CLC1992 39 (PLP)

3. In view of the nature of the controversy raised before this Court, it was deemed expedient to make an effort to affect reconciliation and compromise between the parties, but without success. Keeping in view the accusation ascribed to Moazzam Shah, father of Mst. Nisa Fatimah, she was summoned in the Court for knowing her viewpoint. She appeared before the Court and made a statement wherein she supported the accusation of cruelty and ill‑treatment, in addition to other allegations raised in the plaint. She stated categorically that she disliked her husband and was not prepared to go back to him. Safdar Hussain Shah reiterated the allegation ascribed to the respondent.

4. The sole point controverted between the parties confines to khula` It has, therefore, to be ascertained as to whether there was enough evidence on record to sustain the impugned order of the District Judge.

5. Khula` is an acknowledged kind of divorce in Islam. A distinct feature of divorce by khula` is that such divorce is pronounced by the Court on the satisfaction that on account of aversion of wife against her husband, it was impossible for the spouses to reconciliate and live a harmonious life within the limits ordined by Allah. The scope and object of divorce by khula` was considered in Bilqees Fatima's case, P L D 1978 Lahore 1109 as: "Khula`, a charter granted to wife‑‑Wife having fixed aversion to her husband and not possible for spouses to live within the limits of God‑ Wife, held, has a right to seek khula` in the circumstances‑‑‑Aversion immensely important in determination of dispute between the spouses." An identical view was taken in Muhammad Yusuf s case, 1984 C L C 1465

60. The Supreme Court laid down the dictum as: "The superior Courts in Pakistan and Azad Kashmir are in agreement that if the wife is adamant that she has developed a fixed aversion and if all attempts at reconciliation have failed, there is a little choice for the Court except to grant a decree for divorce. Consequences in adopting any other course may be disastrous." When divorce is sought by khula` it is enjoined upon the Court to satisfy its judicial conscience that there was sufficient evidence to conclude that wife justifiably developed aversion against her husband and in such position, if separation by khula was not pronounced, she would be subjected to a harsh life in the shape of an unwanted union or living all the time in separation. It is, therefore, expedient to resolve the controversy of khula` by resort to the evidence of the parties. Here, it is relevant to state that the circumstances constituting aversion of wife may vary from case to case but the substance of such circumstances must be enough to satisfy that there was a reasonable ground for developing aversion for wife against her husband. In present case, the circumstances leading to aversion are listed as: Mst. Nisa Fatimah ascribed ill‑treatment and cruelty to her husband, non‑payment of maintenance allowance and non‑performance of conjugal rights. In her testimony, she deposed that the treatment of her husband was very cruel as she was subjected to beating by him. She lived in the house of her parents and wanted separation. In answer to a question in cross‑examination, she admitted that she also moved an application against her husband at the police station. According to the suggestion, her husband was arrested on her application. She denied the suggestion that she was persuaded by her parents to live separate from her husband. Safdar Hussain Shah also appeared as a witness. He refuted the allegations made against him and stated that an application on the allegation of breach of peace, under section 107, Cr.P.C. was moved by Moazzam Shah, father of Mst. Nisa Fatimah, against him and he was arrested by the police. In his absence, his wife was taken away. She took away cash in the sum of Rs.5,400 and ornaments of the value of Rs.3,

000. He denied the suggestion that he treated ill to his wife and perpetrated cruelty. Mst. Nisa Fatimah appeared again as a witness to rebut the counter evidence. She reiterated the allegations ascribed to her husband and insisted on having developed aversion against him. It was deposed that she wanted divorce, otherwise she may commit suicide, as she despised her husband and at any cost, was not willing to go to him. She denied the suggestion of reconciliation. The other witnesses produced by the parties, too accepted that the spouses were living separately on account of strained relations. There was no direct evidence of maltreatment and cruelty (by violence), but the witnesses admitted that Mst. Nisa Fatimah always complained of ill‑treatment. In her statement before this Court, she again reiterated that she was not willing to restitution of conjugal rights as she disliked her husband on account of cruelty and maltreatment during the time, she lived with him. Safdar Hussain Shah, on the other hand, was prepared to take her back to live harmonious life.

6. The aforesaid circumstances lead to an inference that Mst. Fatimah in no circumstances, was willing to go back to her husband forgetting the past unhappy events. Thus, the evident inference flowing from the inflexible attitude of the wife, reflects that she has developed aversion and hatred against her husband. In such situation, it is deemed conducive to the future of the parties to allow their separation by khula`.

7. The authorities cited in support of the appeal do not help the case of r the appellant as the principle laid down therein supports the claim of the respondent. The appeal is, therefore, dismissed. The order of District Judge is upheld. No order as to costs. AA./489/H.CA. Appeal dismissed.