Monday, 14 July 2014

Wife cannot be compelled to live with husband whom she hates

PL J 1996 Karachi 1115
Constitutional Petition No. S-1076 of 1995, decided on 1st February, 1996.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
—S. 5-Constitution of Pakistan, Art.  199--Dissolution of marriage on ground of Khula-It is well settled that if conscience of Court is satisfied  that it will not be possible for the spouses to live together as a faithful union within limits prescribed by God, they should be separated on ground of tf/iu/a--Petitioner has proved her aversion in plaint and evidence that she has developed hatred and disliking her heart against respondent and it is impossible for her to live with him as wife within limits prescribed by God and she is prepared to relinquish dower and other benefits-Petitioner's father has confirmed that respondent used to bring strangers in his house and compelled petitioner to lead immoral life-Held: Islam prefers divorce to adultery and if a wife intends to get a divorce on ground of Khula, she may obtain a decree of dissolution by giving up her dower-Petition accepted.
[P. 1119] A
Abdul Qadir Shaikh, Advocate for Appellant. Respondents Nos. 1 and 2 (absent). Parya Ram Waswani, Advocate for Respondent No. 3. Date of hearing: n 1.1996.
Through this petition petitioner invokes extraordinary jurisdiction of this Court seeking declaration that the judgment and decree dated 16.1.1995 and 20.9.1995 passed by the learned Joint Civil Judge and Family Judge, Sukkur and learned Second Additional District Judge, Sukkur respectively are illegal and without lawful authority and that dissolution of marriage on the ground of Khula be ordered.
The facts constituting this petition are that petitioner Mst. Kiran Sabah married respondent Mushtaq Ahmed on 15.11.1993 at Sukkur and Rs. 1,00,000 was settled as dower payable on demand, which has not been paid to the petitioner. Certain conditions were mentioned in the Iqrarnama written by the respondent at the time of Nikahthat nothing has been paid in lieu of hand of the petitioner and that the golden ornaments of 8 tolas may be given which shall be the property of the petitioner. Petitioner's parents gave Rs. 50,000 consisting golden ornaments weighing 5 tolas, 25 pairs of clothes and other articles. Petitioner had hardly lived for a period of about one week with respondent Mushtaq Ahmed at Mirpur Mathelo when she came to know that her husband was a man of bad character, supplier of women and he used to supply his sisters to various persons and so many strangers used to visit his house. According to her she was also compelled by respondent No. 3 to lead immoral life and on her refusal she was being maltreated and her life was made miserable. According to petitioner's case on 20th January, 1994 her husband brought strangers in the house andcompelled the petitioner to allow one of the strangers to have sexual intercourse with her. On such refusal he gave severe beating to her and thereafter took her and left her at the house of her father's sister at Mirpur Mathelo. Thereafter, the petitioner came to the house of her parents at Sukkur and filed suit for dissolution of marriage on the ground ofKhula in February, 1994.
Respondent No. 3 Mushtaq Ahmed denied petitioner's allegations in his statement filed before the Family Court. He stated therein that petitioner's father Nizamuddin had accepted an amount of Rs. 50,000 from him out of which he gave two tolas of gold ornaments and 5 pairs of clothes to the petitioner in marriage and misappropriated the remaining amount and that dowery articles were also taken away by petitioner alongwith her parents and one Ghulam Kadir at the time she left the house in his absence.Respondent pleaded that he is a technical man having Diploma of Associate Engineer in Electrical Technology and is serving as Sub-Engineer at Gudu Thermal Power Station, Kashmore and is drawing pay of Rs. 5,200 and is a respectable person of the locality. According to him petitioner had also taken away 8-1/2 tolas of golden ornaments, ten pairs of clothes and Rs. 40,000 in cash while leaving the house in his absence. In further pleas respondent claimed to reserve right to initiate civil and criminal proceedings against petitioner, her father and her mother and so-called uncle Ghulam Kadir for the recovery of the articles and cash Rs. 40,000. The respondent also asserted his right to recover Rs. 50,000 from petitioner's father taken from him at the time of marriage. On the pleadings of the parties trial Court framed 8 issues, including Issue No. 6 on the point of Khula.
