P L D 1978 Lahore 1109 (PLP)

(3) Whether the defendant failed to perform marital obligations for more than three years? O. P. P. (4) Whether the defendant misappropriated the property of the plaintiff? O. P. P. (5) Whether the plaintiff is entitled to a decree for dissolution of marriage on the ground of Khula` ? O. P. P. . (6) Whether the defendant persuaded the plaintiff to lead an immoral life? O. P. P. (7) Whether the defendant, has paid the dower amount? , O. P. P.

2. The trial Judge found six issues against the petitioner and the 7th issue in her favour. As a consequence thereof the suit for dissolution of marriage was dismissed and a decree of dower debt in the sum of Rs. 500 was passed in her favour on 16th March 1976. An appeal was filed before the learned District Judge, Lahore, who by his order dated 22nd December 1976, affirmed the order of the learned trial Judge and dismissed the appeal.

3. The petitioner has thrown challenge to both the orders of the lower Courts in the exercise of our extraordinary jurisdiction with a prayer that they be set aside and the suit of the petitioner for dissolution of marriage be decreed, in her favour.

4. Mr. Hamid Mu khtar, learned counsel for the respondent raised a preliminary objection that the petition suffers from laches as the petitioner has approached this Court after the expiry of more than a year and as such this petition be thrown out on that ground alone. I will deal with the question of laches at a later stage.

5. Learned counsel for the petitioner wanted me to go through the evidence in the case led by the parties, namely, the statements of Muhammad Ali, Jamal Din, Muhammad Latif and the petitioner herself (P. Ws. 1 to 4) and Nizam-ud-Din (D. W. 1); Abdul Majid (D. W. 2), Karim Bakhsh (D. W. 3), Naseeb-ud-Din (D. W. 4) and the respondent, who appeared as D. W.

5. Mr. Hamid Mukhtar,, learned counsel for the respondent cited Fida Hussain v. Mst. Naseem Akhtar and another (P L D 1977 Lah. 328), and argued that by virtue of section 17 of the West Pakistan Family Courts Act, the Evidence Act and the Code of Civil Procedure are not applicable to the proceedings before the Family Court except sections 10 and 11 of C. P. C. His next objection was that there is a concurrent finding of fact and appreciation of evidence is the domain of the Courts below and not of this Court. There is sufficient force in the submission of the learned counsel. The latest judgment of the Supreme Court has adhered to the principle, which by now is a well settled law that superior Courts in the exercise of extraordinary jurisdiction would not act as Courts of appeal. (Mr. Zulfikar Ali Bhutto v. The State (P L D 1978 S C 40), is referred. Learned District Judge observed in his judgment "a detailed appreciation of evidence of the appellant is not called for as Mr. Abbasi has at this stage abandoned challenge to the findings of the learned trial Judge on the issue under decision and all other issues excepting that of Khula'."

6. I am afraid, the approach of the learned District Judge in the exercise of his jurisdiction on the above observation made, is not correct, for, even to determine the claim of divorce on the doctrine of Khula` he was bound to appreciate the evidence. Learned counsel for the petitioner argued that it is in evidence that owing to maltreatment .the lady developed aversion towards her husband and it is in her statement that she is prepared to jump into the well rather to accompany her husband. The petitioner had further stated that the brother of her husband lives in the same house and he made overtures towards her. She made a complaint to her husband who observed that she was woman of that type. The petitioner thereupon swallowed grinded glass. She fell ill but was not given any medical aid. She in unequivocal terms offered to forego her dower money along with dowry, goods and the maintenance in case she was released. The leading authority on the subject is Mst. Khurshid BIN v. Baboo Muhammad Amin (PLD 1967SC97), in which their Lordships have discussed Qur'an, Ahadith and several other books. It was held that Khula` is a charter granted to the wife who has a right to seek Khula` if she has fixed aversion to her husband and the spouses cannot live within the limits of God. The classical instance of Sabit-bin-Qais and Jamila was also considered. It was further observed that in case of Khula` it is note only the right of the husband to give divorce but separation can be ordered by the Qazi if the case falls within the purview of doctrine of Khula'. The Supreme Court also distinguished the claim of divorce on the basis of Khula` and mubarat in Mst. Ghulam Sakina v. Umar Bakhsh and another (PLD 1964.SC456). In a Full Bench judgment Muhammad Khan v. Zarina Begum (P L D 1975 Azad J & K 27), it was held that even under Hanafi law, Khula` is not dependent upon consent of husband but Judge could dissolve marriage by Khula`.

