2003 PLP 408 (CLC)

The facts precisely stated are that Mst. Zatoon Begum, appellant herein, brought a suit in the Court of Additional Sub-Judge, Muzaffarabad on 7-11-1984 seeking dissolution of marriage on various grounds including cruelty, non'-payment of dower, non-maintenance, false charge of bad character and oral divorce etc. In alternative she sought a decree on the basis of Khula Sabir, respondent herein, filed a cross-suit for the restitution of conjugal rights alleging that the appellant has left his house with household articles, golden ornaments and a cash of Rs.36,

000. During the judgment, the learned Sub-Judge felt it expedient to frame an additional issue in the light of the application filed by the appellant. In this manner an additional issue No.10-A was framed. Sub-Judge held that it was no more possible for the spouses to live together within the limits ordained by Almighty Allah, thus, dissolved the marriage on the basis of Khula' on return of golden ornaments worth Rs.500 given to the appellant at the time of Nikah. Consequently. the cross-suit for restitution of conjugal rights was dismissed. Feeling aggrieved, the respondent filed an appeal before District Judge, Muzaffarabad on 7-5-1988. During the pendency, of appeal, the respondent presented an application. for recording of evidence on additional issue of Khula' which was dismissed by Additional District Judge, Muzaffarabad vide its order dated 6-12-1989. Feeling dissatisfied, the respondent filed a revision petition against the said order of Additional District Judge, Muzaffarabad which was also dismissed by the High Court wide its order dated 31-3-1990. A ten that the District Judge, Muzaffarabad' remanded the case- to the C, urt below observing that additional issue No. IO-A was framed without an amendment in the plaint and the respondent was also not afforded an opportunity of hearing, therefore, the judgment of the Court below was not maintainable, vide its order/judgment dated 31-1-1993. It is the aforesaid judgment which has been assailed through the instant appeal. It is contended by the appellant that 'the Court below was competent to frame an issue and consider the material already placed on the record, therefore, District Judge was not justified to hold that a decree for dissolution of marriage could not be passed without an amendment in the plaint. According to the appellant when the conscious of the Judge felt satisfied that the spouses cannot live a peaceful life within the limits obtained by Almighty Allah, the marriage has to be dissolved. It is further, averred that after dismissal of an application for evidence on additional issue by Additional District Judge, Muzaffarabad and the revision petition challenging the same by the High Court, the District Judge was not at all empowered to pass an order contrary to the order mentioned above. It is also stated that after the decree of dissolution of Marriage the appellant has contracted a second marriage with Hamidullah and she has given birth to three children but the District Judge has ignored all material facts and passed the impugned order in a hasty manner which is not sustainable. Mr. K.D. Khan, Advocate, the learned counsel for the appellant vigorously argued that the Court below has committed an error by remanding the case for an amendment in the plaint because Sub-Judge was quite competent to annul the marriage on the basis of Khula' when he arrived at the conclusion that according to the circumstances it was never possible for the spouses to live together within the limits ordained by the Sharia. The learned counsel also contended that after dismissal of the application for evidence on the additional issue by the Additional District Judge and revision petition by the High Court, District Judge was not at all competent to pass an order of remand contrary to the order of the High Court already refusing to afford an opportunity to the respondent for further evidence. The learned, counsel for the appellant maintained that in view of allegations of false `charge of bad character levelled against the appellant by the respondent and for giving birth to an illegitimate child, fact of civil and criminal litigation between the parties, handing over of the appellant to a third person as Superdari, the habitual assault and cruel treatment of the respondent with the appellant was sufficient for annulment of the marriage between the. spouses. According to him, the trial Court was justified to pass a decree for dissolution of marriage which could not be interfered with. The learned counsel pointed out that the appellant has contracted another marriage and has given birth to five children, therefore, it has become impossible for the spouses to live together. He prayed to set aside the impugned judgment., In support of his contention, he has relied upon the following authorities:

(i) 1980 CLC 1212, (ii) PLD 1981 Azad J&K 94, (iii) PLD 1984 SC 329, (iv) 1993 SCR 330 and (v) 2000 YLR 2519. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the respondent, has controverted the arguments raised by the learned counsel for the appellant. He has 'submitted that the trial Court fell in error while passing a decree for dissolution of marriage on the basis of Khula' and it ignored the fact that appellant/plaintiff neither raised any plea of Khula' in her plaint nor an issue was framed in this respect. The parties were also not afforded an opportunity to lead their evidence on the additional issue but the trial Court ignored all these facts and framed an additional issue at the time of the recording of the judgment which is erroneous and against the admitted principle of procedure. He has further argued that the plea of Khula' is not only a question of law but it is also a question of fact, therefore, it was incumbent upon the Sub-Judge, Muzaffarabad to give a chance to the parties to lead their evidence on issue of Khula. The learned counsel defended the impugned judgment on all counts. In support of the arguments reliance was placed on PLD 1978 Lah. 1109. I have carefully taken into consideration the points canvassed by the learned counsel' for the parties, after perusing the record made available with care. At the very outset it will be relevant to note that District Judge was not competent `to pas:, the impugned judgment and remand the case for an amendment in the plaint when the matter was already resolved by Additional District Judge and the High Court by not allowing the respondent to lead his evidence on the additional issue No. 10-A. It will be pertinent to note that Additional Judge in its order dated 6-12-1989 has recorded its finding in an unequivocal manner that the issue of Khula' is legal one, therefore, the trial Court was empowered to dissolve the marriage on the basis of Khula' even without framing an' issue. The perusal of the said order also reveals that according to the learned Additional Judge sufficient evidence to resolve the issue of Khula' is available on the record, therefore, a chance of adducing more evidence cannot be given to the respondent. The same finding was upheld by the High Court, therefore, the District Judge was not empowered td disturb the abovementioned findings which have already attained finality in the light of order dated 31st arch, 1990 recorded by the Chief Justice of High Court, Mr. Abdul Mallick, as he then was Even otherwise in the case of Khula' marriage can be dissolved without amendment in the plaint and without framing an issue. It will be relevant to note here that although the appellant did not raise plea of Khula' specifically in her plaint but in the cross-suit for restitution of conjugal rights filed by the respondent, the appellant in her written statement not only refuted the averments of para. No.5 of the cross-suit but she categorically pointed out that now it has become impossible fair appellant to live with the respondent because she has developed fixed aversion and hatred against the respondent. Therefore, the mistake of the Court should not prejudice the appellant and the appellant may not be left to suffer because of the negligence of the Court not to frame an issue in the light of the pleading of the parties especially when both the suits were consolidated. I may observe that the principle of Khula' is applied in a liberal manner by the Superior Courts of Azad Jammu and Kashmir and Pakistan now-a-days i.e. when Judge or Qazi reaches the conclusion that the spouses cannot live within the limits prescribed by God then the Court places the husband and wife on an equal footing following the real spirit of Qur'an while construing the classical incident of Sabit-bin-Qais that a person or authority including Qazi can order of separation by Khula' even the husband does not agree with that course. However. Qur'anic condition must be satisfied by the husband and the wife that they cannot live together in harmony and in conformity with their obligations PLD 1984 SC

