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Petitioner: MUMTAZ ALI VS Respondent: Dr. GULNAZ and anothers
Court Name: Sindh High Court Judge(s): Zahid Kurban Alavi Title: MUMTAZ ALI vs Dr. GULNAZ and anothers Case No.: Constitutional Petition No,51 of 1999 Date of Judgment:1999-11-04 Reported As: 2000 YLR 1258 Result: Petition dismissed
JUDGMENT
JUDGMENT ' This is a petition filed under Article 199 of Constitution of Islamic Republic of Pakistan. In this petition the petitioner has challenged the judgment, dated 6-2-1999 and decree, dated 9-2-1999 passed by the 4th Extra Joint and Family Judge Hyderabad in Family Suit No, 13 of 1997. In this Family Suit the trial Judge has decreed the plaintiff/respondent No,1 suit for dissolution of marriage on the ground of Khulah. ' Briefly the facts giving rise to this petition are that respondent No,1/Plaintiff was married with the petitioner on 20-7-1984 against a prompt dower of Rs, 151 which claimed to be unpaid. It is the case of the plaintiff that at the time of marriage her parents had given dowery articles worth Rs,2,50,000 including golden ornaments and other household articles which were lying in the house of the petitioner. Out of the said wedlock two sons were born. It is stated by the Plaintiff that she used to reside with her in-laws but the petitioner never maintained her properly and regularly. However, on occasions the petitioner used to send the plaintiff some money through draft as the petitioner was serving in U.A.E. Since 1987 and used to visit occasionally. The plaintiff claims that at the time of birth of his elder son he sent some money to meet maternity expenses. The petitioner had also remitted some money on occasion of Eid. It is maintained by the plaintiff that she is a doctor of Grade-18 and out of her income maintaining herself and her two children. It is further the case of the plaintiff that due to the treatment and behaviour of the petitioner being cruel and harsh against her, she developed aversion and hatred for the petitioner. The plaintiff is even ready to forgo her dower amount and maintenance. On the above facts the plaintiff filed suit for dissolution of her marriage by way of Khula.
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' The petitioner through his father and attorney filed written statement wherein he generally denied the allegations leveled against him. It is contended by the petitioner that as per schedule he sent money to the plaintiff on various occasions. ' It is further maintained by the petitioner that the plaintiff left his house alongwith children for celebrating Eid-ulFitar. He maintained that the plaintiff and her children were fully lookedafter by his father during his absence, and that he has been sending huge amount for their maintenance. It is claimed by the petitioner that the plaintiff had been operating various Bank accounts as joint account as well as personal account, and she had been withdrawing these amounts and utilizing the same for her maintenance and maintenance of her children. It is further contended by the petitioner that he has been taking the plaintiff to U.A.E. And again where she had purchased lot of items for her own choice. He felt that she had no grounds for, seeking a divorce. ' Out of the above pleadings the trial Court settled the following issues: (i) Whether the plaintiff was treated with cruelty by the defendant? (ii) Whether the plaintiff was properly maintained by the defendant? (iii) Whether the plaintiff is entitled for grant of Khula? (iv) What should the decree be? ' In support of her case the plaintiff examained herself and one Iftikhar Hussain and closed her side. While the Petitioner examined himself and produced vouchers, bank receipts and also examined one Abdul Aleem who is bank officer of M.C.B., Abdul Razzak, Bank Officer from H.B.L. Hadayatllah, Asst. Manager of U.B.L., Muhammad Bashir, his father and Muneer Ahmed an Officer of H.B.L. And closed his side. On the assessm ent of the evidence the learned trial Court decreed the suit of the plaintiff as stated above. ' I have heard the learned counsel for the petitioner as well as for respondent No,1 and have also gone through the entire record available before me. ' It is contended by the learned counsel for the petitioner that the trial Court has misread the evidence of the parties on various points. He has further contended that while granting Khula the trial Court has ignored the aspect of Islamic Law according to which Khula is not absolute right of wife but a controlled one. He has maintained that the plaintiff has failed to prove aversion to the petitioner and Khula is not to be allowed frequently on mere asking of the wife unless Court is satisfied. ' The learned counsel for the respondent No,1 has supported the impugned judgment and decree passed by the trial Court. ' It is pertinent to note that the plaintiff examined herself on oath and she had given justification for grant of Khula in her statement. The learned counsel for the petitioner has not been able to cross- examine her on any vital point and the evidence of the plaintiff goes unrebutted. Since the plaintiff has developed aversion and hatred for the petitioner' and she is not ready to live with the petitioner, it is not possible for the Court to compel her to live with the petitioner. Even otherwise, in Islamic state women have rights to obtain Khula in case she is maltreated by the husband. The allegations levelled by the plaintiff against the petitioner were not controverted by the petitioner at all. In the case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169, the following proposition has been laid down: "As regards the third submission of the learned counsel for the petitioner that dissolution of marriage by Khula cannot stand whilst an inquiry on facts with regard to the terms on which it is to be granted is yet to take place, it appears plausible but is not quite sound. It was held in the case of Moonshee Buzul-ul-Raheem v. Luteefutoon Nisa (3 Moore's Ind. Appl. 379) that non-payment of stipulated consideration for Khula does not invalidate the dissolution of marriage by Khula. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God then the dissolution of marriage by Khula must take place. The inquiry into the terms on which such