The petitioner examined herself and her father Nizamuddin while respondent examined himself, Khan Muhammad and Barkat All before the Family Court. The trial Court after discussing the evidence in detail dismissed the suit of petitioner opining that she had miserably failed to prove her case and is not entitled to Khula. Appellate Court too dismissed the petitioner's appeal and confirmed the findings of the lower Court.
Mr. Shaikh Abdul Kadir counsel for the petitioner and Mr. Parya Ram Waswani for respondent No. 3 advanced their arguments at length before me. Petitioner's counsel contended that both Courts below have not appreciated properly the evidence led by the petitioner and that the judgments are based on non-appreciation and misreading of the evidence which has resulted in miscarriage of justice.
According to the petitioner's counsel she had developed hatred against the respondent and it is impossible for her to live within the limits of God. The counsel states that the petitioner had clearly stated in her plaint and the statement that the respondent is a man of bad character and is a pimp, supplier of women and also used to supply his sisters to various persons and so many strangers used to visit his house. It is mentioned by her that her husband used to compel her to lead immoral life and on her refusal he used to maltreat her and on 20.1.1994 he brought strangers in his house and compelled her to have sexual intercourse with one of the strangers. Her counsel pointed out that she has stated all these things specifically in her deposition and this piece of evidence has gone unchallenged. She plainly refused to go back to the defendant and further urged that the petitioner and her father have categorically deposed that petitioner was expelled by respondent and was left at the house of her father's sister at Mirpur Mathelo from where she came to the house of her parents at Sukkur. Her father also supported the version of the petitioner before Family Court stating that thepetitioner had told him about the respondent's character and his being pimp. Mr. Shaikh submitted that the respondent has failed to advance any evidence in rebuttal to the version of petitioner and has miserably failed to prove that any dowery articles including cash of Rs. 40,000 were taken away by petitioner, her father and uncle Ghulam Kadir. According to the counsel the conciliation between the spouses failed at pre-trial as well as post-trial stage before the Family Court and also before the Appellate Court when on 20.9.1995 Additional District Judge called the petitioner and tried to bring conciliation in-between the parties but the petitioner refused to join the company of respondent No. 3 at any cost.
The right to ask for Khula by a woman has been ordained in the Holy Quran and man and woman have been kept at equal footing in respect of divorce against each other. Petitioner's counsel, therefore, lastly urged that since the serious allegations in the form of evidence have been put forth by petitioner and her father against respondent which have created hatred in petitioner's mind against respondent and it will not be possible for them to live together within the limits of God. So, petitioner's claim for dissolving her marriage on Khula is proved.
In support of his submissions petitioner's counsel has referred to the following cases:-
 i)    Muhammad Aslam v. Mst. Razia Sultana PLD 1959 Lah.287. (ii)   Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169. (iii) Ghulam Mustafa v. Judge, Family Court and another 1991 CLC 2082.
(iv) Mst. Nasreen Bibi v. Atta Muhammad PLD 1994 Lah. 276. (v)   Muhammad Anwar v. Nusrat Bibi NLR1994 Civil 615.

Mr. Parya Ram counsel for respondent Mushtaq Ahmed assailed the evidence of petitioner and her father Nizamuddin stating that petitioner has failed to prove her case on the ground including that ofKhula, so the Courts below have rightly appreciated the evidence in refusing to dissolve marriage. He contended that the petitioner is not entitled to claim Khula as a matter of right without satisfying the Court that the relations between the spouses were so strained that they could not live within the limits prescribed by God. Here the Courts below, on the evidence before them, are satisfied that she has failed to prove intense dislike or fixed aversion to live within the limits prescribed by Allah. In support he cited Aali v. Additional District Judge-I, Quetta and another 1986 CLC 27 and requested to dismiss the petition.
