1997 PLP 2627 (MLD)

Bashir A. Mujahid for Petitioner. Nemo for Respondent. Date of hearing: 3rd April, 1995. Mst. Nasira Parveen wife of Hamid Iqbal respondent No.3 filed a suit seeking decree for dissolution of her marriage on various grounds including the ground of Khula. This suit was contested by the respondent, who also filed a suit for restitution of conjugal rights. Both the suits were consolidated and vide judgment and decree dated 5‑1‑1994, the suit filed by the petitioner was dismissed whereas the suit filed by the respondent was decreed. Aggrieved of this judgment and decree, the petitioner filed two separate appeals in the District Court, Toba Tek Singh, which have been dismissed vide order dated 15‑2‑1994, hence this writ petition has been filed before this Court. 2 Mr. Bashir A. Mujahid, Advocate has appeared on behalf of the petitioner whereas none has appeared on behalf of the respondents in spite of service. Therefore, they have been proceeded against ex parte.

3. Learned counsel for the petitioner has contended that there is ample evidence on record to prove that relationship between the parties are ascertained and there is no possibility of the petitioner to live with the petitioner as his wife within the limits laid down by Almighty Allah, therefore, it is a fit case where the suit for dissolution of marriage should have been decreed by the two learned Courts below following the law declared in the case of Mst. Bilqis Fatima v. Najmul Ikram Qureshi (PLD 1959 Lahore 566) and Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 Supreme Court 97). 3‑A. I have considered the arguments addressed by the learned counsel for the petitioner and have perused the record. In order to prove her contentions, the petitioner appeared as P. W.1 and stated that she has acquired affixed aversion against respondent No‑3 and does not want to live with him as his wife. Muhammad Sarwar P.W.2, who is maternal uncle of the plaintiff has also corroborated her version and stated that the petitioner has been deserted for the last about 3/3‑4 years w.e.f. the date of making of statement. As against the above evidence Muhammad (sic) has appeared as D.W.1 and Muhammad Bashir as D.W.2. The witnesses have also corroborated the facts that the parties are living separately and has further stated that the petitioner is living away from him about 2/1‑2 years prior to the making of his statement which was recorded on 30‑11‑1993. From the perusal of the evidence one fact stands established that the parties are living separate for the last about 4/5 years. It also stands established that during the aforementioned period reconciliatory efforts have not succeeded. The petitioner having exhausted her remedies before the two Courts below has now approached this Court. In view of the above, the petitioner being not a chattel and as she does not want to live with respondent No.3 as his wife, it will be very cruel to keep her tied down with the defendant, merely for the reasons that respondent No.3 states that he wishes to keep the petitioner as his wife. Existence of sufficient aversion and hatred against respondent No.3 stands established, therefore, it was a fit case where the marriage should have been dissolved on the ground of Khula. There is neither an allegation nor proof of any benefit received by the petitioner. Learned two Courts below have failed to follow the law laid down by the Superior Courts in cases "Mst. Bilqis Fatima" and "Mst. Khurshid Bibi" (supra). Therefore, the judgments and decree rendered by the two Courts below are illegal and without a lawful authority.

4. Resultantly, this writ petition is accepted. The impugned judgments and decree rendered by the Courts below and the findings of fact on the issue of Khula are set aside and it is held that the petitioner is entitled to dissolution of her marriage on the ground of Khula as such, her suit for dissolution of marriage is decreed whereas the suit of the respondent for restitution of conjugal rights is dismissed, with no order as to costs. A.A./N‑320/L Petition accepted.