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dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself." ' He has basically been aggrieved with the decision of the trial Court and has filed this Constitutional petition against it. His objections of the decree have been highlighted in paragraphs 3, 5 and 7 of the grounds to petition, which seem to show that woman cannot claim Khula as a right and it should not be given easily given. He has further contended that they should not be allowed a blank authority for seeking divorce. According to the counsel the trial Court has not considered all the evidence that was brought on record and has not appreciated that the petitioner has spent a huge amount on his wife during their married life. ' The expenses on the amount spent are to perhaps convey the impression that the neglect of the wife was not there. Perhaps the petitioner is under the impression that amount spent on the spouse would be enough justification for him to claim that the plea of Khula by his wife was unwarranted. ' I have gone through the judgment pronounced by the 4th Extra Joint Civil Judge and Family Judge Hyderabad and pleased to observe that it is a very detailed judgment. He has gone through all the aspect (factual and legal) whereafter he has given the decision. ' It would be worthwhile to look at in detail the concept of Khula under the Muslim Family Law Ordinance, 1961 and also the Dissolution of Muslim Marriages Act, 1939. ' Under the Mohammadan law there are three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce. (1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mohammaden Law 1 viz., talak ahsan, which consists of a single pronouncement of divorce, during tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; or talak ahsan, which consists of three pronouncements made during the successive tuhrs, no intercourse taking place between three tuhrs; and lastly talak-ul-bidaat or talak-e-badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentence signifying a clear intention to divorce the wife, for instance the husband saying 1 divorce thee irrevocably' or I divorce thee, I divorce thee, I divorce thee'. The third form referred to above is, however, not recognized by the Shiah law. ' A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorce should come to know of the fact that she has been divorced by her husband. (2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquia either or part the dower This mode of divorce is called khula o mubarat. This form of divorce initiated by the wife and comes into existence if the husband give consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat. The gist of these modes is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage. Wherein it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to by the husband. In such a case the wife can repudiated herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband. This mode of divorce is called 'tafweez'). (3) By obtaining a decree from a civil Court for dissolution of marriage under section 2 of the Act of 1939, which also amounts to a divorce (under the law) obtained by the wife.
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' In this case the respondent No,1 has sought annulment of her marriage with the petitioner by exercising her right under the law. Since she has claimed Khula, it would be worthwhile to examine the basic meaning of Khula and how it came about. ' Kholla. In its primitive sense, means to draw off or dig up. In law it signifies an agreement entered into for the purpose of dissolving a connubial connexion, in lieu of compensation paid by the wife to her husband out of her property. This is the definition of it in the Jama Ramooz. ' Whenever an enmity takes place between husband and wife and they both apprehend that the ends of marriage are not likely to be answered by a continuance of their union, the woman need not scruple to release herself from the power of her husband, by offering such a compensation as may induce him to liberate her, because the word of God says, "No crime is imputed to the wife or her husband respecting the matter in lieu of which she hath released herself"; that is to say, there is no crime in the husband's accepting such compensation, nor in the wife's giving it. ' Which occasions a single irreversible divorce And where the compensation is thus offered and accepted, a single divorce irreversible takes place, in virtue of Khoola and the woman is answerable for the amount of it, because the Prophet (p.b.u.h.) has said that Khoola effects an irreversible divorce; and also, because the word Khoola bears the sense of divorce whence it is that it is classed with the 'implied expressions of it, and from an implied divorce a divorce irreversible takes place:--- but intention is not essential to Khoola, because by the mention of a compensation, the act is made independent of it;--- and also, because it is not to be imagined that the woman, would relinquish any part of her property but with a view to her own safety and ease, which is not to be obtained but by a total separation. What is now advance proceeds upon a suppose on of the aversion being on the part of the wife, and not on that of the husband; but if it be on the part of the husband, it would be abominable in him to take anything from her because the sacred tex days: "If ye be desirous of changing (that is, repudiating one wife and marrying another), Take not from her any thing;"-- and also because a man, by divorcing his wife from such a desire of change, involves her in distress; and it behoves him not to increase that distress by taking her property. If, moreover the aversion be on the husband to take from her more than what he had given or settled upon her namely, her