1984 PLP 3330 (CLC)

‑‑S. 7‑Muslim Family Laws Ordinance (VIII of 1961), S. 7 Muhammadan Law‑Khula‑Wife filing suit for dissolution of marriage on grounds of cruelty and that husband being of a bad character had established illicit relations with his own brother's wife‑Trial Court rejecting application of wife on grounds that no convincing evidence to prove allegation$ was forthcoming‑Trial Court failing to take account of all circumstances and effect of allegations made, which normally led to a state of affairs where it would be difficult for spouses to live together within limits prescrib ed by Allah‑Application of principle of Khula' on these grounds, held, required to be taken into account and could not be brushed aside simply for failure of wife to produce convincing evidence about cruelty etc.‑‑ Order of Appellate Court for not taking into account the crucial controversy, declared to be without lawful authority and of no legal effect.‑‑Provisional Constitution. Order (1 of 1981), Art. 9.‑[Khula ]. The petitioner was married to respondent No. I on 3rd December, 1974. There is no issue. The petitioner filed a suit for dissolution of marriage on 20th March, 1979 on the grounds that the respondent was of bad character, had established illicit relations with the wife of his own brother and when the petitioner pursuaded the respondent to desist from the evil pursuit, she was given beating and turned out of the house. He had failed to maintain her or perform marital obligations. Further, that she had been deprived of her dowry. Dissolution on the ground of Khula was also sought. The trial Court found that she had failed to prove the points and that she was living away from the plaintiff in spite of decree for restitution of conjugal rights. The dowry was left by her and she had not been deprived thereof. The suit was dismissed by the learned Judge Family Court, Gujrat on 28th April, 1981. She filed an appeal and it was argued that "even if the issues on merits are not decided in her favour, there are circumstances which would show that it is not possible for the parties to live together and the plaintiff is entitled to a decree for divorce on the principle of Khula". The learned District Judge, Gujrat, vide his order, dated 20th April, 1982 held that "there was no convincing evidence to come to a conclusion that the defendant's behavior was cruel towards the plaintiff. The plaintiff also failed to bring some evidence that the defendant was of immoral character or be had associations with the wife of his brother. In these circumstances, there was no convincing evidence to entitle the plaintiff a decree for dissolution of marriage on the principle of Khula". He thus dismissed the appeal. Hence this Constitutional petition.

2. Learned counsel for the petitioner has contended that two Courts below have failed to take into account that even if there being no 'convincing evidence' regarding the cruelty of the respondent towards the petitioner or that it had not been proved by the petitioner that the respon dent was of immoral character or had association with the wife of his brother, nonetheless the circumstances justified the dissolution of the marriage on the ground of Khula because in the circumstances it was obvious that the parties cannot live within the limits of Allah. The learned counsel submitted that the marriage is barren and there is no issue from the wedlock.

4. I have heard the learned counsel for the parties and perused the record with their assistance. Nearly a decade has gone by since the marriage of the parties and it has borne no fruit. Out of frustration, may be, the petitioner filed a suit for dissolution of marriage on the grounds of cruelty and on an allegation that the respondent was of bad character and had established illicit relations with his own brother's wife. Even if there was no convincing evidence to prove the issues as the learned District Judge held, yet he failed to take into account all the circumstances of the case and the effect of the allegation made, which will ‑normally lead to a state of affairs where it would be difficult for the parties to live together within the limits prescribed by Allah. Consequently, the application of the principle of Khula on these grounds was required to be taken into account and it could not be brushed aside simply for the failure of the petitioner to produce convincing evidence about the cruelty etc. 1n this view of the matter, the order of the learned District Judge, Gujrat, dated 20th April, 1982 for not taking into account the crucial controversy, is declared to be without lawful authority and of no legal effect. The matter is remitted to him for fresh decision in accordance with law. Since it is matrimonial matter, learned District Judge, is directed to dispose this of, after notice to the parties, as soon as possible and at the latest within the next three months. In the circum stances, the parties shall bear their own costs. M. Z. M. Case remanded.