1988 PLP 1353 (MLD)

The petitioner was married to respondent No.1 on 8‑5‑1976. On 3‑1‑1980 she filed a suit in the Court of the Family Judge at Kharian for the dissolution of her marriage. In her plaint she took a number of grounds but the only ground now relevant was based on the plea of 'Khula'. The learned Family Judge put this plea together with the others to trial and recorded the evidence of both parties. He rejected the plea with the following observations:‑ "The plaintiff has not deposed in her statement as P.W.4 that she hates the defendant or that her relations towards the defendant are so much strained that she cannot live with the latter as his wife within the limits of God. What the plaintiff has deposed is that she is not willing to live with the defendant as his wife in any case. The father of the plaintiff has deposed as P.W.3 that he has asked the plaintiff many a time to go to the defendant but every time it was told by the plaintiff that she would not go ` to the defendant even if she is murdered. But the plaintiff has not stated before this Court what has been stated by her father. It appears to me that actually father of the plaintiff is the bone of contention between the parties and he has never been sincere towards the conciliation of the parties. The witnesses of the plaintiff‑ including herself and her father have not deposed that the plaintiff hates the defendant or that their relations inter se are strained. Thus, I do not believe that there is any good cause for dissolution of marriage of the parties on the basis of Khula. The father of the plaintiff has deposed that once the defendant had given a slap on the face of the plaintiff and the defendant had also attempted to give a blow of hatchet on him but the plaintiff has produced no witness in whose presence the defendant assaulted the plaintiff or her father and no reliance may be placed on the version of the father of the plaintiff. So after going through the record I hold that there is no ground to dissolve the marriage of the parties on the basis of Khula and issue ,, No.6 is decided against the plaintiff." He also found the other pleas not proved and dismissed the suit. The petitioner went in appeal before the District Judge . The learned District Judge dismissed the appeal holding that there were no circumstances to come to a conclusion that it‑had become impossible for the petitioner to five with the husband within the limits of God. The petitioner has challenged the decisions of the learned District Judge and the Family Court through this writ petition.

2. A notice was sent to respondent No.1 but it was reported that he was out of country. It was, therefore, not possible to serve him in the ordinary way. Consequently, a citation was published in a newspaper. Despite citation neither respondent No.1 nor any of his representatives appeared in Court to defend this writ petition. It has therefore, been heard ex parte.

3. After examining the record I find that in coming to the conclusion that the petitioner was not entitled to seek divorce on the ground of `Khula'. Both the learned District Judge and Family Court have ignored a number of material circumstances. It was common ground between the parties that before approaching the Court efforts were made through the local Punchayat to bring about conciliation between the parties. These proceedings utterly failed to persuade the petitioner to return to the house of respondent No.1. According to a witness produced by respondent No.1 (Mian Khan, D.W.2), the petitioner's father had agreed to send her to her husband's house, but the petitioner declined to honour the commitment made by her father. The conduct of the petitioner was a pointer to the fact that the marriage had irretrievably broken down. Neither the learned District Judge nor the learned Family Court took this fact into account while rejecting the plea of `Khula'. It is also to be noticed that not only in the plaint but also in her statement before the Court the petitioner clearly stated that her relations with respondent No.1 had become so strained that they could not live within 'hadoodullalf and that she was not prepared to live with respondent No.1 as his wife in any circumstance whatsoever. Neither the learned District Judge nor the learned Family Court took notice of these strongly worded averments made by her. It is also to be noticed that both spouses had been involved in litigation for two years when the learned District Judge dismissed the appeal. The bitterness of litigation could have hardly softened the petitioner's feelings towards her husband. In the circumstances to allow the marriage to subsist would really be forcing the petitioner to live a life to which she was strongly averse.

4. In recording their decisions the learned District Judge as well as the learned Judge Family Court were influenced by the fact that the petitioner had not in so many words stated either in the plaint or in the deposition before the Court that she had developed 'hatred' for respondent No.1. I do not think that the omission on the part of the petitioner to use this particular formula was at all fatal to her plea of 'Khula'. Had the learned Courts cared to examine the statement which she had made at the trial they would have noticed that she had no liking whatsoever for her husband. May be her aversion for her husband emanated from causes not very substantial but then considering the personal nature of the relationship between the parties, we are more concerned with her state of mind than with the basis thereof. There is no reason to believe whatsoever that the feelings which she had expressed about the husband in her deposition were not a true reflection of the state of her mind.

5. In Rashidan Bibi v. Bashir Ahmad P L D 1983 Lah.549 Javid Iqbal C J observed:‑ "If a woman states that she would not live with her husband even if she was shot with a bullet and thereafter the reconciliation attempts by the Judge Family Court fail, it is sufficient to satisfy the conscience of the Judge Family Court that the two parties could certainly not live together within the limits prescribed by God and consequently in such circumstances the woman is entitled to get the marriage dissolved on the basis of `Khula'. The principle of 'khula' is based on the fact that if a woman has decided not to live with her husband for any reason and this decision is firm, then the Court, after satisfying its conscience that not to dissolve the marriage would mean forcing the woman to a hateful union with the mar., and it is not necessary on the part of the woman to produce evidence of facts and circumstances to show the extent of hatred to satisfy the conscience of the Judge, Family Court or the Appellate Court. If a woman had stated that she. would rather prefer to be shot dead than to go and live with her husband, it obviously means that she is determined not to live with her husband and the hatred was so deep that not to dissolve such a marriage would amount to compelling her or rather pushing her in a hateful union with the husband which certainly is not contemplated by the law i.e. dissolution of marriage on the basis of `Khula'." In my opinion the principle laid down by his Lordship is fully applicable to the facts of this case. I would therefore set aside the judgment of the learned District Judge and remand the case back to him with the direction that he should consider the appeal of the petitioner still pending and that he should dispose it of in the light of the above observations. He should dispose of the appeal within three months. In view of the relations between the parties there will be no order as to costs. M.Y.H./2938/L Petition accepted