2000 PLP 2678 (YLR)

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art. l99‑‑‑Constitutional petition ‑‑‑Maintain ability‑‑‑Suit for dissolution of marriage on the ground of Khula'‑‑‑Concurrent findings of both the Courts‑‑‑Wife stated in her plaint that it was not possible for her to live with her husband within the limits prescribed by Allah‑‑‑Case of the wife was proceeded ex parte against her husband‑‑‑Despite the fact that the‑wife substantiated the same plea in her statement before the Family Court, her suit for dissolution of marriage was dismissed by the Family Court and the judgment was upheld by the Lower Appellate . Court‑‑ Validity ‑‑‑Wife was entitled to Khula' in circumstances‑‑‑Judgments and decrees of both the Courts below being without lawful authority, were set aside and marriage was ordered to be dissolved on the basis of Khula'. Abdur Rauf Khan Jadoon for Appellant. Nasir Ayub Khan for Respondents. Date of hearing: 1st June, 2000. TALAT QAYUM, QURESHI, J.‑‑ Nikah of Mst. Safia Bibi, the petitioner was performed with respondent No. l according to Injunctions of Islam about 25/26 years back at village Salhad, Abbottabad. Six children were born out of the wedlock who are alive. The spouses lived amicably for some times after their marriage but as per petitioner, respondent No.l the husband, became addict due to which he would not work for earning livelihood for the family members. The petitioner who has been serving in D.K.Q. Hospital, Abbottabad for the last 22/23 years nourished the entire family through her income. The respondent No. l started beating the petitioner on one pretext or another. He would demand money in order to satisfy his addiction habits. On refusal about 2/3 years back the respondent No.1 became annoyed and turned the petitioner out of his house. He not only turned her out of his house but also levelled allegations of Zina etc. against her. The petitioner was constrained to file suit No.2/F.C. before Judge Family Court. Abbottabad for dissolution of her marriage, on the basis of Khula'. The respondent No. l was proceeded ex paste; therefore, the petitioner was directed to produce her ex parte evidence. It is worth mentioning that respondent No. l had also tiled suit No.5/F.C. for restitution of conjugal rights in the same Court but the. learned trial Court dirt not consolidate the suits filed by the spouse.. On 8‑3‑2000 the suit of respondent No. l tier restitution of conjugal rights (Suit No.5 F.C.C) was dismissed for non‑prosecution and the petitioner who was plaintiff in Suit No.2/F.C. was directed to produce her evidence. The petitioner appeared as her own witness and her statement was recorded on 8‑3‑2000 Although there was nothing in rebuttal but still the learned Judge Family Court, dismissed the. suit of petitioner vide judgment and decree, dated 11‑3‑2000. She tiled appeal in the Court of learned Addl. District Judge, Abbottabad which too was dismissed vide judgment and decree, dated 14‑4‑2000. She has now approached this Court through writ petition in hand for setting aside the judgments and decrees passed by the Courts below.

2. Mr. Abdur Rauf Khan Jadoon, Advocate, the learned counsel representing the petitioner argued that the petitioner had recorded her statement also application submitted by respondent No. l levelling charges against her was also exhibited as Exh.P.W.I/1. She was not cross‑examined and hence there was nothing in rebuttal but the learned trial Court as well as the learned Appellate Court ignored her statement and the documentary evidence EXh.P.W.I/1 while dismissing her suit as well as appeal. 3. , On the other hand, Mr. Nasir Ayub Khan, Advocate special attorney of respondent No. I argued that the writ petitioner was not maintainable and that the petitioner had failed to prove her case. The decree of dissolution of marriage on the basis of Khula' can only be granted when the petitioner/plaintiff could prove through convincing evidence.