7. In verse 229 of Surah II (AI-Baqarah) God has ordained as under : [Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not, For who so transgresseth Allah's limits: such are wrongdoers. (II: 229) (text and explanatory translation by Marmaduke Pickthall published by Taj Company Limited, Karachi)]. In Surah Al-Ahz'ab (The Clans) the God Almighty sent his message through Gabriel when he decided a dispute between the spouses, namely, Zeyd bin Haritba and his wife Zeynab bint Jahsh that no faithful can disobey the decision of the Prophet. It was further ordained that after the divorce by Zeyd, Zeynab was given to Prophet (peace be upon him) so that (henceforth) there may be no sin for believers in respect of wives of their adopted sons, when the latter have performed the necessary formality (of release) from them. The commandment of Allah must be fulfilled. Even the prophet could not be an exception to it.. It is pertinent to mention here that Zeynab was a beautiful lady from the family of Qureysh. She was married to Zeyd whom the Apostle of Allah had adopted as a son. Zeynab the high born did not like Zeyd, the freed man who had been a slave and he was not comely to look at. She developed aversion and the grievance was taken to the Holy Prophet. The Messenger of God several times persisted not to rupture marital ties. When the marriage is unhappy Islam permits and expects the bond to be dissolved, provided that all interests concerned are safeguarded. Apparently there was no issue here to be considered. Zeynab had to be considered and she obtained the dearest wish of her heart in being raised to be a Mother of the Believers, with all the dignity and responsibility of that position. It is so ordained by the Almighty in the Holy Book (xxxiii: 36 to 38): [And it becometh not a believing man or a believing woman, when Allah and His messenger have decided an affair (for them), that they should (after that) claim any say in their affair; and whoso is rebellious to Allah and His messenger, he verily goeth astray in error manifest.] [And when thou sadist unto him on whom Allah hath conferred favour and thou hast conferred favour: Keep the wife to thyself and fear Allah. And thou didst bide in the mind that which Allah was to bring to light, and thou. didst fear mankind whereas Allah bad a better right that thou shouldst fear Him ,So when Zeyd had performed the necessary formality (of divorce) from her, we gave her unto thee in marriage, so that (henceforth) there may be no sin for believers in respect of wives of their adopted sons, when the latter have performed the necessary formality (of release) from them. The commandment of Allah must be fulfilled.] [There is no reproach for the Prophet in that which Allah maketh his due. That was Allah's way with those who paced away of old-and the commandment of Allah is certain destiny.]-(xxxiii: 36 to 38) After the revelation the cherished desire of Zeynab to marry the Holy Prophet was materialised. The incident of claim of divorce by the wife of "Sabit-bin-Qais mentioned by Imam Bokhari in his "Sahib" on the authority of Ibn-i-Abbas is to the following effect: It is interesting to note that "Sabit-bin-Qais" was a kind and God fearing person. Although these qualities of his were acknowledged by his wife yet she wanted separation since 'Sabit-bin-Qais' was an ugly and shortstatured person and his wife had developed aversion towards him so much so that she repeated before the Apostle of Allah "By God! had I not feared God, I would have spitted on his face." Aversion, therefore, has immense importance in the determination of dispute between the spouses. She was released on return of the garden which she had received from her husband in lieu of dower. The lady said that she was prepared to give her husband more than this but the Prophet said "no", only this much. Fatawa-i-Kazee Khan relating to Mahomedan Law, Volume II, by Imam Fakhruddin Hassan Bin Mansur Al-Uzjandi Al Farghani translated by Hon'ble Moulvi Mahomed Yusoof Khan Bahadur and Moulvi Wilayat Hussain, while dealing with Khula' at page 318 has described the procedure. Paragraph 2703 (1803) of Section III is reproduced as under: "A woman asks for divorce, and the husband says to her (in Persian), 'Hast thou sold this gold and house in consideration of that divorce of thine which is in my possession?' She says, `I have sold', and then the husband says, 'I have purchased:" the woman shall become thrice divorced; because the divorce of the wife, which the husband has with him, is triple, and therefore all the divorces which the husband has with him shall be caused; just as if a man says to his wife (in Persian), 'Hast thou purchased thyself in consideration of that which thou bast placed with me in trust (Wudee'at),' all trust property, which she had with the husband, shall be included."