dower. (According to the Jama Sagheer, if the husband take from her more than the dower, it is strictly legal, as the text of the Koran already quoted is expressed generally, but the former opinion is founded on a tradition of the Prophet, (p.b.u.h.) to whom a woman having mentioned her hatred of her husband, he advised her to give up her dower, as compensation, to induce the husband to divorce her, to which she replied, "will give that and more but the Prophet (p.b.u.h.) answered" not more" and here the aversion was on the part of the woman). But yet if the husband should take more than the dower, it is approved in point of law and so also, if he were to take any compensation, where the aversion is on his part, because the sacred text, goes to establish two points, one, the lawfulness of Khoola in a judicial view, and the other, its admissibility between the parties and God Almighty, now from the tradition which has been recited, appears that where the aversion is on the part of the wife, a Khoola for more than the dower is disapproved and, on the other hand, the text before quoted shows that if the aversion be on the part of the husband, he should not take anything, and consequently not more than the dower a fortiori, wherefore the ground of admissibility is abandoned, on account of the contradiction between the tradition and the text, and practice is established upon the other remaining ground, namely the lawfulness of Khoola in a judicial view. ' The compensation for Khoola may consist of anything which is lawful in dower. Whatever is capable of being accepted as a dower, is also capable of being accepted as a compensation for Khoola since whatever is capable of being a proper return for that which is appreciable (namely) the woman's person at the time of its coming into propriety, must, in a superior degree, be capable
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of being a compensation for a thing not appreciable (namely, the woman's person at the time of the destruction of propriety). ' If a woman say to her husband, "Grant me Khoola for what is in my hand, and he agree, and it should afterwards appear that she had nothing in her hands divorce, takes place, but nothing remains incumbent upon the woman, as she has not deceived her husband, by any specific mention of property, but if she were to say "grant me Khoola for the property in my hand, and he agree accordingly, and it should appear that she had nothing in her hand, she must in this case return to him her dower, because she has deceived him by a specification of property which did not exist and hence he does not appear to consent to a relinquishment of the connubial propriety without a return, and the woman cannot be legally bound to give the thing specified, or its value, as its kind or species is unknown, neither can she he laid under any legal obligation to render the estimated value of her person that is, her proper dower, because in the circumstance of the destruction of the connubial propriety, that is not appreciable; it is therefore fixed that I here remain incumbent upon her whatever the husband may have given in lieu of his attainment of the propriety, in order that thus the may be shielded from injury. If, moveover a woman say to her husband, "grant me Khoola for the Dirms in my hand, and he agree and it afterwards appear that she had nothing in her hand, he has a claim upon her for three Dirms, the proofs are here taken from the Arabic. ' If a man say to his wife, "you are divorced upon payment of one thousand Dirms, and she agree, divorce takes place upon her, and the husband has .a claim upon her for the thousand Dirms, in the same manner as where a man says, "you are divorced for a thousand Dirms, and the wife consents, in which case divorce takes place, and one thousand Dirms are incumbent upon her but it is to be observed that in both cases the woman's assent is a condition, because the words of the husband, "you are divorced for one thousand Dirms, mean, "you are under divorce in return for one thousand Dirms, due from you to me," and his words, "you are divorced upon payment of one thousand Dirms, mean "you are under divorce on condition that one thousand Dirms be due from you to me," and the return cannot be made incumbent upon her without her assent, moreover a circumstance suspended upon a condition cannot take place until the condition he previously fulfilled, wherefore the effect in this case depends upon her agreeing to what is proposed. And here the divorce is irreversible, for the reason already stated. ' If a man say to his wife," you are divorced, and there is against you a thousand Dirms, and she consent, or, if a man say, to his slave, "you arc free and there is against you a thousand Dirms, "and the slave assent, the slave is free, and divorce takes place upon the wife, but nothing remains incumbent upon either, according to Haneefa the rule is also the same if they were not to assent. The two disciples say that the sum specified is incumbent upon them where they assent, but that, if they do not assent, neither divorce nor emancipation take place, for they argue that the latter part of the husband's address is such as is used in bargains of exchange; and a contract of Khoola, or of Kitabat, being a contract of exchange, is therefore to be considered as such as in hire, for instance, where if a man say to another, "carry, this burthen, and there is a Dirms, for you, it is the same as if he were to say, carry this burthen for a Drim. To this Haneefa replies that the latter part of the sentence has a separate and detached sense, and therefore is not be connected with the preceding part, unless there be something to show that it is so but here nothing exists to evince such connexion, because divorce and manumission are frequently produced without any substantial return contrary to cases of sale, or of hire, as neither of these arc to be conceived without a substantial compensation. ' A mutual discharge leaves each party without any claim upon the other. A Mobarat, or mutual discharge Signified by a man saying this wife, "1 am discharged from the marriage between you and me," and her consenting to it), is the same as Khoola, that is to say, in consequence of the
