2008 PLP 1641 (CLC)

MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J.

This appeal by leave is directed against the judgment and decree of the Shariat Court dated 13-4-2005, whereby a decree for dissolution of marriage on the basis of `Khula' was passed in favour of the plaintiff-respondent.

2. Necessary facts forming the background of the instant appeal are that plaintiff-respondent No.1 brought a suit for dissolution of marriage on the basis of cruelty and alternatively on the basis of `Khula' in the Family Court, Mirpur. It was averred by her that `Nikah' of the plaintiff-respondent was performed with the defendant-appellant on 4-1-2000. An amount of Rs.1,00,000 (Rupees one lac) was fixed as dower, which has not been paid yet. The defendant-appellant also promised to give' gold ornaments weighing 8 Tolas but at the time of Nikah he gave only the ornaments weighing 3 Tolas. The defendant-appellant behaved cruelly with the plaintiff-respondent. He is a drunkard and habitual smoker of `Charas'. He gave beating on various occasions to the plaintiff-respondent. On 4-3-2000, the defendant-appellant, gave beating to her and turned out of house. He also snatched the gold ornaments of 3 Tolas and clothes. From that time, the plaintiff-respondent is residing in the house of her parents. On 8-3-2000 the defendant-appellant murdered the mother of the plaintiff-respondent by a fire when they were going on a `Tanga'. It was further averred by her that she hates the defendant-appellant and could not remain, with him within the limits ordained by God therefore, the marriage may be dissolved on `Khula'.

3. The suit was contested by the defendant-appellant. After the conclusion of the trial, the suit was decreed in favour of the respondent-plaintiff by the Judge, Family Court on the basis of 'Khula'. Feeling aggrieved from the said judgment, the defendant-appellant filed an appeal in the Shariat Court. The Shariat Court modified the judgment of the lower Court and dissolved the marriage on the basis of `Khula' in lieu of 3 Tolas gold ornaments. This judgment of the Shariat Court was challenged through a petition for leave to appeal. Leave was granted.

4. Arguments have been heard Mian Sultan Mahmood, Advocate for the defendant-appellant, argued that both the lower Courts have wrongly resolved that rift between the parties was so much serious that there was no chance of reconciliation and have wrongly dissolved the marriage on the basis of "Khula". It was next submitted by the learned counsel for the appellant that the learned Judge of the Shariat Court has dissolved the marriage on the ground that the mother of the plaintiff-respondent has been murdered by the defendant-appellant so there was no chance of reconciliation while a false case was manufactured against the defendant-appellant.

5. While controverting the arguments of the learned counsel for the defendant-appellant, the learned counsel for the respondents contended that both the judgments of the lower Courts are based on sound and cogent reasoning and do not require any indulgence by this Court. The learned counsel for the respondents further contended that the relations between the plaintiff-respondent and the defendant-appellant were so much strained that the defendant-appellant has murdered the mother of the plaintiff-respondent and also attacked on the plaintiff-respondent. So there is no chance of reconciliation at all. Therefore, both the lower Courts have rightly dissolved the marriage on the basis of 'Khula'.

6. We have heard the learned counsel for the parties, perused the record and have given our passionate thought to the respective arguments advanced by the learned counsel for the parties. In the instant case the respondent-plaintiff has claimed the dissolution of marriage alternatively on the ground of `Khula' and the respondent-plaintiff appeared as a witness. She deposed that she hates the defendant-appellant. Moreover, the mother of the plaintiff-respondent has been murdered by the defendant-appellant. In this respect an F.I.R. was lodged by the plaintiff-respondent and after the trial of the case, the defendant-appellant has been convicted by the trial Court. Nani Sultana, plaintiff-respondent, appeared as a witness before the Judge Family Court. We have gone through her statement. She deposed before the Court that the appellant is a drunkard and edict of `Charas' and she is not ready to live with the defendant-appellant in any case. She hates him. He has murdered her mother. She cannot maintain the limits ordained by the Almighty God. Therefore, the marriage may be dissolved on the basis of `Khula'. She also deposed that the defendant-appellant came to the house of her parents and threat them that he will kill them. He also opened fire upon her twice and once fired upon her at 2 0' clock at night and ran away. On 8-3-2000 he murdered the mother of plaintiff-respondent when she was boarding on a 'Tanga' along with her mother and she lodged an F.I.R. against him. We have also gone through the F.I.R. The F.I.R. was lodged by the plaintiff-respondent against the defendant-appellant under sections 302/324, Penal Code. Now when the mother of plaintiff-respondent has been murdered by the defendant-appellant, the trial Court has convicted him and he attempted to murder the plaintiff-respondent twice, as stated by her, then how it is possible that she can live with him as his wife.

