2002 PLP 3386 (YLR)

(ii) PLD 1981 Azad J&K 94. (iii) PLD 1984 SC 329. (iv) 1993 SCR 330 (v) 2000 YLR 2519. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the respondent, has controverted the arguments raised by the learned, counsel for the appellant. He has submitted that the trial Court fell in error while passing a decree for dissolution of marriage on the basis of 'Khula' and it ignored the fact that appellant/plaintiff neither raised any plea of 'Khula' in her plaint nor an issue was framed in this respect. The parties were also not afforded an opportunity to lead their evidence on the additional issue but the trial Court ignored all these facts and framed an additional issue at the tune of the recording of the judgment which is erroneous and against the admitted principle of procedure. He has further argued that the plea of `Khula' is not only a question of law but it is also a question of fact, therefore, it was incumbent upon the Sub‑Judge Muzaffarabad to give a chance to the parties to lead their evidence on issue of `Khula'. The learned counsel defended the impugned judgment on all counts. In support of the arguments reliance was placed on PLD 1978 Lahore 1109. I have carefully taken into consideration the points canvassed by the learned counsel for the parties, after perusing the record made available with care. At the very outset it will be relevant to note that District Judge was not competent to pass the impugned judgment and remand the case for an amendment in the plaint when the matter was already resolved by Additional District Judge and the High Court by not allowing the respondent to lead his evidence on the additional issue No. 10‑A. It will be pertinent to note that Additional District Judge in its order dated 6‑12‑1989 has recorded its finding in an unequivocal manner that the issue of `Khula' is legal one, therefore, the trial Court was empowered to dissolve the marriage on the basis of 'Khula' even without framing an issue. The perusal of the said order also reveals that according to the learned Additional District Judge sufficient evidence to resolve the issue of `Khula' is available on the record, therefore, a chance of adducing more evidence cannot be given to the respondent. The same finding was upheld by the High Court, therefore, the District Judge was not empowered to disturb the above mentioned findings which have already attained finality in the light of order dated 31st March, 1990 recorded by the Chief Justice of High Court, Mr. Abdul Majeed Mallick, as he then was. Even otherwise in the case of `Khula' marriage can be dissolved without amendment in the plaint and without framing an issue. It will be relevant to note here that although the appellant did not raise plea of `Khula' specifically in her plaint but in the cross‑suit for restitution of conjugal rights filed by the respondent, the appellant in her written statement not only refuted the averments of Para. No.5 of the cross‑suit but she categorically pointed out that now it has become impossible for appellant to live with the respondent because she has developed fixed aversion and hatred against the respondent. Therefore, the mistake of the Court should not prejudice the appellant and the appellant may not be left to, suffer because of the negligence of the Court not to frame in issue in the light of the pleading of the parties especially when both the suits were consolidated. I may observe that the principle of `Khula' is applied in a liberal manner by the Superior Courts of Azad Jammu and Kashmir and Pakistan now‑a‑days i.e. when Judge or Qazi reaches the conclusion that the spouses cannot live within the limits prescribed by God then the Court places the husband and wife on an equal footing following the real spirit of `Qur'an' while construing the classical incident of Sabit‑Ben Qais that a person or authority including Qazi can order of separation by `Khula' even the husband does not agree with that course. However, 'Qur'anic' condition must be, satisfied by the husband and the wife that they cannot live together in harmony and in conformity with their obligations. (PLD 1984 SC 329) In a case reported as Rayasat Ali v. Family Court and another (1984 CLC 1325), it was observed that Family. Court was competent to grant `Khula', even if no such prayer was made in the plaint and an issue regarding ground of `Khula' was not framed, if case of `Khula' is made out on the basis of evidence on record. In case reported as Khurshid Ali v. Mst. Mumtaz Begum (1980 CLC 1212), it was opined that the Court is competent to consider circumstances whether marriage be dissolved on principle of `Khula', even if such ground was not taken in the plaint. It was further held that it is for the Judge to consider whether in a given circumstance even if the ground of which resolution is required has not been proved whether the marriage should be dissolved on the principle of `Khula' subject to the limitation laid down in Balqees Fatima's case (PLD 1959 Lahore 566), in which the High Court in second appeal allowed the case to be argued on new point that `Khula' was right of the wife. It was also clarified that important limitation on the point of `Khula' of wife is that, it is only when the Judge apprehends that the limits of God will not be observed in their relations towards one and another. In, the case titled Abdul Karim Khan v. Mst. Parveen Akhtar and 6 others (PLD 1981 Azad J&K 94), it was held that relief flowing from proved facts, cannot be denied strictly speaking, this cannot be called an omission in true sense of the term. Similarly, where a statement of facts is disclosed and parties lead evidence in support and rebuttal, failure of party to get an issue framed or negligence of the Court to constitute an issue, would not render incompetence to grant relief flowing from the proved facts. It was further observed that `Khula' is a legal issue, it may be raised in the pleading, in the trial Court or at appellate stage, in presence of evidence relating to dower, it may be decided without introducing amendment in the pleadings and further evidence. Bilqees Fatima's case (PLD 1978 Lahore 1109) referred to by the learned counsel for the respondent also supports the case of the appellant instead of the respondent. This report was also followed in Khurshid Ali's case (1980 CLC 1212) referred to above. From the above survey of case law, it has become crystal clear that the ease of 'Khula' can be made out despite that plea of `Khula' was not disclosed in the plaint or an issue was not framed but when by 'the statement of facts disclosed in the pleading without definite and specific ground or 'Khula' or on proof of such facts which come forward during the course of evidence `Khula' being a legal issue can be raised in the trial Court or at appellate stage without introducing an amendment in the pleading and further evidence but in the instant case the appellant has specifically pointed out in her written statement in the cross‑suit that because of the fixed aversion it has become impossible for her to live with the respondent. In the present case, Mst. Zatoon pleaded that on account of non‑payment of dower, cruelty, non‑payment of maintenance allowance, false charge of bad character, accusation of being pregnant by an illegitimate child and after pronouncing an oral divorce by the respondent, she was also ousted from his house. It is also on the record that a criminal case was registered against her on the complaint of the respondent and she was handed over to a 'Superdar' Qazi Ashraf Shah. The parties are involved in civil and criminal litigations. The dower of the appellant Rs.9,500 has yet not been paid by the respondent, thus, she was forced to develop aversion to her husband. It was recorded by the trial Court that when the learned Judge asked the appellant in the open Court that if respondent provides her all the facilities of life like a princess, she refused that under no circumstance she was inclined to restore the relations with the respondent rather she will prefer to face the death because respondent has made her life miserable by cruelty of conduct and physical ill‑treatment. I find little force in this plea of the learned counsel for the respondent that `Khula' being mixed question of facts of law cannot be allowed to annul the marriage without amendment in pleadings. It is very important to point out that the appellant's version has been fully supported by her witnesses Muhammad Ali, Hameed‑Ullah, Sian, Mahwalli, Mir Alam and Shah Walli. On the other hand, the respondent and his witnesses have admitted the facts of registration of case and of litigation between the parties. In such state of affairs wife, appellant has developed severe hatred towards the respondent and it is quite evident that I spouses cannot live a life of harmony and in conformity with their obligations. Moreover, the fact that after the decree of dissolution of marriage the appellant has contracted another marriage and has given birth to five children, cannot be lost sight off. Therefore, it has become impossible for the spouses to live together and the marriage was, therefore, rightly dissolved by the trial Court and no case is made out for interference in this appeal. H.B.T./35/AJ&K Order accordingly.