2005 Y L R 896
Even if decree for restitution of conjugal rights was allowed to remain intact, which was otherwise un‑executable, it would serve no purpose except that wife could not seek a new life partner, which was also cruel and un-human; it would be thus in the interest of justice to dissolve marriage, instead of forcing them to live a hateful life.
Azad Jammu and Kashmir Family Courts Act (XI of 1993)‑‑‑
‑‑‑‑S.5 & Sched.‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Plaintiff wife seeking dissolution of marriage had unequivocally stated that she could not live with her husband at any cost as she had developed severe hatred against him and she definitely could not live within the limits ordained by God‑‑‑‑Validity‑‑If relationship, love and affection could not develop within long period of about 16 years of marriage, there was no chance of happy married life in future and if she was forced to live together with her husband, every apprehension existed of her breaking limits ordained by God‑‑‑Matrimonial relations were based on trust, love, affection, goodwill and sacrifice for each other and if that lacked the same, it would be a forced union‑‑‑Principle of Khula' was based on the fact that if a woman had decided not to live with her husband for an v reason and there was no chance of reconciliation or her retrieving front that position, then it was left to the conscience of the Court to dissolve the marriage through Khula' and in case of non‑dissolution under such circumstances, the spouses could not live within the bounds ordained by God‑‑‑Dissolution of marriage on the basis of Khula', in circumstances, must be ordained in given background of parties who had resorted to litigation which had further created bitterness and despite efforts by elders, there was no chance of reconciliation between them‑‑‑Even if decree for restitution of conjugal rights was allowed to remain intact, which was otherwise un‑executable, it would serve no purpose except that wife could not seek a new life partner, which was also cruel and un-human; it would be thus in the interest of justice to dissolve marriage, instead of forcing them to live a hateful life‑‑‑Decree for dissolution of marriage was passed in favour of the plaintiff.
Mst. Hafizan v. Muhammad Yasin and 2 others 1985 CLC 1448; Mst Ghulam Zhora v. Faiz Rasool and others 1988 MLD 1353 and Rashidan Bibi v. Bashir Ahmed PLD 1983 Lah. 549 ref.
Ch. Ali Muhammad Chacha, Advocate for Appellants (in Civil Appeal Nos.73 and 74 of 2004).
Muhammad Yunus Tahir, Advocate for Respondents No.1 (in Civil Appeals Nos.73 and 74 of 2004).
Date of hearing: 15th December, 2004.
JUDGMENT
SYED MANZOOR HUSSAIN GILANI, J.‑‑‑The above captioned appeals, with the leave of the Court, are filed against the judgments and decrees of a learned Judge of the Shariat Court, dated 26‑3‑2004 and 25‑3‑2004 respectively, whereby, the judgments and decrees of dissolution of marriage passed by the Judge Family Court, Kotli on 17‑5‑2003 and 28‑4‑2003 are reversed and a decree for restitution of conjugal rights is passed in favour of contesting respondents.
2. Though the facts out of which the present appeals have arisen are separate in both the cases, but law points involved are common, hence, both the appeals, which were heard separately, are decided through this common judgment.
3. The common points in both the appeals are that both the appellants had sought dissolution of marriage on two grounds i.e. failure of respondents to maintain the appellant and cruelty; and alternatively a decree for dissolution of marriage was sought on the basis of Khula'. The trial Court allowed the decree of dissolution of marriage in both the cases in favour of the appellants on the ground of failure by the respondent‑husbands to maintain them. The other issue i.e. dissolution on the basis of Khula' was not decided as the marriage was dissolved on the other ground.
4. On appeal a learned Judge of the Shariat Court reversed the decrees passed by the Judge of Family Court in favour of appellants and passed a decree for restitution of conjugal rights in favour of the contesting respondents in both the cases without deciding the other issue, as to whether the appellants were entitled to dissolution on the ground of Khula', if the dissolution on the other around was not maintained. The issue of dissolution of marriage on Khula' was left unattended by both the Courts below.
5. The learned Advocate appearing for the appellants in both the cases, contended that the Judge in the
Shariat Courthad misread the evidence and misconstrued the statements of the parties before the Court as well as the pleadings. He contended that the cogent and justified reasons, based on evidence, were given by the Judge Family Court in passing the decrees for dissolution of marriage, but the learned Judge in the Shariat Court has set aside the decrees without going through the record and appreciating the evidence in its true perspective. He further contended that as the appellants in both the cases had sought the dissolution on the ground of Khula' as well, it was obligatory for the Shariat Court to have dilated on this issue, if it was of the opinion, that dissolution on the other issue was not justified. Referring to the statements of the appellants before Court as well as to the pleadings, he contended, that appellants had unequivocally stated that they could not live with their husbands at any cost, hence, in view of these statement, according to the learned Advocate, they were entitled to the dissolution of marriage on Khula'. The learned Advocate placed reliance upon cases titled Mst. Hafizan v. Muhammad Yasin and 2 others (1985 CLC 1448). Mst Ghulam Zohra v. Faiz Rasool and others (1988 MLD 1353) and Mst. Ghulam Zohra v. Rasool and others 1988 MLD 1353.
