1984 PLP 1372 (SCMR)

Nemo for Respondent. Date of hearing: 18th June, 1980. FAKHRUDDIN G. EBRAHIM, J.‑‑ The facts giving rise to this petition are that on 8‑7‑1979 the petitioner‑wife instituted a suit against k y, the respondent‑husband in the Court of Judge Family Court, Abbottabad, for dissolution of marriage, maintenance, dower and as well as recovery of the price of her dowery. The dissolution was sought on almost all conceivable grounds, such is adultry, the husband's neglect to provide her maintenance for a period of more than three years, impotence of the husband, her repudiation of marriage on attaining puberty as well as Khula. The respondent‑husband retaliated by filing a counter‑suit for restitution of conjugal rights against the petitioner. The Family Court consolidated both the suits and ratio the former was dismissed, the latter was decreed. On appeal by the petitioner‑wife, the decree for dissolution of marriage was maintained. The petitioner then approached the High Court in its writ jurisdiction. The only ground urged was that the petitioner had made out a case for Khula which had been wrongly denied to her. The High Court dismissed the petition on the ground that the petitioner had abandoned her case for dissolution of marriage by way of Khula in first appeal, that it was not a fit case for the exercise of discretionary jurisdiction of the High Court under Article 199 of the Constitution and lastly that there was no sufficient material except for the petitioner's bare statement that it was impossible for her to live with her husband which could satisfy the conscience of the Court to allow the petitioner to part company with her husband for all times to come. Mr. Muhammad Shahudul Haque, learned counsel for the petitioner raised two contentions in support of this petition. Firstly, it was argued by reference to the evidence of the petitioner as well as her husband, that the latter had conceded that her wife had a strong aversion against him. More importantly the learned counsel contended that the law on the subject of Khula is that in case it is proved that there was a strong aversion between the two spouses and the wife asserted that it was no longer possible for her to live with her husband within the limits prescribed by law, then there is no room for any further inquiry and what must follow of necessity is a decree for dissolution of marriage by way of Khula. The learned counsel relied on a Lahore decision in the case of Bilqis Fatima P L D 1959 Lah. 566 and a Supreme Court decision in the case of Khurshid Bibi P L D 1967 S C

97. In the latter case it was observed that:‑ "By the phrase "Limits of Allah", according to the above‑cited commentators, reference is intended to the injunctions regarding the performance of conjugal obligations while living together, Ibne Hammam in his Fateh‑ul‑Qadir, Vol.III, p. 199 and Jassas in his Ahkamul Qur'an, Vol. I, p.391 have adopted this view?? which also finds mention in Sahih Bokhari (Arabic Text), published by Karkhana Tijarat‑i‑Kutub (Vo1.II, p.794). It is explained that incurable aversion to the husband, on the part of the wife would be sufficient justification for Khula Shah Wali Ullah of Delhi in A1‑Musawaatmim‑Ahadith‑al‑Muatta (Vol. II, p.160) goes to the length of saying, that "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." In the above circumstances, we grant leave to consider the question whether, in the facts and circumstances of the present case, the petitioner was entitled to a decree for dissolution of marriage on A the ground of Khula. Security in the sum of Rs.1,

000. The appeal shall be made ready on the present record to be heard at an early date. M. Z. M.????????????????????????????????????????????? ??????????????????????????????????????????????? Leave granted.