7. It is pertinent to note that Maulana Abul Kalam Azad while dealing with the interpretation of the verse relating to 'Shiqaq' in Tarjman-ul-Qur'an, page 284, as quoted in Mst. Balgis Fatima v. Najm -ul-Ikram Qureshi PLD 1959 Lah. 566, expressed as under:

"It is not contemplated by a marriage that the parties should be tied together in all circumstances, nor that the wife should be just a means of satisfaction of the passions of the husband. The object of the marriage is the creation of a perfect and happy life by the conduct of the spouses and such a life can only be created if there be mutual love and affection and if the limits imposed by God be observed. If for some reasons this is not possible, the object of the marriage has been defeated and it is necessary that the door be opened to the parties for a change. If on the object of the marriage being defeated, separation has not been allowed to the parties, this would have been a cruel limitation of the right of free choice and society would have been deprived of a happy married state of life."

8. In the aforesaid quotation it has been clearly expressed that the basic object and purpose of the marriage is the creation of perfect and happy life and such a life can only be created, if there be a mutual love and affection but in the instant case the relations between both the parties are so much strained that there is no chance of reconciliation and it can safely be said that the parties are unable to maintain the limits ordained by the Almighty God, especially, so when the mother of the plaintiff-respondent has been murdered and the plaintiff-respondent has been twice attacked by the defendant-appellant, then how the atmosphere of love and affection can be created.

9. It would also not be out of place to mention here that in the above referred case, the then learned Judge of Lahore High Court, Mr. B.Z. Kaikaus, (for whom I have a great respect), dissolved the marriage on the basis of "Khula" on the ground that `the parties have been litigating for a period of not less than five years. The respondent has prosecuted the father and brother of the appellant. He brought a serious charge against the brother of the appellant which appears to be untrue. He brought charge of amorous relations prior to the marriage which has been repudiated. Apart from this, there was a criminal complaint sub judice in some Court. Therefore, the learned Judge of the High Court held that in such-like situation there is no chance of reconciliation between the spouses. Whereas in the present case. The respondent has attributed the charge of murder of her mother against the appellant. She lodged an F.I.R. at police station. She appeared as a witness against the appellant in the trial Court in murder case. He was convicted by the trial Court. Moreover the respondent in her statement has categorically stated that the appellant twice attempted to murder her by way of firing. In such-like situation, how it can be said that there is any chance of reconciliation between the spouses. It is well-settled principle of law that where the spouses have developed so much hate and disrespect against each other then it is advisable to dissolve the marriage on the basis of "Khula" which is the right of wife, as such has been held by the Supreme Court of Azad Jammu and Kashmir in the case reported as Saleem Akhtar v. Judge, Family Court, 1999 MLD 1679 which reads as under:

"(15) From the above referred authorities the irresistible conclusion is that if the spouses have developed so much hatred, disrespect and discomfort against each other and all the possible measures of reconciliation have failed then it is always advisable to dissolve the marriage on the basis of Khula which is the right of the wife. The learned Judge, Family Court, as stated earlier formed the opinion that Mst. Farzana Kausar had developed such a hatred and disrespect against her husband that she was not willing to live with him under any circumstances. Therefore, there was no choice with the learned Judge except to pass a decree for dissolution of marriage on the basis of Khula otherwise as observed in the pronouncements of the superior Courts the result would have been disastrous." This view further finds support from the case reported as Muhammad Yousaf v. Mst. Kaisar Jan 1984 CLC 1465.

10. The circumstances of the present case clearly reveals that the plaintiff has developed hate-ness against her husband. Her husband has murdered the mother of the appellant. The respondent appeared as a witness against the appellant in the trial Court in support of the allegation of murder. He was convicted by the trial Court. Moreover, according to the appellant, he opened fire upon her twice. In such-like situation, there is no chance of reconciliation at all and it is impossible for a woman to live with such-like husband from whom she apprehends that he will kill her. The entire circumstances of the present case clearly reveals that rift between the parties is so much serious and there is no chance of reconciliation at all. Therefore, both the lower Courts have rightly dissolved the marriage on the basis of "Khula". The nub of the above discussion is that finding no force in this appeal, it is hereby dismissed. H. B.T. /70/SC(AJ&K) Appeal dismissed.