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declaration of both, every claim which each had upon the other drops, so far as those claims are connected with their marriage. This is the doctrine of Haneefa. Muhammad says that nothing is done away by either expect what is particularly mentioned by both the husband and the wife. Aboo Yousaf unites with Muhammad as to the Khoola, but with Haneefa as to the mutual discharge. The argument of Muhammad is that mutual discharge and Khoola are contracts of exchange in which the circumstances specifically stipulated are also regarded, and not those which are not stipulated. The argument of Aboo Yousaf is that the word Mobarat, from its grammatical form bears a reciprocal sense, and therefore requires that the discharge be equally established on both sides; and this is general; yet the discharge is in this case restricted to those rights connected with marriage, as the design proves it to be so; but Khoola only requires that the woman be freed from the restraint of her husband; and as that is obtained by the dissolution of the marriage, it does not require that all its effects be terminated. The argument of Haneefa is that Khoola bears the sense of separation, and that is general, the same as a mutual discharge, and consequently marriage is thereby terminated, together with all its rights and effects, the same as by a mutual discharge. ' Wife is not entitled to claim right of Khula as a matter of right without satisfying Court that relations between parties were so strained that they could not live within limits prescribed by God. ' The right of Khula' is not unconditional right, but this can be granted by a Court upon satisfying itself that there is such discard, hatred, intense dislike and incurable aversion on the part of the wife that it is impossible for the spouses to live together and perform their material obligations within the limits prescribed by God. ' Khula --Compensation -- Wife claiming Khula', was obliged to return articles or compensation in respect thereof, received by her from husband on account of marriage and also to refund. Cash amount received by her. ' Reference has been made to a well-known Ahadith pertaining to the wife of Sabet-bin-Qais-bin- Shams. According to the above Ahadith, Jameela came to Prophet (Peace be upon him) and said that she had no reason to reproach Sabet-bin-Qais-bin-Shams in respect of his morals or his faith but she disliked him. She further stated that having embraced Islam, she did not wish to commit infidelity. Thereupon, the Prophet (Peace be upon him) asked her whether she was prepared to return the garden (Abu Dawood has referred to two gardens and not one garden) given by her husband to her in dower, to which, she replied in the affirmative. Then, the Prophet (Peace be upon him) directed the husband to accept the garden and to give her divorce according to one version and as per another version, given by Bukhari, the Prophet (peace be upon him) had ordered separation upon return of the garden by the wife to her husband. There is also another Ahadith about Jameela's case, which is also in identical circumstances. Kaikaus, J. In his Judgment has referred to the case of a woman who sought divorce from her husband in Hazarat Umar's time. In order to test the seriousness of her demand, Hazarat Umar (r.a.) confined her in a dirty prison, but in spite of that she insisted upon !Chula'. The above instance during the time of Hazarat Umer (r.a.) is indicative of the fact that a woman cannot claim Khula' on whims or fanciful grounds. ' We are inclined to hold that the right of Khula' is not an unconditional right, but this can be . Granted by a Court upon satisfying. ' Para. 2619 From Fatwa-i-kazee, 1977 Edition Volume II. "2619, (1719). So, also if a man marries a woman for a thousand dirhems and has no sexual intercourse with her and his wife does not realise any portion of her dower, so that the husband makes Khoola with the wife for (a definite and certain amount, that is for MaalI-moeyan or) a thousand Dirhems (without saying that the Khoola is in consideration of the dower) Aboo Haneefa, on whom be peace, says, that the wife shall be bound to pay a thousand (to the husband on account of the consideration for the Khoola') and she shall not be entitled to realize anything (from
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the husband on account of her dower). And Aboo Yusoof and Muhammad, on whom be peace, have said that the wife shall pay five hundred to the husband (in cash as a net result) and the other' five hundred Dirhems (being part of the consideration for the Khoola) shall be set off in the five hundred due to the wife on account of dower." ' A wife claiming Khula is obliged to return the articles or compensation in respect thereof, received by her from her husband on account of the marriage and also to refund the cash amount received by her but there is no legal obligation to pay compensation in addition to the above items. ' A Muslim marriage is dissolved when difference of opinion between spouses may amount to cruelty. Contention that dispute between husband and wife regarding payment of fee to medical attendant on birth of a child can, by no stretch of imagination amount to cruelty Repelled Held; (i) It can be appreciated that if on any affair relating to their matrimonial life husband does not, in good faith, approve of a proposal made by his wife, it cannot be treated as an act of cruelty but if he made it a habit to disagree with her on each and every matter, without any rhyme or reason, and his conduct in this behalf is motivated by a desire to make her life miserable it would certainly amount to cruelty on his part - (ii) As for solitary incident of so-called difference of opinion in present…
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