329. In a case reported as Rayasat Ali v. Family Court and another 1984 CLC 1325; it was observed that Family Court was competent to grant Khula', even if no such prayer was made in the plaint and an issue regarding ground of Khula' was not framed, if case of Khula' is made out on the basis of evidence on record. In case reported as Khurshid Ali v. Mst. Mumtaz Begum 1980 CLC- 1212, it was opined that the Court is competent to consider circumstances whether marriage be dissolved on principle of Khula', even if such ground was not taken in the plaint. It was further held that it is for the Judge to consider whether in a given circumstance even if the ground of which resolution is required has not been proved whether the marriage should be dissolved on the principle of Khula' subject to the limitation laid down in Balqees Fatima's case PLD 1959 Lah. 566, in which the High Court in second appeal allowed the case to be argued on new point that Khula' was right of the wife. It was also clarified that important limitation on the point of Khula' of wife is that, it is only when the Judge apprehends that the limits of God will not be observed in their relations towards one and another. In the case titled Abdul Karim Khan v. Mst. Parveen Akhtar and 6 others PLD 1981 Azad J&K 94, it was held that relief flowing from proved facts, cannot be denied strictly speaking, this. cannot be called an omission in true sense of the term. Similarly, where a statement of facts is disclosed and parties lead evidence in support and rebuttal, failure of party to get an issue framed or negligence of the Court to constitute an issue, would not render incompetence to grant relief flowing from the proved facts. It was further observed that Khula' is a legal issue, it may be raised in the pleading, in the trial Court or at appellate stage, in presence of evidence relating to dower, it may be decided without introducing amendment in the pleadings and further evidence. Bilqees Fatima's case PLD 1978 Lah. 1109 referred to by the learned counsel for the respondent also supports the case of the appellant instead of the respondent. This report was also followed in Khurshid Ali's case 1980 CLC 1212 referred to above. From the above survey of case-law, it has become crystal clear that the case of Khula' ,can be made out despite that plea of Khula' was not disclosed in the plaint or an issue was not framed but when by the statement of facts disclosed in the pleading without definite and specific ground of 'Khula' or on proof of such facts which come forward during E the course of evidence 'Khula' being a legal issue can be raised in the trial Court or at appellate stage without introducing an amendment in the pleading and further evidence but in the instant case the appellant has specifically pointed out in her written statement in the cross-suit that because of the fixed aversion it has become impossible for her to live with the respondent. In the present case, Mst. Zatoon pleaded that on account of non payment of dower, cruelty, non-payment of maintenance allowance, false charge of bad character, accusation of being pregnant by an illegitimate child and after pronouncing an oral divorce by the respondent, she was F also ousted from his house. It is also on the record that a criminal case was registered against her on the complaint of the respondent and she was handed over to a Superdar Qazi Ashraf Shah. The parties are involved in civil and criminal litigations. The dower of the appellant Rs.9,500 has yet not been paid by the respondent, thus, she was forced to develop aversion to her husband. It was recorded- by the trial Court that when the learned Judge asked the appellant in the open Court that it respondent provides her all the facilities of life like a princess, she refused that under no circumstance she was inclined to restore the relations with the respondent rather she will prefer to face the death because respondent has made her life miserable by cruelty of conduct and physical ill treatment. I find little force in this plea of the learned counsel for the respondent that Khula' being mixed question of fact and law G cannot be allowed to annul the marriage without amendment in pleadings. It is very important to point out that the appellant's version has been fully supported by her witnesses Muhammad Ali, Hameed Ullah, Sian, Mahwalli, Mir Alam and Shah Walli; .On the other hand, the respondent and his witnesses have admitted tile facts of registration of case and of litigation between the parties. In such state of affairs wife, appellant has developed severe hatred towards the respondent and it is quite evident that spouses cannot live a life of harmony and in conformity with their obligations. Moreover, the fact that after the decree of dissolution of marriage the appellant has contracted another marriage and has given birth to five children, cannot be lost sight of. Therefore, it has become impossible for the spouses to live together and the marriage was, therefore, rightly dissolved by the trial Court and no case is made out for interference in this appeal. H.B.T./48-Sh.C. (AJ&K) Appeal dismissed.