4. We have heard the learned counsel for the parties and perused the record.

5. It is an admitted position that parties were married about 25/26 years back and out of the wedlock 6 children were born who are still alive. The parties have developed aversion and hatred for each other. The petitioner (wife) has levelled allegations against the respondent No. l (husband) that he is addict and has not been working in order to earn livelihood for the family members whereas the respondent No. l has levelled charges of Zina etc. against the petitioner (wife). The matrimonial relations between the spouses have come to this extent that both are not living under the same roof for the last more than 1 year. There is no possibility of reconciliation between the parties. The wife has developed aversion and hatred against respondent No. l and it was impossible for the parties to live within the limits prescribed by God and if they are put together, their union would give birth to hateful union. She has demanded dissolution on the basis of Khula' and has abandoned her right of dower as well as maintenance. Khula' is a release from matrimonial bond which according to dictates of Holy Qur'an can be exercised if A the circumstances indicate that it is impossible for the parties to live within the limits prescribed by Allah Al‑mighty and their re‑union will give birth to hateful union and the Courts are bound to grant this right of Khula' to a woman where she expressly claims or omits to claim in her pleadings and even if the other grounds for seeking dissolution of marriage could not be proved. In "Mst. Zarina Bibi v. Additional District Judge, Jhang and others" 1993 MLD 1507, it was held:‑‑ "That where the wife has developed fixed aversion against the husband, the separation had taken place, the wife claiming Khula' need not to come out with any logical, objective and sufficient reasons for dissolution of marriage. It was ruled that if the wife was living separately from her husband, no reconciliation could take place during the proceedings before the Family Court and thereafter, this would be good enough to strengthen the view that remedial rift existed between the parties emanating from fixed aversion on the part of wife against husband and, therefore, the parties could not live together amicably as husband and wife within the limits of Allah Almighty. It was also held that here fact that the wife had failed to substantiate other issues relating to cruelty and levelling of false allegations against her husband will not be sufficient to disentitle her to the grant of Khula'. " Likewise in "Mst. Shakila Bibi v. Muhammad Farooq and another" 1994 CLC 230 it was held:‑‑ "That if from the prevailing circumstances and evidence on record, it was proved that it would not be possible for the parties to live together as husband and wife within the limits prescribed by Allah Almighty they should be separated and to be forced to live in hateful union. It was further observed that a wife was not supposed to justify the reasons on account of which she had developed hatred for her husband, and it was sufficient that there was no possibility for any reconciliation between them. " Similarly, in "Mst. Razia Begum v. District Judge, Jhang," 1995 CLC 657, it was held:‑‑ "That where the wife had stated that it was not possible to bring about conciliation and that during the efforts made by the Court, the wife remained adamant in her refusal to live with her husband, refusal to grant Khula' to the wife in, such circumstances, tentamounts to force the parties to live in hateful union which would be contrary to all norms of justice." Likewise in "Mst. Manzooran Bibi v. Khan Muhammad etc." 1998 CLC 1929 it was held:‑‑ "In these circumstances it can be safely held that the patties cannot live together within the limits prescribed by Allah Almighty and refusal to grant Khula' to the wife would tentamount to forcing the parties in hateful union which would be contrary to all norms of justice."

6. In the case in hand the petitioner not only in her plaint stated that it would not be possible for her to live within the limits prescribed by Allah but in her statement also substantiated the same plea. It is worth mentioning that she had been directed to produce ex parte evidence. Her statement was recorded ex parte. Application given by respondent No.l to the Hospital Authorities was exhibited as Exh. P. W.1 / l and she was not cross‑examined which means that her statement would be deemed to have been accepted in all respects. Reliance is placed on "Muhammad Sharif v. Noor Ilahi and others" PLD 1994 Peshawar

255. Likewise copy of the application submitted by respondent No. l was placed on record as Exh. P. W. 1 / 1 without any objection. It is an established law that once a document was admitted in evidence without any objection the same could not be questioned subsequently. Reliance in this regard is placed on "Sardar Muhammad Zaman v. Muhammad Yahya" 2000 CLC

296. The learned Judge Family Court not only conveniently ignored the statement of the petitioner/plaintiff but also ignored Exh. P.W.I/1 on the flimsy grounds that the same had not been proved.

7. The argument of the learned counsel for respondent No. 1 that the writ petition was not maintainable against the concurrent judgments of Family Court and that of District Judge has no force. This Court while keeping in view the pleadings of the parties, statement of the petitioner/plaintiff and Exh. P. W. 1 / I has come to the conclusion that in circumstances of the case, petitioner/plaintiff was entitled to Khula'. We, therefore, set aside the judgments and decrees of both the Courts below being without lawful authority and while accepting the writ petition, decree the suit filed by petitioner against respondent No. l and grant decree for dissolution of marriage on the basis of Khula' in favour of petitioner against respondent No. l with no orders as to costs. Q.M.H./M.A.K./156/P Petition allowed.