The contention of the learned counsel for petitioner is well-founded. It is well-settled that if on the basis of material on the record for circumstances prevailing in the case the conscience of Court is satisfied that it will not be possible for the spouses to live together as a faithful union within the limits prescribed by God, they should be separated on the ground ofKhula. In the present case petitioner has proved her aversion raised in the plaint that respondent (her husband) is man of bad character, supplier of women and used to supply his unmarried sisters to the strangers and that he compelled her to lead an immoral life, and on 20.1.1994 she was compelled by him to have sexual intercourse with one of the strangers and on refusal she was given severe beating and then she was left at the house of her father's sister at Mirpur Mathelo. Not only this but she categorically stated in her evidence that she has developed hatred and dislike in her heart against respondent and it is impossible for her to live with him as wife within limits prescribed by God and she is prepared to relinquish dower amount of Rs. 1,00,000 and other benefits. Respondent Mushtaq Ahmed has failed to shatter this piece of evidence though the petitioner has been sufficiently cross-examined*by respondent's counsel. P.W. Nizamuddin petitioner's father has confirmed that respondent used to bring strangers in his house and compelled petitioner to lead immoral life and on her refusal she was left at his sister's house at Mirpur Mathelo. The Court will have to consider their evidence whether the rift between the parties is of such a serious nature that the spouses will not observe the limits of God if allowed to remain together and on such a positive conclusion, it is left with no discretion but to grant dissolution of marriage. Islam prefers divorce to adultery and if a wife owing to her aversion, hatred and dislike with the husband intends to get a divorce, she may obtain a decree of dissolution by giving up her dower and other benefits and such a decree is called Khula. In the present case it is admitted at the trial by the parties that the dower was fixed at Rs. 1,00,000 which was not paid to the petitioner as yet. Moreover, nothing more has been proved regarding the other benefits being obtained by petitioner from marriage. In the present case the parties, though educated, could not pull on together amicably right from the beginning. They separated within one month of their marriage and since then they are living separately for more than one year and could not reconcile. The petitioner's statement that her husband is a pimp and compelled her to lead immoral life supported by her father is not an ordinary thing to be ignored which has been discarded by the two Courts below without valid reasons. This sort of maligning is sufficient to come to a conclusion that petitioner has developed a fixed aversion of hatred and dislike in her heart against her husband and is sufficient reason to attract the conscience of the Court to conclude that the reunion will not be faithful.
In case of Muhammad Aslam v. Mst. Razia Sultana and others PLD 1995 Lah. 2987 it has been held that even if wife omits to demand Khula, can be granted decree forKhula if the conditions exist that in a case a decree for dissolution of marriage is not granted it will give birth to a hateful union and the parties will not observe the limits prescribed by God. In case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169 Supreme Court has held the Court is entitled to form the opinion as regards Khulaafter taking into consideration all the factors including how the parties had conducted themselves during the trial of the suit. In case of Ghulam Mustafa v. Judge, Family Court and another 1991 CLC 2082 marriage has been dissolved on the ground of Khula where on the basis of material and circumstances in case conscience of Court was satisfied that it would not be possible for the parties to live together as husband and wife within the limits prescribed by Allah. In case Mst. Nasreen Bibi v. Atta MuhammadPLD 1994 Lah. 276 Khula has been allowed and it is observed that wife is not supposed to give a logical, objective and sufficient reason for claiming Khula. Wife would be entitled toKhula in case fixed aversion is proved. In this authority cases of Mst. Bilqis Fatima v. Nqjam-ul-Ikram Qureshi PLD 1959 Lah. 566, Muhammad Akram v. Mst. Yasmin and another 1983 CLC 3098 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 are discussed and relied upon. Same view has been held in the case of Muhammad Anwar v. NusratBibi NLR1994 Civil 615.
The judgment relied upon by learned counsel for respondent Mushtaq Ahmed proceeded on distinct facts and grounds. The facts of cited case (Aali v. Additional District Judge-I, Quetta and another, 1986 CLC 27) are that although Nikah was performed but Rukhsati had not taken place and spouses had never lived as husband and wife.
For the foregoing discussion this writ petition is allowed. The mpugned judgments and decrees of the Courts below are declared to be null and void and without lawful authority and of ho legal effect and the petitioner's suit for dissolution of marriage on the ground of Khula is decreed. Since the petitioner has relinquished the right of dower which isadmittedly not paid to her and the other benefits being not proved, the question of return of benefits to the respondent does not arise. Parties areleft to bear their own costs. (M.Y.F.K.)                               Petition accepted.

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