibn-i-Qais, wherein his first wife Jamila and then his second wife Habiba bad sought dissolution of their marriage from him and the Holy Prophet had enforced the right of, Khula, on both occasions, the learned Judges observed : "In neither case was Sabit in any way to blame, and so far as Jamila is concerned she had expressly said that she found no fault with him and that the sole reason why she wanted a release was that he was ugly and she could not bear him, she being herself a handsome woman. In neither case did the Holy Prophet make any pronouncement as to the reasonableness of the attitude of the wife. He was just satisfied that the husband and wife could not amicably live together." After an elaborate discussion of all the relevant factors, the conclusion was, thus expressed : "Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received." The above view of the Full Bench was not only accepted in Mst. Khurshid Bibi v. Baboo Muhammad Amin which was judgment delivered by a Bench of Five Judges of this Court but the doctrine was further discussed and elaborated. It was found that in case of dislike. by the wife of her husband, Islam conceeds the right to the wife, in circumstances of extreme discord and where life becomes a torture for both, on account of the fixed aversion on the part of the spouses, to seek dissolution of marriage on the ground of Khula`. This right, however, is not an absolute right by which the wife can herself dissolve the marriage but is a controlled right. The success of her righ depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God. However, the Court, while coming to a conclusion' on this question, shall bear in mint that it would be more consistent 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 the classical incident of Sablt-bin-Qais as 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 Quranic condition must be satisfied for the husband and the wife cannot live together in harmony and in con formity with their obligations. In the present case, in view of the aversion, which the wife has developed towards the husband whether it is justified or not, it is quite evident that the husband and the wife cannot live a life of sukoon and harmony m confirmity with their obligations. Consequenty, the learned Judge in the High Court rightly set aside the judgments of the Family Judge and that of the Additional District Judge and remanded the appeals back to the learned appellate Court to decide them in the light of the law laid down on this subject. Since the learned Additional District Judge, who decided the appeals has since been transferred,, these appeals will now be heard by the learned District Judge, Lahore, himself, who will dispose them of within two months from today, in the light of the orservations made above. The result is that both these petitions shall stand dismissed. M. z. N. Petition dismissed.