8. In Vadake Vitil Ismal v. Odakel Beyakulli Umah ((1881) 3 Mad. 347), the wife sued for divorce on the ground of the husband's impotence and cruelty. The District Judge found that there was no evidence of either, and therefore held that the suit ought to be dismissed; but before actually passing a decree to that effect he suggested to the husband that, considering the determined and not unnatural aversion of the wife, it would be better to grant her a Khula' divorce on terms to be settled by the local Kazi. The husband having reluctantly consented, and the Kazi having fixed the sum to be paid by the wife, the Judge passed a decree confirming the settlement. The High Court held, on appeal, that the pressure exercised by the lower Court did not render the divorce invalid. Khula' like talak, is valid though given under compulsion (Baillie, 319); the compulsion contemplated in both cases is evidently unlawful duress, and does not touch the question as to whether any Court has jurisdiction to compel the husband to give a Khula'. S. C. Sircar has reproduced the following quotation at page 426 of his book "Al Shari'a", Volume I, published by Law Publishing Company, Lahore, from Fatawa Alamgiri, Volume I, pages 669 and 675, while dealing with Khula' "ccccxxx. The Khula' is effected generally by giving back the dower or a portion thereof, and sometimes by giving something else-either solely, or in addition to the dower. When the aversion is on the part of the husband, it is not lawful for him to take anything from her in exchange for the Khula'. But this is only as a matter of conscience; and if he should take it, the legal effect is valid notwithstanding, and she has no right to demand restitution of what she has given. And when the aversion is on her part, 'we' abominate his taking from her more than he gave her dower; but, notwithstanding, it is lawful for him judicially to take more." The Holy Qur'an, the Abadith, especially (Sahib Bokhari) and other books by renowned Jurists clearly lay down the principles which have to be applied by the Kazi in appreciation of evidence. The testimony of witnesses. of the parties has to be tested on this touchstone for the grant or refusal of the decree for dissolution.

9. Unfortunately, as admitted by learned counsel for the parties, there is no issue out of the wedlock. Even after the expiry of 1 I years, no efforts have been made by the husband for reconciliation. Coming to this Court after the expiry of more than a year is a circumstance which cannot be claimed as beneficial by the husband by invoking the principle of laches for the maintainability of this petition. Normally laches is a good ground for refusal of the relief, but in the instant case it is likely to affect the fate of a young woman who cannot be kept Moalka (hanging) as has been ordained in the Holy Book. Such a plea in the circumstances of this case is to wreak vengeance and with ulterior motives. The girl has reached the age of 28 years. If her fate is not determined quickly it would be a sin according to the Qur'an and is likely to become an evil and pollution of the society. There is, therefore, a clear failure of exercise of jurisdiction by the Court below in refusing to appreciate the evidence for the determination of claim of the wife on the basis of Khula`. This, in my view, is in flagrant disregard of not only official duties but also it is disobedience of the command of God for the, determination of dispute between the unfortunate spouses. The order refusing' to exercise jurisdiction cannot be called an order with lawful authority. I, therefore, declare the impugned order of the District Judge as one without lawful authority and quash the same. The case is remanded to the District Judge; Lahore, who will either decide it himself or entrust it to one of his additional, after hearing the parties for fresh decision within two months. The parties shall appear before him on 20th June 1978. Although it is a case in which the petitioner is entitled to costs, but since interpretation of law is involved, I leave the parties to bear their own costs. Before parting with the case I must appreciate the assistance which I received from Mr. Munir Ahmad Mughal, Deputy Registrar (Rules), who produced the relevant books before me. S. A. H. Petition allowed. Case remitted for fresh decision.