6. The learned Advocate appearing for the respondents defended the judgments and decrees passed by the Judge Shariat Court, contending that the decrees passed by the Judge Family Court are rightly set aside, as the appellants were not able to prove issue No. 1 in the case which pertained to cruelty and failure to maintain. He contended that Judge Family Court has drawn a far‑fetched conclusion from the evidence of appellants, which was not sustainable while the evidence produced by respondents was convincing and justified for the decree of restitution of conjugal rights. He also contended that the practice of dissolution of marriage of the spouses with children and long matrimonial life should be discouraged as it will imbalance the society. The learned Advocate conceded that the learned Judge in the
Shariat Courtshould have decided the issue of Khula or remanded the cases to the Judge Family Court for its resolution. He also contended that if the case is remanded on this point, he has no objection.
7. I have considered the arguments advanced by the learned Advocates and gone through the judgments of the Courts below as well as the pleadings of the parties. In view of the complex and contentions matrimonial relationship during wedlock between the spouses, I deem it proper to refrain from entering into the controversy as to whether the decree of dissolution of marriage should be allowed on the grounds of cruelty and non -maintenance or that the cases should be remanded to the Judge Family Court for decision on the other issue i.e. dissolution on the ground of Khula'. It is interesting to note that Mst. Zohra Bi was married 16 years before the filing of the suit, which was filed on 9‑4‑2002 and has given birth to two children, a son and a daughter, while Mst. Jamila Bibi was married in 1992. Husbands of both the appellants are real brothers, while appellants are also real sisters. According to them their relations remained strained throughout and they were cruelly treated by their husbands. As per common local behaviour, strained relations even between one couple, like the present relationship it would have its lash back on the other couple.
8. Mst. Zohra Bi specifically alleged in para. 5 of her suit before the Judge Family Court that, in view of the cruel treatment of her husband, she has developed a severe hatred against him and cannot live with him as wife within the bounds of Allah. Mst. Jamila Bibi has also pleaded so in para. 5 of her suit before the trial Court. In their statements before the Court, they have also firmly reiterated the same. The statements of the witnesses as discussed by the trial Court led on behalf of the parties also reveal that relations between the parties have not remained smooth. Punchaits have been convened for resolution of their differences but without any fruitful results. The statements of the witnesses from both sides speak of strained relation of the parties.
9. It is really very sad and pity that the wedlock between the spouses should be broken after a long matrimonial life, but when going gets tough, the tough gets going. In view of the unequivocal statements of the appellants that they cannot live with their husbands at any cost and have developed severe hatred against them they definitely cannot live within the limits ordained by the Almighty God. If their relationship love and affection could not develop in so many years there appears no chance of happy married life, and if they are forced to live, there is every apprehension of their breaking the limits ordained by the Almighty God. Matrimonial relations are based on trust, love, affection, goodwill and sacrifice for each other, if that lack, it is a forced union, not spouseism.
10. The authority relied upon by the learned Advocate of the respondents reported as Mst. Hafizan v. Muhammad Yasin and 2 others (1985 CLC 1448) on perusal reveals that the High Court of Karachi had remanded a case to the trial Court for framing the issue of Khula' in view of specific plea of the wife that she has developed hatred for her husband and could not live with him and it lends support to the argument that Khula' is a very important matter to be considered at the time of the judgment when the wife so alleges. Similarly, in the case of Mst. Ghulam Zohra v. Faiz Rasool and others (1988 MLD 1353) a learned Judge of the Lahore High Court relying upon the case of Rashidan Bibi v. Bashir Ahmed (PLD 1983 Lah. 549) observed that when the relation of wife with husband had become so strained that they could not live within the Hadoodullah and that she was not prepared to live with the respondent as wife in any circumstances in spite of being involved in the litigation there was no softening of her feelings towards her husband, hence in allowing the marriage to subsist in these circumstances, it would really be forcing and pushing the wife in a hatful union with husband.
11. 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 there is no chance of reconciliation or her retrieving from that position, then it is left to the conscience of the Court to dissolve the marriage through Khula' and in case of non‑dissolution under such circumstances the spouses cannot live within the bounds ordained by Almighty Allah. Hence, dissolution of marriage on the basis of Khula' must be ordered in the given background of the parties who have resorted to the litigation which has further created bitterness and in spite of the efforts by the elders there is no chance of reconciliation between them. Even if the decree for restitution of conjugal rights is allowed to remain in tact, which is otherwise un‑executable it would serve no purpose except that wife cannot seek a new life partner which is also cruel ands inhuman.
12. In view of the circumstances of the case and keeping in view the prolonged litigation and dissension of the spouses. I do not deem it proper to remand the case to the Shariat Court or the Family Court for decision on the issue of Khula', as the record on the basis of which the trial Court or the Shariat Court would pass the order is already before the Court and I have compassionately considered it and reached the conclusion that it will be in the interest of justice to dissolve the marriage here, instead of forcing them to live a hateful life till the issue is decided by any of the lower Courts, in case of remand.
13. As far as the consideration for Khula' is concerned. I think comfort and conjugality enjoyed by the husband during her youthful days is sufficient consideration in the circumstances of the present cases.
In view of above, accepting the appeals, the judgments and decrees passed by the
Shariat Courtare set aside and decrees for dissolution of marriage, as discussed above, are passed in favour of appellants.
H.B.T./140/SC(AJ&K)Appeal accepted.
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